Upper Tribunal dismisses challenge to refusal of leave as representative of an overseas business

The Upper Tribunal has dismissed a challenge to a refusal of further leave under Appendix Representative of an Overseas Business on the grounds that overseas ownership of the UK based subsidiary is required from incorporation and not just at the point of application, and that the Home Secretary was entitled to conclude that it was not a genuine business. The case is R (on the application of Tagaeva Baarinsa and Others) v Secretary of State for the Home Department (Appendix ROB: establishing wholly-owned subsidiary) [2025] UKUT 91 (IAC).

The applicant is a citizen of Kyrgystan who on 13 February 2020 was granted leave to enter the UK for three years as the representative of an overseas business. On 14 January 2023 she applied for further leave to remain under Appendix Representative of an Overseas Business.

The application was refused on 23 April 2023 as the Home Office considered that her position had been created to enable her to grant entry to the UK. The refusal letter referred to all invoices being send to her husband instead of to the applicant. The letter also criticised the failure to submit any UK business bank statements to corroborate the invoices.

Following an administrative review, on 29 September 2023 the refusal was upheld. The applicant sought judicial review of that decision. The issues to be determined were as follows:

1. The first is the point in time at which UK-based subsidiary must be “wholly-owned” by an overseas business for the purposes of para. 8.6(a) of Appendix ROB.  Put simply, does the UK-based subsidiary of an overseas business have to have been wholly-owned by the overseas business from its incorporation (as the Secretary of State contends), or is it sufficient for it to be wholly-owned by the overseas business by the time an applicant makes the application under Appendix ROB (as the applicant contends)?
2. The resolution of that issue leads to the second issue: whether the Secretary of State irrationally refused the first applicant’s application for further leave to remain as the Representative of an Overseas Business, under Appendix ROB.

The Upper Tribunal found against the applicant on both points and dismissed the judicial review. The headnote states:

(1)         Para. 8.6(a) of Appendix ROB of the Immigration Rules requires an applicant to establish a UK-based registered branch or wholly-owned subsidiary, not facilitate the takeover of an existing and separately-owned UK-based entity.

(2)         Para. 8.6(a) of Appendix ROB is not engaged where an overseas business acquires an existing, domestically-incorporated and separately-owned business that is later transferred to the ownership of the overseas business.  The requirement for the UK-subsidiary to be wholly-owned is engaged at the point of establishment, not the application.