Safeer & Ors, R (On the Application Of) v Secretary of State for the Home Department

Where evidence is disputed in judicial review proceedings and there has been no cross-examination, the court ordinarily assumes that the facts stated in the defendant’s evidence are correct. The exception requires documents demonstrating that the defendant’s evidence cannot be correct.

The Immigration Rules are construed sensibly, according to their natural and ordinary meaning and in context. A points-based application requiring specified documents demands rigorous compliance. Evidence submitted by a former Tier 1 (Post-Study Work) Migrant must satisfy the specified documentary requirements and demonstrate continuous engagement in business activity throughout the prescribed period. Documents bearing only isolated dates do not establish continuity.

The appellant, a Pakistani national, applied with his wife and daughter for leave to remain under the Tier 1 entrepreneur route. The Secretary of State refused the application and maintained that decision on administrative review. The reasons included the absence of a Companies House Current Appointment Report and insufficient evidence of continuous business activity.

The Upper Tribunal refused permission to apply for judicial review and certified the claim as totally without merit. Permission to appeal was subsequently granted. The parties agreed that the Court of Appeal should determine the substantive application.

The issues were whether the Current Appointment Report had accompanied the application and whether the advertising and marketing material satisfied Appendix A, Table 4 and paragraph 41-SD(e)(iii)(1) of the Immigration Rules.

1. The appeal was dismissed. The Current Appointment Report had not accompanied the application, and the advertising material did not demonstrate continuous business activity throughout the relevant period. Holroyde LJ agreed with the judgment of Nicola Davies LJ.

2. Where evidence is disputed in judicial review proceedings and there has been no cross-examination, the facts stated in the defendant’s evidence must ordinarily be assumed to be correct. The exception identified in R (McVey and Others) v Secretary of State for Health [2010] EWHC 437 (Admin) applies where documents show that the defendant’s evidence cannot be correct. This is a high threshold.

   The appellant’s covering letter, application form, witness statement and the circumstances in which the documents were handled supported the possibility that the report had been submitted and then misplaced. They were not sufficiently compelling to demonstrate that the Secretary of State’s account could not be correct. Speculation about what might have happened could not displace the ordinary evidential rule.

3. The Immigration Rules are interpreted sensibly according to the natural and ordinary meaning of their words, recognising that they state administrative policy. They must also be capable of being understood by ordinary applicants, not merely specialist lawyers.

4. Paragraph 41-SD(e) had to be read in the context of Appendix A, Table 4. It was insufficient for documents merely to contain the applicant’s name, business activity and isolated dates. They also had to demonstrate that the applicant had been continuously engaged in business activity from before the specified date until the application.

   The website material bore dates in June 2014, while the separate domain record showed only the dates of creation, expiry and updating. Neither showed what business activity occurred between July 2014 and August 2015. The undated letterhead and business cards also failed to demonstrate activity during that period.

5. The specified-document regime required rigorous compliance. The necessary documents had either to be supplied and establish the required matters or the application could not succeed. The Secretary of State therefore properly found that the appellant had failed to provide evidence of continuous business activity.

1. Court of Appeal (Civil Division): The court determined the substantive judicial review application by agreement of the parties and dismissed the appeal, upholding the refusal of the Tier 1 entrepreneur application.

2. Upper Tribunal: UTJ Jordan refused permission to appeal on 22 July 2016.

3. Upper Tribunal: UTJ Jacobs refused permission to apply for judicial review on 27 June 2016 and certified the claim as totally without merit.

4. Administrative review: On 11 January 2016 the Secretary of State maintained the refusal of leave to remain.