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Cite as: [2017] CSOH 107

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P1052/15

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 107

OPINION OF LORD SUMMERS

In the petition of

OKO O-ONO

Petitioner

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Petitioner: Dewar QC, Caskie; Drummond Miller LLP

Respondent: McIver; Office of the Advocate General

9 August 2017

[1] The petitioner is Oko O Ono. He is a Nigerian national and a qualified engineer. He

holds a BSc in Geology and Mining and an MSc in Petroleum Engineering. Having studied

for these degrees in the UK, he applied for permission to remain and was granted leave until

6 January 2018. The grant of leave is set out in a letter of 6 January 2015 (“the Letter”).

Leave was permitted under the provisions made for entrepreneurs who wish to establish

businesses in the UK. The Letter includes a schedule which provides that the petitioner is

not permitted to “undertake employment other than working for the business(es) you are

establishing, joining or taking over”. This wording follows the wording of the Tier 1

(Entrepreneur) Policy Guidance which states that employment is forbidden except “where

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you are working for the business which you have established, joined or taken over”. There

is a minor variation on the wording of the Policy in that the Letter does not confine the

permission to remain to employment with a single business and acknowledges that in some

situations the entrepreneur may start up other businesses in addition to or in substitution for

the original business. There is no indication that the business must be in the same sector as

the business which it was proposed should be established as part of the person’s application

to remain. The Letter permits employment in any business which the petitioner may

establish.

[2] The Secretary of State for the Home Department has the power to curtail leave to

remain. That power derives from section 3(3)(a) of the Immigration Act 1971. The basis for

curtailing leave to remain is set out in Rule 323 of the Immigration Rules. Rule 323 refers

back to grounds set out in Rule 322. These include Rule 322 (3) which provides that leave

can be curtailed where there has been “failure to comply with any conditions attached to the

grant of leave to enter or remain”. The petitioner may therefore have his right to remain

curtailed if he fails to comply with any condition of his grant of leave. I was informed that

there is no statutory right of appeal where leave is curtailed and that judicial review of the

decision is the only remedy available to the petitioner.

[3] The petitioner established a company called Omega Geoservices and Consultancy

Ltd (hereafter “the Company”) and through the Company offered his services to the oil and

gas sector after being granted leave to remain. He operated from 6 January 2015 to the

termination of his permission to remain on 10 September 2015. Only one contract was

agreed in this period. This was with Velosi Europe Ltd. The contract is dated 29 May 2015

(production 6/4). I was shown an invoice for services rendered in July 2015 amounting

to £1905.35 inclusive of VAT (6/5) and an invoice for August 2015 in the sum of £3766.80

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inclusive of VAT (6/6). The petitioner lodged copies of reports he had supplied to

Velosi Europe Ltd (6/7) evidencing the work he had done in these periods. Counsel drew

my attention to the fact that one of the reports indicated that he had supplied services to

Velosi Europe on 8 September two days before he was detained on 10 September 2015. The

petitioner in submission indicated that the work from Velosi Europe Ltd would have

continued but for the petitioner’s detention. The respondents accepted that but for the

detention the petitioner was likely to have continued to work for Velosi Europe Ltd.

[4] The prospect of the Company continuing to trade ended on 10 September 2015 when,

as I have noted, he was detained. On that day immigration officials visited his home.

Production 7/7 is a Home Office Minute of the visit made to the petitioner’s home in

Aberdeen. It records that as a result of information provided by a company called

Search Recruitment, the respondent had concluded that the petitioner was in breach of his

permission to stay in the UK and as a result visited the petitioner’s home address. Officials

took possession of documents in the petitioner’s home which showed that the petitioner had

worked as a security guard. The petitioner’s affidavit describes the Petitioner as a “security

operative” rather than “security guard”. But nothing seems to turn on the distinction. Hence

I refer to the Petitioner’s employment as that of security guard. Whatever the content of the

job description it was not suggested that the employment entailed the provision of expert

engineering services. The respondents lodged the documents they discovered at the

petitioner’s home. There were pay advice slips in the petitioner’s name from

Search Consultancy (7/4), a P45 from Search Consultancy (7/2) and a contract of employment

dated 15 May 2015 with Aberdeen Alarm Company Ltd (7/4). The respondent’s position

was that these documents showed that he had breached a condition of his leave to remain

and was liable to removal.

