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

In an ECAA business application, credibility is context-sensitive. It may concern genuine intentions or the plausibility and viability of the proposed business. A viability-based refusal does not, without more, engage the interview-related fairness principle applicable where an applicant is suspected of bad faith. Decision-makers must nevertheless engage with relevant evidence actually submitted. It is irrational to disregard detailed evidence identified by the applicant, rely on a superficial alternative search, and reject the whole proposal because of an erroneous assessment of one customer where the evidence shows wider demand. An administrative review must not mischaracterise a correction of the original decision as new evidence. The appeal was allowed and the application remitted for reconsideration.

The appellant, a Turkish national, applied for leave to remain under the European Community Association Agreement to establish a mobile barbering business. The Secretary of State refused the application, principally because the evidence was said not to demonstrate sufficient experience or a realistic prospect of success, including because public transport between Glossop and one potential customer in Marple was considered impractical.

The Upper Tribunal Immigration and Asylum Chamber dismissed the appellant’s judicial review claim. The Court of Appeal granted permission on three grounds: whether fairness required an interview because of concerns about credibility or genuineness; whether relevant evidence about qualifications and experience had been considered; and whether the assessment of the business’s viability was irrational.

The appeal was allowed. Lord Justice Baker gave the judgment, with the Master of the Rolls and Lord Justice Stuart-Smith agreeing. The Secretary of State was directed to reconsider the application.

1. The assessment under paragraph 21 of HC510, Statement of Immigration Rules for Control after Entry is an evaluative assessment of the proposed business. The guidance uses credibility in two senses. In the phrase credibility of evidence it concerns believability or genuineness. In the phrase credibility of the business proposal it concerns plausibility, viability or feasibility.
2. The refusal did not find that the appellant lacked a genuine intention to establish the business or was acting in bad faith. The references to verification and credibility therefore concerned the viability of the proposal. The interview-related fairness guidance in R (Karagul) v SSHD [2019] EWHC 3208 (Admin) was not engaged, and the first ground failed.
3. The absence of an express reference to qualifications, training and experience did not establish that the evidence had been ignored. The Upper Tribunal was entitled to conclude that the decision-makers were aware of and had considered it. The second ground therefore failed.
4. The third ground succeeded. The business plan contained a link to detailed public transport information, including timetables and fares. The caseworker overlooked that evidence, relied instead on a superficial search of another website, and wrongly stated that no relevant information had been provided. The administrative review compounded the error by treating the appellant’s challenge to the travel information as new evidence.
5. It was also irrational to reject the whole application on the basis of one potential customer where the evidence concerning four customers was intended to demonstrate broad demand, particularly when the perceived problem with one customer resulted from an erroneous analysis. These errors undermined the original decision, the administrative review and the Upper Tribunal’s assessment. The application was remitted for a fresh decision.

• Court of Appeal (Civil Division): allowed the appeal and directed the Secretary of State to reconsider the application.
• Upper Tribunal Immigration and Asylum Chamber: Upper Tribunal Judge Norton-Taylor dismissed the judicial review application after a hearing in November 2022.