Ye Hung Wu For Judicial Review Of A Decision By The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2006] CSOH 124 |
| Date | 11 August 2006 |
| Docket Number | P1656/05 |
| Court | Court of Session |
| Published date | 11 August 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 124 | |
| P1656/05 | OPINION OF LORD BRODIE in the Petition of YE HUNG WU Petitioner: for Judicial Review of a Decision by the Secretary of State for the Home Department dated 18 August 2005 to remove the petitioner from the United Kingdom on 20 August 2005 ______________________ |
Petitioner: Forrest; Drummond Miller, W.S.
Respondent: Drummond; Office of the Solicitor to the Advocate General
11 August 2006
Introduction[1] The petitioner is Ye Hung (otherwise Yeheng) Wu. His date of birth is 14 April 1973. He is a national of the People's Republic of China. The respondent is the Secretary of State for the Home Department.
[2] The petitioner arrived in the United Kingdom on 19 October 2000. As appears from his Certificate of Registration (a copy of which is number 7/3 of process), he was granted leave to enter until 19 April 2001 on the basis that he would have no recourse to public funds, that work (and any changes) must be authorised, and that he would remain to study English as a foreign language in Cardonald College, Glasgow. On 16 April 2001, his leave to enter was continued on the same basis until 31 October 2002. On 12 November 2002 the petitioner was granted leave to remain until 31 July 2003, again on the same basis. Leave to remain was thereafter continued until 30 June 2004, again on the same basis. However in about October 2003 the petitioner met someone who was concerned in a company by name of First Management (GB) Limited and, as a result, First Management (GB) Limited, through an agent, Ms So Lin Lee of LSW Limited, applied to Work Permits (UK) (a department or agency of the Immigration and Nationality Directorate of the respondent) for permission to employ the petitioner. That application was approved, as is indicated by the letter from Work Permits (UK) dated 2 February 2004, number 6/3 of process. The letter states the length of the approval as being for 60 months and includes the following:
"Occupation SKILLED CHEF. Salary £12,000 PER ANNUM. Employer: FIRST MANAGEMENT (GB) LTD. Address employed: T/A JIMMY CHUNG'S 401-405 UNION STREET ABERDEEN."
As part of that approval the petitioner was granted an extension of his leave to remain until 30 January 2009 under the work permit scheme. That was recorded by a stamp applied to the petitioner's Certificate of Registration and dated 2 February 2004. It includes the following:
"Leave to remain in the United Kingdom, on condition that the holder maintains and accommodates himself and any dependants without recourse to public funds, does not enter or change employment, paid or unpaid without the consent of the Secretary of State for Employment and does not engage in any business or profession without the consent of the Secretary of State for the Home Department hereby given."
Such a conditional leave to remain is usually referred to as a work permit.
[3] The petitioner began working as a chef in Jimmy Chung's restaurant at 401-405 Union Street, Aberdeen. On 14 June 2004 he married Aijun Zhang, a student of English language. Aijun Zhang is a national of the People's Republic of China. Like the petitioner, she is a speaker of Mandarin. It is averred in the petition that she has applied to the respondent for leave to remain in the United Kingdom.
[4] On or about the day of his marriage the petitioner moved from Aberdeen to Glasgow. He began to work as a chef at Peking Wok, Stepps, Glasgow. His employer was not First Management (GB) Limited.
[5] On 30 August 2004 the petitioner attended a police office where he advised an officer of his new address and the circumstances of his marriage. On a date which was either 31 August or 1 September 2004 (stated as 1 September 2004 in the note of interview, number 7/2 of process), the petitioner attended an office of the respondent. He was interviewed with the assistance of an interpreter. He is noted as having said that he was not working at Jimmy Chung's; that he was working at Sam's Shack, previously Peking Wok at 10 Dorlin Road, Stepps; that this establishment was owned by a friend; that he had set up business with his friend; that he did not know that this was not allowed; that he had invested £14,000 in the business; and that he understood that he was in breach of the conditions of his work permit.
