QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF KHAN UDTHA||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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North Street, Bishops Stortford, Herts, CM23 2LD) appeared on behalf of the Claimant.
Mr David Blundell (instructed by Treasury Solicitor) appeared on behalf of the Defendant
Crown Copyright ©
The Legal Framework
"a permit indicating, in accordance with the immigration rules, that a person named in it is eligible, though not a British citizen, for entry into the United Kingdom for the purpose of taking employment."
No further provision is contained in the primary legislation dealing with work permits, as I understand the position. In particular there is no statutory regime set out dealing with the content of such a scheme or any power to make rules.
The Work Permit Scheme
"This guidance note provides information on the criteria of the Business and Commercial work permit arrangements and advice on how to make an application. They are updated regularly, therefore, please read them before filling in the application form. This supersedes all previously issued guidance."
The official form WP1 used in this case also directs the attention of applicants to those guidance notes. Indeed, it is difficult to see how the form could be successfully completed without considering those notes.
"The employee cannot use the work permit to take a different job or to work for a different employer."
"(e) the gross pay and conditions of employment are equal or exceed those normally given to a 'resident worker' (see paragraph 2 for a definition) doing similar work.
(h) the skills, qualifications and experience needed to do the job meet specific requirements.
(i) the person is suitably qualified or experienced to do the job on offer and whether there is a need for them to do the job on offer; and
(j) there are suitably qualified or experienced 'resident workers' available."
"8 The gross pay and other conditions of employment should be at least equal to those normally given to a 'resident worker' doing similar work" -
and obviously relates to paragraph (e),
"12 To qualify for a Business and Commercial work permit the job must meet the following criteria:
Either - the job must require the following qualifications:
(a) a UK equivalent degree level qualification; or
(b) a Higher National Diploma (HND) level qualification which is relevant to the post on offer; or
(c) a HND level qualification, which is not relevant to the post on offer plus one year of relevant full time work experience at National/Scottish Vocational Qualification (N/SVQ) level 3 or above;
Or - the job must require the following skills:
(d) 3 yearss full time experience of using specialist skills acquired through doing the type of job for which the permit is sought. This should be at N/SVQ level 3 or above."
Paragraph 12 is linked to paragraph 1 (h). In summary, the job specified in the application must require certain specified qualifications or three years' experience acquired through jobs at a certain level.
"14 The person should have the skills, qualifications and experience to enable them to do the job on offer. Also, the qualifications and skills of the person should be in line with the criteria outlined in paragraph 12."
That principle links with paragraph 1 (i).
"126 If you want to employ a person currently in the UK, who already has a work permit i respect of a job with amother employer or if you want the person to change jobs within your organisation you should apply to Border and Immigration Agency for permission.
127 If the application involves a change to the duties and conditions of work from those on the previous work permit application a search of the resident labour market will normally be required ..... unless the application can be dealt with under the tier 1 category .....
128 You do not need to provide evidence of a recruitment search if we receive your application either before they leave their current employment or within 28 days of the person's last day of work with their previous employer, and providing they will be doing the same type of job. You must wait for our permission before the person can start working in their new role."
Paragraph 129 deals with the information required on a change of work permit application and states:
"129 ..... For most change of employment applications we will already have details of the person, so you do not need to send evidence of their qualifications and experience."
"171 Work permit holders who are non-EEA nationals (including non-visa nationals) who wish to come to the UK for more than 6 months must obtain entry clearance before travelling. If clearance is granted it will usually be for the full period of their stay as stated on the work permit.
192 The exceptional waiving of the in-country switching rules will only be considered where there are compelling circumstances, detailed in the application and relating to the individual, which would make it unduly harsh for them to return to their country of residence."
Lastly, from an earlier section, paragraph 83 reads as follows:
"83 Where a work permit is issued the person must return overseas and use the work permit to apply for entry clearance to re-enter the UK. They cannot work in the UK on the basis of the work permit alone. If they do not return overseas to gain entry clearance and begin or continue to work in the UK then they would be in breach of their immigration status and could be subject to removal from the UK."
