Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 20

P1175/15

NOTE OF LADY WOLFFE

In respect of the application for permission under Rule of Court 58.7

In the Petition of

JOSEPH ODION OCHIEMHEN, (Assisted Person) FE, currently detained at Dungavel Immigration Detention Centre, Strathaven ML10 6RF

Petitioner:

for

Judicial Review of a decision of the Secretary of State for the Home Department to curtail the petitioner’s leave to remain in the United Kingdom

Petitioner:  Caskie;  Drummond Miller LLP

Respondent:  Pirie;  Office of the Advocate General

29 January 2016

Introduction
[1]        The petitioner is a citizen of Nigeria who was granted leave to remain in the UK subject to certain conditions.  The decision challenged by this petition for judicial review was that of the Secretary of State for the Home Department to curtail that leave on the basis that the petitioner had acted in breach of one of those conditions.

[2]        This is one of the first applications for permission to proceed with a petition for judicial review under the new Rules in Chapter 58 of the Rules of the Court of Session (“the Rules”).  I put the matter out for an oral hearing before me on 4 December 2015.

[3]        On the morning of the hearing, counsel for the petitioner presented a minute of amendment to the petition, a note of argument on behalf of the petitioner (running to 13 pages) and a bundle of some 10 or 11 authorities (including extracts from Parliamentary debates and the Report of the Scottish Civil Courts Review).  He endeavoured to move a motion:  (1) to discharge the permission hearing set down for Friday, 4 December 2015, (2) to allow a minute of amendment to be received, and (3) to allow the respondent to lodge answers thereto within 14 days.  Having regard to the timetable in the Rules and the spirit of expedition they seek to engender, I indicated that the hearing would proceed before me and the motion was wisely not insisted in.  Reference was made to these additional materials in the permission hearing before me.

[4]        This was one of the first applications for permission presented under the new Rules and I heard submissions on the test for permission as well as submissions directed to why permission should or should not be granted in this case.  Those circumstances led me to allow the hearing to proceed for more than the 30 minutes provided for in rule 58.9 of the Rules.

 

The facts
[5]        The petitioner first  entered the United Kingdom on August 2010 as a student.  His leave to remain was extended and was due to expire on 11 September 2017.  Most recently he had been granted leave to remain in the United Kingdom in the category of Entrepreneur, as it was averred:

” and set up a business ‘Alphawhale Limited’.  The petitioner’s visa does not limit him from working in activities for that business, albeit the Secretary of State’s guidance for the petitioner’s category indicates he may not work as an employee.  It does prevent him from working:

 

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.”  (Emphasis in original)

 

[6]        On 13 October 2015 the petitioner was found working as a security guard.  He was issued with a notice curtailing his leave to remain in the following terms:

“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 a 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, jolning 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 109.5 hrs 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"

 

[7]        The petitioner disputes the content of that notice.  Put shortly, he contends that he was never employed by the Aberdeen Alarm Company as a security guard.  Rather, it is said, he was working for his company Alphawhale Ltd (or possibly “Alphawave”, per the petitioner’s proposed minute of amendment (hereinafter “the petitioner’s company”)) effectively on a self‑employed basis trading under that name.  The negotiations of the terms of agreement between Aberdeen Alarm Company and the petitioner’s company were carried out by the petitioner on behalf of his company and, it was asserted, the work was not undertaken as an employee of the Aberdeen Alarm Company.  Accordingly, the provision of security services to the Aberdeen Alarm Company was between that company and the petitioner’s company, and not the petitioner personally.  Reference was made to invoices issued by and in the name of the petitioner’s company.

[8]        In their answers the respondent contend that the nature of the work undertaken by the petitioner for the Aberdeen Alarm Company either was or amounted to his employment by the latter, contrary to one of the conditions of leave.  Reference was made to the curtailment decision (no 6/3 of process) and to the respondent’s review of that (at no 6/5 of process) (“the review decision”).  The review decision itself makes reference to the Home Office guidance on “Genuine Entrepreneur Activity (contract of services with another business)” (hereinafter, “the Guidance”) which contains the following passage:

‘’A41. If you are granted leave to enter or remain…. Your leave will prohibit you from engaging in employment except where you are working for the business which you should have established, joined or taken over. You will comply with this restriction of, 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 services.

 

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.”(Emphasis in original).

 

The new Rule and its genesis
[9]        The test for permission to proceed with an application for judicial review is now found in the Court of Session Act 1988 (“the Act”), as amended by the Courts Reform (Scotland) Act 2014 .  Insofar as relevant, section 27B of the Act provides:

“(1)      No proceedings may be taken in respect of an application to the supervisory jurisdiction of the Court unless the Court has granted permission for the application to proceed.

