Interview failures lead to refusal of application for representative of an overseas business

The Home Secretary has won an appeal in a case involving an application under Appendix Representative of an Overseas Business. The Court of Appeal concluded that the Entry Clearance Officer had been entitled to find that there were reasonable grounds to believe either that the branch was being established, or the respondent appointed as the representative, mainly to facilitate her application to come to the UK. The case is Secretary of State (Entry Clearance Officer) v R (Mostafa & Ors) [2025] EWCA Civ 1398.

The first respondent applied for entry clearance on 27 March 2022 as a representative of an overseas business. The other respondents are her husband and children who were dependents on her application. She was interviewed on 20 October 2022.

The application was refused, the decision maker referred to the interview and said that some answers had been incorrect and the respondent had been unable to provide basic information about the plans for the business in the UK. The decision maker said that the answers supported the position that the respondent did “not have the required skill or knowledge of this business to be able to open and run a new branch in the UK”.

The respondents applied for administrative review of the refusal, arguing that there had been a caseworking error and that paragraph ROB8.2 does not require an applicant to show that they can open and run a branch in the UK. The paragraph states:

The applicant must be a senior employee of the overseas business with the skills, experience and knowledge of the business necessary to undertake the role, with full authority to negotiate and take operational decisions on behalf of the overseas business.

It was also argued that there had been an unfair process because the respondent “had not been given an opportunity to comment on potentially adverse matters and the interview questions had not been flexible enough to include follow-up questions which would have enabled the applicant to explain or clarify her answers”.

The refusal was maintained, with the Home Secretary satisfied that the rules and guidance had been properly applied. The respondents then sought judicial review and the Upper Tribunal granted the application, quashing the refusal decision. The tribunal held that the reliance on paragraph 8.2 was flawed and found that there was “substantial doubt as to whether the ECO understood the important matter of the immigration rule he/she was applying and thus in reaching a rational decision on relevant grounds”.

In the Court of Appeal the Home Secretary relied on the meaning of the scheme as set out in Appendix Representative of an Overseas Business overall, and it was submitted that the meaning of the relevant paragraphs was clear in that context. It was said that “The applicant was expected to open and supervise the branch over the initial period of leave, which could be up to three years. This was a contextual indicator, in particular as the appendix provides a route to settlement.”

Given this context, the Home Secretary said that there was no unfairness in the procedure followed. The Court of Appeal accepted these submissions and held that the Upper Tribunal had been wrong to allow the appeal.