Following the recent Court of Appeal decision in R (Sajjad) v SSHD  EWCA Civ 720, which demonstrated the lack of flexibility in the current Immigration Rules (“the Rules”) with respect to the requirements for Tier 1 (Entrepreneur) Migrant status, the High Court has now also confirmed that the Rules should be interpreted strictly “to allow officials in the department to essentially ‘tick boxes’ in relation to any application and if a box cannot be ticked, for example because the required evidence has not been provided, then to reject the application”.
In the case of R (Khajuria) v SSHD  EWHC 1226, the Claimant applied for an extension of her leave to remain in the UK together with her husband and two children as a Tier 1 (Entrepreneur) Migrant and PBS dependants respectively. The Claimant operated a hospitality business in the UK, and for the purposes of her extension application relied on part-time employees who were paid less than £116 per week. As the employees’ salary was below a particular minimum threshold, the Claimant’s company was not required to register for PAYE and provide Real Time Information (“RTI”) to HMRC as confirmed by the PAYE and payroll guidance for employers.
However, the Rules state that a person applying for further leave to remain in the UK as a Tier 1 (Entrepreneur) Migrant must score 20 points for job creation (out of the 95 points required), by providing all specified documents listed in paragraph 50 of Appendix A, including “(a) printouts of Real Time Full Payment Submissions showing that the applicant complied with Pay As You Earn (PAYE) reporting requirements to HM Revenue & Customs in respect of each relevant settled worker as legally required, and has done so for the full period of employment used to claim points”.
Although the Claimant created the required jobs, the Home Office refused her extension application because she did not submit RTIs. The Claimant then issued Judicial Review proceedings against the Home Offices arguing that:
- The requirement of the Rules to submit RTIs was “partial and unequal” between applicants who operate businesses that are required to produce RTIs to the HMRC and those like her, which do not have to register for PAYE and provide RTIs. She argued that such a requirement was therefore unlawful; and
- In any event, if this requirement was not unlawful, the Home Office should have considered exercising discretion, especially after learning the reasons why the RTIs were not submitted.
The High Court dismissed the Claimant’s arguments and held that: “…although the rule operates in such a way that someone in the position of this Claimant cannot comply with it because she does not operate a PAYE system which involves submission of RTI, that does not make the rule invalid”. Furthermore, the court held that: “…there is no discretion to dispense with the evidential requirement to supply RTI information to an applicant within the rules”.
This decision yet again demonstrates that currently the courts support the Home Office’s ‘tick box’ approach to the consideration of Entrepreneur applications. With this visa route having been closed to new applicants as of 29 March 2019, the remaining entrepreneurs (who have until 6 April 2023 to apply for further leave to remain in the UK and until 6 April 2025 to apply for indefinite leave to remain) should make sure that any documents they provide to the Home Office with their applications meet all the requirements of the Immigration Rules, as no discretion will be exercised.
If you have any questions or queries with respect to the Entrepreneur category or in relation to the Home Office’s Immigration Rules, please do not hesitate to contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.