 

(2)        …, the Court may grant permission under subsection (1) for an application to proceed only if it is satisfied that—

 

(a)        the applicant can demonstrate a sufficient interest in the subject matter of the application, and

 

(b)        the application has a real prospect of success.”

 

[10]      The genesis for this may be traced to the Gill Report.  At paragraph 152 of that report it is said:

“A requirement to obtain leave to proceed with an application for judicial review should be introduced, following the model of Part 54 of the Civil Procedure Rules in England and Wales.”

 

[11]      For completeness, it is noted that the phrase “permission to proceed” was introduced into the Court of Session Rules (“the Rules”) by the Act of Sederunt (Rules of the Court of Session 1994 Amendment) (No 3) (Court Reform (Scotland) Act 2014) 2015/228.

[12]      Finally, it is worth recalling that the new procedure for judicial review introduced by Chapter 58 in its new form was part of, and flows from, the wider review and reform of the administration of civil justice in Scotland addressed in the Report on the Scottish Civil Courts Review (“the Report”).  The principles applied by the Report as governing a reformed civil procedure are set out in paragraph 5 of Chapter 1 of the Report, and are worth repeating.  They are that civil justice:

• Should be fair in its procedures and working practices;
• It should be apt to secure justice in the outcome of disputes;
• It should be accessible to all and sensitive to the needs of those who use it;
• It should encourage early resolution of dispute and deal with cases as quickly and with as much economy as is consistent with justice;
• It should make effective and efficient use of its resources, allocating them to cases proportionately to the importance of the value of the issues at stake; and
• It should have regard to the effective and efficient application of the resources of others’.

It may be helpful to bear these governing principles in mind when considering the application of the reformed procedures for judicial review now found in Chapter 58 of the Rules.

 

The test for permission
The petitioner’s submissions on the test for permission
[13]      The petitioner contended that the issue for the Court at this hearing is whether the petitioner has a real prospect of success in challenging the decision(s) of the Secretary of State that she has not established to the necessary standard that the petitioner was working in breach of the conditions of his visa.  There is no dispute the petitioner was working.  The disputed issue turns on whether the petitioner was doing so as a self‑employed sub‑contractor for his own company (which would be permissible) or as an employee for the Aberdeen Alarm Company (which would be a breach of his leave conditions).  If he was engaged or the former capacity, the Secretary of State acted unlawfully in curtailing his leave to remain and seeking to remove him.

[14]      The petitioner’s submission was that the test in the statute was a low one.  In making that argument, he placed before the court extracts from the Parliamentary materials.  To that end, he first referred to Pepper (Inspector of Taxes) v Hart [1993] AC 593.  In that case the House of Lords confirmed the rule that Parliamentary materials could not be looked at as an aid to interpretation but it also recognised certain exceptions to that general prohibition:  namely, that:

“a.  the wording of legislation was ambiguous or obscure or its literal meaning led to absurdity;

 

b.  the material relied upon consisted of one or more statements by the minister or other promoter of the Bill together if necessary with such other Parliamentary material as was necessary to understand such statements and their effect; and

 

c.  the statements relied on were clear. It was argued that the courts should not deny themselves the light that Parliamentary materials might shed on the meaning of the words Parliament had used and thereby risk subjecting the individual to a law that Parliament never intended to enact.”

 

[15]      The words in issue in Pepper v Hart were “expense incurred in or in connection with” and concerned the provision of in‑house benefits that might equally mean either the marginal cost caused by the provision of the benefit or the average cost incurred in providing the service both for the public and for the employee.  There were clear statements by the responsible minister about the effect of the ambiguous words, which were consistent with the minister having intended that they would produce a charge to tax on the additional or marginal cost only.

[16]      The petitioner submitted that the phrase “real prospect of success” is ambiguous in the context of permission to proceed in an action of judicial review.  It is a measure of the prospects of success and the context is therefore important.  Whether the hurdle a petitioner requires to overcome is a substantial one or a low one is a matter that requires to be determined, and as the “height” of that hurdle may be high or low, the phrase is, it was argued, ambiguous.

[17]      The extracted Parliamentary materials were to the following effect:

1. When considered in Committee the Minister said The permission to proceed stage would remove those cases that are effectively unarguable, with the safeguard that an applicant who is refused permission has a right of appeal to the inner house. Roseanna Cunningham 17 June 2014 Official Report Col. 4715; and
2. When debated on the floor of the Parliament the Minister said on 7 October 2014 Col: 45 the test … does not mean that the litigant must show that they will actually win, but it allows the court to prevent cases from proceeding that are based on fanciful arguments, assessing them as able to proceed only when there is a realistic chance that they will succeed…. The permission stage, with its test of a real prospect of success, is essential as an effective tool in filtering out cases that are not actually arguable.

