England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 November 2017

Mr Pushpinder Saini QC :

This judgment is in 7 parts as follows:

I. Overview:	para. 1-7
II. The Facts:	para. 8-15
III. The Statutory Framework:	para. 16-27
IV. Contractual Freedom and A1P1:	para. 28-34
V. Construction:	para. 35-38
VI. Ultra Vires:	para. 39-61
VII. Conclusion:	para. 62

I. Overview

1. Mr. Mohammad Hasan Iman, a citizen of Bangladesh ("the Claimant"), challenges the decision of the Secretary of State for the Home Department ("the Secretary of State") dated 27 September 2016 refusing his application made on 28 June 2016 for leave to remain in the United Kingdom as a Tier 2 (General) migrant ("the Decision"). There is also a challenge to a decision of 27 September 2016 by which the Secretary of State refused to undertake an administrative review of an earlier initial decision of 17 August 2016 also refusing the Tier 2 application but for the purposes of the arguments before me the challenge of substance is to the Decision.
2. The legal basis on which the Decision was made was that the Claimant's proposed restaurant sponsor employer provided a take-away service, and accordingly the Claimant did not meet the requirements under Code 5434 of Appendix K of the material Immigration Rules, as interpreted by the Secretary of State.
3. The first issue in this claim is whether the Secretary of State has correctly construed Code 5434 of Appendix K of the Rules which sets out, as part of the Shortage Occupations List (SOL), certain requirements which must be fulfilled under the occupation code for skilled chefs. That Code excludes jobs which are "…in either a fast food outlet, a standard fare outlet, or an establishment which provides a take-away service". For ease of reference I will refer to this underlined part of the Code as "the Exclusion" in the remainder of this judgment.
4. The Claimant's sponsor, Alishaan Restaurant of Sompting, offers a take-away service and thus, so argues the Secretary of State, a post in such an establishment falls within the Exclusion.
5. The Claimant challenges this construction and says that the Exclusion properly construed only operates to exclude posts in restaurants which provide "solely or predominantly" a take-away service.
6. In addition to the issue of construction, the Claimant seeks, in the alternative, to argue that the Exclusion in Code 5434 should be struck down as unreasonable insofar as, properly construed, it would exclude posts in establishments which offer a take-away service in addition to service on the premises. The Claimant here invokes the well-known principles in Kruse v Johnson [1898] 2 QB 01 but also argues that the Exclusion interferes with rights to freedom of contract protected at common law.
7. I have addressed very similar arguments to these in my judgment in the case Supawan v Secretary of State for the Home Department, which is being delivered at the same time as the present judgment. The arguments of the Claimants in each case are similar but not identical. In particular, in the Supawan case it was not argued that the Exclusion interfered with rights to contractual freedom. The main arguments and evidence on behalf of the Secretary of State were however essentially the same in each of the cases, as one would expect.

II. The Facts

8. The Claimant entered the United Kingdom with leave to enter as a Tier 4 (General) migrant given on 10 November 2010 and valid to 31 March 2012. On 5 March 2012, following an application made while the Claimant held leave, the Claimant was given further leave to remain as a Tier 4 (General) student migrant valid to 28 October 2013. On 31 July 2012, the Claimant was given further leave to remain as a Tier 4 (General) student, valid to 31 July 2014. On 7 August 2014, the Claimant was given further leave to remain as a Tier 2 (General) migrant valid until 14 August 2017. By a decision-letter dated 20 November 2015 the Claimant's leave to remain was curtailed so as to expire on 25 January 2016.
9. On 25 January 2016, the Claimant applied for further leave to remain. This application was subsequently varied on 28 June 2016, while it was pending, to an application for further leave to remain as a Tier 2 (General) migrant.
10. The 28 June 2016 application relied upon a certificate of sponsorship issued by the Claimant's Tier 2 sponsor, the Alishaan Indian Restaurant. This confirmed that the Claimant was to work in the role of skilled chef, covered by Code 5434 within the Codes of Practice for Sponsors. This is a role which was/is on the list of shortage occupations, contained within Appendix K of the Immigration Rules.
11. This application was initially refused by a decision letter dated 17 August 2016. That decision generated a right to pursue administrative review. The Claimant brought an application for administrative review within the specified time, setting out a detailed challenge to the reasoning in the 17 August 2016 decision letter.
12. By a letter dated 27 September 2016 this application for administrative review was refused, although the Defendant accepted that a number of reasons given in the 17 August 2016 decision were incorrect. The Defendant accordingly served, along with the 27 September 2016 decision letter regarding the administrative review decision, a revised decision letter regarding the 28 June 2016 application (by another letter dated 27 September 2016).
13. The 27 September 2016 revised decision letter, which is the Decision under review, gave the following reasons for refusing the 28 June 2016 application:

