Jersey Unreported Judgments

Business licence - reasons for dismissing the appeal against the Chief Minister

[2020]JRC008

Royal Court

(Samedi)

13 January 2020

Before     :

J. A. Clyde-Smith O.B.E., Commissioner, and Jurats Thomas and Pitman

 

The Appellant appeared in person.

Advocate S. A. Meiklejohn for the Respondent.

judgment

the COMMISSIONER:

1.        On the 15^th November 2019 the Court dismissed an administrative appeal by Mr Martin Osment against the decision of the Assistant Chief Minister, under delegated powers, to maintain the refusal to grant Mr Osment a business licence under the Control of Housing and Work (Jersey) Law 2012 ("the 2012 Law").  We will refer to the Chief Minister and those ministers acting under delegated authority as "the Minister".

2.        Mr Osment, who is 73, disabled and retired, had applied for a licence to conduct the business of a "Publisher of Health & Safety Training" under the name "Zippysafe", from offices at Regus, Liberation Station, St Helier.  He said he would be the only employee.

3.        In his application form, he entered "NK" to his residential (and tax) status, which is assumed to mean "Not Known".  Under "Additional Information" he wrote "I have been on/off resident for 20 years".

4.        Quite separately, Mr Osment, who has Registered Status under the 2012 Law, had applied for "Entitled Status" which application had been refused, and which refusal could only be challenged by a separate appeal.  For the purpose of his application to conduct a business, he only has Registered Status.

5.        Mr Osment's application for a business licence was refused because he only has Registered Status, which is in accordance with the Minister's published policy.  This was explained to Mr Osment in the letter of refusal dated 8^th May 2019, which said this:-

"Statement of reasons for the decision

When deciding whether to grant a business licence, the following factors must be regarded:

a)        preserving and maximising the benefits of Jersey's resources;

b)        promoting a balanced and prosperous economy;

c)        protecting the integrity and reputation of Jersey in commercial and financial matters;

d)        any relevant policies of the States of Jersey;

e)        whether such a grant would be in the public interest; and

f) in the case of a hawker's licence, whether the application is a fit and proper person.

Normal policy is to grant businesses licences to individuals who hold Entitled/Entitled for Work status and employ individuals whose status is Entitled/Entitled for Work (5 years continuous residency or more).  Your application (received 7 May 2019) has identified you as being the only employee of the business and your residential status remains "Registered".  This means that your business would also require 1 Registered permission in order for you to be the working owner.  The Minister is supportive of new businesses and business growth without granting Registered permissions.  This is because the policy of the Government of Jersey is to actively control Registered permissions in the economy in order to support the engagement of individuals whose status is Entitled/Entitled for Work and limit migration.

In addition, the Policy of the Minister is to grant Registered permissions only where it adds the greatest economic or social value.  While mindful of the impact the decision will have upon you, the application received is not considered to be compelling enough to justify granting a business licence inclusive of 1 Registered permission.  In particular, the creation of work opportunities for Entitled/Entitled for Work individuals is uncertain and there is no evidence to confirm the financial contribution to Jersey the business will generate.  In addition, the application relates to an undertaking which provides services that are available from other undertakings in the Island and where there is demand for such services the expectation is that other undertakings will respond to that demand without the need to grant them a Registered permission.

I am sorry that given the circumstances, this is not the response that you would have wanted to hear, but to grant dispensation as proposed would create a serious precedent and the Department could not accede, given the numerous other cases of a similar nature regarding individuals with Registered status wishing to start a business in Jersey." (their emphasis)

6.        Mr Osment replied on 10^th May 2019, asking for the decision to be reconsidered, explaining that it was his intention to write and publish material and resources for others to use, not to deliver the actual training personally, which he could not do being disabled and retired and not having the stamina or energy to do so.  His target market is primarily the UK, and not Jersey.  The proposed business would not be a competitor for local businesses.  He then gave his comments on the criteria, set out in the refusal letter, and stated that inward migration did not apply to him, as he was already in Jersey, and had been here intermittently since 1984.

