We successfully settled on Judicial Review proceedings outside of the Court after the Home Office conceded to reconsider the Tier 1 (Entrepreneur) visa extension.
Our client is an Indian national and lives in the UK with his family. He submitted a further leave to remain application under the Tier 1 route in May 2017. The Home Office refused the application in December 2017. In his refusal letter, the Home Office alleged that our client did not submit some specified documents, namely, unaudited accounts and accounts completion record.
However, it was clear that our client did submit the documents in question together with his application in May 2017. This could be seen in numerous documents listing the supporting evidence submitted together with the application. Our position was that the decision-maker misplaced the documents in question at the processing stage before it reached an allocated caseworker.
At the initial Pre-Action Conduct stage, the Home Office was adamant that the documents were not submitted. Therefore, the caseworker did not consider it necessary to use the evidential flexibility principle as per SH (Pakistan) v SSHD  EWCA Civ 426 in contacting our client to request the missing document. This principle, subsequently lead us to argue the decision-maker’s residual power to exercise his discretion.
If the grounds pleaded for Judicial Review application were a failure to exercise discretion and flexibility in assessing the evidence provided for consideration, another ground argued was on the common law of fairness.
Relying on Mudiyanselage v SSHD  EWCA Civ 65 (30 January 2018) we argued that failure to exercise discretion and flexibility was unfair in law, where other evidence in the possession of the Home Office clearly indicated that the documents in question were submitted in May 2017.
After the UTJ Perkins granting the permission to apply for Judicial Review, the Home Office reconsidered his position and agreed to withdraw his decision. The Judge granted the permission on the common law of fairgrounds and stated:
Arguably it should have been apparent that the accounts did exist and that the Applicant’s representatives believed that they have been disclosed. Perhaps they were carelessly omitted. Perhaps they were lost by the Respondent.
With instructions of his client, the Government Legal department negotiated the settlement terms. We have settled the Judicial Review claim a day before the substantive hearing where the Home Office agreed to reconsider the application attaching weight to the documents in question and restoring the section 3c leaves if the leave is subsequently granted as per Khan and Ors v SSHD  EWCA Civ 1684.
This result reflects the hard work and comprehensive approach of Navdeep K Gill and Nozima Rakhimjonova.
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