O-ONO v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2017] ScotCS CSOH_107 (09 August 2017))

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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 respondents 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 serviceand 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.



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