Mr Nishentman Bajracharya v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Henderson,Lord Justice Newey |
| Judgment Date | 22 February 2018 |
| Neutral Citation | [2018] EWCA Civ 277 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 February 2018 |
| Docket Number | Case No: C7/2016/1558 |
[2018] EWCA Civ 277
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ASYLUM AND IMMIGRATION CHAMBER)
Upper Tribunal Judge Coker
JR/15337/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Henderson
and
Lord Justice Newey
Case No: C7/2016/1558
The Queen on the application of
Miss Sarah Abram (instructed through the Bar Pro Bono Unit) for the Appellant
Mr Eric Metcalfe (instructed by the Government Legal Department) for the Respondent
Hearing date: 15 February 2018
Judgment Approved
The question in this case is whether the appellant, Mr Nishentman Bajracharya, should be granted permission to apply for judicial review of the Secretary of State's refusal to grant him leave to remain in the United Kingdom. The Upper Tribunal declined to give such permission, but Mr Bajracharya appeals against that decision. The dispute involves, in particular, issues relating to whether the restaurant that was proposing to employ Mr Bajracharya was providing a take-away service for the purpose of Appendix K to the Immigration Rules (“the Rules”).
Narrative
Mr Bajracharya is a Nepalese national who was born on 20 March 1986. On 13 August 2015, he applied for leave to remain as a Tier 2 (General) worker. In support of his application, he submitted a Certificate of Sponsorship that the Ganges and Gurkha Restaurant in Plymouth had assigned to him on the previous day. This referred to Mr Bajracharya working as a sous chef for a period of three years from 12 October 2015 until 11 October 2018.
On 16 September 2015, the Secretary of State refused the application on the basis that the job was not a “shortage occupation” and, hence, that Mr Bajracharya had not qualified for the requisite 50 points for “attributes”. The Reasons for Decision explained:
“In order for your occupation to be considered as a shortage occupation, amongst other things, your employer must not offer a takeaway service, as specified under Appendix J and Appendix K of the Immigration Rules.
The weblinks www.just-eat.co.uk & www.hungryhouse.co.uk clearly show that the Ganges & Gurkha Restaurant offers a takeaway service, therefore we are not satisfied that the post you are undertaking is a shortage occupation.”
On 2 October 2015, Mr Bajracharya applied for administrative review of the Secretary of State's decision. The application included this:
“Please note that as per the emails and verbal confirmation from the Employer, the scenario of the restaurant is as follows:
1. This is a 150 cover restaurant
2. The restaurant does not have any takeway menu nor does it have any mention of any take away service on its website.
3. We have also been provided a letter from Hungry House that confirms the service was discontinued prior to the date on which this application was submitted. (An original copy of the same can be provided upon request).”
The application also stated:
“Please note that we have now gathered sufficient proof from the authorised Managers of the websites hungry house and Just-eat respectively to confirm that our client had stopped using their services PRIOR to making this application. We have also been offered to provide you their contact numbers in case if you wish to make any further clarifications in this context. Please feel free to contact us in-case you wish to contact them at your end.”
The application for review met with no success. On 8 October 2015, the Secretary of State maintained her decision to refuse Mr Bajracharya leave to remain. The Reasons for Decision explained:
“We have carefully considered all points on your administrative review however, as stated in the original refusal decision letter, you failed to satisfy the requirements of paragraph 245HD with reference to Appendix J and K of the Immigration Rules. This is because the caseworker has correctly identified that as your job is listed as a shortage occupation your prospective employers, Ganges & Gurkha Restaurant, must not offer a takeaway service. However the original caseworker has correctly shown into their investigation into your application that your employers offer a takeaway service and therefore the post you are undertaking is not a shortage occupation. This means a resident labour market test needs to be conducted which has not been indicated on the Certificate of Sponsorship (COS).
You have stated in your administrative review that your prospective employers do not offer a take away service and you have provided names and contact details for websites ‘Hungry House’ and ‘Just Eat’ for confirmation of this statement. However, having visited the ‘Trip Advisor’ website at www.tripadvisor.co.uk I can confirm that a review dated 14 August 2015 clearly states that the Ganges & Gurkha Restaurant in Plymouth offers a take away service. As this review was submitted after the date of your application we are satisfied that the caseworker correctly identified that a take away was in place. We are, therefore satisfied that the decision to refuse your application was correct and we have maintained the original decision.”
