R (on the application of Khan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 23 July 2014 |
| Neutral Citation | [2014] EWHC 2494 (Admin) |
| Docket Number | Case No: CO/4976/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 July 2014 |
[2014] EWHC 2494 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Green
Case No: CO/4976/2012
Mr Zia Nasim (instructed by Legal Rights Partnership Solicitors) for the Claimant
Mr Andrew Byass (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 3 rd July 2014
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
A: Introduction: The issue
This claim is brought by Azmat Rauf Khan (the Claimant) who challenges decisions of the Secretary of State for the Home Department ("SSHD" or "the Defendant"). The first is a decision ("the section 10 decision") pursuant to section 10 of the Immigration and Asylum Act 1999 ("the 1999 Act") to remove the Claimant from the United Kingdom and which accords to the Claimant only an out-of-country right of appeal. The second is a decision to detain him pending his removal. The third is a decision consequential upon the section 10 decision to deny to the Claimant a right to obtain employment. On 13 th February 2013 permission to seek judicial review of the said decisions was granted.
Directions were made for the service of an amended claim form and grounds for judicial review and supporting evidence and for the Defendant to serve further evidence and detailed grounds of defence. Paragraph 7 of the order granting permission specifically stated that the Defendant was not debarred from arguing at the substantive hearing that the Claimant's application for judicial review should fail upon the basis that the Claimant had an alternative remedy, namely the pursuit of an appeal upon an out of country basis.
As matters developed the central issue advanced by the Defendant was in relation to the principles governing the jurisdiction of the High Court to entertain a judicial review in circumstances where the Claimant had an extant alternative remedy, namely a statutory appeal to the First tier Tribunal and Upper Tribunal (Immigration and Asylum Chamber) ("the Tribunal", "First tier Tribunal" or "Upper Tribunal", as appropriate), albeit on an out-of country basis. As to this there are differing views and approaches which have emerged in recent case law. As I explain below having heard full argument not only on this issue but also on the underlying merits of the dispute between the Claimant and the Defendant it is upon the point of principle that I have concentrated.
The facts relating to this case involve a number of twists and turns and in order to put the issues into proper context it is necessary to set them out in some detail.
B: Facts
The Claimant is a national of Pakistan. He was issued with a work permit on 23 rd July 2008 under permit reference number F498559. The work permit was issued to the prospective employer Positive Financial Services Limited, East Ham, London. The particulars of employment identify the occupation as an "Accounts Executive". It specified that his remuneration would be £30,000. A work permit does not, in and of itself, constitute leave to enter. Accordingly, the Claimant sought and obtained entry clearance from the British High Commission in Islamabad. The entry clearance document records that the clearance so granted was valid for 60 months from 30 th September 2008 to 30 th September 2013. It was granted with specific reference to the Visa work permit F498559. Two conditions were attached to the entry clearance vignette which were in the following terms:
"No recourse to public funds.
Work (and any changes) must be authorised".
Upon entering the United Kingdom the Claimant's work permit was stamped confirming that his initial date of entry was 25 th October 2008. The Claimant thereafter commenced employment with Positive Financial Services Limited.
In a witness statement served for the purpose of these proceedings the Claimant explained that his employer advised him that he was entitled to undertake up to 20 hours part time work over and above his specified employment. It was suggested to him that he endeavoured to obtain security work as this was quite well paid. In paragraph 4 of his witness statement the Claimant stated that prior to performing additional work he sought clearance from the Security Industry Association ("SIA") as follows:
"Based on this advice I applied for a security industry licence from the SIA. I read all their guidance regarding issue of SIA licences. This specifically stated that a licence would only be issued after liaison with the UKBA to verify an applicant's entitlement to work. I was advised that I needed to do an SIA approved course and obtain an SIA badge/licence which cost me about £500 to £600 in total. I did that and then applied for a licence in or about mid to late 2009. It took a couple of months for the licence to be issued. Despite having obtained the licence, I was not able to get any actual security work for several months to start off with, and even thereafter I only got very limited shifts".
He explained that the SIA's own guidance clearly stated that they would verify his entitlement to work before they issued him with a licence. He stated that having been issued with a licence he was satisfied that the advice he had received from his employer and from others regarding his entitlement to perform supplementary work was correct. And it was at this point that he obtained part time supplementary work with a security firm. Evidence before the court showed the representations made by the SIA on its website in relation to "right to work checks". The website information provided by the SIA, which is relevant for the purpose of the present case, is as follows:
"There is no legal responsibility for the SIA to carry out right to work checks; that is the role of the employer. Whilst we have no legal duty to check the right to work of individuals in our licensing decisions, we are continually improving our processes to ensure as far as we reasonably can that SIA licence holders are not illegal workers.
Since July 2007, we have worked with the UK Border Agency (UKBA) to check the right to work in the United Kingdom of all SIA licence applicants who are non-EEA nationals.
We also check the right to work of SIA licence holders from outside the EEA (i.e. individuals who have met our licensing criteria and have been granted a licence). Where the recorded right to work of a licence holder expires before their SIA licence, a further check is undertaken with the UKBA.
Employers are reminded of their legal obligation to check their employees with restricted hours Visas do not work more hours than allowed, and that they know an employee's right to work expires before their SIA licence expires.
If the results of our checks suggest that the individual's right to work has indeed expired, we will write to inform them of our intention to revoke their SIA licence(s) unless they can demonstrate a renewed right to work. They have 21 days to provide this evidence: if we do not receive a response within 21 days the decision to revoke their licence will automatically take effect".
The SIA also explained that their licensing covered certain specified activity and in particular manned guarding (including security guarding core, door supervision, close protection, cash and valuables in transit, and public space surveillance using CCTV), key holding and vehicle immobilising. Licensing ensures that private security operatives are "fit and proper" persons who are properly trained and qualified to do their job.
It has been necessary to set these facts out because it is submitted, on behalf of the Claimant, that his application to the SIA for a licence would necessarily have involved the SIA liaising with the UKBA who would, thereby, have been aware that he was seeking employment outside the scope of the "approved" employment the subject of the work permit and that this was for a different employer and related to a different activity (security not accountancy).
Prior to the 2012 London Olympics the security firm which was providing the Claimant with employment secured a contract to provide security at various Olympic venues. Prospective employees were advised that the organisers of the Olympic Games required all security firms specifically to obtain UKBA clearance and confirmation of their entitlement to work, even if this had been hitherto obtained by the SIA. The Claimant explained that he had no concerns in this regard and, in consequence, sought a further accreditation. He explained that he considered that he was acting in accordance with his visa and that the SIA had satisfied itself, through confirmation from the UKBA, that he was entitled to perform this work. On 8 th May 2012 he presented himself for accreditation. UKBA staff were checking each person's entitlement to work and were then issuing separate accreditation badges. Having submitted his documents he was informed that he was not entitled to do any work other than that of an accounts executive. He explained that, so far as he was aware, the UKBA had already authorised the work he performed in the security field during the SIA liaison process. He was at that stage told that he would be arrested for having violated the conditions of his Visa. He was taken to Leyton Police Station where he was interviewed.
He was subsequently...
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