Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 179

 

P1175/15

 

OPINION OF LORD ERICHT

In the Petition of

JOSEPH OCHIEMHAN

Petitioner

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Petitioner:  Dewar QC;  Caskie;  Drummond Miller LLP

Respondent:  McIlvride QC;  McIver;  Office of the Advocate General

23 December 2016

[1]        On 13 October 2015 the respondent’s officials attended at the premises of Aberdeen Alarm Company Ltd in Aberdeen and detained a number of foreign nationals, including the petitioner and Onyeka Kingsley Menuba, whose petition was heard alongside that of the petitioner. 

[2]        The petitioner is a citizen of Nigeria.  He originally entered the UK on a student visa and his leave to remain was extended from time to time.  As at 13 October 2015 he had been granted leave to remain under a Tier 1 (Entrepreneur) visa on the basis of his company Alphawhale Ltd.  That visa was not due to expire until 11 September 2017.

[3]        On 30 October 2015 the respondent served on the petitioner a “Notice of Immigration Decision, Decision to curtail/Revoke Leave/Notice of Removal”.  The notice stated as follows: 

“You are a person with no leave to enter or remain in the United Kingdom (UK).  You have not given any reasons as to why you should be granted leave to remain or why you should not require leave to remain.  Therefore you are liable for removal.

 

REASONS FOR DECISION/CURTAILMENT/REVOCATION

 

A decision has been made to curtail. Revoke your leave so that it expires with immediate effect.  The following reasons are given:

 

The following reasons are given:

 

You are specifically considered a person who has breached section 10(1)(a) with an offence of 24(1)(b)(ii) 1971 Immigration Act because you were granted T1 HS Entrepreneur leave to remain on 11/09/2014 valid until 11/09/2017 on the basis of your company Alphawhale LTD.  Having been granted leave to remain as Tier 1 (Entrepreneur) Migrant, your employment is restricted to the following:

 

‘You are not permitted to undertake employment as a professional sportsperson (including as a sports coach) you are not permitted to undertake employment other than working for the business(es) you are establishing, joining or taking over.’

 

You breached the conditions of your leave by working as a security guard for Aberdeen Alarm Company.  There are no contracts in place for services provided to Aberdeen Alarm Company by Alphawhale LTD, the directors have also advised that work as a security guard is in no way connected to your business.  On 24/09/2015 you were paid for 109.5hrs work as a security guard between dates of 23/08/2015 – 13/09/2015 by Aberdeen Alarm Company. 

 

It is not considered that the circumstances in your case are such that discretion should be exercised in your favour.  The Secretary of State therefore curtails your leave to [enter/remain in] the United Kingdom under paragraph 323(i) with reference to 322(3) of the Immigration Rules so as to expire with immediate effect.”

 

[4]        In statement 5 of the petition the petitioner sought inter alia:

“(i) reduction of the decision that the Petitioner worked in breach of his conditions;  and

(ii) reduction of the decision to curtail the Petitioner’s Leave to Remain in the United Kingdom”

 

The Legislative Context
[5]        Section 3(1) of the Immigration Act 1971 provides:

“Except as otherwise provided by or under this Act, where a person is not a British citizen-

…

(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;

(c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely-…

(i) a condition restricting his employment or occupation in the United Kingdom”

 

Section 3(2) requires the Secretary of State to lay before Parliament “statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter” 

[6]        Section 10 of the Immigration and Asylum Act 1999 as in force prior to 20 October 2014 provided:

“Removal of certain persons unlawfully in the United Kingdom

 

(1)  A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if

 

(a)  having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;

(b)  he uses deception in seeking (whether successfully or not) leave to remain”

 

[7]        The Immigration Act 2014 made changes to section 10 to the effect that some of what had been in section 10 was put in the rules instead of the statute so the position as at October 2015 was as follows.

[8]        Section 10(1) of the Immigration and Asylum Act 1999 as in force at the date of the decision letter provided:

“(1)   A person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person requires leave to enter or remain in the United Kingdom but does not have it.”

