England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		26th March 2009

1. THE DEPUTY: This is an application by Iqbal Yousaf for judicial review of a decision of the Secretary of State for the Home Department (the defendant) dated 2nd May 2006. By the decision the defendant refused the claimant a work permit within the Highly Skilled Migrant Programme scheme. Permission to apply for judicial review was eventually granted by Charles J on 1st August 2008 after amendment of the grounds of review.
2. The claimant, Iqbal Yousaf, is and has at all times been resident in Pakistan. He is now aged 39 and he was 35 at the time that he made the application for the work permit. The decision challenged formally is a decision letter of 2nd May 2006, which was the defendant's response to a letter before action, but that decision itself was the culmination of a process involving five separate stages, commencing with a decision by the defendant dated 23rd March 2005, and the substance of the challenged decision is to be found in the final letter before the decision letter, that letter being dated 29th March 2006. The judicial review proceedings were commenced in December 2006.
3. The case has a long procedural history which I do not recite in detail. On 20th March, that is last Friday, before this Monday's hearing, the defendant sought permission to file and serve further evidence (statements from four witnesses, Messrs Walton, Sewell, Beal and Pilkington) and at the same time serve detailed grounds of defence. I gave permission to adduce that evidence at the hearing on Monday for reasons which I gave in a short judgment then. Within that evidence the most important material is the contemporaneous notes recorded by various personnel within the defendants at the various times of the review decisions which are the subject of these proceedings and I will refer to those notes in due course.
4. The grounds of challenge are now reduced to essentially two. First, the claimant says that the initial refusal by the defendant and the subsequent procedure following that initial refusal, culminating in the final refusal in March 2006, was unfair and, secondly, the claimant says that the decision to refuse was unreasonable in any event as being outside the range of reasonable responses open to the decision-maker; in other words the decision was substantively irrational.
5. The relevant background events can be summarised as follows. The Highly Skilled Migrant Programme is a programme enabling persons to be granted leave to enter the United Kingdom on the basis that he or she is a highly skilled migrant. It was launched in 2002 and has been regulated by the Immigration Rules since 31st March 2004. Rule 135A of those rules governed the position at the time and at that time rule 135A included a requirement for the applicant to have confirmation from the Home Office that he met the criteria specified by the Secretary of State for entry to the UK under the programme. As at October 2004, the relevant programme was known as the revised programme, effective from 31st October 2003. Save as stated otherwise, I refer to the revised programme as the guidance. This document, the guidance, is a detailed document running to almost 40 pages. At paragraph 1.1 it provides:

"The following explains the programme for highly skilled individuals wishing to come to or remain in the United Kingdom to seek and take work or self-employment."

Paragraph 1.2 provides:

"The programme is designed to allow individuals with exceptional personal skills and experience to come to or remain in the United Kingdom to seek and take work. "

Then in paragraphs 2.1 and 2.2 it provides as follows:

"2.1 The UK government operates a programme to allow individuals to seek entry to work in the United Kingdom without having a prior offer of employment, or to take up self-employment opportunities.

2.2 HSMP [that is the programme] aims to provide an individual route for highly skilled people who have the skills and experience required by the United Kingdom to compete in the global economy."

It then, at paragraph 3.1, summarises the changes made to the programme from 31st October 2003 and for present purposes the change that is relevant is that there was a reduction of the points threshold required for HSMP approval to 65 points.

6. Paragraph 4.1 provides, under the heading "How you can qualify under the programme":

"To make a successful application you will need to provide evidence that you score 65 points or more in the categories set out below and demonstrate that you will be able to continue your career in the United Kingdom. Please note that you do not have to score points in all categories to qualify under the programme, as long as you score a total of a least 65 points."

Then at 6.1 it provides:

"HOW YOUR APPLICATION WILL BE CONSIDERED

6.1 A points based system of qualification is used to assess applications. You can score points in six areas. The HSMP application form allows you to self assess your score. A caseworker considering your application will only concur with your score where appropriate evidence has been supplied."

7. Then, moving on within the programme, under section 8 it describes the scoring areas for those applying on the standard HSMP application form, in other words for people over 28 years or other. Paragraph 8.1 is headed "Educational background", providing that "In this category you can score according to your educational qualifications". "Masters (eg MBA)" scores 25 points, "Graduate degree (eg BA or BSc) scores 15 points. Then, under 8.2, and this is the significant part for the purposes of this case, the heading is "Work experience". 8.2.1 refers to the graduate level work experience, which, again for our purposes, is not directly relevant and then 8.2.2 provides as follows:

"Senior level work experience would normally be a role at board level in a small company, in a larger business it could amount to a department head or leader of project management team. Those working in academia may have run a department or headed a research team. We will usually consider those who run their own businesses that employ a number of staff as demonstrating senior level work experience."

Then 8.2.3 refers to what is referred to as a specialist position as one that may not have any particular managerial role but requires a very high level of technical or artistic experience. 8.2.4 provides:

"The type of evidence required to demonstrate work experience is:

• Employer references on their letter headed paper, clearly showing the start and end dates of each position held during the employment, job title and a description of duties and responsibilities held."

Then finally in relation to this section, the guidance provides what the points are that are scored for these different levels of experience and under the different heads the final head for 50 points provides:

"At least 10 years' full time graduate level work experience including at least 5 years' in a senior or specialist role."

And that scores 50 points.

8. At the end of the guidance is a glossary of terms used and there is a further, slightly differently worded, definition of senior level experience and it is as follows:

"Work experience in a senior capacity within a company. In a large company, a senior position will be one requiring extensive responsibility for the management of staff and/or large-scale projects. In a small company, senior level experience will be indicated by active involvement in the running of the company at board level."