7.        His application was reconsidered by the Minister at a meeting on 27^th June 2019, but the refusal was maintained. 

Right of Appeal

8.        There is a right of appeal under Article 41 of the 2012 Law on the ground that the decision "is unreasonable having regard to all the circumstances of the case".  This test was considered by the Court in Klonowska v The Chief Minister [2016] JRC 127 at paragraphs 18-20, where the Court noted that this right of appeal is in similar terms to the previously enacted article 109(1) of the Planning and Building (Jersey) Law 2002, on which there is a very considerable body of case law for guidance.  It quoted from Dixon and Another v Minister for Planning and Environment [2012] JRC 237A and The Minister for Planning and Environment v Hobson [2014] JCA 148, but by way of summary:-

(i)        This is not an appeal based on Wednesbury unreasonableness, where the applicant has to show the administrative decision was so unreasonable, no reasonable person could have taken it.  At the same time it is not a full merits appeal, because the Court has to allow a margin of appreciation to the Minister.

(ii)       The Court must consider the decision of the Minister and form a view as to whether the decision was reasonable, and in conducting that exercise, must naturally look at what the Minister should and should not have taken into account and weigh up the relevant significance of the various factors.

(iii)      It is not sufficient for the Court to reach a different view from that of the Minister.  It must also have found the decision to be beyond the bounds of reasonable justification, perhaps because, in the mind of the Court, the decision is the result of flawed logic or is supported only by somewhat threadbare reasoning.

9.        Issues of procedural irregularity did not arise in this appeal.

Grounds of Appeal

10.      The grounds of appeal were as follows: 

" 1. Your decision is factually incorrect as it states that I am looking to ordinarily reside in Jersey, which is untrue as I proved to your advisory committee that I have been here for over 20 years, and I am retired.

2. The decision does not comply with the rules: I am "ordinarily resident", and have "a settled purpose", which can be said to have existed since post c 1984.  I am also registered for income tax in Jersey.

3. I am in the Jersey phone book for 1999/2000, and have been registered with the General Hospital prior.

4. I made a donation to the Jersey Museum of an expensive silver Forrest Ships Chronometer for the "Time" display recorded in April 2000.  The Museum has confirmed that they still hold this in their secure store.

5. I have owned boats in Jersey since pre 1999, and still do.  Another (JY27) featured in an episode of "Bergerac".  I produced to the Committee a picture of one (Bandersnatch) from the Jersey Evening Post dated August 2001.

6. I can produce a long list of people who have known me in the Island for very many years, including past and present members of the States.

7. I produced to the Committee my expired Jersey passport issued in November 2001.

8. I have held bank accounts in the Island.... since well before 1999, and have owned and insured vehicles locally (e.g. Benelli Adviva scooter, written off by insurers in 2003).

9. The decision breaches the Code for Ministers in that it is both arbitrary and it fails to give proper reasons as the Law requires (i.e. 26(8)).

10. For these and other reasons, the decision is "Wednesbury Unreasonable" and should be struck down."

11.      We agreed with Advocate Meiklejohn, for the Minister, that grounds 1 - 8 related entirely to Mr Osment's separate grievance over his residential and employment status and could therefore be disregarded.  We were left, therefore, with the allegation that the Minister's decision (both the initial refusal and the maintenance of that refusal) was arbitrary, failed to give proper reasons and was "Wednesbury unreasonable".  In asserting that the decision was Wednesbury unreasonable, Mr Osment was setting the test he had to meet too high, for the reasons explained above.

12.      In his affidavit in support of his appeal, and in his written contentions, Mr Osment, inter alia:-

(i)        agreed that his proposed business would not have the greatest economic value, but said it would add the greatest social value;

(ii)       agreed that his proposed business would not provide work opportunities for others, but said it would evidence a financial contribution to Jersey;

(iii)      described the statement that the proposed business provides services that are available from other undertakings in the Island as showing a perverse lack of understanding, as it was not his intention to compete with the local market.