 

Paragraph 323 of the Immigration Rules as at that date provided:

“A person’s leave to enter or remain may be curtailed:

 

(i)         On any of the grounds set out in para 322(2)-(5A) above…

(ia)       if he uses deception in seeking (whether successfully or not) leave to remain or a variation of leave to remain.”

 

Paragraph 322(3) set out the following ground:

“failure to comply with any conditions attached to the grant of leave to enter or remain.”

 

The Policy Guidance Context
[9]        The Tier 1 (Entrepreneur) category is for those investing in the United Kingdom by setting up or taking over, and being actively involved in the running of, one or more businesses in the United Kingdom.  The relevant policy guidance is set out by the respondent in the document entitled “Tier 1 (Entrepreneur) of the Points Based System – Policy Guidance end version 09/2015” (the “Policy Guidance”)

[10]      The Policy Guidance makes clear that the entrepreneur is not limited to his original business proposals, but may diversify his activities.  For example, at paragraphs 98 and 133 it states: 

“We recognise that, as an entrepreneur, you may have moved onto other activities and no longer be involved in the business in which you initially invested…”

 

and at paragraph 138 it states:

“We recognise that you may have moved on and no longer be engaged in the business in which you were originally working when you first entered the Entrepreneur category….”

 

[11]      There are restrictions on engaging in employment which are set out in paragraph A41 of the guidance, which is as follows: 

“Genuine Entrepreneur Activity (contract of service with another business)

 

A41.    If you are granted leave to enter or remain as Tier 1 (Entrepreneur) migrant, your leave will prohibit you from engaging in employment except where you are working for the business which you have established, joined or taken over.  You will comply with this restriction if, for example, you are employed as the director of the business in which you have invested, or if you are working in a genuinely self-employed capacity.  In this capacity you will have a contract for service. 

 

You may not, however, be considered to be working for your own business if the work you undertake amounts to no more than employment by another business (for example, where your work amounts to no more than the filling of a position or vacancy with, or the hire of your labour to, that business, including where it is undertaken through engagement with a recruitment or employment agency).  In this capacity you would have a contract of service.  This applies even if it is claimed that such work is undertaken on a self-employed basis. 

 

In considering whether your work amounts to genuine self-employment (and is therefore work for the business which you have established, joined or taken over) or is in fact employment by another business, we will take into consideration the factors set out at:

www.hmrc.gov.uk/employment-status/index.htm#1.

 

If your work amounts to no more than employment by another business, we may consider you to be working in breach of your conditions of stay, and that you are therefore liable to curtailment of your stay and/or removal from the United Kingdom.”

 

Facts
[12]      Senior counsel for the respondent made the following concessions in respect of the facts of the case.  These concessions were made solely for the purposes of the current substantive hearing, and he reserved his position in respect of these matters at any future hearing which dealt with the evidence. 

The concessions were as follows: 

(1)        The petitioner procured the incorporation of Alphawhale Ltd.

(2)        The petitioner instructed chartered accountants to advise Alphawhale Ltd.

(3)        The petitioner structured his transactions with Aberdeen Alarm Company on the basis that he would issue invoices in the name of Alphawhale Ltd, and that Aberdeen Alarm Company would not deduct Pay As You Earn as National Insurance. 

(4)        The text messages between the petitioner and Aberdeen Alarm Company referred to in paras [18]-[21] below were genuine.

(5)        The email correspondence between the company and Fraoch (Scotland) Limited referred to in paras  [15]-[17] below was genuine. 

(6)        The invoice was or could reasonably have been made available to the immigration officer. 

[13]      On the basis of the pleadings, documents produced to me and that concession, the facts can be set out as follows. 

[14]      Under his Entrepreneurs Visa, the petitioner set up Alphawhale Ltd in around June 2015.   Alphawhale Ltd appointed accountants and tax advisers.  Alphawhale was registered for VAT and with HMRC for Corporation tax purposes. 

[15]      In 2014 Alphawhale Ltd entered into a contract with Fraoch Scotland Ltd.  The terms of the contract were set out in an email from Fraoch Scotland Ltd to Alphawhale Ltd in the following terms: 

“With reference to our discussions regarding the contract at Tillydrone Road, Aberdeen, I write to confirm the details of our discussion and the contract with your company. 