"220 If you think that the decision based on the information sent in with your original application was an error, and you wish us to reconsider your previous application, please write a letter to the Business Team that dealt with your application. You should write within 28 days of the date of original decision letter and explain why you believe that the decision was wrong, with reference to the guidance notes, and make it clear that you are requesting a review of the decision on your previous application. There will be no fee for this consideration, providing you are not asking us to consider new information."
"221 The Reviews Team will consider the grounds of refusal provided in respect of your initial work permit application and also undertake a full review of all other elements of the work permit decision.
222 Before making a decision we may contact the employer/representative for further information to clarify/support the evidence provided with the initial work permit application.
223 Where we identify further grounds for refusal the decision to maintain refusal of an application will stand even when the original ground for refusal has been overturned."
Paragraph 224, in part, reads:
"The Reviews Team will only accept two reviews per original application refused ..... "
The application for change of employment
"Please describe how you verified the person's qualifications and skills?" -
the answer was given
"By past employment history and taster evening where the person was asked to prepare a meal for up to 40 people."
"What qualifications and/or skills are required for this post? You should be as specific as possible and not use general terms ..... "
The answer given to that was:
"Experience as a chef/head chef in quality venues and some experience of having worked in quality establishments in the UK."
Question 57 asked that the normal hours worked per week be stated. The answer was given as 48 hours. Question 58 asked:
"Before deductions, how much will you guarantee to pay the person excluding allowances?"
The answer was given as £15,000 a year.
"Does this person currently hold a work permit for a similar post?"
The answer is given as "Yes", in which case the form directed the applicant to go straight to the declarations on page 12 of the application.
The Decision Letters
"Additionally, you have not stated the length of experience required for this post."
"When assessing whether a job meets the criteria for the issue of a work permit we do not judge it on the job title alone, we take various pieces of information into account, for example, the job description, the job requirements and salary level. In this case none of the above show this job to meet the skills criteria as previously described. The requirements for the job are purely experience as a chef or head chef, you have not stated at what level this experience would need to be at or how much experience would be required.
In addition, the minimum salary we would acecpt for a head chef that requires a minimum of 3 years experience at NVQ level 3 or above is £18,000 per annum for a 40 hour week. You are proposing to pay Mr Khan-Udtha only £15,000 for a 48 hour week which, if calculated to a 40-hour week, would be £12,500. This is significantly below the minimum for a post that would meet the skills criteria and further shows that your post of head chef would not require an individual with 3 years experience at NVQ level 3."
"With regards to the refusal on the advertising criteria, it is true that the caseworker has failed to take full notice of the circumstances of the application. If this were a change of employment application we would accept that the post sous-chef and head chef are similar enough to treat the application without applying the advertising criteria. However this is not a change of employment application. Notification was received by this Department in May from Mr Khan-Udtha's previous employer informing us that Mr Khan-Udtha left their employment on 30 April 2007. We are therefore unable to treat this as a change of employment and the full advertising criteria must be met."
I note in passing that there was no reference in that paragraph to the Agency being willing to consider exceptional circumstances.
"You say that the previous employer notified you that the applicant had left that employment in April 2007 ..... This is a point that could have and should have been raised in your original letter of refusal as you are presumably now saying that as the transfer application was not made within 28 days of having left the previous employment, it is not a valid transfer application."
He went on to say:
"I accept that this may be a crucial point. However I believe that as you failed to raise this in your original letter of refusal, you are barred from raising this now ..... The review that I sought was in relation to grounds detailed in your original letter of refusal and as such, I have a legitimate expectation that the review will deal only with those points and the submissions that I put forward in response."
I assume from that last sentence that when Mr Hussein said "I" he was meaning the claimant.
"Having received your letter of 19 November 2007 (almost one week after the date of the letter and only after having made a further chasing call to see what was happening), I have obviously made further enquiries. I am told by the applicant that although he had not been to work for a few months due to poor health and personal commitments, he believed he was still under the employment of his previous employer and had not received anything to indicate Otherwise. It is not unreasonable to expect that a foreign national with very little grasp of English would have no idea about the '28 day' transfer aplication rule as clearly, having come to the UK legally, it is unlikely that he would do anything which would prejudice his work permit. Whilst I appreciate the saying that 'ignorance of the law is no defence' it is reasonable to expect that the work permit unit will exercise discretion and judgement taking into account the full circumstances of an application such as this, something which you have conceded in writing to have failed to do."
