Immigration Law Update: R (on the application of Sabir & Others) & Anor v The Secretary of State for the Home Department [2015]

Read the judgment here.

This was a JR of the SSHD’s decision to refuse the Cs leave to remain as Tier 1 (Entrepreneur) Migrants under the Points-Based System.

In respect of ground (3) the Court reiterated that the discretion in paragraph 245AA of the Immigration Rules only arises in relation to formal, not substantive defects (Akhter and another (paragraph 245AA: wrong format) [2014] UKUT 297 (IAC)).

With regard to grounds (1) and (2) the Court held that the power in section 3 of the Immigration Act 1971 to impose conditions governing immigration control is very wide, but that an Immigration Rule would be condemned for being unreasonable if the conditions were outside the rational ambit of the purpose of the power, partial in their operation or Wednesbury unreasonable (see Kruse v Johnson [1898] 2 QB 91, Manshoora Begum [1986] Imm AR 385, O’Connor v Chief Adjudication Officer [1999] 1 FLR 1200 and MM (Lebanon) [2014] EWCA Civ 985).

The Court went on to conclude that the types of evidence specified in paragraph 41-SD(c)(iii) do not go beyond what the SSHD may legitimately require to show that a business is genuine and that the applicant is genuinely linked to it.

However, the Court accepted the Claimants’ argument that the absolute requirement in paragraph 41-SD(c)(iv) that the client business must have a landline telephone which must appear in the contract in order for it to count as proof of genuine trading, was a rule that was partial between those who contract with a business which has a landline, and those who contract with a business which has only a mobile telephone or where the landline details can be supplied but are not included in the contract itself. There was no rational justification for this distinction.

But to have the decision quashed the Claimants had needed to succeed on both grounds (1) and (2): application dismissed.

 


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