(iv)      Described the policy as driving him from the Island and disrupting his family life, which is in breach of his Article 8 and Article 14 ECHR rights.

13.      In essence, it would be fair to summarise Mr Osment's position in this way, namely that he was already living in the Island and so no issues of immigration arise; he would not be competing with local businesses; he would not be employing anyone; he would not be a drain on the Island's resources and indeed, would contribute in terms of the tax that would be paid on the profits he made.  He said he would prefer Jersey to receive the benefit of that tax, rather than the United Kingdom, where he would otherwise undertake this work.

Decision

14.      The Court dismissed the appeal, essentially for the reasons put forward by Advocate Meiklejohn which we summarise below. 

15.      The refusal letter set out in full the matters to which, under Article 26(9) of the 2012 Law, the Minister must have regard in determining whether to grant a licence, and then clearly explained the policy of the government of Jersey, which is to actively control the number of Registered Permissions granted in order that individuals whose status is either Entitled or Entitled for Work Only are sufficiently supported and, more broadly, to control inward migration.  This policy is based on the Interim Population Policy 2014, the Medium Term Financial Plan 2016-2019 and the States Strategic Plan 2015 - 2019.  Rather than set each of these out in turn, Advocate Meiklejohn placed reliance upon the Business Licencing Guidelines 2015, which summarised the policy and explained the government and the Minister's approach to Registered Business Applications as follows:-

"7.       The policies of the States Assembly seek to optimise economic growth while limiting migration - doing this by selectively approving applications to support migration which delivers the greatest social and economic value.

8.        This focus on economic growth is essential.  Our society is ageing, and this brings additional costs, for example, for our health service.  We need a strong economy to fund high quality public services.

9.        Public services, including infrastructure and housing, are planned using an assumption for net migration of +150 households/+325 people per year (on average).  The Law is used to support these planning assumptions, within the objectives outlined in this statement.  This includes supporting the employment, training and development of Entitled/Entitled for Work Only people".

16.      As such, the Minister will only grant Registered Business Applications where it has great economic or social value.  Mr Osment accepted that his business would not add great economic value and provided no evidence which in our view supported his assertion that it provided great social value.

17.      It was wrong for Mr Osment to label the decision of the Minister as "arbitrary" as it was not made randomly or on a whim, but was made in accordance with the policy and after appropriate consideration. 

18.      It is correct that Article 26(8) of the 2012 Law requires the Minister, when refusing to grant a licence, to give the applicant a statement in writing of the reasons for his decision, but there is no merit in Mr Osment's suggestion that the Minister had failed in his obligations in this respect.  He had given a sufficient statement in writing of the reasons for the decision as set out above.

19.      Mr Osment quoted from the Code of Conduct and Practice for Ministers and Assistant Ministers, which refers, inter alia, to Ministers and Assistant Ministers being expected to uphold the highest standards of propriety through the observance of the seven principles of public life, namely, selflessness, integrity, objectivity, accountability, openness, honesty and leadership.  There was no evidence to support the assertion that the Minister or the Assistant Ministers in this case were in breach of their obligations in this respect.

20.      Turning to the assertion that Mr Osment was being driven from the Island, and having his family life disrupted, this was made in response to the following paragraphs from the affidavit of Ms Melissa Slattery, sworn on behalf of the Minister:-

"10      Leaving aside his comments about his time in Jersey which I shall deal with below, it should be stated at this point that it is irrelevant that someone is 'already here in Jersey' when considering the control of Registered permissions to limit migration.  The granting of such permissions can firstly encourage a Registered person (who may otherwise not see Jersey as a financially attractive option) to stay in the Island and cause an impact on resources, and secondly it sets a precedent which can exacerbate such issues further, hence why only when there is a real economic and/or social value to the Island can Registered permissions be granted."

"23      The Minister considered the Application in accordance with his statutory duty to have regard to the preservation and maximisation of the benefit of Jersey's resources and to the relevant policies of the States of Jersey.  The Minister is supportive of new businesses and business growth without granting 'Registered' permissions.  This is because it is the policy of the Government of Jersey to actively control the number of 'Registered' permissions granted in order that those individuals whose status is 'Entitled' or 'Entitled for Work' are sufficiently supported and, more broadly, to limit inward migration."

