As a direct access immigration barrister I have dealt with many Tier 1 E visa applications, appeals and JRs. I have won a fair number and have sadly had problems with others.
The issue which determines the case is the credibility of the Appellants.
This usually turns upon what they want to put into the appeal. Bearing in mind that they are supposed to show at least £50,000 or £200,000 I have had numerous potential clients that plead poverty and try to get the work done for no or little money.This makes me highly suspicious as to whether they are genuine, especially where Indefinite Leave to Remain is at stake.
Win your ILR appeal and a year later you can qualify for British Citizenship. I would have thought this would be a massive incentive to throw everything at the appeal.
I have three cases where this has happened. The first was where the Applicant was running a computer repair and design business. The Home Office refused his case with no appeal on the basis he was only a shopkeeper and therefore not at the relevant NQF Level 4. I put it to the Judge that on this basis Steve Jobs would not be entitled to a visa nor would Bill Gates. Permission was granted and recently I arranged the visa for his wife to join him as a dependent.
The second was where the Secretary of State did not believe that the Applicants were genuine car dealers. Again, I pointed out that on this reasoning the directors behind Cargiant (a firm in London with over 5,000 cars) would also not qualify notwithstanding that most of their cars are within 2 – 3 years of age and in excess of £10,000. The appeal succeeded.
However what impressed me to write this blog was a Tier 1 E couple that came to me having invested £50,000 after passing the Post Study Work visa. They had been running a business for 3 years or so. They had already had 1 appeal which had cost them dear and were facing a second. What impressed me was that they were not prepared to let the matter go. They continued to have several additional conferences with me, and without prompting offered payment, this told me that they were both serious about their case and expected and were willing to pay for top rate representation. We modelled the appeal. We discussed evidence. I advised as to the evidence. They advised me as to their difficulties and over the space of 6 months we prepared for the appeal.
Often these cases are thrown out, or so I am told or see from determinations, due to a. a lack of evidence and b. dodgy answers given. In this case there were two Appellants. This is usually determinative of the appeal, if there are two then they have the opportunity of showing that they are telling the truth – equally I have seen one partner completely destroy the other.
However, in this case, despite the business not having a great turnover, less than £15,000 one year and just over £20,000 the next, they were able to answer all the questions put honestly and with conviction. They also had evidence to show that they had been telling the truth, in one example the Secretary of State had suggested that one of their clients did not exist, this was rather funny as I personally have used this company for my own services.
What was particularly rewarding was that the decision was given within 5 days of the appeal.
I was extremely happy for my clients, they had shown their faith in me and had not tried do the appeal on the cheap, on the contrary they were content to spend whatever it took, which in reality cost them a few hundred pounds extra, however, it illustrated to me, that this was both a genuine business and an appeal they wanted to win.
Ultimately, while I would like to claim all the credit for preparation and representation it was the way in which they conducted themselves in Court, perhaps this had something to do with the 4 or 5 hours we had spent working together solely on the appeal or not.At one stage I would see them almost weekly.
The moral, if there is one, is that you cannot be too prepared. In this case we were able to address the potential concerns that would be likely raised by the Home Office and dispose of them. I would urge anyone who is facing a Tier 1 application, appeal or Admin Review or JR to get in touch as soon as possible. In this case given the wealth of evidence produced by the Applicants we were able to show a going concern, while the Judge ought not really be troubled with post decision evidence, it is hard for a Judge to close his mind as to what is going on now. I have had appeals prepared by solicitors where they have stuck to the letter of the law and only submitted material as at date of the decision only for the Judge to ask “where is proof they are trading now?” Not strictly relevant and a ground of appeal, however this costs money and also time and uncertainty, better avoid it if it can be done.
I would urge anyone at any stage of the Tier 1 process to get in touch as soon as possible. The earlier you contact me the sooner I can, if I can, help, equally if I cannot help then I will be able to advise on any other possible solutions, a prime example being the previous MK India post. I had a client who had been really unlucky and who the Court of Appeal had refused his application come to me upon receipt of the decision and within the 14 day time limit to make a new application, I was able to during the course of his conference identify that he had a child and was Indian. The irony was that he qualifies, in my view under MK India, on the basis of the unregistered child. The only reason why the child was not registered? His passport had been with the Home Office for the last 4 years during the course of his application and appeal!
Paul Turner is an experienced and highly regarded direct access immigration barrister also licensed to practice litigation and has a team of 4 to help make any problem appear its true size. He is the head of Imperium Chambers, a boutique, possibly the first, set designed to help direct clients who do not want a solicitor and who want direct access with a barrister who was called in 1998 and has been practising immigration since 1999. I am also a member of the excellent set of Tony Metzer QC, Goldsmith Chambers, based in the Temple. He can be contacted on 0207 242 3488.