Tagaeva Baarinsa & Anor, R (on the application of) v Secretary of State for the Home Department

Eligibility under Appendix ROB 8.6(a) depends on what the applicant established, not merely on ownership when the application was made. The applicant must establish a UK-based registered branch or wholly-owned subsidiary of the overseas business. An existing UK company, separately owned at incorporation and later transferred to the overseas business, does not satisfy that requirement.

A decision-maker need not cite every paragraph of the Immigration Rules if the substantive requirements are applied accurately and sufficient reasons are given. The Secretary of State may assess genuineness, supervision and the purpose for which the business was established.

The first applicant entered the United Kingdom as the representative of an overseas business, intending to establish and operate a UK branch or wholly-owned subsidiary. She incorporated a UK company while holding all its shares, later transferred the shares to the overseas business, and applied for further leave under Appendix ROB.

The Secretary of State refused the application, relying on Appendix ROB 8.6 and concerns about genuineness, supervision and the second applicant’s role. An administrative review upheld the refusal. Permission to seek judicial review was granted on one ground. The central issues were when the wholly-owned requirement arose and whether the refusal was irrational or otherwise unlawful.

1. The claim was dismissed. Appendix ROB 8.6(a) required the applicant to have established a wholly-owned subsidiary of the overseas business. At incorporation, the UK company was wholly owned by the first applicant, not by the overseas business. It was therefore a separately-owned company later transferred to the overseas business, rather than a wholly-owned subsidiary established by the applicant.
2. The Tribunal applied the ordinary and natural meaning of the Immigration Rules, construed in their administrative and policy context, following Mahad v Entry Clearance Officer [2009] UKSC 16 and the approach stated in Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230.
3. The distinction between establishing a registered branch and establishing a wholly-owned subsidiary, together with the documentary requirements for each route, supported a temporal requirement operating at establishment. The previous entry-clearance regime also required the applicant to seek entry for the purpose of establishing and operating a wholly-owned subsidiary, supporting continuity between the entity established for entry and the entity relied upon for further leave.
4. There was no public-law requirement to cite the precise paragraph relied upon, provided the substantive rule was applied accurately and sufficient reasons were given. The references to a non-genuine business and to a business established to facilitate entry clearance sufficiently engaged the substance of ROB 5.1 and 5.2.
5. Alternatively, the Secretary of State was entitled to conclude that the business was not genuine and had been established to facilitate entry clearance. The second applicant owned the overseas business, had been a director of the UK company, was named on most business documents and appeared to have a substantial role in the UK company. The Secretary of State was entitled to assess the overall documentary picture. Minor errors concerning individual invoices or utility bills did not make the decision irrational.

• Upper Tribunal (Immigration and Asylum Chamber): the claim for judicial review was dismissed. Permission had initially been refused on the papers, but was later granted on ground 2 only.