9. So that is the programme under which the claimant made his application and he made that application on 19th October 2004. The application was on the Home Office standard form and it had been filled out in manuscript by the claimant. He stated his date of birth. His nationality is Pakistani. His country of current legal residence is Pakistan as he was applying from outside the United Kingdom. Under the question "What is your profession?" he completed the form in the following terms: "Incharge computer centre". Then under the qualifying criteria he ticked the box for masters degree, which on self assessment provided 25 points, and then gave the information as to his qualification, which was a master of science at an institution which was in Pakistan, and then under work experience he ticked the box (c), "Minimum 10 years' graduate level work experience including at least 5 years senior or specialist level work experience", with 50 points. Then, giving relevant details of employment, he refers to the name and address of his employer as the "Pakistan Council of Science and Technology, (Ministry of Science and Technology)" and for the purposes of this judgment I will refer to the Pakistani Council of Science and Technology as the PCST. The information given is that he had been employed there since 1992 but he had since June 1998 had the title "incharge computer centre" and he then ticked the box for his score as 50 points. Therefore on his own self assessment he scored 25 points for a masters degree and 50 points for senior level work experience, thereby giving him 75 points over the threshold to qualify and then in the end of the form he totted up his points as 75 points.
10. Included with that application form were two letters from the PCST itself, both of which was signed by Mr Baluch, the director of administration, and one of which was dated 15th October 2004 and the other the 16th. The first is an experience certificate which states:

"We are able to confirm that Mr Iqbal Yousaf has been working with us since May 1992. He has held following positions with us.

1. Incharge Computer Centre from 1998 to date..."

And the second letter is headed "Reference Letter". It is a lengthy letter which sets out Mr Yousaf's experience with the PCST. It says:

"Mr Yousaf joined Pakistan Council of Science and Technology in May 1992 as a Programme Analyst."

And then it sets out his responsibilities under that job title and then it continues:

"He worked in this capacity till May 1998.

Owing to his outstanding performance, he was promoted as a Incharge Computer Centre in June 1998. This post is a senior level post in the hierarchy of organization officials. As Incharge Computer Centre he was heading the team of 15 employees, which include Programme Analyst, Senior Technical Assistant, Data Collectors, Computer Operators, Administrative Staff."

And then it lists under 13 numbered points his responsibilities and those responsibilities included the following:

"2. Establishes and implements policies and procedures for local and wide area networks (LAN/WAN) usage throughout the organization.

3. Conducting feasibility studies and determining future hardware and software requirements.

5. planning strategy for developing systems and acquiring hardware to meet application needs."

8. Monitoring the performance of the staff and approving bonuses for them."

10. directing programming staff and coordinates work with the applications programming area."

12. reporting directly to Scientific Secretary on the working of the department."

Then, after the bullet points, the letter continues:

"This post is also a specialist level post, as it requires special skills and vast experience in the networking field."

11. He then provided with that application a document which is in fact headed "Organogram of Pakistan Council for Science and Technology" and for the sake of ease I formally annex that document to this judgment without me having to describe it in great detail. Essentially, what that document shows is the claimant's position within the PCST and within the hierarchy. It shows that he reports directly to the scientific secretary, who in turn reports to the chairman, who is the head person in the organisation. There are two others who are also at the same level as the scientific secretary. Thus on the face of this document it appears that there are four personnel who are senior to the claimant. He is at the same level as five others also referred to as chiefs and one Director of Administration. He is above deputy chiefs, of which four are shown, and he has directly reporting to him 15 personnel, reflecting what was said in Mr Baluch's letter. These 15 comprise one programme analyst, three data collectors, one senior technical assistant, three computer operators and seven administrative staff. The layout of this document is undoubtedly somewhat odd in that the computer centre department, compared with the other departments, is set out somewhat differently from the other departments and it further looks as if, on the version submitted with this application form, additional information had been typed in specifically in the context of the fact that the document was being used to support Mr Yousaf's application. That is really a matter of inference but there are some dotted lines and the insertion of the claimant's name himself in the document which do appear to be added in.
12. The application was made on 11th December 2004. The defendant made a telephone verification call with the Pakistani ministry. That is evidenced by a verification of the report which records (this is the writer of the report, the entry clearance official):

"Called at the number on the Ref and spoke with [a named person] who works in the computer section. He stated that he [and that means the person with whom the entry clearance officer was speaking] is the Data Collector in the computer section. [He] stated that Iqbal Yousaf is an assistant programmer there and he is also the incharge of the computer centre. [He] stated that Iqbal had been doing this job since long."

13. There then follows a further verification report, this time dated 21st March 2005 ("the second verification report"). That reports a conversation with Mr Baluch, who is the person who wrote the two reference letters submitted with the application. That verification report records in the boxed standard sections that the claimant manages the computer section and then the comments at the bottom of the document state as follows:

"Employment confirmed as claimed. Spoke to the Manager Admin [who it is common ground is Mr Baluch] who is the applicant's counter signing officer as well. He informed that there are 13-14 officers who are senior than the applicant. The applicant works in Grade 17."

And, then in manuscript on that document, it is written, and we do not really know by whom, the words "refuse - post grossly inflated".

14. Two days later, on 23rd March 2005, by letter from Mr Beal of the defendant, the Home Office refused the application for admission. That letter stated as follows:

"Your application has been assessed against the HSMP qualifying criteria and after careful consideration of the evidence provided it has been refused.

As you may be aware, it is sometimes necessary to send documents supplied in support of applications to the relevant British Diplomatic post overseas for verification.

Unfortunately, the British High Commission in Pakistan have been unable to verify the work experience documents provided in this case, and we cannot therefore be satisfied that Mr Yousaf meets the requirements of HSMP arrangements. For this reason, we have been unable to approve the application."

15. We now know a little more about that letter because we have the internal notes of Mr Beal recorded at the time that he had sent that letter. They record as follows:

"Academic Achievement category

please see work experience comments."

Then under the heading "Work Experience category":

"An ECO check has been carried out for the applicant's employment at Pakistan Council for Science and Technology. The ECO has confirmed that the position the applicant holds is not a senior one. Therefore the work experience reference and the organisation chart submitted with this application have been found to be not genuine. Cannot award any points."

So at that stage the decision was taken on the basis that the claimant qualified for no points at all.

16. After requesting a review in May 2005, the claimant's application was reconsidered and a first review decision was issued by a letter dated 29th June 2005 from a Mr Sewell of the defendant, to the claimant's representatives. That letter provided as follows:

"Your client's review has been assessed against the HSMP qualifying criteria and after careful consideration of the evidence provided the decision to refuse has been upheld.

The terms of the qualifying criteria are that individuals must:

• score 65 points or more in the six HSMP scoring areas;

• provide evidence to demonstrate that they score the 65 points..."

