Ensar Baylan v The Secretary of State for the Home Department

1. The appellant is a citizen of Turkey. He entered the UK on 19 October 2007 having been granted entry clearance as a student. He was subsequently granted extensions in the same capacity until 11 May 2011. On 10 May 2011 De Silva Ltd applied on his behalf for leave to remain to establish himself in business under the Turkey – European Community Association Agreement (Ankara Agreement). He had not completed the application himself. Documents relating to his business plan ran to 17 pages. The basis of his application was that he wished to commence business as a rickshaw or pedicab driver in Central London. His application was refused by the respondent on 16 June 2011. The respondent considered that the appellant had failed to show his business plan represented a genuine business proposal from himself because it was identical to three other applications received having the same (17-page) supporting documentation. He appealed to the First-tier Tribunal (FTT). His main contention was that “such similarities cannot constitute grounds for refusal”. His witness statement said he did not know his business plans were identical to others submitted to the Home Office. He gave evidence during which he explained his business plan in more detail. He also called a witness, a Mr Dogrul, who said he had been a pedicab driver for one and a half years and had made £13,000 in his first year. On 15 August 2011 First-tier Tribunal Judge Brenells dismissed his appeal. The judge observed that the appellant stood to benefit from the “standstill” clause such that he fell to be considered not under the stringent Immigration Rules in force presently, but under those in force on 1 January 1973, as set out in HC 510 Statement of Immigration Rules of Control after Entry laid before the House of Commons on 23 October 1972 HC 510, paragraph 21 of which provides: “People admitted as visitors may apply for consent of the Secretary of State to their establishing themselves here for the purpose of setting up in business, whether on their own account or as partners in a new or existing business. Any such application is to be considered on merits. Permission will depend on a number of factors, including evidence that the applicant will be devoting assets of his own to the business, proportional to his interest in it, that he will be able to bear his share of any liabilities the business may incur, and that his share of its profits will be sufficient to support him and any dependants. The applicant’s part in the business must not amount to disguised employment, and it must be clear that he will not have to supplement his business activities by employment for which a work permit is required. Where the applicant intends to join an existing business, audited accounts should be produced to establish its financial position, together with a written statement of the terms on which he is to enter into it; evidence should be sought that he will be actively concerned with its running and that there is a genuine need for his services and investment. Where the application is granted the applicant’s stay may be extended for a period of up to 12 months, on a condition restricting his freedom to take employment. A person admitted as a businessman in the first instance may be granted an appropriate extension of stay if the conditions set out above are still satisfied at the end of the period for which he was admitted initially.” 2. Nevertheless the judge considered that the appellant failed to meet those requirements. Whilst disagreeing with the respondent that the identicality of the appellant’s application with three others was not in itself a valid reason for refusing his application, the judge considered his plan as explained in evidence had a number of flaws. First, contrary to his plan stating he had already identified some potential customers, it was clear he had not. Second, in terms of the identity of potential customers, the appellant had said that some of his customers might be commuters as distinct from tourists, whereas there was no credible evidence to support that. Third, his own claim in his cash flow estimate (which indicated that November and December were likely to be his busiest months) was at odds with the evidence of his own witness, Mr Baylan. Further, his own claim that he would buy a second pedicab and employ a driver was not supported by Mr Baylan’s own evidence that after eighteen months as a driver he still worked on his own with one pedicab only. Fourth, the appellant’s oral evidence about Mr Baylan not having any previous cycling experience was at odds with what he had claimed in his business plan. At paragraph 21 the judge concluded: “Given the Appellant’s lack of experience in his chosen field of activity, the lack of evidence as to his physical ability to move a pedicab for long hours around Central London and the errors and misstatements in his business plan, and on the totality of the evidence before me, I find that the Appellant has not discharged the burden of proof which is on him. The reasons given by the Respondent justify the refusal. Therefore the Respondent’s Decision is in accordance with the law and the applicable Immigration Rules.”