[18]      Turning to the English materials, it was argued that in England it has been said that “The requirement of permission to apply for Judicial Review is imposed primarily to protect public bodies against weak and vexatious claims”:  R v Secretary of State for Trade and Industry, ex p. Eastaway [2000] 1 WLR 2222 at 2227H.  In R v SSHD ex p. Cheblak [1991] 1 WLR 890 at 901 C‑D it was said by Lord Donaldson the test is “designed to operate as a filter to exclude cases which are unarguable”.

[19]      Furthermore, the test for granting permission in England is set out in the 2015 White Book at page 2030 at paragraph 54.4.2.  This states that:

“The purpose of the requirement for permission is to eliminate at an early stage claims which are hopeless, frivolous or vexatious and to ensure that a claim only proceeds to a substantive hearing if the court is satisfied that there is a case fit for further consideration. The requirement that permission is required is designed to ‘prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending although misconceived’.”

 

[20]      In respect of Scottish cases, reference was made to Carroll v Scottish Borders Council 2014 SLT 659 in which Lord Drummond Young was required to consider the meaning of the phrase “real prospect of success” in the context of Protective Costs Orders under the Rules.  In Carroll Lord Drummond Young said:

“[14] Thirdly, a protective expenses order under r.58A cannot be made if the court considers that the proposed proceedings have “no real prospect of success”: r.58A.2(6)(b). In my opinion it is important that this requirement should not result in a stringent and detailed examination of the applicant's case. Otherwise there is a danger that hearings on protective expenses orders will develop into something akin to full hearings on the merits of the case; I observe that such a tendency is already apparent in the field of immigration law. That would obviously be time consuming and expensive. The result would be to add significantly to the overall expenses of the proceedings…

 

[26] I was invited to comment on the conduct of future applications for protective expenses orders. … The legal tests that must be satisfied are not demanding, … In the application for a protective expenses order it should not be necessary to consider the merits of the planning decision in any detail; the test that must be satisfied is that there is a ‘real prospect of success’, which is a fairly low hurdle. Consequently if one or more of the standard grounds of judicial review appear prima facie to be stateable, that should suffice. …”

 

[21]      The petitioner’s counsel then explained that in a previous hearing regarding permission to proceed, counsel for the Secretary of State referred to the following passage from Hoseini v Secretary of State for the Home Department 2005 SLT 550, where it was said:

“[5] Counsel for the appellant and for the respondent Secretary of State for the Home Department addressed the court on the appropriate test which should be adopted in considering whether leave to appeal should be granted. This is not the subject of an authoritative decision in the case of asylum appeals. Counsel referred the court to the decision of the Extra Division in Campbell v Dunoon & Cowal Housing Association Ltd, which was concerned with an application for leave to appeal against a decision of the employment appeal tribunal on a point of law. In delivering the opinion of the court Lord Murray stated at 1992 SLT, p 1137: ‘We are content to proceed on the footing that applicants for leave to appeal must generally show something of the nature of probabilis causa in relation to a genuine point of law which is of some practical consequence.’ For the Secretary of State, counsel adopted this approach… We consider it pertinent to take account of rule 18(4) of the Immigration and Asylum Appeals (Procedure) Rules 2003, which is concerned with applications for permission to appeal to the immigration appeal tribunal on a point of law. As counsel for the respondent pointed out, it states: ‘The Tribunal may grant permission to appeal only if it is satisfied that— (a) the appeal would have a real prospect of success; or (b) there is some other compelling reason why the appeal should be heard.’

 

A similar provision was made in the earlier rules of 2000. It may be noted that this is in line with the current terms of rule 52.3(6) of the Civil Procedure Rules in England relating to permission to appeal. We consider that there is no good reason why leave to appeal to this court should not be looked at in the light of the same considerations. The first of them is consistent with what was said by the court in Campbell. We propose to approach the present case in the same way. We accordingly will consider whether this appeal would have a real prospect of success. We should add that this will be determinative of the matter, since there is nothing to suggest that there is any other compelling reason why the appeal should be heard.”