Then under "Academic Achievement" that letter records that in fact he was entitled to 15 points on the basis that his Masters qualification in Pakistan is not equivalent to a British Masters but rather equivalent to a British Bachelors. Then, under "Work Experience", the letter recorded that 25 points were awarded and continued in the following terms:

"We were not satisfied that sufficient evidence was provided to demonstrate that your client's previous work experience involved any specialist/senior level work as described in the published guidance notes of the HSMP arrangements. With reference to paragraph 13-16 Annex C of the HSMP guidance notes, you will note that senior level work experience would normally be a role at board level within a small company where there would be evidence of your active involvement in the day to day running of the company. For a larger company, the expectation is that evidence is provided to demonstrate that you have ultimate control of a sector of the business such as Department Head or leader of a project management team...

Having taken into consideration all the facts presented, including both the size of the company and the duties and responsibilities undertaken whilst employed at the Pakistan Council for Science and Technology, we would have expected your client to have had some involvement at board level in the day to day running of business. No evidence has been provided to demonstrate that your client is employed at a board level or has any involvement in the day to day running of the company. The references provided do not indicate a senior or specialist level of employment and you have not provided any evidence of senior or specialist level earnings. You have not provided any evidence of any specialised level qualification or independent supporting evidence to demonstrate that the duties performed would require a specialist level of qualification.

Therefore we have awarded points for the five years of graduate level experience demonstrated."

Then it concludes:

"Your client's review scores a total of 40 points and therefore does not meet the terms of the HSMP qualifying criteria.

If you want the HSMP team to reconsider this decision on the basis of precisely the same information provided in the original application, you should write to the HSMP Team...

If you wish us to reconsider this decision on the basis of new or additional information not included in the application that is the subject of this decision, you must submit a fresh application..."

17. The internal notes in respect of that decision were the notes of Adam Sewell and those notes record in some length, about a page and a half, the reasons for that decision. Having set out effectively or summarised the content of Mr Baluch's reference letter, Mr Sewell's notes continue:

"Points awarded: 25 [this is for work experience]

Reasons why points claimed could not be awarded: Applicant has demonstrated over 10 years of graduate level employment, but no senior or specialist level employment.

The hierarchy chart shows a total of 50 employees which is a relatively small employer. Applicant is managing 15 staff and is directly below 3 other people. There is no indication that applicant is the head of a large department or is working at a board level and making company wide level management decisions etc.

Some of applicant's duties such as 'directing programming staff and coordinates work with the applications programming area' may seem senior level, but when compared to other evidence such as the hierarchy chart you can see that applicant is only managing 1 Programme Analyst and not the amount of staff implied by the duties.

...

Comments: Report from the British High Commission Pakistan states that applicant holds the position claimed for the length of time claimed. However, the report states that applicant is junior to 13-14 other employees which contradicts the evidence originally supplied and further indicates that the applicant does not work at a senior level."

That last comment, it is common ground, ie a reference to the second verification report.

18. The claimant requested a further review in August 2005 and on 23rd September 2005 a further review letter was sent by the Home Office. I will refer to that as the second review letter. The author was Mr Peter Phillips and, again, the application was refused. In that letter, under the heading "Work Experience - 25 points awarded", Mr Phillips said:

"We were not satisfied that sufficient evidence was provided to demonstrate that your previous work experience involved two years specialist/senior level work experience ... The HSMP guidance notes (Paragraph 8-11 Annex C) state that senior level work experience would normally be a role at board level within a small company where there would be evidence of your active involvement in the day to day running of the company. For a larger company, the expectation is that evidence is provided to demonstrate that you have ultimate control of a sector of the business such as Department Head or leader of a project management team. A specialist position is one that would require a very high level of technical or artistic expertise. The evidence provided by the Pakistan Council for Science and Technology was used to assess your clients work experience. We have assessed your clients work experience as graduate only. No evidence supplied indicated your clients role as senior as outlined by the HSMP Guidelines. Reasons why points were not awarded are as follows. No evidence your client has a position within the Company at board level, as organisation is small this would be expected for a senior level position. No evidence that states your client controls the budget for the department, duties state he approves bonuses for staff. Your client reports directly to the Scientific Secretary and not directly to the Chairman. This further confirms our Verification report that indicates there are 13 people senior to him within the company. The evidence provided does not indicate your client has overall control of the business or overall control of the Incharge Computer centre. Therefore we have awarded 25 points for graduate level work as in the previous review."

19. The case notes of Mr Phillips made at the time, which lie behind that letter, state in relation to "Work Experience category.

"The case notes above reflect the information in the file. I agree there is no evidence of senior level work and therefore the same points shall be awarded.

Reasons to up hold the decision: The company is a small organisation as outlined by the chart provided, therefore as per the internal guidance we should be looking to assess on the criteria set. Why points have not been awarded for senior level are as follows

1. No role at Board level

2. Does not make decisions on staff bonuses only approves them

3. He reports directly to the Scientific Secretary who in turn reports to the chairman of the company

4. No evidence he controls/sets the budget for his department

5. He evaluates operating practices, he does not create them. Ie he recommends to his Line Manager

He does not have overall control of the business and therefore no senior role has been shown."

20. On 17th March 2006, the claimant's advisers wrote a pre-action letter and on 29th March 2006 the Home Office responded in a letter written by a Mr Lewis Pilkington. This is what I refer to as the third review letter and is in substance the final decision which is the subject of this application for judicial review. That letter records at the outset:

"As requested in your pre-action notice, we have undertaken a further review of your client's original application and I am sorry to inform you that we remain unable to approve his application."

Then, missing parts out, under the heading "Work Experience - 25 points awarded", it provides as follows:

"With reference to the HSMP guidance notes, you will note that senior work experience would normally be a role at board level within a small company where there would be evidence of your active involvement in the day to day running of the company. For a larger company, the expectation is that evidence is provided to demonstrate that you have ultimate control of a sector of the business such as Department Head or leader of a project management team. A specialist position is one that would require a very high level of technical or artistic expertise.

We note receipt of employer evidence from the Pakistan Council for Science and Technology. However, we were not satisfied that the evidence demonstrates that your client's employment included senior or specialist level work. The hierarchy chart provided indicates that the Pakistan Council for Science and Technology has 50 employees. We would therefore expect your client to be at board level, or have duties and responsibilities indicative of senior level work, if we were to award points for senior level work. The duties and responsibilities outlined in the reference were not sufficient to demonstrate senior level work and the hierarchy chart does not indicate that your client is at board level...