 

Your company ‘Alphawhale Ltd’ will provided all security services per week as requested with no maximum or minimum set hours.

No extra will be paid for Bank holidays.  You will ensure all staff will and must be SIA licensed and are to be equipped with the necessary uniform and equipment including PPE.

 

You will invoice us for services on a weekly basis for £500 plus VAT.

 

You must give us 14 days notice of termination.”

 

[16]      There was further correspondence between Alphawhale Ltd and Fraoch Scotland Ltd in December 2014 relating to the manning of the site over the Christmas and New Year period.  In an email dated 8 December 2014 the petitioner stated inter alia “I would be working 12hrs hours while the other twelve hours to my employee and I should be able to pay him the rate”. 

[17]      In its reply of 8 December 2014 Fraoch stated inter alia: 

“It will be manned by a members of your staff who MUST be SIA licensed.  All new staff must be seen and authorized by our Area Director Mr Barry Douglas in advance.  You will be responsibly to ensure the site is fully manned and that you must be availably 24 hours a day to be contracted if required.  If we visit the site and find it unmanned for whatever the reason, without being told in advance and authorizing such, you will forfeit one seventh of that weeks invoice.  In the unlikely event your company fails to meet these expectation you will forfeit the weeks invoice.”

 

[18]      Arrangements were made between Alphawhale Ltd and Aberdeen Alarm Company in a series of text messages around August and September 2015. 

“Petitioner:     I am on entrepreneur and can only work for myself

 

AAC:              Ok cant employ any more under that visa

 

Petitioner:       I can work as sub contractor.  With my own company name, pay vat and other necessary taxes by myself

 

AAC:              I know that but were only allowed so many like that as were acs registered

 

Ok

 

Thu 13 Aug, 10:38 am

 

Petitioner:       Good morning.

 

AAC:              ... we also need ur liability insurance n insurance documents

 

Petitioner:       I thought I sent them to you before

 

I am trying to scan all that you required

 

AAC:              Ok

 

Petitioner:       I am in your office so That you can sight my passport and Visa

 

AAC:              Ok get Rachel to take photo copy of them.in colour

 

Petitioner:       Done thanks.”

 

[19]      Alphawhale Ltd issued to Aberdeen Alarm Company invoice number 0432AAC with a due date of 19/09/2015.  The invoice was in respect of “site security services at Plexus Dyce” from 23 August to 13 September 2015.  The total was £715.95. 

[20]      There was a further exchange of text messages on 6 October 2015 as follows: 

“Tue 6 Oct, 12:10 pm

 

AAC:              I am looking for a door supervisor for this Saturday please at the following address

Longside football club

Davidson park

Station road

Longside

AB42 4GR

 

Petitioner:       If required I can sort

 

AAC:              Its ok doesnt need covered now pal

 

Petitioner:       Are you saying the Saturday cover is no longer available?

 

AAC:              Yes no longer required

 

Petitioner:       Noted. Thank you for letting me know

 

AAC:              Ok.”

 

[21]      On Monday 12 October 2015 at 9.22am Aberdeen Alarm Company sent a text to the petitioner in the following terms: 

“Mon 12 Oct 2015, 9:22 am

 

AAC:              Guys I will see u all tomorrow at 8.30 sharp at my office please.  When u come u have to bring ur passport visa & sia badge so please do not forget them as customer requires copies of all of these.  If u need picked up please let me know asap so I can organise it.  Van u also please confirm u will be attending.”

 

[22]      It was not in fact true that these documents were required by a customer.  What had happened is that Aberdeen Alarm Company had been cooperating with the respondent in a planned operation.  When the petitioner attended as requested on Tuesday 13 October 2015, immigration officers were present and matters proceeded resulting in the issue that day of the decision letter which is challenged in this Judicial Review.  Parties were in dispute about the order of events that morning.  The petitioner’s position was that the Decision Letter was issued prior to the petitioner being interviewed.  The respondent’s position was that he was interviewed after caution but before the issue of the Decision Letter.  Both parties invited me to come to a decision on the petition without a further hearing to resolve this dispute of fact, on the basis it was not necessary to do so in order to decide the issues which were before me. 

