marcnath wrote: ↑
Thu Aug 22, 2019 7:34 am
It is impossible to comment without knowing exact details.
But if it is you state above , it seems to be an unreasonable refusal.
I am not going to predict chances. Wish you good luck
Hi i can paste my PAP file which can give you clue about my refusal points and also please check that how it prepared as i think we covered the whole points its a bit long but please check the whole
Re: Proposed Claim for Judicial Review against the Entry Clearance Officer (Pakistan) (hereinafter called ECO) decision dated 22 May 2019 for the Tier 1 (E ) extension application for Entry into the UK under PBS and Administrative Review decision dated 01 July 2019
Mr. xxxx DOB: xxxxx Nat: xxxxx
The Defendant : The Entry Clearance Officer (Pakistan)
Please refer to the above.
We have been instructed by the above named client to represent him in his immigration matter; a signed letter of authority is enclosed herewith for your kind consideration.
Brief Facts and Grounds
1. The Applicant entered in the UK as a Tier 4 Student on 10th January 2011 and his leave to enter was valid from 24th December 2010 until 29th October 2012. Subsequently, he was granted the Post Study Work visa which was valid from 09th August 2012 until 09th August 2014.
2. The Applicant made a further application for leave to remain in the UK as Tier 1 HS (E) and the leave was granted on 15th October 2015 until 15th October 2018.
3. The Applicant then made a Tier 1 HS (E) extension application from Islamabad, Pakistan on 15th October 2018 due to taking the treatment from Pakistan and he has fallow ups appointments with the orthopaedic Consultant in Pakistan.
4. The ECO refused the Applicant’s application for Entry Clearance into the United Kingdom under PBS of Immigration Rules on 06th December 2018 on basis of his interview conducted on 02nd November 2018 and 05th December 2018 and concluded that the Applicant was not a genuine entrepreneur.
5. The Applicant duly filed an application for the Administrative Review on 08th January 2019 against the ECO’s decision dated 05th December 2019. However, the Administrative Reviewer reviewed the ECO’s said decision on 30th January 2019 and he was satisfied that the ECO’s decision was incorrect and therefore, he overturned the original decision and sent the Applicant’s application to Sheffield Office for reconsideration.
6. The ECO refused again the Applicant’s application for Entry Clearance into the United Kingdom under PBS of Immigration Rules on 22 May 2019 on basis of his interview conducted on 04 April 2019.
7. The Applicant duly filed an application for Administrative Review against the ECO’s decision dated 22 May 2019. However, the Administrative Reviewer reviewed the ECO’s said decision on 30th January 2019. However, the ECO maintained his decision dated 06th May 2019 in his administrative Review
8. The Applicant submits that he has no further right of Administrative Review against impugned said decisions of ECO. Therefore, the only option left to him is to issue Judicial Review proceeding.
THE DETAILS OF THE MATTER BEING CHALLENGED
The Immigration Rules and Submission
Table 5: Extension applications as referred to in paragraph 37
Row Investment, business activity and job creation Points
1 The applicant has invested or has caused investment to be made by one or more third parties, totalling at least £200,000 (or £50,000 if they were awarded points for £50,000 funding or investment in their last grant of leave) in cash directly into one or more UK businesses.
The applicant does not need to provide evidence of this investment if they were awarded points under Table 5 in their last grant of entry clearance or leave to remain as a Tier 1 (Entrepreneur) Migrant. 20
2 The applicant has:
(a) registered with HM Revenue & Customs as self-employed, or
(b) registered with Companies House as a director of a UK company, or member of a UK partnership.
The applicant must have registered as above within 6 months of entering the UK (if they were most recently granted entry clearance and there is evidence to establish their date of entry) or, in any other case, within 6 months of the date on which the most recent leave was granted. 20
3 Within the three months before the date of application, the applicant was:
(a) registered with HM Revenue & Customs as self-employed, or
(b) registered with Companies House as a director of a UK company or member of a UK partnership. 15
4 The applicant has:
(a) established a new business or businesses that has or have created the equivalent of at least 2 new full time jobs for settled workers, or
(b) taken over or invested in an existing business or businesses and their services or investment have resulted in a net increase in the employment provided by the business or businesses for settled workers by creating the equivalent of at least 2 new full time jobs for settled workers.
The jobs must have existed for at least 12 months during the applicant’s most recent grant of leave as a Tier 1 (Entrepreneur) Migrant or, where that leave was granted less than 12 months ago, for at least the 12 months immediately before the date of application.
