Petition Of Vikram Foods Glasgow Limited For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne |
| Neutral Citation | [2016] CSOH 77 |
| Year | 2016 |
| Date | 08 June 2016 |
| Court | Court of Session |
| Docket Number | P795/15 |
| Published date | 08 June 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 77
P795/15
OPINION OF LORD BANNATYNE
In the petition of
VIKRAM FOODS GLASGOW LIMITED
Petitioners;
for
Judicial Review of the decision of the Secretary of State made on 5 March 2015 to refuse to grant the petitioner’s application made on 6 January 2015 for a Tier 2 General and Tier 2 ICT Sponsor Licence
Respondents:
Petitioners: J Bryce; Drummond Miller LLP
Respondents: G Maciver; Office of the Advocate General
8 June 2016
Introduction
[1] The petitioners are a company formed on 25 June 2014. It has two outlets, both Indian restaurants trading as Rishi’s Indian Aroma, one having a registered company address at 61 Bath Street, Glasgow and the other at 11 Hawkhill, Dundee. The owners of the company are members of the same family as the owners of Vikram Restaurants Limited, India.
[2] The petitioners made an application on 6 January 2015 for a Tier 2 General and Tier 2 (ICT) sponsor licence. The application was refused by the respondent in terms of a decision letter dated 5 March 2015. The present judicial review proceedings sought reduction of that decision.
Regulatory background
[3] Where an employer requires to employ non-EEA nationals in his business in the United Kingdom he has to obtain a sponsorship licence from the respondent. The sponsorship scheme is not statutory but is rather subject to departmental guidance. Said guidance is contained in a document issued by the respondent, namely: “Tier 2 and 5 of the Point Based System Guidance to Sponsors”.
[4] The material provisions for the purpose of these proceedings are these: once a licence is in place, an employer can recruit non-EEA nationals, subject to the RLMT, other than for jobs exempt from the RLMT (see: paragraph 28.1 of the Guidance). “Skilled chef” is an exemption listed on the Tier 2 Shortage Occupation List under reference SOC5434. The sponsorship scheme also permits intra-company transfer (“ICT”) for circumstances in which a company with operations both in the United Kingdom and outside the EU can “transfer existing employees from outside the EEA to their United Kingdom branch for training purposes or to fill a specific vacancy that cannot be filled by a British or EEA worker” (Immigration Rule 245G). The guidance at paragraph 4.2 makes it a pre-requisite of an ICT licence that there should be demonstrated a direct link by common ownership or control with the overseas entity. Appendix A to the guidance specifies documentation that must be submitted in support of an application for an ICT sponsorship licence. One route specified in the appendix to substantiation of an application is the provision of a “certified copy of the joint venture agreement naming both entities as parties or one entity as a party and the other entity as the entity formed by that agreement (see: Table 3)”.
The petitioners’ application in terms of the points based system
[5] The petitioners’ application under Tier 2 (ICT) was to bring over a managing director for training purposes. In terms of Tier 2 (General) the petitioners sought to recruit a specialist chef.
The respondent’s decision letter
[6] The material parts of the decision letter for the purposes of these proceedings are as follows:
“Decision and Rating
Thank you for your application to become a licence sponsor under Tier 2 (General) and Tier 2 (ICT) of the points based system.
From the evidence provided and/or following the meeting between you and one of the compliance officers on 17 February 2015, we are not satisfied that you can offer genuine employment that meets the Tier 2 (General) requirements on skill level and/or the appropriate rates of pay for the following reasons:-
Tier 2 (General) – business development manager
You operate an Indian restaurant based on the nature and size of your organisation and the evidence received, we do not consider that this business supports the role of a full time business development manager or that there is a genuine need for the role of business development manager as described.
Indeed there is no shortage of individuals with the skills needed to undertake the role of business development manager in the UK. We would expect businesses, such as the one that you operate to fill any vacancies you may have by recruiting personnel from the resident or European economic area workforce, who are not subject to immigration control.
Tier 2 (ICT) – Speciality Chef
You have submitted a joint venture agreement dated 22 November 2013. Vikram Foods Glasgow Limited was incorporated as a company in the United Kingdom on 26 June 2014. We do not accept therefore that the joint venture agreement document that you have submitted demonstrates that a bona fide joint venture for ICT purpose indeed exists. It appears that the document has been produced in order to try and meet the Tier 2 Intra-Company Transfer sponsorship rules.