21.      We agree with Advocate Meiklejohn that to say there is a positive intent to drive Mr Osment from the Island does violence to the words used in Ms Slattery's affidavit.  No positive intent is discernible.  She was responding to Mr Osment's assertion that the policy of controlling immigration did not apply to him because he is already in the Island.  She simply noted that this was not relevant when considering the number of Registered Permissions to issue, because the granting of such permissions can encourage persons with Registered Status to remain in the Island and cause an impact upon resources and also because this would set a precedent which could exacerbate such issues further.

22.      Finally Mr Osment had not adequately made out a case as to why Article 8 ECHR, when read alone, or when read together with Article 14 ECHR, has been violated, nor why any Articles of the ECHR have been violated.  The regulation of residence and employment does not, in principle, offend the rights guaranteed by the ECHR.  In the case of Dun v United Kingdom (Application No 1125/64), the Commission dismissed the applicant's complaints in respect of Articles 3, 5, 6, 8 and 14 and Article 1 Protocol 1, holding that 'the threat of an increasing population and the prospect of the social and economic difficulties which such an increase would cause necessitate the enactment of certain protective legislation and its maintenance in force until such time as changed circumstances render it unnecessary'.  The Commission further held that such measures taken in pursuit of legitimate aims were proportionate.  Given the symbiotic relationship between housing and employment in respect of population control, the regulation of employment and indeed the granting of business licences equally do not offend human rights legislation given they are also proportionate measures introduced in furtherance of a legitimate aim to control population growth.

23.      In Walker-Bow v United Kingdom (Application No. 17176/90) the Commission further supported the regulation of housing in Jersey (in the context of a challenge under Article 1, Protocol 1), confirming that:

"(it was) lawful and it pursued the legitimate aim of controlling the population density of an island limited in area and of ensuring the availability of housing for persons with strong connections or associations with the island ... The Commission therefore considers that the effect on the sales price of his property as a result of the limited number of prospective buyers does not disclose any violation of Article 1 of Protocol No. 1".

24.      As regards Article 8 ECHR specifically, it is a qualified article and the jurisprudence referred to above (in the context of other articles) strongly supports the control of housing and work as a means of pursuing the legitimate aim of controlling the population density.  There has been, therefore, no violation of Article 8 ECHR.

25.      As regards Article 14 ECHR, this Article is a secondary ECHR Article which must be read together with a primary Article, such as Article 8.  There was no foundation in the suggestion that Mr Osment had enjoyed less favourable treatment (as regards any of the primary ECHR rights) than a comparator (i.e. an analogous person in a similar situation but without his disability).  He has been refused his business licence because he is Registered, not because of any disability.

26.      Notwithstanding the fact that Mr Osment had not argued that he was being discriminated against when compared to a person with the requisite Control of Housing and Work qualifications, we note that the ECHR held, on a referral regarding the Guernsey Housing Law, that there was no violation of Article 14 read together with Article 8 on affording preferential treatment to those with strong attachments to the Island:-

"The Court has already held that preferential treatment for persons with strong attachments to the island is legitimate for the purposes of the restrictions permitted under Article 8 (art. 8) of the Convention (see paragraph 54 above).  It sees no cause to arrive at a different finding in respect of Article 14 taken together with Article 8 (art. 14-8)."

27.      Finally and for all these reasons, the Court dismissed the appeal.

Authorities

Control of Housing and Work (Jersey) Law 2012. 

Klonowska v The Chief Minister [2016] JRC 127. 

Planning and Building (Jersey) Law 2002. 

Dixon and Another v Minister for Planning and Environment [2012] JRC 237A. 

The Minister for Planning and Environment v Hobson [2014] JCA 148. 

Dun v United Kingdom (Application No 1125/64)

Walker-Bow v United Kingdom (Application No. 17176/90)