245DD. Requirements for leave to remain
(k) Where the applicant has, or was last granted, leave as a Tier 1 (Entrepreneur) Migrant and is being assessed under Table 5 of Appendix A, the Secretary of State must be satisfied that:
i) the applicant has established, taken over or become a director of one or more genuine businesses in the UK, and has genuinely operated that business or businesses while he had leave as a Tier 1 (Entrepreneur) Migrant; and
(ii) the applicant has genuinely invested the money referred to in Table 5 of Appendix A into one or more genuine businesses in the UK to be spent for the purpose of that business or businesses; and
(iii) the applicant genuinely intends to continue operating one or more businesses in the UK; and
(iv) the applicant does not intend to take employment in the United Kingdom other than under the terms of paragraph 245DE.
(n) If the Secretary of State is not satisfied with the genuineness of the application in relation to a points-scoring requirement in Appendix A, those points will not be awarded.
9. In the index application, The ECO accepts and is satisfied that the applicant is entitled to full 20 points for the investment of the money within last 12 months/ 24 months, 20 points for the Registered with the HMRC or as a director of Business with Company House, 20 points for creation of 2 full time jobs, 15 Points for the Registered as such within 3 months of application. The ECO also awarded 10 points for English language and 10 points for maintenance. However, the ECO refused the Applicant’s application on basis of interview on 04th April 2019.
10. The Applicant submits that he provided factual and relevant documentary evidence which confirmed that he has established lawful and genuine business in the UK, and he meets the requirement of 245DD of Immigration Rules. He scored 95 points as required under the Immigration Rules. He states that if he was not genuine entrepreneur then the ECO would not award to him 95 points under 245DD (n) of Immigration Rules.
11. The Applicant provided, inter alia, a letter from his accountants ( xxxxxx) dated 15th October 2018, Employees Wages Record Sheets attested by his accountant, the print out of Employers’ PAYE and National Insurance payments made to HMRC for the period of 12 months ,xxxxx Ltd.’s RTI Full Payment submissions from July 2016 to September 2018 to HMRC, xxxxxx Ltd’s P32 Employer’s Payments for years 2018-19, 2017-18 & 2016-17, P 11 Deduction Working Sheet, Employees’ Payslips, P60, P45 & contracts and other employers’ employment records. These documents are succinctly confirmed that he has created the equivalent of 2 full times jobs for more than 12 months and the company has paid wages of £44,278 from July 2016 to 30 September 2018. The Applicant has fully demonstrated that he has employed more than two full time UK settled persons for more than 12 months. The Applicant demonstrates that he has invested more than £50,000 into his UK business. Therefore, he meets the requirement of paragraph 245DB (k) (i) & (ii) of the Immigration Rules.
12. The Applicant states that he attended 3 three interviews in this application but there is no suggestion from the ECO that the Applicant has no intention to continue his business in the UK. Therefore, he also meets the requirement of paragraph 245DB (k) (iii) of the Immigration Rules. Further, he states that he explained in his previous (successful) Administrative Review and the ECO accepted that he did not take employment in the United Kingdom other than under the terms of paragraph 245DE. Therefore, he also meets the requirement of paragraph 245DB (k) (iv) of the Immigration Rules.
13. The Applicant submits that he has categorical mentioned in his cover letter dated 15th October 2018 that he met the requirement of 245DD of Immigration Rules. However, the ECO assessed and considered his application as initial Tier1 (E) application under 245DB of Immigration Rules. It is particularly notable that the impugned decision dated 22 May 2019 was considered under paragraph 245DB of the Immigration Rules. The ECO has now argued in the Admin Review dated 01 July 2019 that it was the typo error and now his application is refused under 245DD. The Applicant contends that the impugned decision was not typo error and the ECO addressed all the limbs of paragraph 245DB of the Immigration Rules in his refusal letter such as paragraph 245DB (k) (i) and (j). He further states that the Interviewer was confused when he conducted his interview on 05/12/2018 regarding his investment in the UK, please see Question-4 “
Interviewer- Yeah in Pakistan
No no in the UK
Interviewer- No no the business you are wanting to invest in the UK right?
No I already invested 50,000 in the UK I already invested in the UK.
Are you confused?
Interviewer- No I’m not confused just give me a moment.
14. The Applicant submits that he has explained in his interview dated 04/04/2019 in Question-6 that his company website was under construction and would be fixed within 2 weeks. The Applicant states that the ECO contention in Admin Review regarding the delay of update website is irrational even though he explained in his Admin Review grounds that he attracted clients through different sources other than the website.
15. The Applicant submits that he has given plausible explanation in 04/04/2019 in Question-9 and his Admin Review grounds. The ECO contented in Admin Review that the Applicant did not discuss the leafleting to advertise his business at the time of interview. The Applicant submits that the ECO failed to assess his 3 interviews transcripts as it was mentioned in his interview dated 02/11/2018 in Question-21 that he used the leaflet first time.