The relevant Trip Advisor review, dated 14 August 2015, was headed “Best takeaway ever” and included this:
“Had a takeaway this evening—Excellent as always.”
There followed a response from the “Manager at Ganges & Gurkha” dated 19 August, stating:
“Thank you so much for your nice review. We hope to seeing you soon.”
On 20 October 2015, Mr Bajracharya asked the Secretary of State to reconsider her decision, enclosing:
i) A letter dated 14 October 2015 from Mr Laxman Giri, the managing director of the Ganges & Gurkha Restaurant, stating that, although the restaurant was registered on websites such as hungryhouse and Just Eat, “the service of the same was no longer in use after the 12 August 2015”;
ii) A letter dated 2 October 2015 from Mr Brendan James of hungryhouse “to confirm that the final successfully processed and confirmed order placed with The Ganges and Gurkha was the 11 th of August at 20:10”; and
iii) An email to Mr Giri dated 11 September 2015 in which Mr Spencer Owen of Just Eat said:
“Please see attached invoice and online status for just eat. The invoice shows when you took your last order and the status shows that you were taken offline.
Although you still appear on just eat, it clearly shows that you are offline, and no one can order. You might still show up on a Google search but customers cannot order and have not able to do so since august 12 th 2015.”
One of the screenshots attached to Mr Owen's email included an entry for 17 August 2015 recording:
“tmpoffline Issues with Home Office Offline until further notice (Type 1 Temporarily offline)”.
An entry for 18 August similarly referred to being “Offline until further notice due to issues with the Home Office”.
On 3 November 2015, Mr Bajracharya's solicitors sent a pre-action letter to the Secretary of State challenging her decision to refuse him leave to remain. After stating that a copy of Mr Giri's letter of 14 October was enclosed, the letter went on:
“For sake of clarity, even if The Ganges & Gurkha were offering a take away service (which they are not) our client was interviewed on 11 th August 2015, our client should have still been granted leave to remain as his employment was not due to commence until 12 th October 2015, by which time, there is a gap of two months. Is the Home Office able to evidence that from 11 th August to date there has been any take away service offered, and if so, may we see this evidence?”
Further on, this was said:
“Reasons given by Home Office as to why they will not grant our client leave to remain is unfounded. How can Home Office make such a decision without considering all the evidence before them? We are confident that the Judge will be of the same view.”
The Secretary of State responded on 12 November 2015. The letter explained that the Secretary of State's position was that Mr Bajracharya's application for leave to remain was carefully considered and correctly refused.
On 14 December 2015, Mr Bajracharya (by then acting in person) issued judicial review proceedings in respect of the Secretary of State's decision of 8 October. Mr Bajracharya argued in his “Grounds for Judicial Review” that he should be granted exceptional leave to remain on the basis that (a) if returned to Nepal, he would be homeless and destitute and (b) section 55 of the Borders, Citizenship and Immigration Act 2009 had not been considered. There was no express mention of Mr Bajracharya's proposed job with the Ganges & Gurkha Restaurant, but he stated towards the end of the document:
“Rest, I would like rely on the grounds of my Pre-action.”
On 28 January 2016, the Secretary of State filed her acknowledgment of service indicating that she intended to contest the claim.
On 16 February 2016, Upper Tribunal Judge Coker refused Mr Bajracharya's application and certified that it was totally without merit. She observed that the grounds on which Mr Bajracharya relied did not take issue with the Secretary of State's decision that the prospective employment was not for a shortage occupation and instead advanced human rights points for the first time. When subsequently refusing Mr Bajracharya permission to appeal to the Court of Appeal, Judge Coker commented that the Secretary of State's decision refusing leave to remain was “unarguably open to her”.
On 13 December 2016, Sir Kenneth Parker, sitting as a Judge of the Court of Appeal, granted Mr Bajracharya permission to appeal limited to the issue of whether Mr Bajracharya fulfilled the conditions of the Rules for the grant of leave as a Tier 2 worker. The Judge...
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