[23]      Whatever might be the position as to the timing of the interview, the only information before me as to what was said by the petitioner to immigration officers on that day is to be found in the respondent’s response to the pre-action protocol letter where the respondent states:

            “It is noted that when your client was encountered by warranted Immigration Officers he claimed that he provided a ‘consultancy service in security’ to Aberdeen Alarm Company, and only worked part time as a security guard.  He further claimed that he was self employed as security guard.  Your client could provide no evidence of a contract for consultancy services for Aberdeen Alarm Company or any other companies.”

 

[24]      Further to the cooperation of Aberdeen Alarm Company in the operation, the respondent issued a “No Action Notice” indicating that Aberdeen Alarm Company was not liable for a civil penalty for employing the petitioner. 

 

Grounds of Petition
[25]      The Petitioner sought judicial review on two grounds.  The first envisaged the court being required itself to determine the factual position as to whether the petitioner had been in breach of his condition.  The second envisaged that the court should apply judicial review principles to the factual decision or decisions which had been made by the Secretary of State.

 

Whether this court should itself review the evidence and come to its own decisions on fact
Submissions
[26]      The petitioner’s first argument was on the ground of “precedent fact”.  The petitioner argued that the principle of a challenge being brought to a “precedent fact” by way of Judicial Review was established by the case of R v Secretary of State for the Home Department ex parte Kahwaja [1984] AC 74.  Applying that case to the current petition, the precedent fact was whether the petitioner had worked in breach of the conditions of his visa.  This court should therefore hear evidence in order to itself determine the factual position as to whether the condition had been breached.  As the right of appeal to the Tribunal against a decision such as that set out in the Notice had been repealed by the Immigration Act 2014, there was no longer an alternative remedy as had been found in the case of R (Lim and Siew) v Secretary of State for the Home Department [2007] EWCA Civ 773, and accordingly the remedy of Judicial Review was available to the petitioner.  The court should act in a Khawaja type Judicial Review capacity by being willing to enquire into the facts of the decision.  The orders which the petitioner sought in paragraph 5(1) flowed from this analysis.  In paragraph 5(1)(i) the court was being invited to reduce the factual decision on the precedent fact.  Thereafter in paragraph 5(ii) the court should reduce the decision which was based on that precedent fact. 

[27]      In response the respondent sought to distinguish Khawaja on the basis that the Khawaja case (a) concerned the respondent’s vires;  and (b) concerned detention.  It was not disputed that the petitioner was a person subject to immigration control, and the respondent had the power to take an immigration decision concerning him.  Accordingly the decision of 13 October did not raise a question of a vires as was the case in Khawaja (Khawaja per Lord Fraser at p 97;  Bugdaycay v Secretary of State for the Home Department [1987] AC 514 per Lord Bridge at page 522B-C;  Giri v Secretary of State for the Home Department [2015] EWCA Civ 784).  The ground of “precedent fact” as a ground for Judicial Review was unknown to the law of Scotland (L v Angus Council 2002 SLT 304, West v Secretary of State for Scotland 1992 SC 385, Eba v Advocate General 2012 SC (UKSC) 1).  A Scottish analysis would instead look at the matter in terms of vires.  When a matter is intra vires and discretion is conferred, it is for the Secretary of State to make the necessary findings of fact.  The court should not enquire into the facts:  it should consider the petitioner’s challenge by reference only to the traditional grounds of Judicial Review.  It followed from this analysis that the order sought in Statement 5(i) was irrelevant.  There was no decision as to precedent fact that the petitioner had worked in breach of conditions:  there was merely a conclusion reached by her in the course of taking her decision of 13 October 2015 to curtail the petitioner’s leave. 