16. The Applicant submits that he explained in his previous interview’s transcripts such as in his interview dated 05/12/2018 in Question-9 and further his employees’ role of part time & full-time roles and their wages. He further clarifies in his Admin Review grounds that he was not never asked specifically by the ECO to explain in detail, the role of each employee. The ECO expectation regarding the role of employees is irrational. Failure to have regarded the above plausible explanation is irrational in Wednesbury sense.
17. The Applicant submits that he explained in his previous interview’s transcript dated 05/12/2018 in Question-7 that how he spent the money such as wages, petrol expenses, furniture and office equipment. He provided the expense invoices of office equipment from xxxxx and xxxxxxxxxx Ltd. He further explained his interview’s transcript dated 04/04/2019 in Question-10 that he put the 11 thousand pounds in his business. He states that the technology costs had increased, and he decided to run the business from home. The Admin Reviewer conclusion is irrational regarding the applicant given plausible explanation/evidence.
18. The Applicant submits that he explained in his interview dated 04/04/2019 in Question-13. He did not know about struck off his company and all his company accounts were dealing by the professional accountant. He states that his employee, Mr xxxxxxxx has provided struck off notice to his accountant but it was one day slight delay on behalf his accountant. The Applicant contends that the ECO conclusion is irrational regarding the slight delay.
19. The Applicant submits that the ECO stance in Admin Review that he was not satisfied that the Applicant was unable to remember £4000.00 worth of debt in his personal accounts is irrational because his interview held in April 2019 and £4000.00 transaction done in February 2018 nearly 14 months. He states that he paid the debt and has no impact/influence on his business. He has never been the default of any tax liabilities which he owed relating to his business.
20. The Applicant submits that he was not given a fair opportunity to respond to potentially adverse mattes. He is challenging the impugned decision under R (on the application of Anjum) v Entry Clearance Officer, Islamabad (entrepreneur – business expansion – fairness generally)  UKUT 00406 (IAC) and R (on the application of Mushtaq) v Secretary of State for the Home Department, Pakistan (ECO – procedural fairness)  UKUT 00224: para 16 states as follows;
At the outset of the interview the Applicant confirmed that the ECO was speaking audibly. The initial questions were evidently of the routine, pro-forma variety. Some of the ensuing questions were evidently prepared in advance. Others were plainly reactive to the Applicant’s replies. At the conclusion of the interview the questions and answers were not read to the Applicant. Nor was he given the opportunity of reading the document. He was not invited to comment upon, correct or amplify any of the responses recorded. Notably there was no attempt to explore or clarify the two manifestly incoherent responses (as recorded) noted above viz to questions 21 and 26. It is also clear that around the middle of the interview the Applicant was reproached by the ECO for “flicking through” a copy of his Business Plan and desisted as a result. This is suggestive of an approach which was unfriendly and an atmosphere of discomfort.
21. The Applicant submits that he expressly asked the ECO to exercise his residual discretion in his favour, but the ECO failed to comply with his obligation to exercising his discretion. This amount to public law error under in the Court of Appeal decision:- in Behary v Secretary of state for the Home Department  EWCA Civ 702 said (emphasis added):
“ In my view there was no obligation upon the Home Office to consider the grant of leave to remain outside the rules in [the appellant’s ] case. There is an obligation to consider such a grant when expressly asked to do so and, if but briefly, deal with any material relied upon by an applicant support. Outside cases were there has been a request there may exist, at least in theory, cases where the facts are so striking that it would be irrational in public law sense not to consider the grant of leave outside the rules or at least seek clarification from the applicant whether he seeks such leave. …”
22. The Applicant submits that he has been living in the UK lawfully since 10th January 2011 and he has established private life under article 8 of ECHR. The ECO’s decision compelling him not to enter in the UK to run his lawful business in the UK amount to breach his human right. It was held in the Court of Appeal’s judgment in R (Balajigari and Ors) v. SSHD  EWCA Civ 673,  WLR(D) 232 (see paras  and ) that it is for the Tribunal in an application for judicial review which relies upon article 8 ECHR to decide for itself a factual dispute where this is central to an article 8 ECHR challenge to a decision which ends leave to remain. As the Court of Appeal explained in Balajigari at :
“If such an article 8 challenge does proceed by way of judicial review in the UT, and the claimant's article 8 rights are found to have been engaged, the Tribunal will, as already noted, have to consider for itself whether the alleged dishonesty on the part of the claimant has been proved and whether removal is proportionate, which in most cases is likely to be determined by the question of dishonesty. It will not be confined, as would usually be the case and as in these proceedings thus far, to reviewing the facts only on the ground of irrationality. This is because, where a claim for judicial review includes a pleaded ground that the Secretary of State's decision either does or would violate article 8, that amounts to an allegation that there has been or will be unlawful conduct contrary to section 6 of the 1998 Act. That allegation has to be adjudicated by the tribunal on its merits: it is an argument based on illegality and not simply irrationality.”