 

[22]      In that case, in that context, the phrase a real prospect of success was equiperated with showing probabilis causa.  Probabilis causa means substantial grounds for participating in litigation.  It is not simply, therefore, a measure of prospects of success but could also relate to a case where there is some other compelling reason why the appeal should be heard as contained in the grounds upon which permission should be given in the Immigration Procedure Rules referred to above.  That, it was argued, rendered it an inapposite tool for the definition of the new provisions for permission introduced by the Courts Reform (Scotland) Act 2014.

[23]      In the light of the foregoing, the test to be applied in the present case is, it was submitted, to be a low hurdle that the petitioner requires to surmount in establishing “a real prospect of success” in showing the Secretary of State has not established that the practitioner worked in breach of his conditions.

 

The respondent’s submissions on the test for permission
[24]      The respondent’s counsel invited the court to reject the petitioner’s submission on the test for permission for three reasons.

[25]      First, it puts a gloss on the language of the statute.  That is unnecessary because the language is clear.

[26]      Secondly, the meaning of “real prospect of success” as a test for the court to apply in deciding whether to grant permission to bring proceedings is well established.  That is the test that the court set (for permission to appeal under section 13 of the Tribunals, Courts and Enforcement Act 2007 to the court against a decision of the Upper Tribunal) in Hoseini v Secretary of State for the Home Department 2015 SLT 550 (see para 15).  The respondent agrees with the petitioner that the meaning of that test is “substantial [legal] grounds for participating in litigation”.  The petitioner gives no reasons why that test is an “inapposite tool” in judicial review on which the respondent can comment.  That test is a guide to the meaning of section 27B(2)(b) because it is part of the legislative history of the provision:  Bennion on Statutory Interpretation, 6th Edition, sections 208 and 210.

[27]      Thirdly, the material that the petition cites does not establish the proposition.  Turning to these, the respondent developed his submission, as follows.

[28]      The Parliamentary statements cannot be used as an aid to interpretation of section 27(2)(b) because requirements (a) and (c) of Pepper v Hart [1993] AC 593 (at p640B ‑ C) are not met.  Therefore the statements fall inside the general exclusionary rule: e.g. Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 at para. 57.  The limb of requirement (a) that the petitioner relies on is that the wording of the statute is “ambiguous”.  There is no ambiguity here.  As for requirement (c), the statement that the Minister made on 7 October 2014 is unclear because, read as a whole, it gives four different formulations of what the Test means:  “actually, rather than potentially arguable” (Col 45);  “a realistic chance they will succeed” (Col 45);  “[the test] that has been in operation in England and Wales” (Col 46);  and “the test…employed by the Court of Session as part of its assessment of whether to grant a protected expenses order, which is an established concept with a substantial body of case law” (Col 46).  It differs from the statement that the Minister made on 17 June 2014.

[29]      In the alternative, if the Parliamentary statements  can be used as an aid to interpretation, the court should give the Parliamentary statements little weight because they are not considered and deliberately composed:  cf DM v Secretary of State for the Home Department 2014 SC 635 at para 16.

[30]      He next turned to the English authorities.  The respondent agrees with the petitioner that the test for permission in England and Wales is arguability.  However, the English decisions are beside the point because that is not the test that Parliament has chosen for section 27B(2)(b) (despite being aware of the concept of arguability from the Ministerial statements).  The description of the test in England and Wales in the White Book of “hopeless, frivolous or vexatious” does not assist because that is not materially different from the test that Parliament rejected when it disagreed to amendment 67 ‑ a test of “frivolous, vexatious or wholly without merit” ‑ on 7 October 2014 (Cols 44 and 50).

[31]      In respect of the Scottish cases, the case of Carroll v Scottish Borders Council 2014 SLT 659, is not binding.  In any event, it is not clear from the report to what extent the points that the petitioner relies on were the subject of argument, or what any arguments were.  Further, it does not follow from giving section 27B(2) the “purposive and contextual” interpretation that the Lord Ordinary gave rule 58A.2(6)(b) in para 11 of his opinion in Carroll, that the test is “not demanding” or “a fairly low hurdle”.  The provisions have different purposes or contexts.  For rule 58A, it is the need for domestic rules of procedure to give effect to (autonomous) provisions of EU environmental law about the right of members of the public and interested organisations to challenge administrative decisions that may affect the environment in the courts:  see paras 8 ‑ 9 and 11 of the Lord Ordinary’s opinion.  Those provisions include that a domestic court may consider “whether the claimant has a reasonable prospect of success…and the potentially frivolous nature of the claim”:  see para 14 of the Lord Ordinary’s opinion.  Their premise is that “general public interest” requires that disputes about the decisions to which they apply are resolved in an effective review process: see para 21 of the Lord Ordinary’s opinion.