Discussion
[28]      It is fundamental to the nature of judicial review that the court does not review the merits of the decision nor does it assess the factual evidence and make its own findings as to facts which form part of the decision.  As the court stated in West v Secretary of State for Scotland 1992 SC 385:

“Judicial Review is available, not to provide machinery for an appeal, but to ensure that the decision-maker does not exceed or abuse his powers or fail to perform the duty which has been delegated or trusted to him.  It is not competent for the court to review the act or decision on its merits, nor may it substitute its own opinion for that of the person or body to whom the matter has been delegated or entrusted “ (p413)

 

[29]      English law recognises an exception to this: the court may go further than this and make its own factual enquiry where there is a “precedent fact”.  The English law is summarised in a leading textbook as follows:

“One of the general exceptions to the general prohibition on courts reviewing the facts upon which decisions of public authorities are based is where it is alleged that there is an absence of required “jurisdictional fact” (sometimes called “precedent fact”).  Where a set of facts must exist for the exercise of the jurisdiction of the decision-maker (in the strict sense of permitting the decision-maker to enter into its enquiry) the courts are entitled to inquire into the existence of those facts…..The statute in such a case imposes a condition as precedent to the exercise of the public authority’s power and it is the duty of the court to ensure that the condition has been met.  The exercise of the the decision-maker’s power is dependent upon the existence of a fact or set of facts; the court is entitled to ensure that these facts exist.” (De Smith’s Judicial Review para 4-052).

 

[30] The doctrine of “precedent fact” was applied to an immigration decision in the case of R v Secretary of State for the Home Department ex parte Khawaja 1984 [AC] 74.  That was a case where the immigration officer detained a person as an illegal immigrant as defined in sec 33(1) of the Immigration Act 1971.  The House of Lords held that in relation to that decision the court’s jurisdiction was not limited to deciding whether there was evidence on which the decision-maker could reasonably have come to his decision, but extended to deciding whether the decision was justified and in accordance with the evidence. 

[31]      The scope of the application of the doctrine of precedent fact in immigration judicial reviews has been explored further in various cases, two of which fall to be considered here. 

[32]      R (Lim and Siew) was a judicial review of a decision to remove a person on the ground that he had failed to observe a condition of his leave by working at a restaurant other than the one specified in his work permit.  That was a removal decision made under section 10 of the Immigration and Asylum Act 1999.  The court refused to entertain an application for judicial review as an alternative remedy was available, namely an “out-of-country” appeal under sec 82 of the Nationality Immigration and Asylum Act 2002.  That alternative remedy no longer exists.

[33]      The case of R (Giri) v Secretary of State for the Home Department [2015] EWCA Civ 784 concerned a decision of the Secretary of State to refuse an extension of leave to remain on the ground of deception by the applicant.  The issue for the court was whether the question of deception was a precedent fact which the court had to decide for itself.  The English Court of Appeal drew an important distinction between different immigration decisions.  It held that the doctrine of precedent fact could apply in judicial review proceedings challenging a removal direction under section 10 of the 1999 Act, but that the doctrine did not however apply to the decision to refuse an extension of leave under para 322(1A) of the Immigration Rules.  

“The decision here under challenge is a decision made in the exercise of the power conferred on the Secretary of State by sec3 of the 1971 Act to grant leave to remain in the UK.  The Rules contain detailed provisions as to how the power is to be exercised.  Paragraph 322(1A) is one of those provisions.  Its application involves findings of fact, but that is true of a multiplicity of provisions in the Rules.  If the conditions in it are found to be satisfied, leave must be refused under the Rules, but that too is true of many other provisions under the Rules.  A finding that the conditions are satisfied has potentially serious consequences…but para 322(1A) is again far from unique in that respect.  The key point is that the statute confers the power on the Secretary of State, or the immigration officers acting on her behalf, to make the decision wheter to grant or refuse leav to remain.  It is for the Secretary of State or her officials, in the exercise of that power and in reaching their decision, to determine which provisions of the Rules apply and whether relevant conditions are satisfied, including the determination of relevant questions of fact.  On the reasoning in Khawaja and Bugdaycay, their findings on such matters are open to challenge in judicial review proceedings only on Wednesbury principles; it is not a situation in which their powers depend on some precedent fact the existence of which falls for determination by the court itself”(para 19; emphasis added)

 

[34]      Accordingly it is important to establish precisely what decision is being challenged in the current case.

[35]      On 22 November 2015 the Secretary of State set removal directions.  The petitioner did not invite me to reduce these directions, as they had lapsed on the presentation of the petition. 