"The occupation you have applied to undertake is not considered a shortage because the job you are applying for leave to undertake was not on the list of shortage occupations published by the Home Office… at the time your [CoS] was assigned…

The reason for this is because under SOC code 5434 in Appendix K of the Immigration Rules it is stated that the job must not be in either a fast food outlet, a standard fare outlet, or an establishment which provides a take-away service. However, there is evidence available on the internet that your prospective employer, Alishaan Restaurant of West Street, Sompting, BN15 0AP does offer a take-away and delivery service.

…"

14. Following a round of pre-action correspondence, the present proceedings for judicial review were issued on 16 January 2017.
15. Permission to claim judicial review (on both grounds) was given on a consideration of the papers by HHJ Coe QC sitting as a High Court Judge on 24 February 2017. In response to these proceedings the Secretary of State relies upon a witness statement dated 19 May 2017 from Mr. Richard Jackson of the Migration Policy Unit, Immigration and Border Policy Directorate at the Home Office. This statement exhibited an earlier statement by Mr. Jackson in other proceedings dated 29 June 2012 [56-66]. I will refer further to this evidence when I address the grounds below.

III. The Statutory Framework

16. Section 1(2) of the Immigration Act 1971 ("the 1971 Act") provides that those not having the right of abode in the United Kingdom may live, work and settle in the United Kingdom with permission and subject to such regulation and control of their entry into, stay and departure from the UK as is imposed by the 1971 Act.
17. Section 1(4) of the 1971 Act provides that the rules laid down by the Secretary of State as to the practice to be followed in the administration of the 1971 Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode, shall include provision for admitting persons coming for the purposes of taking employment.
18. Pursuant to section 3(2) of the 1971 Act the Secretary of State is required to lay before Parliament rules or statements of changes of the rules regulating the entry into and stay in the United Kingdom of persons who require leave to enter.
19. These rules (known as the Immigration Rules HC395) are introduced by way of negative resolution before Parliament and are published as House of Commons papers. Statements of Changes are regularly laid before Parliament pursuant to section 3(2) of the 1971 Act updating and amending the Rules. As explained further below, the Immigration Rules are essentially the Secretary of State's administrative practice.
20. 20. The nature of the Immigration Rules was considered by the Supreme Court in Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60; [2017] 3 All ER 20. Lord Reed explained as follows at §17:

"The Rules are not law (although they are treated as if they were law for the purposes of section 86(3)(a) of the 2002 Act: see para 8 above), but a statement of the Secretary of State's administrative practice: see Odelola v Secretary of State for the Home Department [2009] UKHL 25; [2009] 1 WLR 1230, paras 6 and 7; Munir, para 37; Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48, para 10; R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2011] UKSC 45; [2012] 1 AC 621, para 61; and R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33; [2012] 1WLR 2208, paras 32 and 33. They do not therefore possess the same degree of democratic legitimacy as legislation made by Parliament: Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, para 17. Nevertheless, they give effect to the policy of the Secretary of State, who has been entrusted by Parliament with responsibility for immigration control and is accountable to Parliament for her discharge of her responsibilities in this vital area. Furthermore, they are laid before Parliament, may be the subject of debate, and can be disapproved under the negative resolution procedure. They are therefore made in the exercise of powers which have been democratically conferred, and are subject, albeit to a limited extent, to democratic procedures of accountability".

