England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		17th August 2012

His Honour Judge Waksman QC:

1. This is the substantive hearing of a claim for judicial review brought by Mr Mohammed Salim, who until very recently was in possession of a Tier 4 visa to undertake what is described as a top-up course in business studies at the University of Wales, and one of the conditions of his limited leave to remain was that he did not work more than 20 hours a week. Following a visit by the relevant officers to a restaurant called the One World Buffet, or Peachy Keens in Bridge Street, Newport, on 7 April this claimant was found and investigations were undertaken as to the number of hours he was working there. As a result of those investigations and interviews the defendant, the Border Agency, determined that he had been working for more than 20 hours a week, and on that basis there was a breach of his license to leave to remain here and, by reason of that breach under Section 10 of the 1999 Act, a decision was made to remove him.
2. Mr Salim's claim form alleges that the defendant had not produced any evidence to substantiate that he was working more than 20 hours per week, and permission was granted by HHJ Raynor QC on the basis that at that stage it seemed arguable the defendant did not have firm evidence of working in breach and he could not see any clear admission by the claimant in the interview under caution. Certain documents which have been produced subsequently make clear what that evidence is. The position is that until recently the claimant was represented by solicitors called Lloyds; they acted for him when the claim was made but they have recently been disinstructed. They wrote to the court on 16 August to say that Mr Salim would represent himself despite the solicitor's best efforts to dissuade him. He had been informed about the legal ramifications and costs orders.
3. That letter enclosed a letter apparently written to those solicitors in which Mr Salim communicates to them his decision to represent himself. Unfortunately in the fax sent to the court yesterday, together with Lloyds' solicitor's letter, this letter from Mr Salim is effectively illegible, but the covering letter from the solicitors say that what the letter is about is making his declaration of self-representation. There is nothing in the covering letter to suggest that Mr Salim was, or would be, making any application to adjourn today's hearing, and indeed the covering letter from the solicitor makes plain that they have explained to him what will be involved at the hearing itself and what he can expect and he told them that he understood.
4. The case was called on several times since 10.30am, which is when it was due to start. There has been no response or appearance from Mr Salim. I am satisfied that he was aware that the hearing was to take place today and, on the face of it, he has simply failed to turn up. He does of course have the right of any party who is absent from a hearing to make application to the court to relist the hearing if proper grounds can be shown if the decision is adverse to him. On that footing I intend to proceed with the hearing today, and I have read the evidence and heard the submissions of Mr McNall for the Secretary of State.
5. The guidance operated by the defendant in such cases is that it should only initiate administrative removal under Section 10 where the breach is of sufficient gravity to warrant such action and there must be firm and recent evidence of the breach, including one of the following: 1) an admission under caution by the offender of working in breach; or 2) a statement by the employer implicating the suspect; and I do not need to read any further.
6. What happened was that a gentleman called Prakash, who is apparently the manager at the restaurant, was interviewed by the officers on the 7 April and contemporaneous manuscript notes were made by the officer concerned, Matthew Pennell, employed by the Border Agency. He asked Mr Prakash about the various people working there, and in relation to Mr Salim was told that he worked 24-26 hours per week; some weeks more.
7. Before that, when he was asked about those working there generally, he said, so far as the rotas are concerned, that he writes likes the rotas. He was asked "Do the rotas accurately reflect the hours?" He said "no". He said that:

"They know what days to work.

Do they work more hours than shown on the rota?

Sometimes they do, yes.

Are you willing to talk about staff hours?

No."

He said that they would go over 20 hours:

"We try to mask it here under the rota."

8. That is clearly evidence from the employer which implicates Mr Salim, among others, as working more than 20 hours per week. The typed up statement from Mr Pennell recording all of that and putting into typed form the written notes is dated 16 April 2012 and for some reason does not appear to have made its way into the evidence in this case, although it was apparently faxed to Mr Salim yesterday. That would have caused a problem but for this fact. It is plain from the record of interview taken by Mr Bay, who interviewed Mr Salim on 8 April, ie after taking the information from Mr Prakash, that Mr Prakash's implication of Mr Salim was put to him. At page 15 of 19 of the typed up interview notes it was put to him that, as he knew, Mr Prakash had been spoken to the previous day. He said that he knew him as his manager. I read thus from the transcript:

"…this is all the notes we made from him here. (Subject presented with Caution plus two statement from PEACHY KEEN's Manager written by HMI Matthew PENNELL. That can only be the manuscript notes. As you can see the notes there continue. This is everything we asked your Manager on the workers including yourself and he signed it there to say that it was a true account of everything that he has told my colleague when asked ok?

