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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bajracharya, R (On the Application Of) v Secretary of State for the Home Department [2018] EWCA Civ 277 (22 February 2018) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2018/277.html Cite as: [2018] EWCA Civ 277 |
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ON APPEAL FROM THE UPPER TRIBUNAL
(ASYLUM AND IMMIGRATION CHAMBER)
Upper Tribunal Judge Coker
JR/15337/2015
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE NEWEY
____________________
The Queen on the application of MR NISHENTMAN BAJRACHARYA |
Appellant/ Applicant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
____________________
Mr Eric Metcalfe (instructed by the Government Legal Department) for the Respondent
Hearing date: 15 February 2018
____________________
Crown Copyright ©
Lord Justice Newey:
Narrative
"In order for your occupation to be considered as a shortage occupation, amongst other things, your employer must not offer a takeaway service, as specified under Appendix J and Appendix K of the Immigration Rules.
The weblinks www.just-eat.co.uk & www.hungryhouse.co.uk clearly show that the Ganges & Gurkha Restaurant offers a takeaway service, therefore we are not satisfied that the post you are undertaking is a shortage occupation."
"Please note that as per the emails and verbal confirmation from the Employer, the scenario of the restaurant is as follows:
1. This is a 150 cover restaurant
2. The restaurant does not have any takeway menu nor does it have any mention of any take away service on its website.
3. We have also been provided a letter from Hungry House that confirms the service was discontinued prior to the date on which this application was submitted. (An original copy of the same can be provided upon request)."
The application also stated:
"Please note that we have now gathered sufficient proof from the authorised Managers of the websites hungry house and Just-eat respectively to confirm that our client had stopped using their services PRIOR to making this application. We have also been offered to provide you their contact numbers in case if you wish to make any further clarifications in this context. Please feel free to contact us in-case you wish to contact them at your end."
"We have carefully considered all points on your administrative review however, as stated in the original refusal decision letter, you failed to satisfy the requirements of paragraph 245HD with reference to Appendix J and K of the Immigration Rules. This is because the caseworker has correctly identified that as your job is listed as a shortage occupation your prospective employers, Ganges & Gurkha Restaurant, must not offer a takeaway service. However the original caseworker has correctly shown into their investigation into your application that your employers offer a takeaway service and therefore the post you are undertaking is not a shortage occupation. This means a resident labour market test needs to be conducted which has not been indicated on the Certificate of Sponsorship (COS).
You have stated in your administrative review that your prospective employers do not offer a take away service and you have provided names and contact details for websites 'Hungry House' and 'Just Eat' for confirmation of this statement. However, having visited the 'Trip Advisor' website at www.tripadvisor.co.uk I can confirm that a review dated 14 August 2015 clearly states that the Ganges & Gurkha Restaurant in Plymouth offers a take away service. As this review was submitted after the date of your application we are satisfied that the caseworker correctly identified that a take away was in place. We are, therefore satisfied that the decision to refuse your application was correct and we have maintained the original decision."
"Had a takeaway this evening- Excellent as always."
There followed a response from the "Manager at Ganges & Gurkha" dated 19 August, stating:
"Thank you so much for your nice review. We hope to seeing you soon."
i) A letter dated 14 October 2015 from Mr Laxman Giri, the managing director of the Ganges & Gurkha Restaurant, stating that, although the restaurant was registered on websites such as hungryhouse and Just Eat, "the service of the same was no longer in use after the 12 August 2015";
ii) A letter dated 2 October 2015 from Mr Brendan James of hungryhouse "to confirm that the final successfully processed and confirmed order placed with The Ganges and Gurkha was the 11th of August at 20:10"; and
iii) An email to Mr Giri dated 11 September 2015 in which Mr Spencer Owen of Just Eat said:
"Please see attached invoice and online status for just eat. The invoice shows when you took your last order and the status shows that you were taken offline.
Although you still appear on just eat, it clearly shows that you are offline, and no one can order. You might still show up on a Google search but customers cannot order and have not able to do so since august 12th 2015."
