Petition Of Joseph Ochiemhan Against The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Ericht |
| Neutral Citation | [2016] CSOH 179 |
| Court | Court of Session |
| Published date | 23 December 2016 |
| Year | 2016 |
| Date | 23 December 2016 |
| Docket Number | P1175/15 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 179
P1175/15
OPINION OF LORD ERICHT
In the Petition of
JOSEPH OCHIEMHAN
Petitioner
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Petitioner: Dewar QC; Caskie; Drummond Miller LLP
Respondent: McIlvride QC; McIver; Office of the Advocate General
23 December 2016
[1] On 13 October 2015 the respondent’s officials attended at the premises of Aberdeen Alarm Company Ltd in Aberdeen and detained a number of foreign nationals, including the petitioner and Onyeka Kingsley Menuba, whose petition was heard alongside that of the petitioner.
[2] The petitioner is a citizen of Nigeria. He originally entered the UK on a student visa and his leave to remain was extended from time to time. As at 13 October 2015 he had been granted leave to remain under a Tier 1 (Entrepreneur) visa on the basis of his company Alphawhale Ltd. That visa was not due to expire until 11 September 2017.
[3] On 30 October 2015 the respondent served on the petitioner a “Notice of Immigration Decision, Decision to curtail/Revoke Leave/Notice of Removal”. The notice stated as follows:
“You are a person with no leave to enter or remain in the United Kingdom (UK). You have not given any reasons as to why you should be granted leave to remain or why you should not require leave to remain. Therefore you are liable for removal.
REASONS FOR DECISION/CURTAILMENT/REVOCATION
A decision has been made to curtail. Revoke your leave so that it expires with immediate effect. The following reasons are given:
The following reasons are given:
You are specifically considered a person who has breached section 10(1)(a) with an offence of 24(1)(b)(ii) 1971 Immigration Act because you were granted T1 HS Entrepreneur leave to remain on 11/09/2014 valid until 11/09/2017 on the basis of your company Alphawhale LTD. Having been granted leave to remain as Tier 1 (Entrepreneur) Migrant, your employment is restricted to the following:
‘You are not permitted to undertake employment as a professional sportsperson (including as a sports coach) you are not permitted to undertake employment other than working for the business(es) you are establishing, joining or taking over.’
You breached the conditions of your leave by working as a security guard for Aberdeen Alarm Company. There are no contracts in place for services provided to Aberdeen Alarm Company by Alphawhale LTD, the directors have also advised that work as a security guard is in no way connected to your business. On 24/09/2015 you were paid for 109.5hrs work as a security guard between dates of 23/08/2015 – 13/09/2015 by Aberdeen Alarm Company.
It is not considered that the circumstances in your case are such that discretion should be exercised in your favour. The Secretary of State therefore curtails your leave to [enter/remain in] the United Kingdom under paragraph 323(i) with reference to 322(3) of the Immigration Rules so as to expire with immediate effect.”
[4] In statement 5 of the petition the petitioner sought inter alia:
“(i) reduction of the decision that the Petitioner worked in breach of his conditions; and
(ii) reduction of the decision to curtail the Petitioner’s Leave to Remain in the United Kingdom”
The Legislative Context
[5] Section 3(1) of the Immigration Act 1971 provides:
“Except as otherwise provided by or under this Act, where a person is not a British citizen-
…
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;
(c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely-…
(i) a condition restricting his employment or occupation in the United Kingdom”
Section 3(2) requires the Secretary of State to lay before Parliament “statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter”
[6] Section 10 of the Immigration and Asylum Act 1999 as in force prior to 20 October 2014 provided:
“Removal of certain persons unlawfully in the United Kingdom
(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if
(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;
(b) he uses deception in seeking (whether successfully or not) leave to remain”
[7] The Immigration Act 2014 made changes to section 10 to the effect that some of what had been in section 10 was put in the rules instead of the statute so the position as at October 2015 was as follows.