Subject: OK

IO DAY: This is you here number 3 Muhammad SALIM yeh? 'He works 24-26 hours per week'

Subject: YEH THIS I TOLD YOU

IO DAY: Yeh?

Subject: YEH 24/26

IO DAY: Yeh so 'some weeks more'? Sometimes you work more?"

9. He agreed that what Mr Prakash was saying was that he worked 24 to 26 hours per week; therefore, although the typed up version of Mr Prakash's statement and the covering statement was not served until yesterday, there was no prejudice to Mr Salim because the actual evidence obtained at the time was put to him. Mr Salim, as I have just recited, accepted that at least on some occasions he worked over 20 hours per week. However, what he said was that insofar as he worked over 20 hours it was because he had a back problem which forced him to work slowly, so that he was not paid for the extra hours. That seems very odd to me, and in any event on the face of it he was working more than 20 hours, whether being paid or not. It seems to me that that is an admission under caution, but, even if it was not, there is good evidence from the employer who stated without qualification that he worked more than 20 hours per week, and indeed the employer was aware of the difficulty that would put the employees in, because he said that their way of getting round this was to mask the rota.
10. That being the case, although Mr Salim has produced in evidence P60s which never exceed 18 hours per month, that could hardly be relied upon as an accurate record of the actual hours worked in the light of the methods adopted by Mr Prakash to mask the true hours. Mr Salim makes a complaint in his written evidence that the restaurant has not been fined; I do not know whether that is still the position, but it does not seem to me to bear on the evidence as to what he was doing at the time.
11. The P60s also state that his gross pay (for he was not taxed) was £6 per hour. That gives rise to a further difficulty in relation to his own account in interview, where he said that he was only working three hours per week but given some meals as well.
12. For all those reasons – and I accept that this is a question of precedent fact which has to be proved by the defendant – I am quite satisfied that it has so proved that Mr Salim has been working in excess of 20 hours per week. On that footing this application for judicial review must be dismissed.
13. In the light of the evidence from the employer and what I regard as Mr Salim's wholly implausible attempt to get round it, I do regard this as a case which is totally without merit. It was unfortunate that the defendant did not act more quickly in confronting Mr Salim with the typed up evidence that it has now produced, or indeed that it did not set out these matters more fully in the acknowledgement of service; but the fact remains, as I see it, that Mr Salim has simply not been truthful with either the defendant or the court, and therefore it remains appropriate for me to classify the application as one which is totally without merit.

Post-judgment matters

So first of all will be that the claim is dismissed, the second will be that it was totally without merit. Is there a costs application, Mr McNall?

MR MCNALL: Yes, I invite your Lordship to order that the claimant pay the defendant's costs, which are £480 in respect of the acknowledgement of service together with £350 in respect of today's hearing. £350 in respect of today's hearing is entirely composed of my brief; it is a standard fee.

HIS HONOUR JUDGE WAKSMAN: Yes. Well then, the further order that I make is that the claimant shall pay the defendant's costs of the acknowledgement of service and of today, summarily assessed at £480 in respect of the acknowledgement of service and £350 in respect of today's hearing, such costs to be paid within 14 days of service of the order upon Mr Salim.

MR MCNALL: In respect of the costs of today's hearing, may I also invite you to order plus VAT if recoverable …

HIS HONOUR JUDGE WAKSMAN: Plus VAT if appropriate.

MR MCNALL: Yes. And I would simply wish to clarify that by your order an interim injunction which was made by HHJ Stephen Davies on 28 June prohibiting removal is thereby discharged.

HIS HONOUR JUDGE WAKSMAN: Discharged injunction granted by HHJ Davis on …?

MR MCNALL: On 28 June this year, my Lord.

HIS HONOUR JUDGE WAKSMAN: Yes. Well, the court will make that order Mr McNall. Thank you very much for your attendance.

MR MCNALL: My Lord, I am privileged.

HIS HONOUR JUDGE WAKSMAN: And I will rise now.