"tmpoffline Issues with Home Office Offline until further notice (Type 1 Temporarily offline)".
An entry for 18 August similarly referred to being "Offline until further notice due to issues with the Home Office".
"For sake of clarity, even if The Ganges & Gurkha were offering a take away service (which they are not) our client was interviewed on 11th August 2015, our client should have still been granted leave to remain as his employment was not due to commence until 12th October 2015, by which time, there is a gap of two months. Is the Home Office able to evidence that from 11th August to date there has been any take away service offered, and if so, may we see this evidence?"
Further on, this was said:
"Reasons given by Home Office as to why they will not grant our client leave to remain is unfounded. How can Home Office make such a decision without considering all the evidence before them? We are confident that the Judge will be of the same view."
"Rest, I would like rely on the grounds of my Pre-action."
"14. In your representations you state that you had 'disabled' your takeaway service on 11 August 2015, the day before assigning CoS for N Bajraqcharya and S [redacted] and have submitted evidence from 'just eat' to corroborate your statement. Your representations go on to say that as these individuals had their visas refused, you were unable to go forward with your expansion plans and re-instigated your takeaway service.
15. Your representations state that assigning a CoS [i.e. Certificate of Sponsorship] under shortage occupation rules for [redacted] was a genuine error as you had a takeaway service at that time. You claim to have misread the SoC code information.
16. We are not prepared to accept your explanation. Our guidance has always been clear in stating that an establishment offering a takeaway service does not meet shortage occupation criteria. In assigning a CoS to [redacted] you have breached your duties and responsibilities as a licensed sponsor. We further believe that you attempted to circumvent the shortage occupation rules by stopping your takeaway service immediately prior to assigning two CoS for B Bajraqcharya and [redacted] only to re-instate the service later."
The statutory framework
"(b) the job that the Certificate of Sponsorship entry records that the person is being sponsored to do is skilled to National Qualifications Framework level 4 or above, and appears on the shortage occupation list in Appendix K".
There was also reference to Appendix K in paragraph 78A of Appendix A. This stated that, in order for a Resident Labour Market Test exemption to apply for a job offer in a shortage occupation, the job must (among other things):
"at the time the Certificate of Sponsorship was assigned to the applicant, have appeared on the shortage occupation list in Appendix K".
(Mr Metcalfe stressed the words, "at the time the Certificate of Sponsorship was assigned to the applicant".)
"the job is not in … an establishment which provides a take-away service".
Outline of the parties' cases
Precedent fact or Wednesbury principles
"The decision here under challenge is a decision made in the exercise of the power conferred on the Secretary of State by section 3 of the [Immigration Act 1971] to grant leave to remain in the United Kingdom. The Rules contain detailed provisions as to how the power is to be exercised (though there is a residual power to grant leave even where it falls to be refused under the Rules). Paragraph 322(1A) is one of those provisions. Its application involves findings of fact, but that is true of a multiplicity of provisions in the Rules. If the conditions in it are found to be satisfied, leave must be refused under the Rules, but that, too, is true of many other provisions under the Rules. A finding that the conditions are satisfied has potentially serious consequences (see, in particular, the effect of paragraph 320(7B) as summarised above), but paragraph 322(1A) is again far from unique in that respect. The key point is that the statute confers the power on the Secretary of State, or the immigration officers acting on her behalf, to make the decision whether to grant or refuse leave to remain. It is for the Secretary of State or her officials, in the exercise of that power and in reaching their decision, to determine which provisions of the Rules apply and whether relevant conditions are satisfied, including the determination of relevant questions of fact. On the reasoning in [R v Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74] and [R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514], their findings on such matters are open to challenge in judicial review proceedings only on Wednesbury principles; it is not a situation in which their powers depend on some precedent fact the existence of which falls for determination by the court itself."
Was the Secretary of State's decision reasonable?
The loss of the sponsor licence
Conclusion
Lord Justice Henderson: