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Cite as: 2023 SLT 417, [2023] ScotCS CSOH_13, [2023] CSOH 13, 2023 GWD 7-79

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OUTER HOUSE, COURT OF SESSION

[2023] CSOH 13

P864/20

OPINION OF LADY CARMICHAEL

in Petition of

MOHAMMED CAMARA

Petitioner

for

Judicial Review

Petitioner: Caskie, Drummond Miller (for McGlashan MacKay)

Respondent: Pirie KC, OAG

14 February 2023

Introduction

[1]

Mr Camara is a citizen of Guinea. He is 23 years old. He has been trying since 2018

to obtain a visa to allow him to enter the United Kingdom in order to undergo trials with

professional football teams in Scotland. Mr John McKnight, who is Mr Camara's sponsor, is

also his football agent. The Secretary of State has refused Mr Camara's application on a

number of occasions. Mr Camara raised judicial review proceedings on an earlier occasion

in relation to a decision taken on 14 July 2019. The Secretary of State withdrew that decision.

A new decision followed on 10 January 2020. The Secretary of State withdrew that decision

on receipt of a pre-action letter.

[2]

The present petition was originally directed at a decision dated 30 July 2020. The

Secretary of State withdrew that decision. There followed a decision of 20 May 2021.

Mr Camara challenged it in an amendment to the petition. That decision also was

withdrawn. The Secretary of State again refused Mr Camara's application on 27 January

2022, and Mr Camara again amended this petition to challenge that decision . There was no

dispute between the parties that the challenge to that decision was properly before the court

and that I ought to determine it. The basis of the challenge appears at statement of fact 25 in

the amended and adjusted petition. In addition to reduction, Mr Camara seeks an order at

common law to require the decision maker to issue a decision not vitiated by error in law or

to grant his application.

The immigration rules

[3]

The conditions for entry clearance as a visitor are in the following paragraphs of

Appendix V: Visitor to the Immigration Rules.

"Eligibility requirements for visitors

V 4.1 The decision maker must be satisfied that the applicant...meets all of the

eligibility requirements in V 4.2 to V 4.6 ...

Genuine visitor requirement

V 4.2 The applicant must satisfy the decision maker that they are a genuine visitor,

which means the applicant:

(a)

will leave the UK at the end of their visit; and

....

(c)

is genuinely seeking entry... for a purpose that is permitted under the Visitor

route as set out in Appendix Visitor: Permitted Activities...; and

...

(e) must have sufficient funds to cover all reasonable costs in relation to their visit

without working or accessing public funds...

Decision

V 16.1 If the decision maker is satisfied... that the relevant eligibility requirements for

a Visitor are met, the application will be granted, otherwise the application will be

refused"

The application

[4]

Mr Camara submitted various items in support of his application. Those included

three affidavits from Mr McKnight. In his affidavit of 10 November 2018 he deponed that he

had an arrangement to act as Mr Camara's agent, and that he had had preliminary

discussions with several named professional football clubs in Scotland. He said that all the

clubs had stated that they were happy to see Mr Camara for an unpaid closed-door trial. He

had shown the clubs videos of Mr Camara playing football. In an affidavit dated 22 March

2019 he said that he had spoken to people connected to a number of football clubs in

England. He identified a scout for a well-known club (potentially confusingly, in the context

of this petition, Mo Camara) and said that the scout had indicated he would like to see

Mr Camara playing. In his third affidavit he adhered to what he said in the first two, and

emphasised that Mr Camara understood that it would not be in his interests, as a person

who wished to have a career in football, to breach immigration rules by overstaying or in

any other way.

[5]

He also submitted a letter dated 6 November 2018, from a journalist and

documentary maker, William McBain. The letter narrates that Mr McBain became

acquainted with Mr Camara in 2018 when he travelled to The Gambia. He explained that he

was in the editing phase of a documentary he had directed focusing on exceptional young

African footballers, and that Mr Camara was the main protagonist. He wrote that European

and African scouts had drawn Mr Camara to his attention, and that those scouts, and also

coaches and managers in The Gambia expected Mr Camara to go on to play at the highest

level. He enclosed stills from the documentary.

