New guidance from the Upper Tribunal on Entrepreneur Applications.

A new decision from the Upper Tribunal has been issued, dealing with a specific requirement of the Tier 1 Entrepreneur Route. Historically there have been numerous situations in which quite ambiguous rules or questionable Home Office interpretations of those rules have required clarification by the Upper Tribunal. One of the worrying consequences of the new Immigration Bill is that by removing a right to appeal we will lose the often useful function of clarification on complex and unwieldy rules that the Upper Tribunal has provided.

The new case is known as Shebl (Entrepreneur: proof of contracts) [2014] UKUT 00216 (IAC).  It is extremely short and simply rejects as 'inconceivable' that the rules could require that entrepreneurs (who are switching using the PSW requirments) have a single 'contract' document. The Vice President Mr Ockelton rightly points out that contracts are often not written down explicitly and it is often a 'meeting of minds' that constitutes a contract. (Consensus in idem under Scots Law if my fuzzy memory of contract law is right!). It was perfectly acceptable for the tribunal to accept credible, detailed evidence of ongoing trading reflecting a contractual relationship, rather than stipulate solely a quaint written document entitled 'CONTRACT' as the only acceptable means of proof.

A sensible and helpful judgement. What is revealing is that the original refusal was on 13 May 2013; so a year of uncertainty and legal costs before this was resolved. Unfortunately ambiguous or just plain stupid rules are all too common. The Home Office has pursued "predictability at the expense of flexibility", but in its desire to prescribe absolutely every minute detail the system has becoming almost unworkable.

The advent of the new Immigration Bill will mean that in future disputes about the rules such as this will be a matter for  higher courts by way of judicial review. By removing the right of appeal for many types of case we will lose the Upper Tribunal's specialist assistance to interpret the morass of immigration rules. Even a cursory look at the number of Upper Tribunal judgements on rules interpretation in the past few years suggests this will be a serious loss, and not just for applicants. The chance to have a review of the efficacy of rules by an independent body was surely good for the drafters as well?