R (on the application of Miah) v Home Secretary
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Blake |
| Judgment Date | 17 November 2015 |
| Neutral Citation | [2016] UKUT 23 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 17 November 2015 |
[2016] UKUT 23 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
Mr Justice Blake
In the Matter of an Application for Judicial Review
J Rendle instructed by Capital Solicitors appeared behalf of the Applicant.
Z Malik instructed by the Government Legal Department appeared on behalf of the Respondent.
R (on the application of Miah) v Secretary of State for the Home Department IJR
The applicant is a national of Bangladesh born on 18 February 1989. He came to the UK in September 2009 with a Tier 4 student visa and has been resident here since.
Until 30 April 2014 he was allowed to take part time work under the applicable Tier 4 rules; between April 2011 and April 2013 he did so work at an Indian restaurant called the Sesame Restaurant in Kingston Road, New Malden.
In April 2014 he was granted leave to remain for one year to continue his studies for an extended diploma in business and administrative management at the London Regal College. His extension of stay was subject to the condition ‘No work except work placement’. At this time he was living with a cousin and his family.
In early June 2014 the applicant returned to live at the Sesame restaurant. He says that he was looking for somewhere quiet to study, away from his cousin's children. He was offered a room above the restaurant premises rent free.
On Saturday 28 June 2014 the restaurant was visited by a team of immigration officers on suspicion that people were working there without authority. The applicant was seen behind the bar area. The manager of the restaurant was interviewed as was the applicant and a note of that conversation was recorded. In substance the applicant is recorded as saying “I come here to help them recently I moved upstairs and I come down” and he agreed that he got reward in terms of free food and accommodation when he helped them (i.e. the restaurant owners). The manager told the officers that the applicant helped out Fridays and Saturday between 6.00 and 8.30 pm in return for free food and accommodation.
On the basis of that information a Chief Immigration Officer was satisfied that the applicant had been working at the restaurant part-time and was in breach of his prohibition on taking employment. A decision was made that he was liable for removal under s.10 (1)(a) Immigration and Asylum Act 1999 (IAA) (prior to amendment by the Immigration Act 2014 ( IA)). A notice was served to that effect with the consequence that s.10 (8) operated to invalidate his existing leave to remain. He was detained with a view to removal. A civil liability notice was served on the restaurant in the sum of £40,000 in respect of breaches of the employer's obligations by employing people who were not entitled to work in the UK. Subsequently it was decided not to pursue enforcement of this notice.
On 5 July 2014, the applicant was served with removal directions for 9 July 2015. On 7 July he issued proceedings for judicial review. These were served 8 July and resulted in the deferral of his removal. On 30 July summary grounds in opposition to the application were filed. In substance they join issue with the applicant's assertion that he was not working. On 31 July he was granted bail pending the determination of the judicial review hearing. This has removed any challenge to his continued detention and there is no claim in respect of his past detention.
Permission was refused by Upper Tribunal Judge McGeachy on 16 February 2015 on the basis:
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i. the respondent was entitled to make the removal decision on the evidence;
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ii. the applicant had the benefit of an alternative remedy namely an out of country appeal.
The applicant renewed the application for permission that was heard before UT Judge Warr on 24 April 2015. He granted permission on the basis that the decision was arguably Wednesbury unreasonable. He noted that the alternative remedy point had not been taken in the summary grounds or in the oral argument on the renewed application. He issued standard directions requiring detailed grounds to be lodged within 35 days of the permission decision and for lodging of skeleton arguments. The directions invited the respondent to raise the alternative remedy point if so advised.
Detailed grounds were lodged (it would appear out of time) on 1 September 2015. These grounds were entirely silent on the alternative remedy point. They were confined comments on the evidence to support the proposition that the applicant was working in breach of his conditions.
On 27 October the applicant lodged his skeleton argument in accordance with the directions. It was directed to the proposition that the applicant could not be said to be working and a decision of the European Court of Justice was relied on in support of the proposition that “purely marginal and ancillary activities” did not amount to economic activity for the purpose of Community Law (Case C 197/86 Brown v Sec State for Scotland ECR 1988-0305 at 21]).
On 5 November 2015, the respondent lodged her skeleton argument. This document did, for the first time, take the alternative remedy point and cited the relevant authorities. The skeleton also drew attention to paragraph 6 of the Immigration Rules that defines employment generally (unless the contrary appears elsewhere) as including “paid and unpaid employment, paid and unpaid placements undertaken as part of a course or period of study, self employment and engaging in business or any professional activity”.
A properly paginated bundle was lodged as directed. Unfortunately it did not include the skeleton argument of either party. The skeleton arguments did not make their way on to the court file or the log of documents received. It was only at the hearing that they were made available to me. This would appear to be an error in the Tribunal's administration, but it would be helpful for the future that such skeleton submissions were included in the bundle as that forms the judge's pre-reading for the application. It was nevertheless apparent from the bundle of authorities prepared by the parties that, with the exception of Brown, each was concerned with the issue of alternative remedy and ranged from R (Lim) v SSHD [2007] EWCA Civ 773 to R (Mehmood and Ali) v SSHD [2015] EWCA Civ 744, a judgment handed down on 14 July 2015.
At the outset of the proceedings I raised the issue of alternative remedy with Mr Rendle. He said that he first became aware of the issue when it was raised in the respondent's skeleton of 5 November. Nevertheless, he was not prejudiced by the late raising of the issue and was able to address it.
Mr Malik accepted that the matter had been raised late and then only in the skeleton argument and not the detailed grounds. Following exchanges with the court he applied to formally amend the detailed grounds to raise the issue. In the light of Mr Rendle's stance, I granted him permission to do so.
The amendment proved decisive at the hearing because I did not accept Mr Rendle's...
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