As we were not satisfied that sufficient evidence has been provided to demonstrate that your client's work experience involves any senior or specialist level work, we were unable to award the 50 points claimed in this section."

Then it concluded:

"We have now reviewed this application on three separate occasions, with independent consideration at each stage. We are therefore unable to accept any further requests for reconsideration of this application."

21. That is the final substantive decision and Mr Pilkington's notes at the time record "3rd review" and under the heading "Work Experience category":

"The evidence provided in this section is not sufficient to indicate senior level work. From looking at the hierarchy chart, company has 50 employees. This is relatively small company, and although osn appears to be incharge of a dept, guidance states this is only sufficient for senior work if in a large company. In a small company, senior level work experience would normally be a role at board level. Osn is not at board level and has 3-5 people above him in company hierarchy. No evidence to suggest osn has control of a budget or that osn is making key decisions without obtaining clearance. Looking at the evidence on a whole, I agree with previous decision to award 25 points for minimum 5yrs grad level work."

By way of my comment, I am not entirely clear what the letters osn mean but there is no doubt that it is a reference to the claimant.

22. The course of events was concluded by a final response letter to the letter before action from the Home Office, 2nd May 2006. I do not propose to read out that in any detail. It just confirms that the application scored a total of 40 point and accordingly it has been refused and that no further consideration can take place.
23. We then turn to the proceedings. The application for judicial review was lodged on 12th December 2006, including at that stage a wide range of grounds. Eventually, the matter came before Charles J on 29th April 2008 on a renewed application and he ordered the application for permission to be adjourned for further consideration, directing that the claimant was to serve an amended claim form to narrow down and to clarify the grounds. On or just before that hearing on 29th April 2008, it is common ground that counsel for the defendant handed to counsel for the claimant a copy of the second verification report and it is common ground that by this date at the latest the claimant or his legal representatives were aware of the content of that second verification report. The claimant duly served amended grounds for judicial review and on 1st August Charles J granted permission on paper.
24. The claimant's case in the amended grounds is as follows. The claimant's grounds are that he was initially refused the application on grounds which were manifestly wrong and then that refusal was subsequently maintained, with the Home Office remaining determined to refuse it. Throughout the process of review, which took over a year, the Home Office failed to consider the claimant's application with an open mind. In particular, the defendant failed, first, to consider that the claimant worked not for a company but a Government department; secondly, to consider that his employer had clearly described his post as both senior and specialist; thirdly, to consider the actual terms of the HSMP guidance or to apply them to the facts of the case; fourthly, to reach any clear, consistent and rational decision to refuse; and, fifthly, to deal with his application in a fair and reasonable fashion. It seems to me that these five arguments go to both the fairness challenge and the rationality challenge and they will be addressed in the course of the reasoning which I shall give in a moment.
25. The fairness challenge is essentially that the inconsistencies of reasoning throughout the process over one decision and three review letters showed a closed mind. The rationality challenge is, applying the guidance and on the evidence presented, the defendant could not reasonably have concluded that the claimant did not qualify for 50 points for work experience. The claimant submits that the only reasonable conclusion open was that the claimant was the head of the department in a body which was or which was equivalent to a large company and on this basis he had "senior level work experience" within the terms of paragraphs 8.2.2 of the guidance. The relief he seeks is the quashing of the decision of 2nd May 2006 with the consequence that the matter be remitted to the defendant to reconsider the application for HSMP status but to do so on the criteria which applied in 2004 at the time of the original application.
26. The defendant submits, first, that the decision making process was fair and open minded and, secondly, that the ultimate decision of refusal was not irrational: this was not a decision which no reasonable Secretary of State could make on all the materials presented and regardless of what actually happened in the process.
27. On the interrelationship between the two areas of challenge, Mr White, who appeared for claimant, fairly accepted that if I were to find for the claimant on the fairness point but to find for the defendant on the rationality point then, once I had concluded that the decision was in any event not substantively irrational, no purpose would be served by setting aside the decision and remitting it for reconsideration and that, even if the fairness challenge was upheld, I would be entitled not to grant relief as a matter of discretion. He further accepted that, even if I found for him on the fairness challenge, it would be entirely appropriate for me to express my conclusions on the rationality challenge. For this reason it seems to me that I should consider first the rationality challenge since its outcome either way will determine the outcome of these proceedings. I will then turn after that to look at the fairness challenge.
28. Under the head of rationality, the question is whether on the basis of the information before the defendant the decision was one which would no reasonable Secretary of State could have taken. Mr White submits in the first place that the manner in which the defendant reached the decision was so unfair that no reasonable Secretary of State could have reached it, but in my mind that is a separate issue and in reality forms part of the fairness challenge. Regardless of the process and the various twists and turns in that process, the question here is whether, looking at the relevant information, the decision was substantively irrational. That in turn boils down to the question in this case of whether the defendant's conclusion that the defendant did not meet the criterion of senior level work experience described in paragraph 8.2.2 of the guidance was irrational.
29. In order to establish his entitlement to those 50 points, the claimant contends, and indeed must contend, that the body he worked for was the equivalent of a large company and that he was, or was the equivalent of, a department head within that large company. The claimant says that the relevant employer in this case was the ministry as a whole and not the PCST within that ministry; further, that that ministry is or is equivalent to a large company; and, thirdly, that the post of incharge computer centre was equivalent to a head of department of the ministry. To succeed on the rationality challenge, the claimant must show that any conclusion other than that is irrational.
30. The question then is whether the conclusion in the third review letter of 29th March 2006, which I have set out already in this judgment, was irrational. I make two preliminary observations. First, the assessment of whether an applicant meets the criteria for senior level work and thus entitlement to 50 points must be a matter for the defendant. There can be no duty merely to accept an applicant's own assertion or that provided by a referee that he has work experience of a senior level or that his position is "specialist".