[36]      The petitioner says that there are two decisions and seeks reduction of them both.  These are: 

(a)  a decision to curtail leave to remain.  This is the decision in the letter of 13 December 2015;  and

(b)  a prior decision on the precedent fact that the petitioner had worked in breach of his conditions.  The petitioner’s position is that the existence of this decision can be inferred from the terms of the letter of 13 December 2015.  The respondent’s position is that no such separate decision exists.

[37]      In my opinion the letter of 13 December 2015 constitutes a decision to curtail leave to remain under paragraph 323(i) of the Immigration Rules with reference to paragraph 322(3).  As such it falls squarely within the reasoning in Giri that the powers of the Secretary of State to make the decision do not depend in some precedent fact the existence of which falls for determination by the court itself.

[38]      I am fortified in this conclusion by the difficulty there is in trying to find the prior decision which the petitioner seeks to reduce.  The letter of 13 December 2015 does not narrate in terms that there was a separate decision as to the petitioner having worked in breach of his conditions.  There is no formally documented separate decision letter on that alleged prior decision.  The simple explanation for all of that is that on the correct legal analysis as set out in Giri there is no scope for such a separate prior decision having been made.

[39]      Accordingly in my opinion even if the English doctrine of precedent fact applies in Scotland, it does not apply to the circumstances of the current case and therefore this court would not be entitled to review the merits of the decision or make its own enquiry into the facts. 

[40]      Accordingly, it is not necessary for me to decide whether the doctrine of “precedent fact” is part of Scots law.  Had I required to do so, I would have found that it was not part of Scots law.  I agree with the analysis of the Lord Ordinary in L v Angus Council 2012 SLT 304.  That case concerned judicial review of an age assessment by a local authority of an asylum seeker.  The Lord Ordinary held that it would be an incompetent exercise of the court’s jurisdiction to review the decision on the ground of factual error.  He noted that what he was being asked to do was part of “precedent fact review” as that procedure had been developed in England, but that no attempt had been made to persuade him that this way of proceeding was part of the law of Scotland or that the doctrine of “jurisdictional fact review” or “precedent fact review” applied in that case.  In the current case Senior Counsel for the petitioner did not found strongly on the precedent fact doctrine, preferring to found on traditional judicial review grounds, and in my opinion he was correct to do so. 

 

Traditional Judicial Review Grounds
[41]      The primary submission for the petitioner was that the decision fell to be reduced under the traditional Scottish Judicial Review grounds as set out in the well-known passage from Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at page 348.  These grounds included, but were not limited to, Wednesbury unreasonableness.  In this case, the decision (whether one or two) was taken without a proper foundation in fact and so fell firmly into the category of “where it is one for which a factual basis is required, there is no proper basis in fact to support it”.  Alternatively, they were decisions which had failed to take account of relevant and material considerations which ought to have been taken into account”.  The decisions were flawed because on important matters including deprivation of liberty, no account had been taken of the position of the petitioner, who had not been given the opportunity to be heard. 

[42]      Senior Counsel for the respondent did not dispute that the decision was amenable to Judicial Review.  He did not accept that Judicial Review was competent on the ground of “precedent fact”.  He did however accept that it could be reviewed on the grounds which he referred to variously as “Wednesbury grounds”, or “traditional Judicial Review grounds”.  He clarified that by using these descriptions he was not seeking to limited the grounds to the particular grounds set out in the Wednesbury case (ie that no reasonable Secretary of State could have reached the conclusion)  but was just using that term as shorthand for all the grounds of Judicial Review recognised in Scots law.  What his position came to in the end was that a Judicial Review was competent on the Wordie Property grounds, but in this particular case the grounds had not been met and the petition should be refused.  He submitted that the question was whether in all the circumstances no reasonable Secretary of State could conclude that in substance rather than form the petitioners were undertaking employment.  In explaining why he had made the concessions, he submitted that it was nothing to the point that Alphawhale Ltd may have on other occasions provided consultancy or other services: the question was whether in acting as a security guard for Aberdeen Alarm Company on this occasion the petitioner was in breach of the condition of his visa.