[6]

On 13 July 2021 the Secretary of State wrote this to Mr Camara's solicitors:

"Your UK visa application is currently under reconsideration following a legal

challenge to your earlier decision. Your previous refusal notice highlighted concerns

we had with your application and you have challenged these points. We are

carrying out a full reconsideration, in order to ensure we reach a balanced decision

on your application we would like to give you the opportunity to directly address

the concerns we have previously raised. We would therefore like to ask you to

provide some additional information in support of your application. I would be

grateful if you could reply to this email with the following supporting evidence, in

PDF format:

You have applied stating that you will be attending closed door trials with a

number of UK football clubs. This could only happen with the knowledge

and invitation of those clubs. Please could you provide evidence from all of

the professional football clubs in the UK that have invited you to pre-

arranged trials, as stated by you.

Evidence that your sponsor, John McKnight, is an active football agent/scout

and has any affiliation to any professional football clubs in the UK.

Your application makes references to your abilities as a footballer. Please

could you provide evidence of your footballing career to date, letters from

former clubs you have represented such as, international call ups at youth or

senior level, goal scoring record, statistics, appearances and team league

position from previous seasons.

Are you currently representing a football club? Is so please can you provide

evidence of this and the level the club play at. If not please can you provide

evidence of the last club you represented and the level this was at.

You have stated that the well-known ex player Mo Camara has expressed an

interest in watching you trial, are you able to provide anything from

Mr Camara supporting this statement and his interest in your career.

Evidence of your current circumstances and how you yourself are

supported on a daily basis in The Gambia or Guinea, living situation, bank

account, any employment income, familial ties."

[7]

Mr Camara's solicitors responded:

"1.

In respect of your first bullet point, as noted in previous petitions and the

petition currently before the Court of Session, we submit that this request

misunderstands the nature of the arrangements by which relatively junior, but

talented, footballers are provided with trials by professional football clubs in

Scotland. Such arrangements are that individuals will be invited to attend a training

session upon recommendation by an appropriate individual. Such arrangements are

unlikely to be formal in nature as the Decision Maker seems to assert. However, the

position of Mr Camara's agent is that he has been advised that Mr Camara will be

invited to undergo trials with a professional football club once he is in the United

Kingdom.

In respect of your second bullet point, as noted in previous petitions and the

petition currently before the Court of Session, there is no requirement for football

agents in the United Kingdom to be registered with FIFA. FIFA abolished its

Player's Agents Regulations and the licensing system for players' agents in April

2015 and replaced it with Regulations on Working with Intermediaries. Each

Football Association is responsible for its own registration process, and the position

taken by the Scottish Football Association is that an intermediary must be registered

each time he is involved in a transaction. A copy of the Scottish Football

Association's Intermediary Regulations is attached for your information confirming

this. As such, Mr Camara's agent will only have to register as an intermediary when

he is involved in a transaction and it would be unreasonable for him to provide

further information at this stage.

In respect of your third bullet point, we would remind the Decision Maker

that Mr Camara is a relatively young individual. Such statistics are not routinely

recorded at the level that Mr Camara has played at to date. Mr Camara has currently

returned to Guinea due to the Coronavirus pandemic and is therefore unable to

produce letters from the football clubs he has played for. However, we would

remind the Decision Maker that a letter has been submitted previously by

William McBain, an independent individual, who refers to Mr Camara as the main

protagonist of a documentary highlighting exceptional African footballers.

Mr McBain makes reference to highly regarded individuals within Gambian football

believing that Mr Camara will go on to play professional football at the highest level.

The Decision Maker therefore has independent information about Mr Camara's

abilities as a footballer which ought to be taken into account. We would remind the

Decision Maker that the progress of Mr Camara's career has been stalled by the

refusal to allow him Entry Clearance to the United Kingdom for the purpose of

attending sporting trials.

In respect of your fourth and sixth bullet points, we can advise that

Mr Camara has, at present, returned to Guinea due to the Coronavirus pandemic.

We understand from Mr Camara's agent that he continues to train on a daily basis."

The Secretary of State's decision

[8]

The Secretary of State did not appear to dispute the information from the solicitors to

the effect that Mr McKnight did not need to be registered as an intermediary until such time

as he became involved in a transaction. There was no dispute that Mr McKnight had

provided documents demonstrating his willingness and ability to provide accommodation

and financial resources for Mr Camara's proposed visit. Mr Camara would therefore have

sufficient funds for his visit without working or accessing public funds.

