Matthew Howarth Successfully Defends Secretary of State in Representative of Overseas Business Judicial Review
Matthew Howarth, instructed by the Government Legal Department, has successfully
represented the Secretary of State for the Home Department in a complex judicial
review challenge concerning the requirements for extending leave as a representative of
an overseas business.
The Upper Tribunal (Immigration and Asylum Chamber) dismissed all grounds of
challenge in The King (on the application of Makki Shakir Mahmood Al-Fahham) v
Secretary of State for the Home Department [JR-2024-LON-002411], with Upper
Tribunal Judge Lodato delivering judgment on 12 May 2025.
Case Background
The case arose from the Secretary of State’s refusal to extend the applicant’s leave to
remain as a representative of an overseas business under Appendix ROB of the
Immigration Rules. The applicant had initially been granted leave in July 2020, entering
the UK with his family in August 2020 with leave valid until March 2023.
Before his leave expired, the applicant applied for further leave on the same basis in
March 2023. However, the application was refused in August 2023 and this decision
was upheld on administrative review in June 2024.
Legal Challenge
The applicant mounted a four-ground judicial review challenge, with the central
argument being that the Secretary of State had unlawfully introduced a mandatory
requirement for evidence of trading through a UK bank account. The applicant
contended this caused decision-makers to disregard other compelling evidence
demonstrating compliance with Appendix ROB requirements.
The grounds included allegations that the respondent had:
Unlawfully introduced an additional bank account requirement inconsistent with the
Immigration Rules.
Failed to adequately consider the applicant’s unsuccessful attempts to open a UK
business bank account.
Failed to regard HMRC’s acceptance of tax payments as evidence of UK income
generation.
Unlawfully fettered discretion in the particular circumstances.
The Secretary of State’s Defence
Matthew successfully argued that while UK business bank statements were not
mandated by the rules, they constituted relevant evidence for establishing UK-based
trading. Crucially, the Secretary of State contended that even if any defects in reasoning
existed, the ultimate decision would have been the same on a lawful analysis of the
available evidence.
Tribunal’s Decision
Upper Tribunal Judge Lodato identified two fundamental issues and found decisively in
favour of the Secretary of State on both.
The Judge concluded that the absence of UK business bank account statements was
not elevated to “the plain of a decisive and mandatory evidential factor.” Instead, Judge
Lodato found that:
“The respondent, in the initial refusal decision and the review, reached lawful and
rational conclusions on the global evidential picture of how the UK entity engaged in
business activities with the parent company, their clients and UK suppliers”.
The Tribunal explicitly rejected the suggestion that the Secretary of State had looked to
“a narrow gap in the evidence as a means to ignore other relevant evidence and
material”.
Key Legal Principles
This judgment confirms several important principles:
Immigration decision-makers are not required to treat any single form of evidence as
mandatory where not specified in the rules.
Decisions must be assessed on their overall reasoning and evidential analysis.
The absence of particular evidence can be legitimately considered as part of the
global evidential assessment.
Section 31(2A) Senior Courts Act 1981 considerations remain relevant where
alternative reasoning would lead to the same outcome.
Significance
The case provides important clarification on evidential requirements under Appendix
ROB and confirms that decision-makers can properly consider the absence of particular
forms of evidence without this becoming an unlawful mandatory requirement.
Judge Lodato noted that it would be “decidedly odd” if decision-makers were forced to
leave out of account potentially probative records from independent third parties such as
UK banks when assessing evidence of UK-based trading.
Outcome
All grounds of challenge were dismissed, with the Tribunal finding the Secretary of
State’s decisions to be both lawful and rational. The judicial review was unsuccessful
.
Matthew’s practice predominantly focuses on Public Law and Immigration judicial review
matters, with extensive experience representing government departments in complex
immigration litigation before the High Court, Court of Appeal, and specialist tribunals.
Case reference: JR-2024-LON-002411
Full judgment available on GOV.UK tribunal decisions