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[5] The petitioner argued that since the Home Office Guidance permitted the petitioner

to commence and run other businesses he was at liberty to work as a security guard. It was

argued that in reaching the decision to terminate the petitioner’s leave to remain,

information had been left out of account which showed that he was not an employee and

that he had sought to provide his services as an independent contractor trading under a

trading name, “Prime Enterprises”. Certain invoices purporting to bear this out were

lodged (7/3). The petitioner argued his work as a self-employed person for Aberdeen Alarm

Company Ltd was not in breach of his permission to remain. It was also argued that where

work was undertaken which was ancillary to the business of the Company this work should

not be regarded as a separate form of employment but was work which was covered by his

permission to provide services of the type offered by the Company. It was argued that

employment, whether on an employed or self-employed basis, which was undertaken so as

to develop business links with potential clients in the sector in which the Company traded

was work within the scope of his permission. He argued that in light of this the respondent

should have exercised the discretion under the Policy to permit the petitioner to remain. In

support of these arguments I was shown invoices sent to Aberdeen Alarm Company

Ltd (6/8) in the name of “Prime Enterprises” for work performed by the petitioner as a

security guard. I was informed that Prime Enterprises was a trading name for the petitioner.

It was submitted that these invoices showed that the petitioner was self-employed.

[6] In addressing these arguments I note first of all that the pay slips and P45 show that

the petitioner was employed by Search Consultancy. The petitioner was only permitted to

remain in the UK if he was employed with a company which he had “established, joined or

taken over” (Policy Guidance A/41). It is convenient at this point to set out the terms of the

relevant paragraph:

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A41. If you are granted leave to remain as a 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.

The only business the petitioner claimed to have “established, joined or taken over” was the

Company. He plainly had not “established” or “taken over” Search Consultancy. Is there

any possibility that by taking up employment with Search Consultancy that he could be said

to have “joined” Search Consultancy? In my opinion the meaning of the word must be

determined from the overall purpose of the Policy Guidance. The Guidance makes it plain

that permission may be granted where the applicant is an entrepreneur who wishes to

develop business in the UK. I do not consider that the Policy Guidance was meant to apply

to persons who join a company as a member of staff unless that employment was connected

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in some way to the investment of skills or capital in the business. I do not consider that the

petitioner can be said to have “joined” Search Consultancy if it was not with a view for

example to investment in or development of that company. The words “established” and

“taken over” which bracket the word “joined” suggest that a person “joins” a company

within the meaning of the Policy when he or she becomes eg a partner or shareholder in the

business with a view to investing in it. The permission letter loosens the restrictions of the

Policy Guidance slightly by acknowledging that a person may branch out into other forms of

business after receiving permission to remain. Nevertheless, the business must be one that

the petitioner has “established, joined or taken over”. In my opinion in taking up

employment with Search Consultancy the petitioner took employment outside the scope of

his permission.

[7] The petitioner argued that the invoices rendered to Aberdeen Alarm Company Ltd

had not been properly considered and supported the proposition that he had not been in

breach of his permission. I have no reason however to think that the invoices were not

examined or that the invoices which suggested the petitioner was self-employed were

capable of altering the view the respondent took of the petitioner’s conduct. While the

Policy Guidance distinguishes employment from self-employment, it does so to show that

both are legitimate ways in which a person can work for the business that has been

established, joined or taken over. The underlying requirement is that the work must be for

the business the entrepreneur has established. Thus where the entrepreneur branches out

into another business it does not matter in my judgement whether the employment with the

new business is in a self-employed or employed capacity. Provided the justification for

granting leave to remain applies to the new business venture as it did to the original

business venture there is no breach of the conditions of leave. Thus it does not matter

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whether his work for Aberdeen Alarm Company Ltd was as an employee or as a

self-employed person. I do not consider that the Policy Guidance is focussed on the form of

the Petitioner’s employment. The key is whether the work being done whether as an

employee or a self-employed independent contractor employment is for the benefit of a

business that the petitioner has “established, joined or taken over”.

[8] The respondent in submission expressed doubts as to whether the invoices truly

reflected the petitioner’s employment status with Aberdeen Alarm Company Ltd. But that

is not a matter I require to explore. In my opinion the respondents were entitled to conclude

that the work the petitioner was performing for Search Consultancy and Aberdeen Alarm

Company Ltd was work “for another business”. I therefore conclude that the decision

maker did not err in curtailing leave to remain.

