Secretary of State (Entrance Clearance Officer) v Mostafa & Ors, R (on the application of)

Immigration Rules (HC 395 as amended) are administrative policy statements, not delegated legislation. They are construed objectively according to their natural and ordinary meaning, with general statutory-construction principles applied flexibly and with regard to their purpose and scheme. The Representative of an Overseas Business route requires a senior employee to possess the skills, experience and knowledge necessary not merely to establish a UK branch, but to supervise it once established and generate trading income. In that context, supervise is functionally equivalent to run. An Entry Clearance Officer may assess those requirements through relevant interview questions and must refuse an application if paragraph 8.2 is not met. Consideration of paragraph 5.2 is unnecessary, though it may provide an additional basis for refusal.

The first respondent, a Bangladeshi citizen, applied for entry clearance as a Representative of an Overseas Business. Her husband and children made dependent applications. The Entry Clearance Officer refused the applications under paragraphs 5.2 and 8.2 after an interview, relying on her answers about the proposed UK branch, its budget, location, products and market.

The Upper Tribunal (Immigration and Asylum Chamber), in a determination promulgated on 3 September 2024, granted judicial review and quashed the decision. It held that the Rules required skills and knowledge of the overseas business only, did not require the applicant to run the UK branch, and that the interview and reasons were flawed. The Secretary of State appealed. The central issue was whether the ECO had misconstrued and unlawfully applied the Rules.

Lady Justice Elisabeth Laing gave the leading judgment, with Lord Justice Cobb and Lord Justice Newey agreeing. The Court of Appeal allowed the appeal.

1. The court confirmed that the Immigration Rules (HC 395 as amended) are not delegated legislation. Following Odelola v Secretary of State for the Home Department [2009] UKHL 25; [2009] 1 WLR 1230, and Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48, they are construed objectively according to the natural and ordinary meaning of their words, without the strictness applicable to statutes or statutory instruments. General principles of statutory construction, including purposive construction informed by statutory purpose and scheme, also apply. The relevant transaction must be viewed realistically and in the round, as explained in R (Wang) v Secretary of State for the Home Department [2023] UKSC 21; [2023] 1 WLR 2125.
2. The Appendix had to be construed as a whole. Paragraphs 4.3, 4.4(a) and 8.6, together with the fact that the route leads to settlement, showed that the role was full-time and extended beyond establishing a branch. It included supervising the branch after establishment and taking tangible steps to generate trading income.
3. In this context, supervise was functionally equivalent, and for practical purposes synonymous, with run. The distinction was that supervision described a senior employee acting for the overseas business, whereas an entrepreneur ran their own business. The ECO therefore did not err in using the word run.
4. The interview questions were relevant to whether the respondent had the skills, experience and knowledge necessary to establish and supervise a UK branch. The reference to an entrepreneur at the end of the interview was a contextual slip. Given the respondent’s seniority and the applicable English-language requirement, the ECO was entitled to take her answer about the relative location of the UK, Germany and France at face value and treat it as evidence that paragraph 8.2 was not met. Paragraph 10.1 then required refusal without more. It was unnecessary to decide paragraph 5.2, although the ECO was also entitled, if necessary, to rely on that provision.

• Court of Appeal (Civil Division) — Allowed the appeal, holding that the Entry Clearance Officer had not misconstrued the Immigration Rules and that the decision was open on the facts: [2025] EWCA Civ 1398.
• Upper Tribunal (Immigration and Asylum Chamber) — Granted judicial review and quashed the Entry Clearance Officer’s decision in a determination promulgated on 3 September 2024.