Furthermore, the searches we have undertaken in relation to the business that is operating in India, appear to show that this is a fast food outlet, which leads us to question whether or not such a business could supply speciality chefs to the level that you state you require. This view is reinforced by the list of duties that was provided by your representative in his letter of 2 March 2015, in which they outline the duties that a chef employed by you would have to undertake.
i. Identification of current and future customer food preferences.
ii. Plan menus by studying market conditions
iii. Prices meals by analysing recipes.
iv. Controls costs by using seasonal ingredients.
v. Maintains professional and technical knowledge by attending educational workshops.
vi. Maintaining first aid, CPR and Heimlich manoeuvre certification.
We are therefore not satisfied that the chef that you are looking to recruit from India, would possess the necessary high level of skills and experience that you state you need, namely NQF Level 6.
…..
If you re-apply you should ensure that the reasons for refusal outlined above no longer apply or your application is likely to be refused again”.
Preliminary issue
[7] Before turning to the detailed arguments with respect to the substantive issues it is appropriate to deal with a preliminary matter raised by the respondent.
[8] Counsel for the respondent’s broad position was this: that there was an alternative remedy available to the petitioners and therefore either the court should decline to exercise its supervisory discretion and dismiss the petition or the court should use its discretion to refuse to pronounce the remedy sought.
[9] In support of the above general proposition counsel directed my attention to Clyde & Edwards Judicial Review at paragraph 12.01 where the authors say this:
“As a general proposition it may be said that judicial review is not available if there is an alternative means of relief open to the applicant. One example of such a case is where there is a contractual remedy open to the complainer, but the matter of alternative remedies has usually arisen in relation to the provision of statutory remedies and it is with that problem that this chapter is particularly concerned. Where a particular remedy is provided the general rule is that it must first be pursued. This rule was recognised by Lord Kames when he observed that ‘it is the province, one should imagine, of the sovereign, and Supreme Court, to address wrongs of every kind, when a peculiar remedy is not provided’. One may not neglect a statutory remedy and jump direct to the Court of Session. Indeed, if the alternative statutory remedy is more suitable to the nature of the case and sufficiently obviates the risk of wrong or abuse, it may be exclusive or final. The principle may be thus expressed in terms of an implied exclusion of the court, so that it can be said that where a statute provides an alternative method of review there is an implied exclusion of the jurisdiction of the Court of Session”.
[10] Counsel accepted that no alternative statutory remedy was available in the present case. Nevertheless, it was his position that there were alternative means of relief, namely: the making of a fresh application.
[11] Counsel referred me to a number of authorities namely: ZG [2015] CSOH 159; MDMH (Bangladesh) [2014] CSOH 143; and King v East Ayrshire Council 1998 SC 182 on this issue: if I found there was an alternative remedy available in the instant case should I dismiss the petition or refuse, in the exercise of my discretion, to pronounce the remedy sought.
[12] On the basis of his analysis of these cases, counsel’s position was this: he accepted that it was competent to bring the petition, given that there was no statutory appeal, however, there was another remedy available and thus no practical effect in reducing the challenged decision, therefore the appropriate course for the court was to exercise its discretion and refuse to pronounce the remedy sought. In support of this, he directed my attention to the following passage in the Opinion of the Court in the King case at page 194:
“Even where a court is satisfied that an administrative body has erred in law in reaching their decision, the court is not bound to reduce that decision. As Lord Halesham LC pointed out in London & Clydeside Estates Ltd v Aberdeen District Council at page 31, the jurisdiction to grant decree of reduction of administrative decisions is ‘inherently discretionary’. In particular it is relevant for the court to consider what practical effect the person seeking reduction will achieve if the decision is reduced”.
[13] In seeking to establish that an alternative form of relief was available, counsel referred me to the policy guidance at paragraph 10.4 which provides:
“If we refused your application for one or more of the reasons listed below, you should only reapply when 6 months have passed since the date of our letter notifying you of the refusal. If you reapply before this date, we will...
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