31. It thus follows that in the present case the mere fact that Mr Baluch of the PCST stated in his reference letter that the claimant's post of incharge computer centre was "a senior level post in the hierarchy of organization officials", or indeed that it was also a specialist level post, cannot in my judgment of itself establish such a conclusion and with it automatic entitlement to a senior work level of points. The defendant is entitled, and indeed in my judgment required, to look behind such an assertion and consider whether as a matter of his appreciation the evidence establishes that the work is indeed senior level by reference to the criterion in the guidance. The assertions in the reference letter cannot of themselves be sufficient and thus do not assist the claimant's case.
32. Secondly, it is for the applicant to put forward evidence to support the claim for the requisite number of points and then for the defendant to consider whether that evidence does indeed support the claim. I refer in this regard to paragraphs 4.1 and 6.1 of the guidance which I recited earlier. Moreover, the guidance makes clear that highly skilled status is an exceptional class; see paragraphs 1.1, 1.2 and 2.2. Thus in the present case it was for the claimant to put forward relevant evidence to establish that he had senior level work experience and to do so by reference to the criteria in the guidance of paragraph 8.2.2. At no point in his application materials did the claimant in fact address specifically the terms of the guidance and refer to evidence by reference to that guidance. No explanation is given as to why he satisfies the terms of the guidance concerning seniority. The claimant did not say whether his claim was that his employer should be regarded or treated on the basis of being a large company, or alternatively of being a small company, and why he is or is to be considered as either a head of department or at board level.
33. Turning now to the decision as recorded in the third review letter, in my judgment it is plain that the defendant's assessment was made on the small company basis rather than on the large company basis. Whilst it is accepted, and I agree, that the PCST is or may not be a company but is rather a governmental organisation, there is no doubt that the defendant took its decision on the basis that the PCST was equivalent to or should be treated as a small company. Mr White submits that the alternative words in the third review letter of "or have duties and responsibilities indicative of senior level work" indicate that at this stage the defendant was addressing the claimant's position on both hypotheses. Those words, he says, are a reference to the large company criteria.
34. I do not agree with this submission for two reasons. First, the particular words do not reflect directly any wording in the guidance and in particular do not directly match the criteria for a large company any more than they do those for a small company. Moreover, paragraph 8.2.2 expressly states that relevant criterion for a small company would "normally" be a role at board level. The use of the word normally indicates that the senior level work experience in a small company is capable of being demonstrated by matters other than a role at board level. Board membership is not the exclusive way to establish a senior level in a small company. Thus the words in the third review letter "or have duties and responsibilities indicative of senior level work" are a reference or description of such matters other than a role at board level and falling outside the normal case.
35. Secondly, Mr Pilkington's own contemporaneous notes at the time of the third review letter put the matter beyond doubt. The PCST was being treated as, or as equivalent to, a small company and he plainly rules out the possibility of assessing the claimant on the basis that the PCST is a large company. The last sentence of those notes referring to control of budget or making key decisions without obtaining clearance is entirely consistent with the alternative wording in the third review letter itself, being the words starting "or duties and responsibilities".
36. So the question arises as to whether it was irrational for the defendant first to base the decision by analogy with the position of a company at all and, secondly, assuming it was not irrational for the defendant to do that, to treat the PCST as a small rather than a large company. As to the first question, treating the PCST as a company, I can see no reason why this approach was irrational. The third review letter certainly recognises the identity of the claimant's employer as being the PCST, even if it is not clear expressly whether the defendant took on board the fact that that body is not a company. But no basis has been put forward by the claimant, either in the course of the review procedure or in argument before me, as to why it was inappropriate, let alone irrational, of the defendant to apply criteria applicable to a company of any size to the PCST. This is despite the fact that the claimant had been put on clear notice in the first and second review letters that the defendant was assessing the claimant's employment on the basis that his employer was a company.
37. As to the defendant's conclusion that the PCST was to be considered as a small company, it is clear that the basis for this conclusion was the fact that the PCST had 50 employees. Indeed, broadly speaking, this was the consistent view of the defendant throughout the process (I say broadly because it might possibly be suggested that in the second review letter the defendant was less clear since in that letter both sides options were referred to). The only reason put forward by the claimant now as to why this view was wrong and why the PCST should be treated as equivalent to a large company is the fact that the PCST itself forms part of the Pakistan Ministry of Science and Technology. But no evidence has ever been put forward by the claimant, upon whom the burden lies, as to why the Ministry itself is to be regarded as a large company and why the PCST is to be regarded as part and parcel of that large company. Absent any evidence or explanation from the claimant, and on the stated basis of the number of employees of the PCST, in my judgment the defendant's conclusion that the PCST was to be treated as equivalent to a small company cannot be said to have been one which no reasonable Secretary of State could have reached. Indeed, there is no material upon which I could conclude that it would be irrational to treat even the Ministry as a small company. More generally, whilst there may be some debate as to where the dividing line between small and large companies lies and different views can be taken, it cannot be said that the present case lies so clearly on the large company side of the line that the question admits of one reasonable answer only.
38. The final question on this hypothesis then is whether the conclusion that the claimant was neither at board level nor had any duties and responsibilities indicative of senior level work was irrational. In my view it was not. It is clear that the claimant was not at board level and the claimant put forward no evidence why his position in the hierarchy should be treated as equivalent to board level. As Mr Pilkington recorded at the time, the claimant had three to five people senior above him in the hierarchy. Further, the defendant's conclusion that his other duties and responsibilities did not indicate senior level work was not irrational. In this regard, Mr Pilkington was entitled to rely on the fact that there was no evidence to suggest budget control or decision making without clearance.
39. In my judgment, the defendant's conclusions that the PCST was to be assessed as equivalent to a small company and that the claimant was neither at board level nor had duties and responsibilities indicative of a senior level was not irrational. That conclusion is sufficient to dispose of the rationality challenge and indeed the application for judicial review in its entirety. However, even if I had concluded that the only rational conclusion open to the defendant was that PCST, or rather the Ministry, should be treated as a large company, in my judgment a conclusion that even on that basis the defendant did not meet the senior level work criteria would not have been irrational. On this hypothesis, namely that the Ministry is large, the claimants argument would be that the Ministry itself was the large company in question and that the claimant was head of a department, that department necessarily being the computer centre. It could not be the PCST itself because the claimant was not on any view head of the PCST.