This is, of course, mandated by a migrant’s entitlement to an effective remedy in respect of his article 8 ECHR rights: see R (Kiarie and Byndloss) v. SSHD  UKSC 42;  1 WLR 2380 at - (and the cases there cited); Ahsan and Ors  EWCA Civ 2009,  Imm AR 53 at - and -; R (Gudanaviciene) v. Director of Legal Aid Casework  EWCA Civ 1622 at ; Manchester CC v. Pinnock  UKSC 45,  2 AC 104 at  and , in particular [45b)]
23. It is submitted that the Applicant is disappointed by the SSHD’s flawed decision and request that it should be reviewed and remade in the light of above provided information in the best interest of justice. The SSHD had a discretion and there has no attempt to consider the exercise of discretion differently in the present case which amount to a clear public law error. It is held in the case law Ukus ( discretion: when reviewable )  UKUT 00307 (IAC).
DETAILS OF THE ACTION THAT THE DEFENDANT IS EXPECTED TO TAKE
ACTION ALREADY BEEN TAKEN
The Applicant has already submitted the relevant documents in support of his application for the perusal of the home office at the date of submission of application and Administrative Review.
THE DETAILS OF THE LEGAL ADVISERS, DEALING WITH THIS CLAIM
after that PAP result simply said that:
Details of the matter being challenged
You wrote to the Home Office on 26 July 2019, which we received on 29 July 2019, alleging that your client meets the requirements of Paragraph 245DB of the Immigration Rules.
You have asked for the following relief:
To reconsider your client’s decision dated 04 April 2019 and Administrative Review dated 06 May 2019 and grant entry clearance.
6. Response to the matters raised
i) The Secretary of State has reviewed his decision of 04 April 2019 and Administrative Review dated 06 May 2019 in light of the representations raised in your Pre-Action protocol letter dated 26 July 2019 and is satisfied that the decision is in accordance with the law.
Ground 1: You allege that your client meets the requirements of Paragraph 245DB of the Immigration Rules.
ii) The Secretary of State is satisfied that your client has been correctly awarded points for their application as a Tier 1 Entrepreneur.
iii) As part of the decision-making process your client attended interviews on 02 November 2018, 05 December 2018 and on 04 April 2019 in connection with their application as a Tier 1 Entrepreneur. You client was asked a series of questions in connection with their business in the United Kingdom to establish the viability and credibility of their business plans, market research into their chosen business sector as required by paragraphs 245DB, Table 5 of Appendix A, as well as the other evidence your client submitted with their application.
iv) The questions your client was asked in their interview afforded your client the opportunity to demonstrate their knowledge of their business, marketing, staff and how they were investing their monies as an Entrepreneur in the United Kingdom. In addition, answering any queries or concerns that the Entry Clearance Officer had in relation to the genuineness of your client’s business. As well as assessing the information your client provided with their application. Your client confirmed at the end of each interview that they were happy with the way the interview had been conducted.
v) The Administrative Review team agreed to reconsider your client’s application at the Administrative Review stage and the decision to refuse your client’s application was refused.
vi) The Secretary of State is satisfied that your client has not demonstrated that they are genuine entrepreneurs, as the answers your client gave in their interview and the documents that your client
ICD.4816 3 of 3
submitted in relation to their application were vague and lacked sufficient detail.
vii) The Secretary of State is satisfied that the decision to maintain your client’s refusal decision was correct, and a reconsideration of a refusal decision does not automatically mean that the decision of your client’s application will be overturned and will be granted entry clearance.
viii) Consequently, the decision to refuse is maintained.
7. Details of any other interested parties
8. Address for service of court documents
In light of the above, the Pre- Action Protocol is now considered to be concluded.
However, if you wish to proceed to Judicial Review, the service address for Judicial Reviews issued in the Upper Tribunal is:
Litigation Allocation Unit, 6 New Square, Bedfont Lakes, Feltham, Middlesex, TW14 8HA.
Please note Judicial Reviews issued in the Administrative Court should continue to be served on the Government Legal Department.
From 6 April 2016, immigration applications may be refused if the applicant owes a litigation debt to the Home Office. We wish to remind you that failure to pay any costs awarded against you by the court or tribunal should you proceed with litigation in this case may affect the success of any future immigration application that you make.
The service address for Judicial Reviews issued in the Administrative Court is:
Government Legal Department, One Kemble Street, London WC2B 4TS.
Appeals, Litigation and Subject Access Request Directorate
On behalf of the Secretary of State for the Home Department