"Please note that when undertaking a review of an application, at the request of an employer or their representative, we reconsider the application in its entirety. Therefore if new points of concern are identified these can be introduced at the review stage."
The Secretary of State therefore maintained her position in accordance with her guidance notes that where a review is carried out it is open to the decision maker to produce new grounds in the decisions on the review.
"Furthermore we note your comments regarding the issue of salary and would like to address this point by explaining that the pay and other conditions offered to an overseas national should be at least equal to those normally given to a resident worker doing this kind of work. We use a range of salary information proffered from within the various professions to determine the going rate for jobs. These are determined at regular meetings between our Policy Team and representatives of those industries. This is an important factor when considering the merits of an application. The salary offered, in this instance, for the post of head chef falls below and does not reflect the current rate for a head chef.
Finally in answer to question 55 (b) of the application, you have not stated the length/level of the experience required to undertake this role, therefore, if the role can be undertaken by an individual without 3 years relevant experience at NVQ3 or above, then the post does not meet the strict occupational skills criteria for the work permit arrangements. The low salary on offer also reflects the level of the post.
Consequently on further review of the application we consider our previous decision was correct."
The application for judicial review
Whether there is a power to introduce new grounds at the review stage
"(5) Nothing I have said is intended to call in question the propriety of the kind of exchanges, sometimes leading to further exposition of the authority's reasons or even to an agreement on their part to reconsider the application, which frequently follow the initial notification of rejection. These are in no way to be discouraged, occuring, as they do, before, not after, the commencement of proceedings. They will often make proceedings unnecessary."
"Before refusing an application, caseworkers should make every effort to obtain all necessary information pertinent to the case unless it is irrevocably flawed and make sure that they refuse an application on all possible grounds."
Secondly, he refers to the following:
"When refusing an application for someone who is in the UK, an L860 ..... should be drafted. This letter should detail all grounds for refusal."
He makes the straightforward submission - how can effect be given to those guidance notes to case officers if there is a power to review which would then allow them to add new grounds? However those paragraphs have to be read alongside the rest of the guidance notes, including the Business and Commercial Guidance Notes to which I have previously referred, including, in particular, the process described for the review of decisions in paragraphs 218 to 226.
"The application is received more than 28 days after the person's previous employment ended - This should be considered as a new application and therefore treated as First Permission. New advertising of the job would normally be required in these circumstances, however the EO/HEO may consider waiving the advertising criteria and approving the application exceptionally. If this course of action is approved, the caseworker must ensure that the approval letter states that the case has been approved on an exceptional basis. If waiving the advertising criteria is not appropriate and, after checking with the employer or their representative, no recruitment search has been carried out, the application should be refused and paragraph P83A included in the refusal letter. Caseworkers should note that all refusal reasons should be included in the refusal letter and all letters should be tailored to the individual application."
That passage clearly refers to the ability of a case officer to waive compliance with the 28-day rules when an application is made for change of employment.
65. If a new ground is later raised at the second review decision stage then consideration will need to be given as to how the requirements of fairness may be satisfied, for example, by giving notice to the applicant of the point and, secondly, by affording an adequate opportunity to deal with it. The way in which the requirements of fairness are met will need to be considered carefully and will depend upon the particular facts of each case.
" ..... the 1994 Act empowers the Commission to confirm or withdraw or vary a decision when required to carry out a review of that decision under Chapter II of the Act. Implicit in this is a freedom, even when confirming a decision, to give reasons for the decision which are different from those which originally led to its making ..... I do not consider that that means that the Commissioners are bound by the reasons originally given for the decision thereby confirmed. Were it otherwise, and it were plain that the reasons originally given were manifestly bad but the decision could be justified on other grounds, the (almost) inevitable consequence is that an appeal to the tribunal against the decision would result in the matter having to be referred back to the Commissioners for a further review ..... "
Whether the 28-day rule was applied improperly
The alleged failure to comply with internal guidance