40. Neither the letter of reference nor the organogram provide direct evidence to establish that the computer centre is a relevant department of the Ministry for the purposes of paragraph 8.2.2 of the guidance. Moreover, there is material which suggests that the computer centre was not even on a par with the other departments in the PCST. The organogram itself is far from clear and might suggest that the computer centre was an ancillary department. But in any event, without further evidence, a conclusion that the computer centre was not a relevant department of the Ministry as a whole would not be irrational. At most it was perhaps a subdepartment, a department within a department.
41. I mention one specific issue which was the subject of much argument and that is the second verification report of 21st March 2005, containing the report that, contrary to the impression given by the organogram, there were in fact in the PCST 13 to 14 officers more senior than the claimant and that the claimant worked in grade 17. Mr Sachdeva submitted, first, that the second verification report provided an alternative justification for the defendant's decision if, contrary to his primary case, the claimant's evidence did otherwise meet the criteria because the second verification report provides a good reason to reject the claimant's own account of his seniority. He submitted, secondly, that the claimant must be taken to accept the truth of the contents of the second verification report, and not just its genuineness as a report of the conversation, by reason of the claimant's failure to respond to that report.
42. In the light of my conclusion thus far, it is not necessary for me to express a final conclusion on this aspect. It is the case that the claimant was provided with a copy of the second verification report on or around 29th April 2008 at the latest. There is an email in the papers which suggests a claimant may have seen it in August 2005 but in my judgment the claimant has not been given an ample opportunity to confirm whether that was the case and I make no finding on that.
43. Whilst it does seem to me that one might have expected some response to the contents of the second verification report in the 11 months which have elapsed since April 2008, I am not prepared to make an inferential finding that the claimant accepts the truth of its contents. Mr White points out fairly that as at 29th April 2008 there was a question mark over the provenance of that report and it was not until Friday of last week that the defendant for the first time formally sought to put that document in evidence in the case. Until that time he says there was no duty upon the claimant to respond to a document that was not in evidence.
44. I am not prepared to draw an adverse inference from a failure to respond between Friday of last week and Monday of this week. Whilst at first sight the contents of the second verification report do provide evidence putting in question the level of seniority shown by the organogram, in the particular circumstances of late service of evidence I am not prepared to decide the case in the defendant's favour on this alternative basis. However, had the evidence been formally served somewhat earlier, a failure to respond would have been strong evidence of acceptance of the truth of its contents and the claimant would have had an uphill struggle to defeat this alternative basis. However, for the reasons I have given, the rationality challenge fails on the defendant's primary case.
45. This conclusion on the rationality challenge is sufficient to dispose of the claim. The challenge on fairness, even if established, would not assist the claimant since no purpose would be served in quashing a decision which was in any event open to the defendant and which the defendant could rationally make again upon remission back for reconsideration. Nevertheless, in deference to the well presented argument put forward by Mr White, and since it was placed at the forefront of his case, I address that argument briefly now.
46. Mr White submitted the defendant initially refused the application in March 2005 on wholly unjustifiable grounds and that thereafter, during the process of three reviews and a final decision, the defendant did not consider the application with an open mind but rather with the overriding objective of preserving the original decision, come what may. He said that this lack of an open mind is demonstrated by the ever changing reasons given over the course of the three reviews. The defendant, in a manner of speaking, was searching for a hook upon which to hang the decision, so he submits. It is certainly the case, as Mr White suggests, that the defendant's reasoning given from time to time in this case is not entirely consistent and in the case of the original decision is not very cogent. The original decision not to award him any points at all seems to have been based on the conclusion that none of the material submitted was to be believed; that must be the case because otherwise he would have been entitled to some points. That in turn appears to be informed by the conclusions drawn at that time as to the veracity of the contents of the organogram arising from the second verification report. The fact that the defendant subsequently did accept that the claimant was entitled to some points for his degree and for his work experience, even if not at senior level, does suggest to me that in March 2005 the defendant did not properly or sufficiently carefully consider the application against the guidance. There is no doubt that thereafter the defendant did change its position and I further agree that the reasons given in the first, second and third review letters were not exactly the same or expressed in the same way.
47. Mr White made various points of detail concerning both the decisions and the internal notes at each stage of the review process and some of these points do illustrate inconsistency or even a dubious reasoning. For example, Mr Sewell's case notes for the first review letter of June 2005 to the effect that the organogram only showed the claimant to be managing one programme analyst was questionable. Mr Sewell's case notes to the effect that the organogram only showed the claimant to be managing one programme analyst and thus his claim to be directing programming staff was questionable did not appear to be warranted by the organogram itself. Rather, Mr Sewell appears to have drawn inferential conclusions about the organogram for which there appear to be no direct evidence. Mr White also fairly criticises as irrelevant and incomprehensible the reference in the second review letter of 23rd September to the requirement of two years special senior level work experience. He also criticises the addition of the word "ultimate" in the phrase "ultimate control" in the second review letter as being unwarranted by the terms of the guidance itself.
48. Nevertheless, I am not persuaded that these or any of these other points of detail are sufficient to demonstrate that the defendant, or more specifically its officials, approached the matter with a closed mind, intent come what may on reaching the same conclusion as originally reached. The internal notes now produced are all contemporaneous and suggest independent consideration by each official in question. Indeed, such inconsistencies as there are in the analysis or in their selection of the important features do suggest that each of them gave his own independent consideration to the evidence in the guidance. Since each knew what the previous assessments were, one might have expected each to replicate more closely the reasoning of the earlier assessments if the sole aim was simply to hold the line. Whilst it may have been understandable that the varying explanations given by the defendant in the decision letters over the course of time led the claimant to consider that his application was not being considered with an open mind, I am satisfied that those letters, when seen in conjunction with the contemporaneous internal notes now produced in evidence, demonstrate that there was no unfairness in the defendant's decision making process in this case. In my judgment, the fairness challenge also fails and I would not have quashed the decision on that basis in any event.