21. In 2008, Tier 2 of the Points Based System ("the PBS") governing applications for entry clearance and leave to remain was introduced though amendments to the Immigration Rules. A primary objective of the PBS system is transparency in decision making. The aim is to minimise subjectivity, inconsistency and error in decision making. To this end the PBS sets out in detail the criteria that applicants need to meet to succeed in their applications, and requires both applicants and decision-makers to adhere strictly to the criteria set out in the Rules.
22. In Kaur v Secretary of State for the Home Department [2015] EWCA Civ 13, Burnett LJ explained the rationale underlying the PBS at §41 of his judgment:

"The points based system for determining whether to grant leave to enter or remain in the United Kingdom, which applies to students as well as a number of other categories of applicant, is designed to achieve predictability, administrative simplicity and certainty. It does so at the expense of discretion, that is to say it is prescriptive. The consequence is that failure to comply with all its detailed requirements will usually lead to a failure to earn the points in question and thus refusal: see e.g. Sullivan LJ in Alam v Secretary of State for the Home Department [2012] EWCA Civ 960 at [44], Davis LJ in Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2 at [100]; Sales LJ in EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517 at [28] and Briggs LJ at [59]. It was that important background which informed the decision in EK (Ivory Coast)."

23. Tier 2 is the primary immigration route under the Immigration Rules for non-EEA nationals seeking leave for the purposes of working in the UK. Employers do not have freedom to recruit Tier 2 migrants to fill any type of job. It is not in dispute that the Tier 2 criteria are focussed on highly skilled jobs only and have been set to give effect to the Government's broader objectives of:

i) Ensuring that applicants are only considered in areas where there is a genuine shortage of labour in the UK;

ii) Ensuring that wherever possible resident workers are used for jobs within the UK; and

iii) Reducing net migration.

24. As at the date of the Decision, the relevant Tier 2 Rules and appendices provided as follows. Paragraph 245HD of the Rules stated:

"Requirements for leave to remain.

To qualify for entry clearance as a Tier 2 (General) Migrant … an applicant must meet the requirements listed below. If the applicant meets these requirements, entry clearance will be granted. If the applicant does not meet these requirements, the application will be refused.

Requirements:

(a) The applicant must not fall for refusal under the general grounds for refusal.

(b) If applying as a Tier 2 (General) Migrant, the applicant must have a minimum of 50 points under paragraphs 76 to 79D of Appendix A."

25. Appendix A to the Immigration Rules provided that 30 of the required 50 points would not be granted unless the job being applied for appeared on the list of occupations skilled to NQF 6 (which skilled chefs do not), unless transitional arrangements apply (which they do not in this case), or the job being applied for appears on the list of shortage occupations published by the UK Border Agency and specified under Appendix K.
26. Appendix K of the Rules sets out the Shortage Occupation List (SOL). The section of Appendix K which is relevant to these proceedings is Code 5434. This provides (with underlined emphasis added):

"Chef, cooks (5434):

ONLY the following job in this occupation code:

skilled chef where: -

Only the pay is at least £29,570 per year after deductions for accommodation, meals etc.; and

the job requires five or more years' relevant experience in a role of at least equivalent status to the one they are entering; and

the job is not in either a fast food outlet, a standard fare outlet, or an establishment which provides a take-away service; and

The job is in one of the following roles:

executive chef - limited to one per establishment

head chef - limited to one per establishment

sous chef - limited to one for every four kitchen staff per establishment

specialist chef - limited to one per speciality per establishment

A fast food outlet is one where food is prepared in bulk for speed of service, rather than to individual order.

A standard fare outlet is one where the menu is designed centrally for outlets in a chain / franchise, rather than by a chef or chefs in the individual restaurant. Standard fare outlets also include those where dishes and / or cooking sauces are bought in ready-made, rather than prepared from fresh/raw ingredients".

27. Counsel for the Secretary of State submits that the purpose of Code 5434 (and the Exclusion as part of that Code) is to identify criteria for highly skilled chefs. He accepts that the Exclusion is a "blunt" way of doing this. This is an important point because in due course it will become necessary to consider whether the Exclusion is fit for that purpose as a matter of rationality.

IV. Contractual Freedom and A1P1

28. Before turning to the issues of construction and reasonableness, I should address certain preliminary submissions on behalf of the Claimant.
29. The Claimant argues that the Exclusion interferes with common law and EU law principles of freedom of contract. In support the Claimant cites the well-known passage in the speech of Lord Upjohn in Mixnam's Properties Limited v Chertsey Urban District Council [1965] AC 735 (HL) at p.764:

"… freedom to contract between the subjects of this country is a fundamental right even today, and if Parliament intends to empower a third party to make conditions which regulate the terms of contracts to be made between others then even when there is an appeal to a court of law against such conditions, it must do so in quite clear terms".

