R Mohammad Hasan Imam v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Pushpinder Saini |
| Judgment Date | 17 November 2017 |
| Neutral Citation | [2017] EWHC 2917 (Admin) |
| Docket Number | Case No: CO/167/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 November 2017 |
[2017] EWHC 2917 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Pushpinder Saini QC
(Sitting as a Deputy High Court Judge)
Case No: CO/167/2017
Michael Biggs (instructed by SG Law) for the Claimant
Alan Payne (instructed by Government Legal Dept.) for the Defendant
Hearing date: 9 November 2017
Mr Pushpinder Saini QC:
This judgment is in 7 parts as follows:
| I. Overview: | paras. 1–7 |
| II. The Facts: | paras. 8–15 |
| III. The Statutory Framework: | paras. 16–27 |
| IV. Contractual Freedom and A1P1: | paras. 28–34 |
| V. Construction: | paras. 35–38 |
| VI. Ultra Vires: | paras. 39–61 |
| VII. Conclusion: | para. 62 |
I. Overview
Mr. Mohammad Hasan Iman, a citizen of Bangladesh ("the Claimant"), challenges the decision of the Secretary of State for the Home Department ("the Secretary of State") dated 27 September 2016 refusing his application made on 28 June 2016 for leave to remain in the United Kingdom as a Tier 2 (General) migrant ("the Decision"). There is also a challenge to a decision of 27 September 2016 by which the Secretary of State refused to undertake an administrative review of an earlier initial decision of 17 August 2016 also refusing the Tier 2 application but for the purposes of the arguments before me the challenge of substance is to the Decision.
The legal basis on which the Decision was made was that the Claimant's proposed restaurant sponsor employer provided a take-away service, and accordingly the Claimant did not meet the requirements under Code 5434 of Appendix K of the material Immigration Rules, as interpreted by the Secretary of State.
The first issue in this claim is whether the Secretary of State has correctly construed Code 5434 of Appendix K of the Rules which sets out, as part of the Shortage Occupations List (SOL), certain requirements which must be fulfilled under the occupation code for skilled chefs. That Code excludes jobs which are "…in either a fast food outlet, a standard fare outlet, or an establishment which provides a take-away service". For ease of reference I will refer to this underlined part of the Code as "the Exclusion" in the remainder of this judgment.
The Claimant's sponsor, Alishaan Restaurant of Sompting, offers a take-away service and thus, so argues the Secretary of State, a post in such an establishment falls within the Exclusion.
The Claimant challenges this construction and says that the Exclusion properly construed only operates to exclude posts in restaurants which provide "solely or predominantly" a take-away service.
In addition to the issue of construction, the Claimant seeks, in the alternative, to argue that the Exclusion in Code 5434 should be struck down as unreasonable insofar as, properly construed, it would exclude posts in establishments which offer a take-away service in addition to service on the premises. The Claimant here invokes the well-known principles in Kruse v Johnson [1898] 2 QB 01 but also argues that the Exclusion interferes with rights to freedom of contract protected at common law.
I have addressed very similar arguments to these in my judgment in the case Supawan v Secretary of State for the Home Department, which is being delivered at the same time as the present judgment. The arguments of the Claimants in each case are similar but not identical. In particular, in the Supawan case it was not argued that the Exclusion interfered with rights to contractual freedom. The main arguments and evidence on behalf of the Secretary of State were however essentially the same in each of the cases, as one would expect.
II. The Facts
The Claimant entered the United Kingdom with leave to enter as a Tier 4 (General) migrant given on 10 November 2010 and valid to 31 March 2012. On 5 March 2012, following an application made while the Claimant held leave, the Claimant was given further leave to remain as a Tier 4 (General) student migrant valid to 28 October 2013. On 31 July 2012, the Claimant was given further leave to remain as a Tier 4 (General) student, valid to 31 July 2014. On 7 August 2014, the Claimant was given further leave to remain as a Tier 2 (General) migrant valid until 14 August 2017. By a decision-letter dated 20 November 2015 the Claimant's leave to remain was curtailed so as to expire on 25 January 2016.
On 25 January 2016, the Claimant applied for further leave to remain. This application was subsequently varied on 28 June 2016, while it was pending, to an application for further leave to remain as a Tier 2 (General) migrant.