49. For these reasons, the claimant's claim for judicial review fails and is dismissed.
50. MR SACHDEVA: My Lord, I have an application for costs in principle and then I have a schedule, although you do not have the absolute obligation to summarily assess because the hearing has gone just over a day, but I would suggest that in the circumstances of this case it would be proportionate to look at the schedule.
51. THE DEPUTY: Yes.
52. MR SACHDEVA: But costs in principle, I say costs follow the event and we should have our costs.
53. THE DEPUTY: Yes. Very well. I will hear Mr White on that.
54. MR WHITE: My Lord, in the closing section of your Lordship's judgment you made it plain that the decision letters, looked at in themselves, might understandably create an impression in the mind of the claimant that he had not received fair treatment. That was clearly the impression that these letters produced on the mind of Charles J. What has ensured that your Lordship comes to a clear and different conclusion in my submission is the production of contemporaneous notes on Friday of last week and their admission in evidence in Monday of this week. That, in my submission, is something that has be borne in mind if it is really the question of principle whether it is right for the defendant to have costs if the basis on which the defendant can make out her case and succeed is put before the court effectively on Monday, when it is listed for hearing. Quite clearly the claimant has been deprived of any opportunity to consider his position in the light of that evidence. I mean, all that he has had is the decision letters and I have made my submission about the impression that those convey and, you know, one knows not what view would have been taken had that evidence been served in a timely manner. It must be a possibility that we would never have been here and in those circumstances, in my submission, that is one reason for saying that as a matter of principle there should not be any order for costs.
55. The other, which is perhaps not entirely distinct from it, is that this is yet another instance, and your Lordship will find there is a third instance of that, to being sprung on us, of the defendant simply ignoring the rules. There have been the two instances in relation to the late service of evidence and your Lordship is going to be invited to conduct a summary assessment on the basis of a schedule of costs which I am told has not been served on those who instruct me and which was handed to me at ten to ten this morning. I have had a chance to look at it and I can see a number of serious flaws in here but at this stage I concentrate on the point of principle. But at some stage, if the court does not impose some sanction on the defendant, this kind of conduct just carries on and on and on and, frankly, on the rules of court, they should be in contempt for that throughout these proceedings.
56. THE DEPUTY: Yes. Mr Sachdeva?
57. MR SACHDEVA: I am quite astonished at the temerity of those submissions. The claimant's claim form bears some analysis. There are about eight grounds in the claim form, only two of which survived the permission decision, and the thrust of this claim before Charles J was on the fairness aspect. That line was dropped rather rapidly before your Lordship because it was clear that that line, or it certainly was relegated --
58. THE DEPUTY: Well, the fairness aspect was not dropped.
59. MR SACHDEVA: It was relegated to --
60. THE DEPUTY: Well, it was relegated in my judgment.
61. MR SACHDEVA: Even in submission, my Lord --
62. THE DEPUTY: Well, no, I do not think it was relegated in submission, I think, from Mr White.
63. MR SACHDEVA: I mean, Mr White, really -- I mean, if he is really saying that despite the fact that his client received the evidence on Friday, had enough time to instruct Mr White not to seek an adjournment on the Tuesday but somehow did not have time to analyse what was in the evidence and he may well have dropped his case, had he had the evidence any earlier, is simply cloud-cuckoo-land. This was a case about somebody who did not like the Secretary of State's decision on his work permit, asked for numerous reviews, had not provided any new grounds in fact for those reviews at any time, he has had twice the number of reviews as under the rules, he commences litigation out of time and on eight grounds, whereas only two of them have only survived permission, as I say.
64. THE DEPUTY: Can I -- I have not gone into the detail. Can I tell you what my thinking is.
65. MR SACHDEVA: My Lord, yes.
66. THE DEPUTY: My thinking is that I am going to reflect the late service of what really was very important evidence, the internal notes, both I think as to the fairness and to the substantive. I am going to reflect that in the costs order.
67. MR SACHDEVA: My Lord, that is a matter for you.
68. THE DEPUTY: How I do it, I think that you should certainly have your costs from a appropriate time, once that was served, whether that is from Monday morning onwards or for the hearing, but what the cut off point is I will hear you on because I certainly think you are entitled to your costs of once that material was served.
69. MR SACHDEVA: My Lord.
70. THE DEPUTY: Now, in respect of the previous period, I might have been minded to make no order for costs. However, I take on board your point that the initial application was very wide-ranging.
71. MR SACHDEVA: And out of time.
72. THE DEPUTY: And out of time and got cut down and I am therefore proposing -- it is quite difficult to work out how, because I do not know the history. I have not looked at those original grounds. I do not know how much you responded to them and how much -- I do not want to do it on an issue by issue basis.
73. MR SACHDEVA: Well, that is frowned on anyway. Percentage really.
74. THE DEPUTY: Yes, I am looking at a percentage and I am looking at suggestions from both of you that if I were to reduce your costs up to Friday between nought and 100 to reflect the late service of the critical evidence on the two issues which did survive, but on the other hand to reflect the fact that this challenge, it got permission but the original challenge was very wide-ranging.
75. MR SACHDEVA: My Lord, yes.
76. THE DEPUTY: I do not know what level of costs, in your own mind, what they are going to be for that period. That is my thinking.
77. MR SACHDEVA: My Lord, I do not know if you have the bundles in front of you.
78. THE DEPUTY: I have.
79. MR SACHDEVA: There are a lot of papers in this case and, whilst we are on the subject of practices which are not perfect, the initial bundle needed to be seen to be believed. It was not chronological and Charles J was very unhappy about it. That is why it is taken such a long time to get to the bottom of this case because none of the papers were in order.
80. THE DEPUTY: I am not going to --
81. MR SACHDEVA: Indeed, so --
82. THE DEPUTY: I am going to also say that I am not going to summarily assess today, in the light of the late service. I hope that it can be agreed, subject to -- I am not going to do that now.
83. MR SACHDEVA: My Lord, yes. It is point of principle you wish to decide.
84. THE DEPUTY: It is the proportion.
85. MR SACHDEVA: It is really for my learned friend to suggest a figure, I suspect, and I will tell you why that is wrong.
86. THE DEPUTY: Maybe you will agree. Yes.
87. MR WHITE: Well, my Lord, it is true that the initial grounds of appeal covered a variety of bases, including --
88. THE DEPUTY: Allegations of discrimination.
89. MR WHITE: Bias and racial discrimination.
90. THE DEPUTY: And legitimate expectation.
91. MR WHITE: Indeed. Legitimate expectation --