30. As to contractual freedom as a general principle of EU law, I was referred to the Advocate General's Opinion in Case C-441/07 Commission v Alrosa [2010] 5 CMLR 11 at para.225.
31. In my judgment, these cases do not assist the Claimant. Neither English law nor EU law provide a person who is not lawfully within the jurisdiction with the freedom to enter the jurisdiction to make a contract. One can of course seek to challenge the legality of the immigration regime which prevents a person coming within the jurisdiction, but the fact that the regime prevents a person being employed because he cannot enter the country is not an interference with contractual freedom, nor in itself is it a basis for challenging the immigration regime.
32. The Claimant also originally argued that the Exclusion amounts to an interference with rights protected under Article 1 of the First Protocol of the ECHR because it interferes with contractual rights and interests. This claim was not pursued orally but I would have rejected it in any event for two reasons. The Claimant has no relevant "possession" for Convention purposes. Second, the claimed interference with the goodwill or business rights of the potential employer is not a matter which the Claimant has standing to complain about. Were there any arguable claim, the "victim" for HRA 1998 purposes would be the proposed employer. However, even if that person brought a claim, the authorities do not support the proposition that mere expectations of future income or potential goodwill are protected under the Convention. I refer here to the decision of the Court of Appeal in R (Malik) v Waltham Forest NHS PCT [2007] EWCA Civ 265; [2007] 1 WLR 2092 at para. 29, per Auld LJ.
33. The reason the Claimant invoked these claimed rights (contractual freedom and A1P1) was in support of the argument that the standard of review when assessing the reasonableness of the Exclusion is a heightened standard. He relies upon a number of cases in this regard including Kennedy v. The Charity Commission [2014] UKSC 20; [2015] AC 455 at [52]-[56] per Lord Mance.
34. I do not accept this submission. In the context of immigration control and policy the court will, save in cases where fundamental rights are engaged, apply a less intensive standard of review given the expertise and political accountability of the Secretary of State. The Secretary of State must however of course act rationally.

V. Construction

35. Code 5434 provides in material respects that "…the job is not either in a fast food outlet, a standard fare outlet, or an establishment which provides a take-away service" (underlining supplied). Counsel for the Claimant drew my attention to the guidance provided by Lord Hoffmann in Odelola v Secretary of State for the Home Department [2008] 1 WLR 1230 at 1233, para.4. I accept I must consider the natural and ordinary meaning of the language of the Exclusion within the context of the Rules and immigration policy.
36. Applying these principles, in my judgment this provision is clear and unambiguous. A restaurant which provides any form of take-away service is excluded. The decision-maker is not required to consider matters of fact and degree such as what proportion of business is take-away or questions as to whether the restaurant is "only" or "predominantly" a take-away establishment.
37. Had the draftsman intended to introduce a level of judgment on the part of the decision-maker as to the nature of the take-away service provided (and how this impacted on the grant of sponsorship points) one would expect express wording making that clear and for there also to be an indication as to how the assessment was to be made, for example by specifying that certain identified percentages of take-away turnover or business permitted the job to still be recognised.
38. The simple construction leads to a workable and practical rule. Whether the consequences of this construction (and the width of the Exclusion it leads to) render the Code provision ultra vires on grounds of unreasonableness is a separate matter, to which I now turn.

VI. Unreasonableness/Ultra Vires

39. Before considering the arguments made by the Claimant, it is necessary to set out the relevant legal test under his head.
40. A convenient summary can be found in Simon Brown J's judgment in R. v. Immigration Appeal Tribunal ex parte Manshoora Begum [1986] Imm. AR 385. That case concerned a challenge to the lawfulness of provisions in the Immigration Rules.
41. At pages 393-394, Simon Brown J set out the governing legal principles:

"This rule, unlike a statutory provision to which effect must be given however absurd, is amenable to the court's power under its review jurisdiction to condemn it, in whole or in part, as invalid for unreasonableness. This principle is well-established. In the leading case of Kruse v Johnson …., Russell LCJ, said this:

'I do not mean to say that there may not be cases in which it would be the duty of the Court to condemn by-laws, made under such authority as these were made, as invalid because unreasonable. But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.'

'But it is in this sense, and in this sense only, as I conceive, that the question of unreasonableness can properly be regarded. A by-law is not unreasonable merely because judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception some judges may think ought to be there. Surely it is not too much to say that in matters which directly and mainly concern people of the country, who have the right to choose those whom they think best fitted to represent them in their local government bodies, such representatives may be trusted to understand them in their local government bodies, such representatives may be trusted to understand their own requirements better than judges.'