 

Discussion
[43]      The issue which the respondent required to address in the decision of 13 October 2015 was whether the petitioner was in breach of the condition that he “was not permitted to undertake employment other than working for the business(es) you are establishing, joining or taking over”. 

[44]      The petitioner’s position is that his initial intention was and remains to operate as an IT consultancy, but as a result of the downturn in the oil industry and Aberdeen’s economy generally he required to diversify his business activities to include provision of security services.  As can be seen from the policy guidance referred to in paragraph [10] above, such a change of activity does not of itself constitute a breach of condition, and indeed the respondent did not found on such change in her letter of 13 October 2015. 

[45]      The issue for the respondent was whether the work undertaken for Aberdeen Alarm Company was on a contract of service with Aberdeen Alarm Company, or was work for Alphawhale. 

[46]      As noted above, the respondent submitted that it was nothing to the point that Alphawhale Ltd may have on other occasions provided consultancy or other services: the question was whether in acting as a security guard for Aberdeen Alarm Company on this occasion the petitioner was in breach of the condition of his visa.  In my opinion by focussing on the work for Aberdeen Alarm Company this takes too restrictive a view of what requires to be taken into account by the respondent.  The respondent’s policy and guidance makes clear that other services provided by Alphawhale Limited are highly relevant to the decision as to whether the petitioner had breached his condition. 

[47]      The respondent’s policy is clearly set out in the Policy Guidance at paragraph A41 set out at para [11] above.  That paragraph stated “we will take into consideration the factors set out at www.hmrc.gov.uk/employment-status-index.htm#1”.

The link is to HM Revenue and Customs guidance as to how to work out if someone is employed or self-employed, including the Employment Status Manual.  Although the Manual was not lodged in process due to its length, parties invited me to follow the link and consider it if I thought appropriate. 

[48]      The policy set out in paragraph A41 is reflected in the Respondents Tier 1 (Entrepreneur) Guidance for Home Office Staff which states at page 6:

“You must consider the factors set out at “Employment status Index” when you consider if the migrant’s work amounts to:

 

·    Genuine self employment- work for the business they have established joined or taken over

·    Employment by another business.” (emphasis added)

 

[49]      The question of whether a worker is employed under a contract of service can be a complex one and turns very much on the circumstances of the particular case.  In circumstances where the work is done full time solely for one employer, the answer may be relatively straightforward.  It will turn on an assessment of the relationship between the employing company and the worker.  Where on the other hand the worker works only part-time for the employer, and also works for other customers of his own, establishing whether the relationship is a contract of service is a much more complex task.  It involves a consideration not only of the relationship between the worker and the employer, but also a consideration of the relationship between the worker and the worker’s other customers. 

[50]      The need not to restrict investigations to the one employer but to also investigate the relationship with other customers is recognised in the Employment Status Index.  For example, section ESM0558 of the Employment Status Manual gives guidance to HMRC officials as to what matters should be investigated and specifically suggests that the following matters be investigated:

“1.   Casual and short term engagements

* full details of similar services to other engagers including:

* a list of all engagements over the previous 12 months showing for each engagement name of engager, dates between which engaged, nature of engagement and approximate earnings

* details of how engagements are obtained and to what extent any business organisation (office, staff, phone, equipment, etc) exists in relation to the individual’s work when viewed overall

* details of the nature of additional expenditure incurred as a result of this pattern of working

* any influence over the rate of pay received (for example is there any evidence of tendering for work)

 

1.   Longer term part-time engagements

* If the engagement is part-time in nature whether it is related to any existing business of the worker. If so, ascertain the exact nature of the existing business and how the part-time engagement fits in with that business

* approximate number of hours spent working in that business per month (excluding the part-time engagement) and how many hours per month will be spent on the part-time work

* approximate income from the business activities (excluding the part-time work) and the income from the part-time work

* details as to how the other business engagements are conducted and to what extent this differs from the part-time work.”

 

[51]      In the current case, it must have been obvious to the respondent that this was not a straightforward case where the worker was working full time for one employer.  He had been working for Aberdeen Alarm Company for a period of only three weeks, from 23 August to 13 September 2015, and that had been on a casual basis.  The respondent knew that the petitioner was an entrepreneur and that he conducted his entrepreneurial activities through Alphawhale Ltd.  The respondent accepts that when the petitioner was encountered by Immigration Officers he claimed that he provided a consultancy service and that he only worked part‑time.  