The 28 June 2016 application relied upon a certificate of sponsorship issued by the Claimant's Tier 2 sponsor, the Alishaan Indian Restaurant. This confirmed that the Claimant was to work in the role of skilled chef, covered by Code 5434 within the Codes of Practice for Sponsors. This is a role which was/is on the list of shortage occupations, contained within Appendix K of the Immigration Rules.
This application was initially refused by a decision letter dated 17 August 2016. That decision generated a right to pursue administrative review. The Claimant brought an application for administrative review within the specified time, setting out a detailed challenge to the reasoning in the 17 August 2016 decision letter.
By a letter dated 27 September 2016 this application for administrative review was refused, although the Defendant accepted that a number of reasons given in the 17 August 2016 decision were incorrect. The Defendant accordingly served, along with the 27 September 2016 decision letter regarding the administrative review decision, a revised decision letter regarding the 28 June 2016 application (by another letter dated 27 September 2016).
The 27 September 2016 revised decision letter, which is the Decision under review, gave the following reasons for refusing the 28 June 2016 application:
"The occupation you have applied to undertake is not considered a shortage because the job you are applying for leave to undertake was not on the list of shortage occupations published by the Home Office… at the time your [CoS] was assigned…
The reason for this is because under SOC code 5434 in Appendix K of the Immigration Rules it is stated that the job must not be in either a fast food outlet, a standard fare outlet, or an establishment which provides a take-away service. However, there is evidence available on the internet that your prospective employer, Alishaan Restaurant of West Street, Sompting, BN15 0AP does offer a take-away and delivery service.
…"
Following a round of pre-action correspondence, the present proceedings for judicial review were issued on 16 January 2017.
Permission to claim judicial review (on both grounds) was given on a consideration of the papers by HHJ Coe QC sitting as a High Court Judge on 24 February 2017. In response to these proceedings the Secretary of State relies upon a witness statement dated 19 May 2017 from Mr. Richard Jackson of the Migration Policy Unit, Immigration and Border Policy Directorate at the Home Office. This statement exhibited an earlier statement by Mr. Jackson in other proceedings dated 29 June 2012 [56–66]. I will refer further to this evidence when I address the grounds below.
III. The Statutory Framework
Section 1(2) of the Immigration Act 1971 ("the 1971 Act") provides that those not having the right of abode in the United Kingdom may live, work and settle in the United Kingdom with permission and subject to such regulation and control of their entry into, stay and departure from the UK as is imposed by the 1971 Act.
Section 1(4) of the 1971 Act provides that the rules laid down by the Secretary of State as to the practice to be followed in the administration of the 1971 Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode, shall include provision for admitting persons coming for the purposes of taking employment.
Pursuant to section 3(2) of the 1971 Act the Secretary of State is required to lay before Parliament rules or statements of changes of the rules regulating the entry into and stay in the United Kingdom of persons who require leave to enter.
These rules (known as the Immigration Rules HC395) are introduced by way of negative resolution before Parliament and are published as House of Commons papers. Statements of Changes are regularly laid before Parliament pursuant to section 3(2) of the 1971 Act updating and amending the Rules. As explained further below, the Immigration Rules are essentially the Secretary of State's administrative practice.
The nature of the Immigration Rules was considered by the Supreme Court in Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60; [2017] 3 All ER Lord Reed explained as follows at §17:
"The Rules are not law (although they are treated as if they were law for the purposes of section 86(3)(a) of the 2002 Act: see para 8 above), but a statement of the Secretary of State's administrative practice: see Odelola v Secretary of State for the Home Department [2009] UKHL 25; [2009] 1 WLR 1230, paras 6 and 7; Munir, para 37; Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48, para 10; R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2011] UKSC 45; [2012] 1 AC 621, para 61; and R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33; [2012] 1 WLR 2208, paras 32 and 33. They do not therefore possess the same degree of democratic legitimacy as legislation made by Parliament: Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, para 17. Nevertheless,...
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R Mohammad Hasan Imam v Secretary of State for the Home Department
...THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT Mr Pushpinder Saini QC (sitting as a Deputy High Court Judge) [2017] EWHC 2917 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Lord Justice Underhill (Vice-President of the Court of Appeal (Civil Division)) Lord ......