That passage well expresses not only the court's power, but also its limitation…. It should be recognised that where the relevant power is given, as here, to a Minister responsible to Parliament, the court is even less willing to intervene, a fortiori where, as is also the case here, the rules in question were laid before Parliament and subject to a process akin to negative resolution".

42. The caution with which the courts approach challenges to the Immigration Rules which give effect to Government policy objectives was also recently underlined by Lady Hale in MM (Lebanon) & Ors v Secretary of State for the Home Department [2017] UKSC 10 at §75 where she observed:

"As Lord Reed has shown (Hesham Ali, paras 46f), although the tribunal must make its own judgment, it should attach considerable weight to judgments made by the Secretary of State in the exercise of her constitutional responsibility for immigration policy. He cites Lord Bingham's reference in Huang to the need to accord appropriate weight to the judgment of a person "with responsibility for a given subject matter and access to special sources of knowledge and advice". As that passage indicates, there are two aspects, logically distinct: first, the constitutional responsibility of the Secretary of State for setting national policy in this area; and secondly the expertise available to her and her department in setting and implementing that policy. Both are relevant in the present case, but the degree of respect which should be accorded to them may be different. The weight to be given to the rules or Departmental guidance will depend on the extent to which matters of policy or implementation have been informed by the special expertise available to the Department".

43. Given that the Secretary of State in this case received advice from an expert body, The Migration Advisory Committee ("the MAC") in formulating the Code, it is also appropriate for me at this stage to set out from MM (Lebanon) certain further observations from the judgment of Lady Hale and Lord Carnwath at §98 (with italicised emphasis):

"It is apparent from the MAC report, and the evidence of Mr Peckover, that the reasons for adopting a stricter approach in the new rules were matters of practicality rather than wider policy, reflecting what the MAC acknowledged to be the relative uncertainty and difficulty of verification of such sources. That did not make it unreasonable or irrational for the Secretary of State to take them into account in formulating the rules. The MAC recognised the strength of the case for taking account of other sources, but it did not in terms advise against the approach ultimately adopted by the Secretary of State. In considering the legality of that approach, for the reasons already discussed (para 59 above) it is necessary to distinguish between two aspects: first, the rationality of this aspect of the rules or instructions under common law principles, and secondly the compatibility with the HRA of similar restrictions as part of consideration outside the rules. As to the first, while the application of these restrictions may seem harsh and even capricious in some cases, the matter was given careful consideration by both the MAC and the Secretary of State. As Aikens LJ said (para 154), the decision was "not taken on a whim". In our view, it was not irrational in the common law sense for the Secretary of State to give priority in the rules to simplicity of operation and ease of verification".