[9]

The reasons for refusing the application related (a) to the absence of information,

other than from Mr McKnight and from Mr Camara's solicitors, that Mr Camara has been

offered trials by football clubs; (b) the absence of information from other sources about

Mr Camara's career to date; (c) the absence of information about how he supported himself

financially, or was supported, in The Gambia or Guinea.

[10]

The decision letter contains more than one passage relating to the absence of

confirmation from any club that it had offered Mr Camara a trial:

"Other than the statements by your solicitor and sponsor, the information you have

provided does not show that any such trials have been agreed or any arrangements

made ... You have said agreement for these has been made with four different clubs

but the information you have provided does not show these clubs have agreed to

trials or have had any contact with you or your sponsor. I am not satisfied of this by

the affidavits submitted by your sponsor because the information you provided does

not demonstrate that your sponsor has any experience as an agent or include

anything from the clubs that you say have enquired about trials. Any information

can be provided on an affidavit. If incorrect information were to be provided on an

affidavit, there would be no consequences or further action taken against the person

who submitted the incorrect information. If such trials were agreed, some form of

correspondence from the club in question would be readily available.

...

Your solicitor's response [to the request in the email of 13 July 2021] was that

arrangements such as an invitation would be informal in nature and that you would

be formally invited once actually in the UK. However, I am satisfied that had you

been invited to a trial by Scottish Premier League Clubs ... there would be at least

one letter confirming this invitation, or that it would, following our request, have

been possible to have obtained confirmation from them of any informal

conversations that had taken place."

[11]

The Secretary of State was not satisfied that there would be no record of

Mr Camara's career to date, given the claims made about his ability as a footballer.

Mr Camara had not responded to the specific request for information about his current or

most recent team. He had never provided vouching of what he said his income was, either

at the time of his application or subsequently. She was not satisfied by the explanation

given by the solicitors for the absence of evidence about whether Mr Camara was currently

playing for a team or about the last team he played for.

Submissions

Mr Camara

[12]

In relation to the absence of confirmation from a club or clubs about having offered a

trial, Mr Caskie submitted that football clubs would not provide written evidence that they

had offered an individual a closed door trial. That was the deliberate and normal practice of

football clubs, adopted because of commercial sensitivities. If they confirmed that they had

offered someone a trial, that might assist rival clubs in identifying talented, unsigned

players. Further, circumstances might alter so that the club were no longer seeking someone

to fill a particular role, and they would not wish to have committed to providing a trial.

[13]

Counsel was particularly critical of the Secretary of State's approach to

Mr McKnight's affidavits. Mr Camara had now challenged a number of decisions by way of

judicial review. It was clear that the affidavits would be put before the court. They were

statements on oath. Dishonest statements in them might come to the attention of the

prosecution authorities. Mr McKnight might be prosecuted for perjury.

[14]

The Secretary of State had relied on Mr Camara's failure to progress in his career, but

that failure resulted from her earlier decisions to refuse his visa application. Mr Camara was

Mr McKnight's first client, and every agent must at some stage have a first client. It was

irrelevant that Mr McKnight was not a registered or active agent.

[15]

Mr Camara had submitted payslips when he made his application . The form he had

submitted had a box checked indicating he had done so. It appeared that the Secretary of

State had lost them. The absence of vouching was immaterial in any event, as the sponsor

could fund the trip. There was no dispute that his pay was low. He was not relying on a

substantial income as evidence that he had an incentive to leave the United Kingdom at the

end of his visit.

The Secretary of State

[16]

The Secretary of State had provided notice in the email of 13 July 2021 as to the

information that she was looking for, and Mr Camara had not provided it. The requests for

information were not unreasonable. They related to matters about which the Secretary of

State required to be satisfied, and she was entitled to take into account the absence of

evidence that should be readily available: TK (Burundi) v Secretary of State for the Home

Department [2009] EWCA Civ 40, paragraphs 1, 16, 20, 21. Mr Camara required to

demonstrate a material error of law: PA v Secretary of State for the Home Department 2020

SC 515, paragraph 32. Administrative decisions must be read in a realistic and practical

way: Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] 1 WLR 413,

paragraphs 26 and 46 - 50. The weight to give to a relevant consideration was a matter for

the decision maker: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759,

pages 764F - H and 780E G.

