Petition Of Joseph Odion Ochiemhen (ap) For Judicial Review Of A Decision Of The Secretary Of State For The Home Department To Curtail The Petitioner's Leave To Remain In The United Kingdom
| Jurisdiction | Scotland |
| Judge | Lady Wolffe |
| Neutral Citation | [2016] CSOH 20 |
| Date | 29 January 2016 |
| Docket Number | P1175/15 |
| Court | Court of Session |
| Published date | 29 January 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 20
P1175/15
NOTE OF LADY WOLFFE
In respect of the application for permission under Rule of Court 58.7
In the Petition of
JOSEPH ODION OCHIEMHEN, (Assisted Person) FE, currently detained at Dungavel Immigration Detention Centre, Strathaven ML10 6RF
Petitioner:
for
Judicial Review of a decision of the Secretary of State for the Home Department to curtail the petitioner’s leave to remain in the United Kingdom
Petitioner: Caskie; Drummond Miller LLP
Respondent: Pirie; Office of the Advocate General
29 January 2016
Introduction
[1] The petitioner is a citizen of Nigeria who was granted leave to remain in the UK subject to certain conditions. The decision challenged by this petition for judicial review was that of the Secretary of State for the Home Department to curtail that leave on the basis that the petitioner had acted in breach of one of those conditions.
[2] This is one of the first applications for permission to proceed with a petition for judicial review under the new Rules in Chapter 58 of the Rules of the Court of Session (“the Rules”). I put the matter out for an oral hearing before me on 4 December 2015.
[3] On the morning of the hearing, counsel for the petitioner presented a minute of amendment to the petition, a note of argument on behalf of the petitioner (running to 13 pages) and a bundle of some 10 or 11 authorities (including extracts from Parliamentary debates and the Report of the Scottish Civil Courts Review). He endeavoured to move a motion: (1) to discharge the permission hearing set down for Friday, 4 December 2015, (2) to allow a minute of amendment to be received, and (3) to allow the respondent to lodge answers thereto within 14 days. Having regard to the timetable in the Rules and the spirit of expedition they seek to engender, I indicated that the hearing would proceed before me and the motion was wisely not insisted in. Reference was made to these additional materials in the permission hearing before me.
[4] This was one of the first applications for permission presented under the new Rules and I heard submissions on the test for permission as well as submissions directed to why permission should or should not be granted in this case. Those circumstances led me to allow the hearing to proceed for more than the 30 minutes provided for in rule 58.9 of the Rules.
The facts
[5] The petitioner first entered the United Kingdom on August 2010 as a student. His leave to remain was extended and was due to expire on 11 September 2017. Most recently he had been granted leave to remain in the United Kingdom in the category of Entrepreneur, as it was averred:
” and set up a business ‘Alphawhale Limited’. The petitioner’s visa does not limit him from working in activities for that business, albeit the Secretary of State’s guidance for the petitioner’s category indicates he may not work as an employee. It does prevent him from working:
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.” (Emphasis in original)
[6] On 13 October 2015 the petitioner was found working as a security guard. He was issued with a notice curtailing his leave to remain in the following terms:
“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 a 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, jolning 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 109.5 hrs 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"
[7] The petitioner disputes the content of that notice. Put shortly, he contends that he was never employed by the Aberdeen Alarm Company as a security guard. Rather, it is said, he was working for his company Alphawhale Ltd (or possibly “Alphawave”, per the petitioner’s proposed minute of amendment (hereinafter “the petitioner’s company”)) effectively on a self‑employed basis trading under that name. The negotiations of the terms of agreement between Aberdeen Alarm Company and the petitioner’s company were carried out by the petitioner on behalf of his company and, it was asserted, the work was not undertaken as an employee of the Aberdeen Alarm Company. Accordingly, the provision of security services to the Aberdeen Alarm Company was between that company and the petitioner’s company, and not the petitioner personally. Reference was made to invoices issued by and in the name of the petitioner’s company.
[8] In their answers the respondent contend that the nature of the work undertaken by the petitioner for the Aberdeen Alarm Company either was or amounted to his employment by the latter, contrary to one of the conditions of leave. Reference was made to the curtailment decision (no 6/3 of process) and to the respondent’s review of that (at no 6/5 of process) (“the review decision”). The review decision itself makes reference to the Home Office guidance on “Genuine Entrepreneur Activity (contract of services with another business)” (hereinafter, “the Guidance”) which contains the following passage:
‘’A41. If you are granted leave to enter or remain…. Your leave will prohibit you from engaging in employment except where you are working for the business which you should have established, joined or taken over. You will comply with this restriction of, 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 services.
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.”(Emphasis in original).
The new Rule and its genesis
[9] The test for permission to proceed with an application for judicial review is now found in the Court of Session Act 1988 (“the Act”), as amended by the Courts Reform (Scotland) Act 2014 . Insofar as relevant, section 27B of the Act provides:
“(1) No proceedings may be taken in respect of an application to the supervisory jurisdiction of the Court unless the Court has granted permission for the application to proceed.
(2) …, the Court may grant permission under subsection (1) for an application to proceed only if it is satisfied that—
(a) the applicant can demonstrate a sufficient interest in the subject matter of the application, and
(b) the application has a real prospect of success.”
[10] The genesis for this may be traced to the Gill Report. At paragraph 152 of that report it is said:
“A requirement to obtain leave to proceed with an application for judicial review should be introduced, following the model of Part 54 of the Civil Procedure Rules in England and Wales.”
[11] For completeness, it is noted that the phrase “permission to proceed” was introduced into the Court of Session Rules (“the Rules”) by the Act of Sederunt (Rules of the Court of Session 1994 Amendment) (No 3) (Court Reform (Scotland) Act 2014) 2015/228.
[12] Finally, it is worth recalling that the new procedure for judicial review introduced by Chapter 58 in its new form was part of, and flows from, the wider review and reform of the administration of civil justice in Scotland addressed in the Report on the Scottish Civil Courts Review (“the Report”). The principles applied by the Report as governing a reformed civil procedure are set out in paragraph 5 of Chapter 1 of the Report, and are worth repeating. They are that civil justice:
- Should be fair in its procedures and working practices;
- It should be apt to secure justice in the outcome of disputes;
- It should be accessible to all and sensitive to the needs of those who use it;
- It should encourage early resolution of dispute and deal with cases as quickly and with as much economy as is consistent with justice;
- It should make effective and efficient use of its resources, allocating them to cases proportionately to the importance of the value of the issues at stake; and
- It should have regard to the effective and efficient application of the resources of others’.
It may be helpful to bear these governing principles in mind when considering the application of the reformed procedures for judicial review now found in Chapter 58 of the Rules.
The test for permission
The petitioner’s submissions on the test for permission
[13] The petitioner contended that the issue for the Court at this...
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