Sabir & Ors, R (on the application of) & Anor v The Secretary of State for the Home Department

The Secretary of State has a wide discretion to prescribe evidential requirements for Tier 1 (Entrepreneur) applications. Such requirements are unlawful only where they fall outside the rational ambit of the statutory purpose, or operate in an arbitrary, partial or unfair way. Requirements linking an applicant to a genuine business through specified marketing material were rational and lawful. A requirement for contractual evidence to include a client’s landline telephone number would, however, have been irrational because it arbitrarily favoured businesses using landlines over otherwise comparable businesses using mobile telephones. The latter conclusion was obiter because failure to satisfy the marketing-material requirement independently defeated the claims.

The claimants, co-directors of Your Business Companion Limited, challenged refusals of their applications for further leave to remain as Tier 1 (Entrepreneur) Migrants. They argued that evidential requirements in Appendix A to the Immigration Rules were irrational. The disputed requirements concerned evidence linking each claimant to genuine business activity and contracts containing specified client contact details, including a landline telephone number. They also alleged that the Secretary of State had failed to exercise evidential flexibility under rule 245AA.

The court considered whether the requirements fell within the wide power conferred by section 3 of the Immigration Act 1971, and whether the refusals should be quashed.

1. Ground 3 dismissed. Rule 245AA applied to specified documents submitted in the wrong format. The alleged defects were substantive omissions of information required by the Rules, not formal defects capable of correction under the evidential-flexibility discretion. The reasoning in Akhter & Another (para 245AA: wrong format) [2014] UKUT 297 (IAC) was accepted.
2. Applicable rationality test. The power under section 3 of the Immigration Act 1971 was wide. An Immigration Rule could nevertheless be unlawful if its conditions fell outside the rational ambit of the statutory purpose, were partial in operation, or amounted to the recognised form of Wednesbury irrationality. The court would not substitute its own view about the appropriate level of capital or trading activity.
3. Evidence of genuine business. The purpose of Appendix A was to enable officials to determine whether an applicant was genuinely trading and genuinely linked to the business. The Secretary of State could select reasonable forms of evidence. Paragraph 41-SD(c)(iii) was rational because marketing material within an applicant’s control could reasonably be required to identify the business, its activity and the applicant’s connection with it. The material need not appear on a single website.
4. Contract details. The court considered that an absolute requirement for a client to have, and to include in the contract, a landline telephone number created an unjustified distinction. An otherwise comparable business using only a mobile telephone, despite having other ascertainable contact details, might be excluded. The requirement therefore appeared to go beyond what was reasonably necessary to verify genuine trading and was irrational.
5. The conclusion on the contract-details requirement was expressly obiter. The claimants had to succeed on both grounds, and failure on the genuine-business requirement meant that the refusals would stand in any event. The applications for judicial review were dismissed. Consequential matters were left to be dealt with in writing.