On 1 March the Court of Appeal looked at Article 8 of the European Convention on Human Rights in the context of a Tier 1 (Entrepreneur) appeal. Although the appeal was dismissed, the court confirmed that running a business may amount to private life for the purposes of Article 8. The case is Onwuje v Secretary of State for the Home Department [2018] EWCA Civ 331.

“The difference between formalism and substance”

The facts of the case are quite simple. Mr Onwuye, a Nigerian national, entered the UK in 2008 as a student. His wife joined him in 2010 as his dependant. The couple have three children, the eldest born in 2011.

Mr Onwuye successfully applied for extensions of leave until he was eventually refused in 2013. He appealed against the refusal, but the appeal was later withdrawn and an application for leave as a Tier 1 (Entrepreneur) was submitted instead, on the basis that Mr Onwuye had established a successful employment agency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 were not provided.

An appeal against the decision was successful at the First-tier Tribunal but the Secretary of State persuaded the Upper Tribunal to re-make the decision against Mr Onwuye.

The Court of Appeal was quite critical of the original appeal decision, taking particular exception to the tribunal’s proclamation that “the focus of this appeal regards the difference between formalism and substance” and the implication that Points Based System rules are pointlessly formalistic.

To the tribunal judge’s remark that “it is the routine argument of the Respondent that there is a need for an effective immigration system”, Lord Justice Underhill replied that

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”].

Not meeting the requirements of the Rules is therefore decisive, and whether the business in question is thriving or sinking does not really matter.

Would however a business be relevant in terms of private life, to determine whether leave outside the Rules should be granted?

Running a business and Article 8

The court considered both the “conventional” private and family life grounds and the involvement of Mr Onwuye in his business.

On family life, the court concluded that the requirements of paragraph 276ADE of the Immigration Rules were not met and that there were no compelling reasons that would justify a grant of leave outside the rules. The Onwuye family could return to Nigeria, where they maintained a home and strong social and cultural links. Removal would not be disproportionate.

In relation to the business, Underhill LJ accepted 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”, as stated in Niemietz v Germany (application no. 13710/88). In Niemietz the European Court of Human Rights accepted that the concept of private life should not be limited to an “inner circle” but should include professional or business activities, “since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world”.

The Court of Appeal also accepted 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 found that the emphasis had not been put on the importance of the business to Mr Onwuye’s identity, but on the positive contribution that the business made to the business’s clients and local community, “neither of which has anything to do with Article 8”. But that article was certainly “engaged on the more conventional basis”, and Underhill LJ was “inclined to think” that the tribunal was entitled to take Mr Onwuye’s business into account when addressing the first two Razgar questions.

Factoring entrepreneurialism into the proportionality test

Despite Article 8 being engaged, the Court of Appeal concluded that the applicant’s removal would be proportionate.

First, “absent compelling circumstances”, applicants should be able to satisfy the criteria set by the Secretary of State under Part 6A of the Immigration Rules. In this case, the court found, there was no clear evidence that Mr Onwuye had invested the required £200,000 in the business. One of the fundamental requirements for a Tier 1 (Entrepreneur) application had not been met.

It is possible that the court would have taken a different view if the evidence presented only a minor deficiency in terms of compliance.

Second, section 117B (4) of the Nationality, Immigration and Asylum Act 2002 states that little weigh should be given to a private life established by a person at a time when they were in the UK unlawfully. Mr Onwuye had set up his business when his immigration status was, if not unlawful, at least precarious, because he only had leave under section 3C of the Immigration Act 1971 at the time.

Third, leave outside the Rules should be granted only in compelling circumstances. In this case the threshold was not met: the positive impact that the business has on the community, the interests of the business’s employees and clients, and the economic loss that Mr Onwuye would experience did not tip the proportionality balance in his favour.

Lessons to be learned

Practitioners dealing with Article 8 in a business context should consider the extent to which the requirements of the Rules are not met and provide a clear explanation for any non-compliance. It is very unlikely that an appeal would succeed, but it may be worth running the argument if the non-compliance is limited to a minor aspect of the application, and the reasons for non-compliance are compelling enough.

One can only sympathise with Mr Onwuye, whose money, time and effort will probably go to waste. For the Court of Appeal:

That is sad. But it was his responsibility before he started to develop a business in the UK to ensure that he acquired the proper immigration status and he did not do so.

In other words, you can mind your business, but only if you have a visa that allows it.