92. THE DEPUTY: Did not really add --
93. MR WHITE: Amounted to really to not very much more --
94. THE DEPUTY: It is that other people had been --
95. MR WHITE: Yes, it was really a species of being unfairly treated because of what was suggested, that other people had said that --
96. THE DEPUTY: To what extent was the defendant required to respond to that? You put in your summary grounds.
97. MR SACHDEVA: We put in summary grounds and we had to deal with all of it and it is a whole extra file, that one point.
98. THE DEPUTY: Yes. I mean, a ballpark figure of the costs up to last Friday, the service of the evidence, what proportion would be referrable to the failed grounds, your failed grounds?
99. MR WHITE: Well, it is very difficult for me to say how much of the defendant's time has been taken responding to those grounds.
100. THE DEPUTY: Well, you know -- it is a game of poker here, is it not? Nobody wants to show their hand.
101. MR WHITE: 50/50, my Lord.
102. MR SACHDEVA: Well, my Lord, I think we spent a lot more time on the -- I would just briefly invite you to look at the claim form.
103. THE DEPUTY: Where is this in the bundle.
104. MR SACHDEVA: Well, if you just look at the amended claim form right at the beginning. I think --
105. THE DEPUTY: Sorry, the first amended claim form?
106. MR SACHDEVA: Yes, the first few pages should show the initial grounds.
107. THE DEPUTY: Is that page 8?
108. MR SACHDEVA: I think it is page 8, my Lord. I do not have my bundle in front of me but, if you look at the first approximately 25 pages, you will see the nature of the allegation --
109. THE DEPUTY: Yes, I think I remember them all.
110. MR SACHDEVA: -- being made.
111. THE DEPUTY: And those allegation are against a particular individual as well.
112. MR SACHDEVA: Andre Evans, indeed.
113. THE DEPUTY: The question is the extent -- I mean, were any costs orders made on any of the oral hearings before or were they all reserved?
114. MR SACHDEVA: There were no cost orders made but obviously there is a practice direction in here that says in admin law you do not need to expressly reserve costs for the costs to be reserved. But the point is -- I mean, I know, I have been in the case all along, we spent an awful long time --
115. THE DEPUTY: Well, both of you have.
116. MR SACHDEVA: Looking at the racial discrimination aspect et cetera because that was by far the most damaging allegation being made. I mean, whether somebody has to reconsider one application or not is not the end of the world but if the department is found to have discriminated racially that is obviously a very serious matter. We had to look at that quite carefully. So I would say at least 85 per cent of the time was spent dealing with all of the allegations that were made and the fact that permission state was only granted on two is testament to the fact that we managed to persuade the judge that there was nothing in them. In particular, the legitimate expectation ground, the same solicitors obviously act for a lot of people and they lodged a file full of half of their other applications --
117. THE DEPUTY: How much work did that -- your summary grounds of defence run to 13 pages?
118. MR SACHDEVA: My Lord, yes, and they were not mine personally. They were another counsel's.
119. THE DEPUTY: Then there was a reply to summary grounds of defence and this is when things start getting -- this is when Mr White was called to the rescue, presumably, as things got more convoluted.
120. MR SACHDEVA: Indeed.
121. MR WHITE: First oral hearing, my Lord.
122. THE DEPUTY: No, I am just talking about the clarification of the case.
123. MR WHITE: Yes.
124. MR SACHDEVA: What I would say, my Lord, is the reason for reducing our costs is effectively to penalise us for lateness, rather than for putting in any material which was not relevant. All of the work we have done was necessary to deal with the case being made against us, so the reduction is not -- would not be on the basis that none --
125. THE DEPUTY: It is also to do with the fact that -- it is actually sort of the other way round as to whether or not it was justified for the claimant to continue, whether he should have his costs in a way, and I am making -- I am netting off.
126. MR SACHDEVA: Pending the evidence being lodged, but what we say is this case was hopeless from some distance on. If the rationality point was the key point, which we say it was all along, permission should never have been granted because there was nothing -- the claimant did not, until he appeared before you, clarify what his case was on rationality in fact. So permission was granted without knowing what the claimant's case was -- this is actually a large company and I was a head of the department -- and how much easy would it had been to say that. The trouble is, if the claimant had said that, he would have been refused permission, because there was no material on which to make good that criticism and that is the trouble. I know it looks bad that we have lodged our evidence late second time round but this application was listed on 20 days' notice. That does not excuse the delay but it has been very difficult to get to the bottom of exactly what the computer records held and I do not myself know why it was so difficult because I did ask enough times. But it did prove to be very time consuming and the way this claim has been run, including the ambiguous throwing in all these grounds and not clarifying what the case was until the hearing before your Lordship, just simply I would respectfully submit, should tend the court to think that actually, although the defendant has been a bit late with various things, the case it was facing was coming from various different directions and was never adequately clarified.
127. So those are my submissions. I say if there is a reduction it should be very small.
128. THE DEPUTY: All right, thank you. Mr White, do you have anything you wish to add to that?
129. MR WHITE: My Lord, one point which I confess struck me -- my learned friend says it has been very time consuming and very difficult to get all the evidence together and that explains why it has been served so late -- in the schedule of costs that I have been handed this morning, there is an item for Ms Laura Willett for drafting and amending witness statements, which is timed as having taken place between 4th September and 25th November of last year and that can only relate to witness statements which were served in March of this year. That seems to me very difficult to understand what has been going on with those witness statements between 25th November last year and 20th March of this year. My Lord, over than that it is very much -- it is exercise of the length of a chancellor's foot I think.
130. THE DEPUTY: Very well. Thank you.
131. On costs in this application, I am going to order that the claimant pay the defendant's costs from 23rd March, that was Monday onwards, and as regards costs up to and including 20th March, the Friday, I am going to order the claimant should pay the defendant 85 per cent of its costs. I make that reduction to reflect the fact that key evidence, which certainly was the decisive factor in the fairness challenge and also material to the rationality challenge, was not served until last Friday. I do not make any reduction more than that 15 per cent because, as the defendant's counsel fairly points out, a large amount of the time spent in this case over a substantial period was in relation to matters raised by the claimant which failed even to get through the permission and that therefore, broadly, the defendant should be entitled to his costs in relation to those matters. Nevertheless, it does seem to me that the thing which knocked out the final surviving challenges finally was the service of that late evidence. To that extent there should be a small reduction in the defendant's costs.
132. I will not summarily assess them today. They will be subject to detailed assessment if not agreed. I hope perhaps they can be agreed.
133. Are there any other matters?
134. MR WHITE: My Lord, no.
135. THE DEPUTY: Thank you and I apologise for keeping you waiting this morning.