[8] Section 10(1) of the Immigration and Asylum Act 1999 as in force at the date of the decision letter provided:
“(1) A person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person requires leave to enter or remain in the United Kingdom but does not have it.”
Paragraph 323 of the Immigration Rules as at that date provided:
“A person’s leave to enter or remain may be curtailed:
(i) On any of the grounds set out in para 322(2)-(5A) above…
(ia) if he uses deception in seeking (whether successfully or not) leave to remain or a variation of leave to remain.”
Paragraph 322(3) set out the following ground:
“failure to comply with any conditions attached to the grant of leave to enter or remain.”
The Policy Guidance Context
[9] The Tier 1 (Entrepreneur) category is for those investing in the United Kingdom by setting up or taking over, and being actively involved in the running of, one or more businesses in the United Kingdom. The relevant policy guidance is set out by the respondent in the document entitled “Tier 1 (Entrepreneur) of the Points Based System – Policy Guidance end version 09/2015” (the “Policy Guidance”)
[10] The Policy Guidance makes clear that the entrepreneur is not limited to his original business proposals, but may diversify his activities. For example, at paragraphs 98 and 133 it states:
“We recognise that, as an entrepreneur, you may have moved onto other activities and no longer be involved in the business in which you initially invested…”
and at paragraph 138 it states:
“We recognise that you may have moved on and no longer be engaged in the business in which you were originally working when you first entered the Entrepreneur category….”
[11] There are restrictions on engaging in employment which are set out in paragraph A41 of the guidance, which is as follows:
“Genuine Entrepreneur Activity (contract of service with another business)
A41. If you are granted leave to enter or remain as Tier 1 (Entrepreneur) migrant, your leave will prohibit you from engaging in employment except where you are working for the business which you have established, joined or taken over. You will comply with this restriction if, for example, you are employed as the director of the business in which you have invested, or if you are working in a genuinely self-employed capacity. In this capacity you will have a contract for service.
You may not, however, be considered to be working for your own business if the work you undertake amounts to no more than employment by another business (for example, where your work amounts to no more than the filling of a position or vacancy with, or the hire of your labour to, that business, including where it is undertaken through engagement with a recruitment or employment agency). In this capacity you would have a contract of service. This applies even if it is claimed that such work is undertaken on a self-employed basis.
In considering whether your work amounts to genuine self-employment (and is therefore work for the business which you have established, joined or taken over) or is in fact employment by another business, we will take into consideration the factors set out at:
www.hmrc.gov.uk/employment-status/index.htm#1.
If your work amounts to no more than employment by another business, we may consider you to be working in breach of your conditions of stay, and that you are therefore liable to curtailment of your stay and/or removal from the United Kingdom.”
Facts
[12] Senior counsel for the respondent made the following concessions in respect of the facts of the case. These concessions were made solely for the purposes of the current substantive hearing, and he reserved his position in respect of these matters at any future hearing which dealt with the evidence.
The concessions were as follows:
(1) The petitioner procured the incorporation of Alphawhale Ltd.
(2) The petitioner instructed chartered accountants to advise Alphawhale Ltd.
(3) The petitioner structured his transactions with Aberdeen Alarm Company on the basis that he would issue invoices in the name of Alphawhale Ltd, and that Aberdeen Alarm Company would not deduct Pay As You Earn as National Insurance.
(4) The text messages between the petitioner and Aberdeen Alarm Company referred to in paras [18]-[21] below were genuine.
(5) The email correspondence between the company and Fraoch (Scotland) Limited referred to in paras [15]-[17] below was genuine.
(6) The invoice was or could reasonably have been made available to the immigration officer.
[13] On the basis of the pleadings, documents produced to me and that concession, the facts can be set out as follows.
[14] Under his Entrepreneurs Visa, the petitioner set up Alphawhale Ltd in around June 2015. Alphawhale Ltd appointed accountants and tax advisers. Alphawhale was registered for VAT and with HMRC for Corporation tax purposes.
[15] In 2014 Alphawhale Ltd entered into a contract with Fraoch Scotland Ltd. The terms of the...
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