44. I now turn to the substance of the Claimant's rationality case which was simple and attractively presented. The Claimant argues that the effect of the Exclusion is to exclude a vast number of restaurants which require skilled chefs and would lead to a very substantial interference with the economic interests and contractual freedom of restaurants and skilled migrants.
45. It was argued that the Exclusion's interference with the economic interests of restaurants and migrants, and its interference with their contractual freedom, in particular, indicates that a heightened standard of review is appropriate. I have already rejected this aspect of the submission concerning the claimed heightened standard review above in Part IV. However, there remains substantial force in the argument that excluding restaurants which provide a high quality of cuisine but which also incidentally happen to offer a take-away service (even in a minor way) is unjustifiably broad.
46. I am asked to take judicial notice of the fact that it is now common for highly skilled chefs (via delivery services) to provide quality cuisine, and that accordingly the real focus should be on the nature of the establishment and not the fact that it also incidentally provides take-away food. The example was also given of a high-quality restaurant in a hotel which provides room-service.
47. In my judgment, there is clearly a burden on the Secretary of State, by way of evidence, to justify the Exclusion as being rationally linked to furtherance of her migration and social policies. The Secretary of State needs to satisfy the court that the Exclusion is a rational way of identifying skilled chefs.
48. Before considering that evidence I need to refer to R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57; [2015] 1 WLR 3820. Although that was a case involving interference with human rights (where article 2 of the First Protocol was engaged) and there is no relevant human rights dimension to the present claim, there is useful discussion in that judgment of the use of bright line rules such as the Exclusion. There are valuable observations in that judgment as to the importance of bright line rules both as a matter of practicality and as part of the principle of legality. I refer here to the joint judgment of Lord Sumption and Lord Reed at §§87-91, and their observation that such rules provide substantial benefits in terms of clear and consistent applicability, as opposed to potentially arbitrary individual discretionary decisions. See also Lord Hughes' observations at §60. I accordingly proceed on the basis that there is a substantial virtue in having a clear exclusionary or inclusionary rule system even if there are hard cases which fall outside the rule.
49. I now turn to the evidence and submissions on behalf of the Secretary of State in response to the reasonableness challenge. The evidence was provided by Mr. Richard Jackson of the Migration Policy Unit of the Home Office. Mr. Jackson's statements are dated 29 June 2012 (submitted in the case of Thairama Restaurants but attached to his actual evidence in this case without objection) and 19 May 2017.
50. Mr. Jackson identifies the objective of the SOL as being to limit entry under Tier 2 to applicants who are genuinely required to fill a job that cannot be done by a resident worker. The PBS system seeks to identify objective criteria which can be applied consistently and in a manner that is transparent and proportionate to the resources available, and minimises the risk of abuse of the immigration system.
51. In setting the Tier 2 and SOL criteria the Secretary of State sought advice from the MAC. The latter is a non-statutory, non-departmental public body, sponsored by, but independent from, the Home Office, which advises the government on migration issues. A specific aspect of the MAC's work was to advise on the occupations to be included on the SOL, and the criteria to be applied. In the context of chefs, the MAC has consistently concluded that chefs in general do not meet the necessary skills criteria (i.e. the NQF 6 skills threshold). This means that it is only if the post being applied for falls within the exceptions provided in the SOL, that a chef can be sponsored under Tier 2. The MAC has also on a number of occasions expressed reservations as to whether chefs should even appear at all on the SOL.
52. Mr. Jackson explains that the MAC had suggested the exclusion of chefs in fast food or standard fare outlets and the Secretary of State not only accepted these recommendations but augmented these exclusions to add the take-away Exclusion which is in issue in the present case.
53. As to the specific justification for the Exclusion, Mr. Jackson explains at para. 27 of his statement of 19 May 2017 as follows:

"This [the Exclusion] was a clear, objective and easily verifiable test. It was considered appropriate as take-away services were considered to be far less associated with the finest cuisine prepared by the top 5% to 8% of skilled chefs, and much more with establishments offering fast food or alternative fare. The offer of a take-away service was therefore considered to be a strong and clear indicator of the quality of cuisine on offer, and by association the level of skill needed in preparing it. The SSHD considered that this exclusion of restaurants offering a take-away service was consistent with the approach recommended by the MAC".

54. It was also submitted on behalf of the Secretary of State that the MAC, in their September 2013 review, endorsed the Exclusion. MAC expressed the following conclusion (with italicised emphasis):

"The UK Border Agency added to our criteria in order to try and prevent abuse. They state that a highly skilled chef must also not be working in an establishment offering a take-away service. In addition, they must be an executive, head, sous or specialist chef and there is a limit on the numbers of each per establishment. We understand the basis for these additional requirements. We accept that there is an argument that the very best global talent should be recruited and, pragmatically, we believe the current definition adequately identifies the very best whilst providing measures for preventing abuse".

55. The Secretary of State argued that the evidence was that take-aways had been associated with abuse of the system in the past. This is said in the evidence but to be fair the examples Mr. Jackson gives of abuses do not relate to take-away services. I accept however that although the evidence could have been more clearly expressed, a general point was being made that the Secretary of State had typically found abuses in the take-away sector.
56. It was said that the Secretary of State also expressly considered alternative criteria for identifying fine dining restaurants which provided take-away services but could not define such establishments in an objective and readily identifiable way. She recognised that the Exclusion would potentially operate against certain fine dining restaurants (and might therefore be very broad) but the need to have an objective and transparent rule outweighed this unfairness. On the evidence, the examples of definitions that were considered by the Secretary of State included establishments such as the following:

i) Those which did not deliver a take-away service. The concern was that this would allow chefs to apply for work in burger and fish and chips restaurants.

ii) Those with a certain percentage of their business being take-away. The practical concern was the impossibility of verifying these percentages (and the resource implications).

iii) Those providing fine dining. The concern related to the element of subjectivity in applying this criterion and the lack of consistency in decision making.

