Nadeem Ahmad Anjum, R (on the application of) v The Entry Clearance Officer, Islamabad

An immigration decision based on an interview may be procedurally unfair where the interviewer rigidly follows prepared questions and fails to clarify obscure, incomplete or apparently incoherent answers. This is particularly so where the written interview record is central to an adverse credibility assessment and is not read back or otherwise checked with the applicant.

Under paragraph 245D of the Immigration Rules, a Tier 1 Entrepreneur who already operates a business may use part of the prescribed £200,000 fund to acquire a second business where that acquisition develops and expands the existing enterprise. That is investment in the applicant’s business, rather than the prohibited purchase of the business for the previous owner’s benefit.

The applicant sought entry clearance as a Tier 1 (Entrepreneur) Migrant. The Entry Clearance Officer refused the application following an interview, and the Entry Clearance Manager upheld that refusal on administrative review.

The surviving basis for refusal was that £50,000 of the required £200,000 fund would be used impermissibly to acquire an existing eBay business. The applicant contended that the interview record was unreliable and that the proposed acquisition was part of the expansion of his existing online business.

Following the grant of permission to apply for judicial review, the Upper Tribunal determined whether the interview was procedurally fair and whether the proposal was compatible with paragraph 245D of the Immigration Rules.

1. The judicial review claim succeeded. The Tribunal quashed the refusal and administrative-review decisions. The respondent must remake them in accordance with the judgment and the requirements of procedural fairness.

2. The interview was procedurally unfair. The refusal depended on answers which, fairly read, were obscure, incomplete or capable of referring either to the existing business or to the proposed expanded business. Those answers required probing and clarification. The interviewer neither clarified them nor tested them against the business plan.

3. The procedure aggravated the risk of error. Questions and answers passed through an interpreter, the officer typed the English record as the interview proceeded, there was no audio recording, and the record was neither read back nor shown to the applicant for correction or amplification. The applicant was also discouraged from consulting his business plan. In those circumstances, the interview record could not lawfully supply the factual basis for the adverse assessment.

4. The Tribunal independently held that the respondent misconstrued and misapplied paragraph 245D of the Immigration Rules. The Rules must be construed sensibly, according to their natural and ordinary meaning and relevant context. The prohibition on buying the business from a previous owner does not prevent an applicant with an existing business from using part of the fund to acquire a second business in order to develop and expand the existing enterprise.

5. The applicant’s proposal was an investment in his own business or businesses. It did not involve the mischief of a nominal business application used to invest elsewhere, or chain sales of the same business between non-British owners. The respondent’s contrary conclusion was therefore unsustainable both factually and legally. The respondent was ordered to pay the applicant’s summarily assessed costs.

• Upper Tribunal (Immigration and Asylum Chamber): judicial review allowed. The Entry Clearance Officer’s refusal of 18 May 2015 and the Entry Clearance Manager’s administrative-review decision of 17 September 2015 were quashed.
• Permission stage: permission to apply for judicial review was initially refused on the papers, but granted after an oral hearing on 9 January 2017.