[32]      The mischief at which section 27B(2)(b) was directed is different.  The Scottish Civil Courts Review Report is a guide:  eg Wilson at para 56.  It shows that the mischief is “preventing unmeritorious claims proceeding”:  para 51.

 

Decision on test for permission
[33]      In endeavouring to persuade me to grant permission, the petitioner’s counsel referred to the Parliamentary materials noted above in support of his contention that the threshold for permission is a low one.  However, I accept the submissions by the respondent’s counsel that the conditions for consideration of such materials, as set out in Pepper v Hart, cit. supra, are not met and that it falls within the general exclusionary rule: Wilson v First County Trust Ltd (no 2) [p2004]1 AC 816 at para [57].  Accordingly, I do not have regard to those materials.

[34]      In respect of the English materials the petitioner’s counsel referred to,  I approach these with a degree of circumspection in the absence of fuller argument.  On a more thorough review of the English case law, it is perhaps not difficult to find that there has been an evolution in the understanding and articulation of the test for leave to raise judicial review proceedings in England.  The light touch, say, of Lord Donaldson in R v SSHD ex p Cheblak (cited by the petitioner’s counsel) or of Lord Diplock in Inland Revenue Commissioners v National Federation of Self Employed and Small Businesses [1982] AC 617 (and which appear to be the genesis of the comments at paragraph 54.4.2 in the White Book) may be contrasted with a more rigorous or restrictive approach adopted in some of the more recent cases.

[35]      Furthermore, as I understand it, judicial attitudes in England have varied over time as to the nature of the assessment to be made, whether involving a quick perusal or a more in‑depth examination, and which is the practical context in which the English test is applied.  There may be a danger, therefore, in ignoring the specific procedural context in which the test in England is applied, even if the language of the test is similar to that which is now to be applied in Scotland.  For these reasons, I agree that the English materials provide less assistance than on first sight that they might, albeit for reasons that are different from those advanced by the respondent’s counsel.

[36]      In respect of the petitioner’s reliance on Carroll, I am not persuaded that the respondent’s arguments for disregarding the comments of the court in that case are merited.  The starting point, as Lord Drummond Young observed (and quoted above at paragraph [20]), is that a protective expenses order under rule 58A cannot be made if the court considers that the proposed proceedings have “no real prospect of success”.  While it is correct that there is an EU environmental law context for such an order, for the purpose of facilitating rights of certain persons or groups to challenge administrative decisions that may affect the environment, the premise of such proceedings as having a “general public interest” might be seen to be a fortiori the test set out in section 27B(2)(b) of the Act for judicial review proceedings.  Even in the light of that general public interest requirement, Lord Drummond Young described the test in that context as “a fairly low hurdle”.  I agree.  In respect of the respondent’s reliance on Hoseini, the context for the comments relied on is the test as applied at a second layer or tier in that specific statutory process, being leave to appeal on a point of law.  While in that context it may be apposite to equate that to the applicant seeking leave to appeal having to show probabilis causa, that may be an unhelpful gloss on the wording considered in the particular context under consideration and which relates to permission to initiate proceedings.

[37]      The mischief being addressed was “preventing unmeritorious claims proceeding”:  para 51 of Chapter 12 of the Report of the Scottish Civil Courts Review.  It may assist to bear that mischief in mind when construing the words themselves, which require there to be a “real prospect of success”.  In Chambers Dictionary “real” is defined as “actually existing; not counterfeit or assumed; genuine”.  It may be considered to be the opposite of “fanciful”.  I am fortified in this understanding by the observations of Lord Woolf in Swain v Hillman [2001] 1 All ER 91 (at page 92): 

“The words ‘no real prospect of succeeding’ do not need amplification, they speak for themselves.  The word ‘real’ distinguishes fanciful prospect of success and they direct the court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.”

 

While I was not referred to that case in the submissions before me, I do note that it is quoted at paragraph 45 of Chapter 12 of the Report of the Scottish Civil Court Review.  (In the next paragraph of the Report it is noted that “real” and “realistic” are regarded as interchangeable.)  The discussion in this part of Chapter 12 of the Report of the Scottish Civil Justice Review concluded by noting that a requirement to obtain leave to raise proceedings would assist in “weeding out unmeritorious claims” at an early stage.  I agree with the observation of Lord Woolf, echoed by counsel for the respondent, that the language is clear;  and the foregoing should not be understood to be a gloss on the statutory language.