57. Overall, the Secretary of State concluded that the requirements of enforcement and operational need justified the Exclusion. The Secretary of State accordingly argued that this was an area of immigration and social policy where the court should be reluctant to interfere.
58. I should observe that, as appears from the summary above, specific consideration had been given by the Secretary of State to alternative criteria but an overall value judgment had been made that even if there were harsh consequences for some high-quality establishments which also offered take-away services, the overall benefits of a bright-line rule (including transparency, enforcement and operational efficiency) justified the Exclusion.
59. In my judgment, and adopting the less intensive Wednesbury standard of review in assessing the reasonableness of the Exclusion, the Secretary of State's evidence does establish rationality of the Exclusion at common law, despite its accepted breadth.
60. My reasons for this conclusion are as follows:

i) There is a substantial value in the context of immigration control in having clear and accessible rules and cutting down individualised discretion.

ii) The Government is entitled to limit the number of chefs entering the country by the application of strict criteria. There also exists the possibility of skilled chefs seeking admission through other routes and not just the via the SOL.

iii) The purpose of Code 5434 is to separate appropriately skilled from non-skilled chefs. So, the relevant question is whether the Secretary of State has shown an evidential basis for the proposition that excluding establishments which provide take-away services will further the purpose of sorting skilled from non-skilled chefs.

iv) Although the Exclusion is undoubtedly broad and will catch and thereby exclude, some skilled chefs, I have no reliable evidence as to the extent of that potentially unjust consequence. I have not overlooked here the evidence from the Claimant's tier 2 sponsor Mr. Shahin Ahmed as to the prevalence of the provision of some kind of take-away service in a substantial proportion of establishments within restaurant industry. That evidence is not however based on any reliable empirical data but I am willing to proceed on the basis in my rationality assessment that the Exclusion is likely to have an impact on very many establishments.

v) On the other hand, the actual evidence I have before me from the Secretary of State indicates that take-away establishments had been typically associated with abuses in the past; and more importantly there has not been any challenge by way of evidence to the statement from Mr. Jackson that "…[the Exclusion] was considered appropriate as take-away services were considered to be far less associated with the finest cuisine prepared by the top 5% to 8% of skilled chefs, and much more with establishments offering fast food or alternative fare. The offer of a take-away service was therefore considered to be a strong and clear indicator of the quality of cuisine on offer, and by association the level of skill needed in preparing it".

vi) As a matter of generality, the Secretary of State was here saying that certain take-away restaurants (which were not strictly fast food or standard fare outlets) also prepared food which was likely to be similar to the generally lower quality cuisine offered by fast food or standard fare outlets (and therefore would not need skilled chefs). As a matter of generality, and even though there will be exceptions, this is not a conclusion which strikes me as irrational. I would need counter-evidence to challenge this generalised conclusion. I have no reason to believe it was not based on the Secretary of State's experience.

vii) The MAC knew that the Secretary of State had added the Exclusion and expressly stated that they understood why the Secretary of State had added take-away establishments. This was an endorsement by an expert body. That, as explained by the Supreme Court in MM cited at para. 43 above is an important factor. Had the MAC considered there was something fundamentally unsound in the Secretary of State's expansion of the exclusions to include take-away establishments, it would surely have expressed that view.

viii) It is not open to me, by way of concepts such as taking judicial notice of the current markets in the commercial take-away industry, to second-guess these assessments even if it would appear as a matter of common sense that the Exclusion is likely to catch certain take-away providing establishments which need skilled chefs.

ix) The Secretary of State was aware of the fact that the Exclusion was very broad and that it might have this consequence. She also gave active consideration to formulating a more limited exclusion but was rightly concerned that it would require highly subjective views in relation to the nature and the quality of particular establishments (defeating the benefits of having an objective and easily administered rule). Using the words of the MM case cited at para 43 above, even though the application of the Exclusion may seem "harsh and even capricious", careful consideration has been given by the Secretary of State to its benefits and disadvantages and the MAC did not dissent.

61. Overall, I conclude that the Secretary of State has demonstrated the benefits of having a bright-line rule in the form of the Exclusion and therefore that it is lawful even though it will in certain cases lead to what may seem an unfair outcome as regards high-quality restaurants. The Kruse v Johnson reasonableness challenge fails.

VII. Conclusion.

62. The claim is dismissed.