Private Life Arguments in the UK’s Points Based System

Since its introduction approximately 10 years ago, the UK’s Points Based System (PBS) for immigration has sought to achieve clarity, consistency as well as remove elements of decision-making discretion.
 
Discretion and a lack of prescription as to specified documents were seen as components which contributed to a lack of certainty, and consistency and would not inspire public confidence in relation a major framework of UK immigration law.
 
Within this framework, it became harder for legal practitioners, on behalf of applicants, to plead human rights grounds or even conventional public law grounds as to fairness both substantive and procedural. A so-called ‘near miss’ in relation to any application under the PBS is no different from a complete miss. In some cases, the PBS’ pedantic nature as well as the lack of discretion produced some tough results on unfortunate applicants.
 
Since then, there have been developments in relation to the notion of ‘Evidential Flexibility’ which dealt with the approach that decision-makers at UK Visas and Immigration (UKVI) should take where the substantive criteria of the Immigration Rules could be met but where there were shortfalls in the prescribed documentary evidence.
 
Recently, however, in the case of Onwuje v Secretary of State for the Home Department [2018] EWCA Civ 331, the Court of Appeal addressed the issue of ‘private life’ under Article 8 of the European Convention of Human Rights (ECHR) and its interrelation with the Tie 1 (Entrepreneur) route of the PBS.
 
The Tier 1 (Entrepreneur) route is an important category within the UK’s immigration law system which attracts investments from non-EEA nationals to invest, generally, a sum of at least £200,000 into a new or existing UK business. The policy aims of this route is to create employment, typically, for at least two employees (British citizens, settled persons or EEA nationals) as well as to inject competition and nurture entrepreneurial ideas into the UK market.
 
Mr Onwuje, a Nigerian national, entered the UK in 2008 as a student. He eventually made an application for leave as a Tier 1 (Entrepreneur) on the basis that Mr Onwuje had established a successful employment agency supplying staff to care homes and the NHS. The application was refused because “specified documents” as required by Part 6A of the Immigration Rules had not been provided.
 
Mr Onwuje appealed the decision (although statutory appeal rights have since been severely restricted on PBS applications) and was successful in the Immigration and Asylum Chamber of the First-tier Tribunal. The Secretary of State obtained permission to appeal to the Upper Tribunal and persuaded the Upper Tribunal to remake the decision against Mr Onwuje.
 
On that basis, the matter came before the Court of Appeal. The Court of Appeal was quite critical of the original decision of the First-tier Tribunal and took exception to the sentence used by the Judge of the First-tier Tribunal that “the focus of this appeal regards the difference between formalism and substance” and the inference that Points Based System is needlessly pedantic.
 
The Court of Appeal also noted the Tribunal Judge’s remark that “it is the routine argument of the Respondent that there is a need for an effective immigration system”. The Court of Appeal noted;
The need for an effective immigration system is not a mere “routine argument”. It is a matter of obvious importance, now reinforced by the provision of section 117B (1) of the 2002 Act [which states that “the maintenance of effective immigration controls is in the public interest”].
 
For legal practitioners advising applicants and businesses, the consequences of this judicial approach is that one’s inability (either substantively or evidentially or both) to meet the requirements of the Immigration Rules is decisive. It is largely irrelevant whether the business is doing well or employing lots of employees or providing a vital service or has introduced an innovative product beneficial to the public etc.
 
The Court of Appeal, however, did provide a glimmer of hope for applicants by indicating that there may be cases where, irrespective of non-compliance with the Immigration Rules, a private life within the meaning of Article 8 of the ECHR may have been developed which is relevant to the question of whether leave outside the Rules should be granted.
 
Underhill LJ noted that “an entrepreneur’s ownership of, and involvement in, his or her business may also be regarded as an aspect of their private life for the purpose of Article 8”, which echoed the longstanding position in Niemietz v Germany (application no. 13710/88).
 
The Court of Appeal also indicated that work is an important part of a person’s “physical and social identity”, as described in Pretty v United Kingdom (application no. 2346/02).
 
In this particular case, the Court of Appeal did not find in favour of Mr Onwuje noting that there was no evidence that he had invested the £200,000 into a business which is the principal criterion (irrespective of the fact that he had operated his business).
 
The Court held that: “First, the Secretary of State has established, under Part 6A of the Immigration Rules, an elaborate series of criteria under which non-British nationals may be entitled to leave to enter or remain by reason of their involvement in a business; those criteria include the ability to demonstrate that they can invest the specified level of funds. Absent compelling circumstances, it would be wrong to grant leave to remain to an applicant on the basis of his involvement in a business when he is unable to meet those criteria. The FTT appears to have thought that this was not a consideration of much weight because the Appellant's failure was only "formal". But, as I have pointed out at para. 8 above, there is no basis for that finding: there is no reliable evidence that the Appellant had £200,000 available for investment in accordance with the Rules.”
 
It is possible that, had the sum of £200,000 been invested, but there was some other evidential deficiency perhaps relating to the company accounts or documentation regarding job creation, the result could have been very different so as to put forward a better argument that there are compelling circumstances for a grant of leave outside the Rules.
 
The Court of Appeal’s decision serves as a reminder to practitioners to provide robust advice and make a thorough assessment from the outset as to whether an applicant meets the substantive and evidential demands of the Immigration Rules because non-compliance with the Rules now means that arguments based on Article 8 will be assessed from the much stricter prism ushered in by the Immigration Act 2014 and the notion of “compelling circumstances”.
 
Biography
Fadi Farhat is the Head of Appeals and Public Law at Gulbenkian Andonian Solicitors. He has been involved in legal practice since the age of 19 and has, to date, handled thousands of cases in the field of immigration, human rights, asylum, nationality and public law. He undertakes his own advocacy and has represented appellants across hundreds of hearings in the Immigration and Asylum Chambers of the First-tier Tribunal and Upper Tribunal as well as the County Court and Employment Tribunal. He is a Legal 500 recommended lawyer and has been described as ‘very professional’, ‘can think on his toes’ and ‘has an excellent way of preparing cases’
 
Contact details
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