[38]      However, these words are not applied in a vacuum.  They are applied having regard to the nature and seriousness of the issue to be argued:  c.f. similar observations of the Privy Council in Sharma v Brown-Antoine [2006] UKPC 57 anent the test of “arguability”.  It may not be irrelevant to note that the introduction of the test is coupled with the introduction of a time-limit (new in this jurisdiction), and with the consequence that cases for judicial review might not be as fully presented as hitherto when there was more time in which to investigate and prepare a case.  Further, in the application of the test, especially upon a brief consideration of the papers, care should be taken that the better prepared case is not equiparated with the stronger argument.  In any event, the test  of real prospect of success is, in my view, one which should be flexible in its application having regard to all of the relevant factors and which may include (but may not be confined to) those referred above.

 

The arguments on permission specific to this case
[39]      In respect of the arguments specific to this case, the petitioner argued that there were two discrete issues.  In respect of the first, it was argued that the respondent could only proceed in the manner that they did, if the “precedent fact” that he had been working in breach of one of his conditions of leave was established.  By way of background, he explained that this matter now came before the court in an application for judicial review because the statutory appeal to the immigration judge (that had hitherto existed) had been repealed by the Immigration Act 2014 ,with effect from April 2015.

[40]      The second issue arose by reason of what was said to be the serious nature of the allegation:  breach of a condition of leave constitutes a criminal offence, and carries the risk of imprisonment for up to six months.  Having regard to that it was argued, under reference to Lord Bridge in R v Secretary of State for the Home Department ex. p. Khawja [1984] AC 74, that the court should not be satisfied with anything less than “probability to a high degree”.

[41]      The respondent had simply not had a sufficient evidential basis for the decision under challenge.  The petitioner expanded on these arguments as follows.

 

The petitioner’s submission on permission in this case:  the first issue
[42]      The petitioner began by noting that in the respondent’s answers it is said:

“Khawaja concerned the detention of the claimant as an illegal entrant as defined by section 33(1) of the Immigration Act 1971.  It was this detention that was inter alia under review.  The existence and exercise of the power to detain was statutory and dependent upon the claimant being an ‘illegal entrant’.  It was this issue that the court treated as a matter of ‘precedent fact’.  There is no equivalent issue in the present case.  In curtailing the petitioner’s leave, the respondent has exercised her general power to control immigration under section 3 of the Immigration Act 1971.  She did so by curtailing the petitioner’s Leave to Remain.  That is the decision review of which is sought.  Her power to take that decision did not depend upon the meeting by the petitioner of any statutory definition.  It is not disputed that he is not a British citizen.  A challenge to her decision to curtail the petitioner’s leave does not therefore raise questions of vires, as was the case in Khawaja.  It is not averred that her decision to curtail was ultra vires.  Any challenge to her decision must be founded on grounds of Wednesbury unreasonableness.”

 

[43]      The petitioner contended that that argument is simply wrong and does not accord with authority.

[44]      Until its amendment by the Immigration Act 2014, the Nationality, Immigration and Asylum Act 2002 made provision for a person allegedly caught working in breach of the conditions of his visa to appeal to an immigration judge against that decision on the basis that he had not, as a precedent fact, worked in breach of his visa.  That appeal was an “out of country” appeal, i.e. it could only be pursued after the person who had allegedly worked in breach of their conditions had been removed from the UK.  A question had arisen as to whether that was an adequate remedy.  Even that out of country appeal has now been abolished by the Immigration Act 2014.

[45]      In Secretary of State for the Home Department v The Queen on the Application of Lim & Another [2007] EWCA Civ 773 (“Lim”) the question arose as to whether that out of country appeal (that now no longer exists) represented an adequate remedy against a decision that an individual had worked in breach of his conditions so as to oust the availability of judicial review.

[46]      The relevant facts in Lim are narrated at paragraph 2 and 3 and are that:

“2.  On 31 August 2005 immigration officers found Mr Lim and Mrs Siew in a different Norwich restaurant, the Riverbank restaurant. The Riverbank restaurant was in the same ownership as the Lucky Star, and Mrs Siew was lawfully employed there. A week later, on 7 September, they were arrested with others at that restaurant. At interview Mr Lim stated that he had not been working at the Riverbank on either occasion but on each occasion had gone there to collect food for use in the Lucky Star. If this was correct, his status was unaffected.

 

3.  But the immigration officers disbelieved him, and removal directions were set for dawn on 9 September for both Mr Lim and, since her status depended on his, Mrs Siew. This remarkable burst of urgency in a system celebrated for dilatoriness meant that a massive and costly effort had to be deployed, including an application to the duty High Court judge to halt the removal and to an immigration judge for bail, in order to protect Mr Lim’s and Mrs Siew’s position. The effort succeeded to the extent that in November 2005 Mr Lim was granted temporary admission and permitted to continue to work at the Lucky Star Restaurant. That remains the position while the present issues are argued out.”

