Islam, R (on the application of) v Secretary of State for the Home Department

Under the Immigration Rules, advertising or marketing material need not itself show that it was published locally or nationally. It must be material that has in fact been so published and must show the applicant’s name, business name and business activity. Documents within one category may be considered cumulatively to cover the required period. Where documents cover the correct period and omit only one required item of information, they remain specified documents for the purposes of evidential flexibility. The Secretary of State must then consider whether to request a correct document under paragraph 245AA(b)(iv), although the discretion to request it remains discretionary.

The appellant challenged the refusal of his application for further leave to remain as a Tier 1 (Entrepreneur) Migrant. The Upper Tribunal dismissed his judicial review claim, holding that his advertising and marketing documents did not meet the specified-document requirements and that the Secretary of State was not required to seek further evidence. The appeal concerned the construction of the relevant provisions of the Immigration Rules: whether the documents had to show local or national publication, whether several documents could be read together, and whether missing information fell within the evidential-flexibility provisions.

Appeal allowed. Lady Justice Rose gave the judgment, with Lord Justice Floyd and Sir Ernest Ryder agreeing. The Upper Tribunal’s decision was quashed and the application was remitted to the Secretary of State for reconsideration.

1. The phrase “advertising or marketing material that has been published locally or nationally” describes the required category of material. The documents do not themselves have to show, state or confirm that fact. In the case of leaflets and similar hand-out material, publication means distribution. The material must, however, show the applicant’s name, the business name and the business activity.
2. The reference to one or more documents permits an applicant to rely on several documents within the same category. The documents may, together or individually, cover the required period. “Continuously” refers to the continuity of the documentary coverage showing the business’s trading, rather than requiring one document to evidence the whole period.
3. The Upper Tribunal therefore erred in treating each item as needing independently to satisfy every requirement and in rejecting the brochures because they did not themselves evidence local or national publication.
4. The later online advertisements were specified documents covering the relevant period and containing the business name and activity, but omitted the applicant’s name. Applying the distinction in Mudiyanselage and others v The Secretary of State for the Home Department [2018] EWCA Civ 65, the omission was not so wholesale as to affect the documents’ fundamental character. They fell within paragraph 245AA(b)(iv), so the Secretary of State was required to consider whether to request a document containing the missing information.
5. Paragraph 245AA(c) could not be relied on merely because the evidence was imperfect or because the Secretary of State assumed that the applicant had supplied his best evidence. No genuine other ground of refusal had been identified. The court left open the precise number of documents needed to establish continuity and whether paragraph 245AA(b)(i) applied to any missing sequence.

1. Court of Appeal (Civil Division): allowed the appeal, quashed the Upper Tribunal’s decision and remitted the application for fresh consideration.
2. Upper Tribunal (Immigration and Asylum Chamber), Upper Tribunal Judge Kamara, judgment dated 16 November 2016 in JR/14899/2015: dismissed the judicial review claim.