Ahmad Zarrin Ghadam, R (on the application of) v Secretary Of State For The Home Department

In a points-based immigration scheme, prescribed documentary and scoring requirements may be necessary without being sufficient. Where the applicable Rules require assessment of the genuineness of a business, the decision-maker must apply that assessment and must recognise any discretion to consider relevant factors. A failure to consider whether that discretion should be exercised is a public law error. Where further enquiries are permitted, the decision may be set aside if no reasonable decision-maker with the available material could regard the enquiries as sufficient. An interview does not cure procedural unfairness caused by the decision-maker’s own transcription error, where the applicant was not told the resulting concern. Under section 31(2A) of the Senior Courts Act 1981, relief must be refused only where it is highly likely that the outcome would not have been substantially different.

The applicant challenged the refusal of his application to renew Tier 1 (Entrepreneur) leave to remain and the respondent’s decision maintaining that refusal on administrative review. The respondent accepted that the applicant had made the required investment, registered as a director and created the claimed jobs, but awarded no points for business activity after questioning the genuineness of his business. The challenge concerned the construction and application of Paragraph 245DD and Appendix A, the adequacy of further enquiries, procedural fairness, perversity and the materiality of the public law errors under section 31(2A) of the Senior Courts Act 1981.

1. Grounds 1 and 2 succeeded. The respondent had added a misleading gloss by treating engagement in business activity at the date of application as a separate points-scoring requirement. Table 5 and Paragraph 48 of Appendix A contained prescriptive and necessary criteria, but compliance with them was not sufficient. The respondent had to apply Paragraph 245DD, including the genuineness assessment in sub-paragraph (k), read with sub-paragraphs (l) to (n).
2. The respondent’s decisions did not show that it had considered whether to exercise the discretion under Paragraph 245DD(l) to consider relevant matters, including the source of investment, financial accounts and job creation. The error was not merely a decision to give those matters little or no weight. It was a failure to consider their possible relevance and the existence of the discretion. The related assessment from R v Nottingham City Council ex parte Costello was useful: the court should ask whether any reasonable decision-maker with the available material could regard its enquiries as sufficient.
3. Ground 3 succeeded in part. Procedural fairness was fact- and context-specific in a points-based system. The interview did not cure the unfairness caused by the respondent’s misrecording of the website address and subsequent reliance on that error. The applicant had no fair opportunity to address the resulting concerns. The website reasoning was also perverse to that extent, although concern about the similarity of the companies’ names was not itself impermissible.
4. Section 31(2A) did not require relief to be refused. The statutory test is a duty where its criteria are met, subject to exceptional public interest, but the respondent had not shown that it was highly likely that the outcome would not have been substantially different. The issue was fact-sensitive, and reaching that conclusion would have required the Tribunal to assume the decision-maker’s role.
5. The applicant succeeded on grounds 1 and 2 and on ground 3 insofar as the decisions were procedurally unfair and partly perverse. The parties were invited to draw up the appropriate orders.

The judgment does not state that the claim was an appeal from an identified lower-court judgment. It concerned judicial review of the respondent’s refusal decision and administrative review decision.