 

[47]      That factual scenario is, it was said, identical to that which arises in the present case insofar as material.  Like the present petitioner, Mr Lim and his wife were to be removed in terms of powers conferred by section 10 of the Immigration and Asylum Act 1999 (“the 1999 Act”) (quoted at paragraph 7 of the Lim judgement).

[48]      At paragraph 4 of the Lim judgement it is recorded that:

“Judicial review was sought of the decisions of immigration officers (a) that Mr Lim was in breach of condition, (b) that he and his wife were accordingly to be removed and (c) that they were meanwhile to be held without bail. The third of these decisions is not for the present in issue. But both the first and the second are, because it is the respondents' submission that even if there was a legitimately reached decision that Mr Lim had been working at the Riverside restaurant, it was not lawful by removing him to deny him an in-country appeal against the decision.”

 

[49]      It was the Secretary of State’s position in that case that Mr Lim should have no access to judicial review as a result of an alternative remedy, being his then available out of country appeal (but which now no longer exists).

[50]      In paragraph 6 of Lim it is recorded that:

“Lloyd Jones J held that the legality of the removal directions depended on the existence of a precedent fact which was capable of being determined in judicial review proceedings, and that judicial review lay in the present case…”.

 

The Secretary of State appealed.

[51]      Of significance to the present petition, it was argued, is what is said at paragraph 8 and 9 of Lim:

“8.  For the Home Secretary, Steven Kovats accepts that, if the claim for judicial review is competent, it will require the court to determine the existence or non-existence of the precedent fact. I would add only that, where Lloyd Jones J spoke (§ 22) of the court having to decide ‘whether the decision was in accordance with the evidence’, a phrase possibly open to misunderstanding, Mr Kovats' skeleton argument accepts, in my judgment correctly, that this means that ‘the court would need to determine for itself whether Mr Lim had breached the conditions of his leave’.

 

9.  The appeal therefore turns on the propriety of using judicial review to challenge the factual basis of a removal direction against which an out-of-country appeal lies to the AIT. We are no longer concerned with that aspect of the judgment below which addressed — and rejected — the argument that the court's only concern was with the rationality of the immigration officer's decision.  The precedent fact which would have to be established in this case, by virtue of s.10(1) , is that, having only a limited leave to remain, Mr Lim did not observe the condition which was attached to it that he could work only at the Lucky Star restaurant in Norwich. In relation to Mrs Siew, the relevant precedent facts would be that she was a member of Mr Lim's family (a fact not in dispute) and that directions had been given for his removal, a fact depending on the validity of the directions.”  (Emphasis added)

 

[52]      Mr Lim lost on the point of law argued in that case (i.e. whether his out of country appeal was a sufficient alternative remedy).  However, for present purposes it was argued that it is clear that, but for that alternative remedy, Mr Lim would have been entitled to have that “precedent fact” resolved in an action of judicial review.  This is what the petitioner seeks to do in the context of these judicial review proceedings.

[53]      The alternative remedy was abolished by the Immigration Act 2014.  With the abolition of the out country appeal the position is clear.  The only remedy now available to the petitioner is that which existed prior to the introduction of the out of country appeal right namely, judicial review.  That judicial review requires to consider whether the Secretary of State has established the petitioner worked in breach of his conditions.  It was, the petitioner said, surprising to say the least that the Secretary of State did not refer to the case of Lim.  The petitioner argued that it is a very well known case and referred to in over 40 other judgements, including 8 from this court.  The petitioner also noted that the case of Lim had been referred to by the respondent in the respondent’s notes of argument and in answers in other cases currently before this Court.  As noted, section 10 of the 1999 Act has been amended.  It is not disputed the Secretary of State has the power to curtail leave to remain.  That power derives from section 3(3)(a) of the Immigration Act 1971.

[54]      The policy of the Secretary of State in that regard is contained in Immigration Rule 323 and which provides the Secretary of State with a discretion to curtail leave to remain if, inter alia, there has been a “failure to comply with any conditions attached to the grant of leave to enter or remain” (Immigration Rule 322(3)).

[55]      With the introduction of the Immigration Act 2014 the previous out of country appeal against a decision that the petitioner was working in breach of the conditions of his leave to remain was abolished.  Section 10 of the Immigration Act 1999 was amended so that it is different from the former terms of it narrated at paragraph 7 of Lim.

[56]      Insofar as relevant, that provision now reads:

“10. Removal of persons unlawfully in the United Kingdom

 

(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.

