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