Lei Zhang, R (on the application of) v The Secretary of State for the Home Department

An applicant cannot judicially review an initial entry-clearance refusal where an available administrative review provides a full reconsideration and has been used. The later adverse result does not make that remedy unsuitable.

Under Immigration Rules paragraph 245DB, an Entry Clearance Officer may assess immigration history and previous United Kingdom activity when deciding whether an entrepreneur applicant genuinely intends to establish and invest in a business. The assessment is made in the round. The fact that the same history may be relevant to general grounds of refusal does not prevent its consideration under paragraph 245DB.

The applicant sought entry clearance as a Tier 1 (Entrepreneur). An Entry Clearance Officer refused the application under paragraph 245DB(f) of the Immigration Rules. Following an administrative review, an Entry Clearance Manager maintained that refusal.

In judicial review proceedings, the applicant challenged both decisions. She contended that the review decision should have addressed paragraphs 320(7B) and 320(11), and that it had unlawfully treated her immigration history as relevant to the genuine-intention assessment under paragraph 245DB.

The central issues were whether the initial refusal could be challenged despite the administrative review, and whether the review decision had lawfully applied the Rules.

1. The judicial review application was dismissed. The challenge to the original Entry Clearance Officer decision failed because the applicant had an adequate alternative remedy: administrative review. That process involved a full reconsideration of the application, and its adverse outcome did not render it unsuitable.

2. Paragraph 320(7B) was inapplicable. On the applicant’s own chronology, she had voluntarily left the United Kingdom more than 12 months before the initial decision. The Entry Clearance Manager therefore had no rational need to give reasons for not applying that provision.

3. Neither decision-maker had relied on paragraph 320(11). Its non-application benefited the applicant, since the provision permits but does not require refusal where its conditions are met. The failure to mention it, or associated guidance, was not unlawful.

4. Paragraph 245DB(g)(v) expressly permitted consideration of immigration history and previous activity in the United Kingdom when assessing the genuine-intention requirements in paragraph 245DB(f). The Rules did not exclude facts which might also bear on Part 9. Those circumstances were relevant to whether the applicant genuinely intended to establish a business and invest in it, and were rationally weighed as part of the overall factual matrix.

5. The review decision gave clear and sufficient reasons. A decision-maker need not explain every feature of the evidence, provided relevant matters are considered and the unsuccessful applicant can understand why the application failed.

Upper Tribunal (Immigration and Asylum Chamber): First-instance judicial review proceedings. The tribunal dismissed the challenge to the Entry Clearance Officer’s refusal and to the subsequent administrative-review decision.