A year or so ago I was awash with Tier 1 Entrepreneur Migrant cases, both as a direct access immigration barrister and also by way of instructions from my solicitors. This has died down a little but I have had a couple of cases recently, the latest meeting with success, in the grant of permission, in the Upper Tribunal before Upper Tribunal Judge Jordan.
The facts of this case are troubling for the way the Secretary of State fights cases that in my view she should not be fighting. The Applicant in this case was part of a team application. His partner had also been refused. His partner and his application were refused on the basis that their jobs were not at the relevant NQF Level 4 or above. One was a Sales Manager and the other Managing Director. They sold cars. They were successful at selling cars. The Secretary of State considered that the selling of cars or rather their role in the selling was not a proper job.
The first Applicant had leave to remain when he applied and he had an appeal. I represented him at his appeal with the excellent Farani Javid Taylor and in particular Mr Zahab Jamali as the solicitor. The appeal succeeded on 9 February 2015 and on 15 February 2015 his partner was issued with his BRP.
The solicitors not unreasonably wrote to the GLD (or Tsol as they were) and drew this to the attention of the decision maker. The GLD conceded the first point but then sought to argue that the second ground of refusal was sound, i.e. that he did not have access to the relevant funds. It was said he had only submitted one bank statement instead of 5.
The G-CID file note was confusing. It said both that he had funds and also that he had only submitted one statement. There was clear ambiguity.
My solicitors had tried to avoid an unnecessary hearing. To no avail. The day before the hearing Counsel for the GLD provided a skeleton argument in which it was argued that search of the Home Office file had only shown up 1 bank statement.
I thought that this was clearly arguable and that there was no real evidence filed on the part of the GLD. I know that if I were to make submission as to what was or was not on my solicitors file or what had or had not been submitted that Court would give me short shrift.
The hearing swung back and forth. What finally swung it my was that the assertion that the Home Office file could be relied upon could not be sustained given that the Home Office file had only retained some 10 pages of supporting evidence from a total of in excess of 100. This persuaded UTJ Jordan that the case was arguable and permission followed. What was particularly encouraging was that the UTJ was aware of the relevant threshold, i.e. arguability and also that having granted permission did not feel the need to give a judgment, echoing a discussion I have previously had with Collins J in this regard.
It was a good result, I hope that the Secretary of State does not pursue this case, not for any weakness within it but simply to save the clients the unnecessary expense and stress of further litigation and indeed to save the public purse for if this case proceeds to a full hearing and the Secretary of State loses the cost to the public purse is likely to be very high.
Paul Turner is a highly regarded direct access immigration barrister and is the head of Imperium Chambers, Grays Inn Buildings, Grays Inn, he also practises from Mansfield Chambers, the Chambers of Michael Mansfield QC, 5 Chancery Lane, London, WC2A 1LG and a door tenant at 39 Park Square Leeds LS1 2NU and is licensed by the Bar Council to provide advice and representation directly to the public.