[52]      In these circumstances the respondent was required in terms of her own guidance to “take into consideration the factors set out at” the Employment Status Index.  The respondent did not take these factors into account.  These factors required her to consider the business of Alphawhale, rather than restricting her decision to the petitioner’s relationship with Aberdeen Alarm Company.  In particular this should have included consideration of details of similar services to other customers and the contractual terms on which they were provided.

[53]      The email correspondence between Alphawhale Ltd and Fraoch Ltd sets out the contractual terms on which Alphawhale provided security services to Fraoch Ltd.  These contractual terms included factors which in terms of the Employment Status Manual are possible indicators of a contract for services by Alphawhale rather than employment of the petitioner, ie

·    the work is to be done not only by the petitioner but also by another employee or employees of Alphawhale Ltd. (ESM0539)

·    Alphawhale Ltd is to provide uniform and equipment (ESM0540).

[54]      Accordingly in deciding that the petitioner had breached the condition by working as a security guard for Aberdeen Alarm Company the respondent failed to take into account relevant considerations.

[55]      Further, the respondent failed to take into account factors which were suggestive of a contractual relationship between Alphawhale Ltd and Aberdeen Alarm Company: 

• The invoice from Alphawhale Ltd to Aberdeen Alarm Company Ltd for the 109.5 hours work referred to in the Decision Letter of 13 October 2015.That invoice is not an invoice by the petitioner personally.It makes no deduction for PAYE etc as would be required if the payment was being made personally to an employee.
• Text messages from the petitioner to Aberdeen Alarm Company Ltd to the effect that he is on an entrepreneur visa and can only provide services through Alphawhale Ltd
• Text message from Aberdeen Alarm Company Ltd on 13 August 2015 requiring sight of Aphawhale Ltd’s liability insurance documents.
• Text message on 6 October 2015 from Aberdeen Alarm Company Ltd to the petitioner looking for a door supervisor which on one view is not suggestive of a direction to a the petitioner in the capacity of employee.

[56]      There is no indication in the Decision Letter that the respondent considered any of these highly relevant matters in coming to her conclusions that there were no contracts in place for the provision of services by Alphawhale Ltd or that the petitioner (rather than Alphawale) was paid for the 109.5 hours. 

[57]      It would not be enough for the respondent to say that when he was encountered by warranted Immigration Officers on 13 October 2015 the petitioner could not provide evidence of a contract for consultancy services with Aberdeen Alarm Company or any other companies.  It is hardly surprising that he did not have these with him: although he had been asked to bring certain documents with him that day, he had not been asked to bring such evidence.  No reasonable Secretary of State could have expected the petitioner to be able to provide at that encounter, without any prior notice or request, the emails setting out the contract with Fraoch Ltd, the texts or the Alphawhale invoice.

[58]      Further, in the Decision Letter of 13 October 2015 the respondent founds on advice given to the respondent by the directors of Aberdeen Alarm Company that the work is in no way connected to the petitioner’s business.  In my opinion no reasonable Secretary of State could have founded on that advice.  The directors of Aberdeen Alarm Company cannot be expected to have any knowledge of the business of Alphawhale Ltd and in particular cannot be expected to have any knowledge of Alphawhale Ltd’s contract with another customer. 

[59]      The respondent having failed to take into account relevant matters and having acted unreasonably, the Decision Letter of 13 October 2015 falls to be reduced.  These grounds of reduction relate to the decision making process and not to the merits of the substantive decision.  Nothing in this opinion should be taken as an indication of what substantive decision the respondent could or should have taken acting reasonably and taking into account all relevant matters.  In particular, I express no view as to whether taking into account all the factual matters set out in this opinion the petitioner had breached the condition of his visa.

[60]      I uphold the petitioner’s first and second pleas in law and make the orders sought in paragraph 5(i) and 5(ii) of the petition; repel the respondent’s pleas in law and reserve meantime the question of expenses.