[9] The petitioner sought to argue that in working for the security firms he was seeking

to promote his own business. It was argued that this would enable him to make contacts

which would be for the benefit of his business. The respondent was entitled to take a

sceptical view of this claim. The work he performed as a security guard was at a variety of

locations and for a variety of businesses. Only one of them involved the provision of

security services to a business in the oil and gas sector. It is hard to see how working as a

security guard for businesses with no connection to the oil and gas sector could be any

advantage to him. For that matter it is hard to see how working as a security guard for a

company within the oil and gas sector could lead to useful contacts being formed. The

Petitioner did not articulate in submission how this form of employment could truly be said

to be connected to or in furtherance of his entrepreneurial ambitions. The obvious

explanation for the Petitioner taking up work as a security guard was to supplement his

income by working in the evenings. It is evident from the invoices that he was not making a

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great deal of money from the Company and so it is understandable that he would wish to

supplement his income.

[10] In this connection I should record that I did not find the wording of the second

paragraph of Policy Guidance A41 altogether clear. It states “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”. I do not see what this sentence adds to the

preceding paragraph other than to create potential confusion. If an applicant is not working

for the business he or she has “established, joined or taken over” then there can be no

question of work for “another business” being permitted. The key must be to determine

whether there is genuine entrepreneurial activity. The words in brackets simply narrate the

forms of employment that a person may have rather than direct attention to the true basis

upon which permission to remain is granted.

[11] Although I did not accept that the petitioner’s work as a security guard could have

benefited his work for his Company in the oil and gas sector, a situation might arise where

working for another business in either an employed or self-employed capacity might have

collateral benefits for or be connected to a business established by the entrepreneur. The

words “no more than” indicate that the employment whatever its form is in essence the

same as employment by “another business,” that is a business over which the petitioner has

no control or in which he has no business interest. It may be worth considering whether the

Policy Guidance would be improved if its authors explained what sort of cases they had in

mind. The Guidance would also be easier to follow for the ordinary reader if the more

familiar language of employment and self-employment were used throughout rather than

referring to “contracts of service” and “contracts for service”, terms more familiar to

employment lawyers.

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[12] I was directed to the observations of Lord Ericht in Ochiemhen v Secretary of State for

the Home Department [2016] CSOH 179 at paragraphs 44 and 45. This case was in many ways

similar to the present petition. The petitioner was from Nigeria and had likewise worked

for Aberdeen Alarm Company Ltd. Lord Ericht took the view that in the circumstances of

that case the respondent had failed to take into account a number of factors before reaching

her decision. These included (a) the brevity of the time the petitioner had been working for

Aberdeen Alarm Company (b) the casual nature of the work performed and (c) the fact that

the work was rendered by a company called Alphawhale Ltd which the petitioner had

established. In these circumstances he granted the prayer of the petition. In the present case

I did not consider that the respondent had left out of account any factors which ought to

have been taken into account. Another significant distinction between the petitions is that in

Ochiemhen the company established by the petitioner was to be the conduit of the security

services. Here there is no indication that the petitioner intended the Company to branch out

into the security sector and provide such services through the Company. The petitioner

took employment with a business he had not started up or taken over. In these

circumstances the respondents were entitled to take the view that the petitioner was

supplementing his income from the Company with casual labour in the security sector.

[13] I have no reason to doubt that the petitioner wished to grow his business and had he

had opportunity the Company might have gone on to be a success. The fact remains

however that in this initial stage of establishing his business the petitioner took employment

as a security guard working in the evenings for a very low wage. I have nothing but

sympathy for him if, as appears to be the case, he worked on his business during the day

and worked as a security guard to supplement his limited income at night. The case

however cannot be decided on the basis of sympathy but on whether the petitioner has

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demonstrated that his legal challenges have been established. I did not consider however

that this work was within the scope of his permission.

[14] I should add that Mr Dewar QC who appeared for the petitioner also criticised the

way in which the respondents had gone about the task of rescinding the petitioner’s

permission to stay. In particular he criticised the fact that the Home Office officials arrived

at the petitioner’s door at 7.30am. I did not consider that there was anything wrong in

visiting his home at 7.30 am.

[15] In these circumstances I refuse the prayer of the petition and reserve meanwhile all

questions of expenses.