[6] Following the interview, an immigration officer, acting on behalf of the respondent, gave directions for removal of the petitioner from the United Kingdom to Beijing, in terms of powers under section 10 (1) of and paragraphs 9 to 10A of schedule 2 to the Immigration and Asylum Act 1999. The date fixed for removal was 20 September 2004. The petitioner did not however show up for the designated flight. A petition for judicial review was presented on his behalf on 23 August 2004 (the "first petition"). As is usual in such a situation, the respondent suspended the removal directions by administrative action in order to allow the first petition to be determined while the petitioner remained in the United Kingdom.
[7] A first hearing of the first petition was fixed for 9 March 2005. On that day counsel appeared for the petitioner and moved that a Minute of Amendment be received. The motion was refused. The first petition was abandoned.
[8] Consequent on the abandonment of the first petition, on 18 August 2005 an immigration officer gave directions for removal of the petitioner from the United Kingdom to Beijing, in terms of powers under section 10 (1) of and paragraphs 9 to 10A of schedule 2 to the Immigration and Asylum Act 1999. The removal date was fixed for 20 August 2005. On 19 August 2005 the present petition was presented on behalf of the petitioner. Consequently the respondent suspended the directions given on 18 August 2005.
[9] The present petition makes no mention of the first petition. It is misleading in other respects. The Edinburgh solicitors acting on behalf of the petitioner in relation to the present petition are different from those who acted on his behalf in relation to the first petition. I take it that the same is true in relation to the instructing local solicitors. I assume that the petitioner's present legal advisers were unaware, until the lodging of Answers to the present petition on 11 July 2006, that the first petition had previously been presented. That fact, and the exiguous nature of paragraph 6 of the present petition (with its rather coy final sentence) indicate a remarkable lack of curiosity on their part, which can only partly be explained by the initial time pressures which I would accept that they must have been working under. On the other hand, I take it that the respondent, who I assume would get notice by virtue of his caveat, did not oppose the granting of a first order, as he might have done given the history of the first petition. I can understand that, at that stage, the solicitors acting for the petitioner might therefore consider that nothing further was required of them by way of investigation. Although the presentation and abandonment of the first petition is averred by the respondent in the Answers, it is not specifically founded on as a reason for dismissing the present petition and, accordingly, nothing has come to turn on the fact that there was a first petition which was abandoned. However, I would hope that it goes without saying that for legal representatives, who were fully aware of the position, to present a petition for judicial review on behalf of a client in circumstances where there has been a previous petition directed against essentially the same decision, which petition has been abandoned, and not to mention the first petition in the averments in the subsequent petition, would amount to an abuse of process.
First hearing[10] The petition came before me for a first hearing on 13 July 2006. The petitioner was represented by Mr Forrest, Advocate. The respondent to the petition, the Secretary of State for the Home Department, was represented by Miss Drummond, Advocate.
[11] Mr Forrest began by seeking leave to amend the petition in terms of Minute, number 12 of process, and to lodge additional productions. Neither motion was opposed and both were granted. I then heard argument which continued into the following day.
Submissions of partiesSubmissions for the petitioner
[12] Mr Forrest explained that he sought declarator that the decision of the respondent dated 18 August 2005 to remove the petitioner from the United Kingdom, was unlawful, and for reduction of that decision. He presented three arguments in support of his proposition that the decision was unlawful: (1) that the petitioner had not, on a proper interpretation, breached the conditions of his work permit; (2) that, in any event, the decision represented an improper exercise of discretion by reason of a failure to have regard to relevant guidelines; and (3) that the order to remove the petitioner from the United Kingdom in circumstances where his wife was entitled to remain constituted a breach of the petitioner's right to respect for his family life, as guaranteed by article 8 of the European Convention on Human Rights. Mr Forrest developed these arguments as follows.
[13] Mr Forrest's first argument depended on the meaning he attributed to "employment" where it appeared on the stamp applied to the petitioner's Certificate of Registration and dated 2 February 2004. In his submission, it was to be understood as "capacity in which someone is employed". The petitioner had not changed the capacity in which he had been employed. He had been employed as a chef in a Chinese restaurant in Aberdeen. He had then been employed as a chef in a Chinese restaurant in Stepps. Mr Forrest accepted that the "employment detailed below" in the letter from Work Permits (UK) dated 2 February 2004, number 6/3 of process, was specific to employment by First Management (GB) Ltd, trading as Jimmy Chung's at 401-405 Union Street Aberdeen but, so Mr...
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