 

(2)…”

 

[57]      The conclusion that the petitioner does not have leave to remain arises from the curtailment of the petitioner’s leave to remain;  and that in turn is based upon the Secretary of State’s erroneous conclusion that the petitioner was working in breach of the conditions of his leave to remain.

[58]      The onus is upon the Secretary of State to establish the petitioner breached the conditions of his leave.  In R v Secretary of State for the Home Department ex parte Khawaja [1984] AC 74 at p.124 C-D it was said by Lord Bridge of Harwich:

“I have no doubt that when a person detained and proposed to be removed as an illegal entrant enjoys the right to be in this country in pursuance of leave to enter and remain here which is valid on its face the onus lies on the immigration officer to prove the fact that the leave was obtained by fraud in contravention of section 26 (1) (c) of the Act”.

 

[59]      In respect of the standard of proof the Secretary of State requires to meet, that is accepted to be on the balance of probabilities but the petitioner again emphasised Lord Bridge’s comments:

“in view of the gravity of the charge of fraud which has to be made out and of the consequences which will follow if it is, the court should not be satisfied with anything less than probability of a high degree.  I would add that the inherent difficulties of discovering and proving the true facts in many immigration cases can afford no valid ground for lowering or relaxing the standard of proof required.” p.124 E-F.  (Emphasis added.)

 

That standard, that the court “not be satisfied with anything less than probability to a high degree”, was urged upon the court.

 

The petitioner’s submission on permission in this case:  the second issue
[60]      The suggestion in the respondent’s answers that the petition should be dismissed as:

“the petitioner has produced no evidence that, in working as a security guard at Aberdeen Alarm Company, he was working within the conditions of his Tier 1 Highly Skilled Entrepreneur visa”

 

was said to be wrong for 2 reasons.  First, additional material has now been presented to the court and oral evidence may also be adduced.  Secondly, the nature of the allegation is criminal.  If the petitioner breached the conditions of his visa he would have transgressed section 24(1)(b)(ii) and would be liable on conviction to up 6 months’ imprisonment and a fine of up to level 5 on the standard scale.

[61]      The onus of establishing that the petitioner worked in breach of his conditions (rather than as a self‑employed sub‑contractor) rested upon the Secretary of State.  And in this context, reference was again made to Lord Bridge’s observation in Secretary of State for the Home Department ex parte Khawaja just quoted, above.

[62]      In the light of these comments, the petitioner argued, it was not what evidence has been produced by the petitioner, but what evidence the Secretary of State has produced other than (it was said) bald assertions.  The petitioner contended that there was none.  There was no evidence the petitioner was paid through the PAYE scheme of his “employer” (he asserts he was not);  there was no evidence he had not negotiated a contract between his company and the principal contractor.  There was also the evidence of his instant denial on his detention of being an employee.  Accordingly, the Secretary of State has failed to discharge the heavy burden upon her and there is a real prospect she will not be able to do so and the petitioner will succeed in his judicial review.  Permission should be granted.

 

The respondent’s reply
[63]      The respondent’s reply was short:  the petitioner’s attack on the basis that the Secretary of State had erred in the determination of the “precedent fact” was misconceived.  The Lim case was beside the point.  Having regard to the amendment to section 10 of the 1999 Act, on a correct analysis the precedent fact was whether or not the petitioner “requires leave …but does not have it”.  As that was the “precedent fact” of her decision, there was no error as contended for by the petitioner.  If there were any error arising from the factual material considered, that was taken at an interview stage and was (in effect) not justifiable.  There would be no reason, therefore, to enter into any inquiry as to the correctness of the precedent fact.  At best, the petitioner sought to show that the anterior determination, to withdraw leave by reason of the petitioner’s breach of the conditions of leave, was wrong.  That, however, would not suffice to establish a relevant case.

[64]      In response to a question from the bench, the respondent’s counsel confirmed that this position did involve a change of stance on the part of the Secretary of State, and one that was consequent upon the recent amendment to section 10 of the 1999 Act.  So far as counsel were concerned, the issue as now argued has not yet been addressed by the court.

 

Decision on permission in this case
[65]      As presented to me, the stance of the Secretary of State in cases of this kind does appear to have shifted as a consequence of the amendment to section 10 of the 1999 Act.  If the respondent’s argument is correct, it would mean that the Secretary of State’s decisions to withdraw leave would, in effect, be impregnable.  On one view, this might be a surprising result.  Having regard to the fact that this argument has not yet been litigated, and upon a consideration of the arguments presented to me, I am satisfied that the petitioner has demonstrated a case with a real prospect of success.  Permission is granted.