[17]

The criticisms about the approach to the affidavits were ill-founded. Mr McKnight

would not be liable to prosecution for perjury. That crime required that the statement be

made in judicial proceedings and made under an oath that the person who made it was

required to take: Gordon, The Criminal Law of Scotland, 4th edition, paragraphs 55.03, 55.05

and 55.13. The affidavits were not sworn for the purpose of these proceedings but for a visa

application, and there was no requirement for statements to be on oath in that context.

Decision

[18]

Mr Camara requires to demonstrate that it is not reasonable, in the Wednesbury sense,

for the Secretary of State to have refused his application on the basis of the information

before her. The question for her was whether she was satisfied that Mr Camara was

genuinely seeking entry for the purpose of undergoing closed door trials. She provided

clear notice to Mr Camara, in the email of 13 July 2021, of the matters about which she was

concerned, and invited him to submit further material to address her concerns.

[19]

On a fair reading, the Secretary of State did not refuse the application for entry

clearance because Mr McKnight was not a registered football intermediary. Rather, she

assessed the information provided to her against the background that he was not. She was

not bound to accept the information from Mr Camara, Mr McKnight and Mr McBain,

although she might have been entitled to do so. She was entitled to take into account the

absence of independent supporting evidence when that would ordinarily be available and

there is no credible explanation for its absence: TK (Burundi), passages cited above.

[20]

Mr Camara provided no evidence to the Secretary of State that it is normal practice

for football clubs not to provide written confirmation of having offered an individual a trial.

That point was developed for the first time in the written and oral submissions in t his case.

The Secretary of State cannot be criticised for not having taken that matter into account .

That explanation was not before her at all.

[21]

It was not unreasonable to ask for confirmation from at least one club of the offer of a

trial. On the hypothesis that the explanation for the absence of that is correct, there would

be nothing obviously preventing Mr Camara from obtaining a letter from a football club

stating that it is their policy neither to confirm nor deny that they have offered a trial and/or

that that is normal practice in the industry.

[22]

Regardless of whether a representation is in an affidavit or some other form, acting

to facilitate a breach of immigration law by a person who is not a UK national is, as

Mr Caskie pointed out, an offence: Immigration Act 1971, section 25. A misleading

statement by a sponsor might well give rise to a penal consequence. To that extent the

Secretary of State was wrong to say in unqualified terms that there would be no

consequences for the author of such a statement. That error is not material. First, although a

person who swears an affidavit is on oath as to the truth of the content, the content may not

in fact be true. The Secretary of State was under no obligation to accept the content of the

affidavit as true. Second, it is obvious, looking at the decision letter as a whole, that the

decision would have been the same, absent the error: Holmes-Moorhouse, paragraph 51. The

Secretary of State was concerned about the absence of information from the named football

clubs to confirm that they had offered trial.

[23]

I am not satisfied that the Secretary of State acted unreasonably in refusing to grant

the application on the basis of the information provided to her. None of the documents

submitted in support of Mr Camara's application names any team for which he has played.

There is no mention of what position or positions he plays in . It is not unreasonable for the

Secretary of State to require vouched detail about matters of that sort where an application is

for entry clearance to undergo trials with professional clubs.

[24]

The Secretary of State was entitled to regard the explanation for the absence of

evidence about Mr Camara's current or last team that Mr Camara had returned to Guinea

due to the Coronavirus pandemic and was therefore unable to produce letters from the

football clubs he has played for as unsatisfactory. It is not obvious from that explanation

why he would have no documentary record of having played for particular clubs, or why

his presence in Guinea would necessarily prevent him or his solicitors from approaching

those clubs for a letter confirming that he had played for them.

[25]

There may be some force in counsel's submission about the significance, or lack of it,

of the absence of payslips vouching Mr Camara's claim that he received pay as a trainee

footballer at a particular rate mentioned in his application (£20.49 per month). He has never

suggested that his means in Guinea or The Gambia were an incentive for him to return.

That said, however, the fact that Mr Camara did not have a job that provided him with a

financial incentive to return was clearly a relevant factor for the decision maker to assess as

part of the whole circumstances of the application.

[26]

I refuse the petition. Had I considered that the Secretary of State had materially

erred in law, I would have confined the remedy to reduction .