Ocheing, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 3302 (Admin)

Case No CO/10040/2007[2008] EWHC 3302 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 17th December 2008
Strand
London WC2
B E F O R E:
LORD CARLILE OF BERRIEW QC
(sitting as a deputy High Court judge)
Between
THE QUEEN ON THE APPLICATION OF JIMMY OCHEINGClaimant-v-
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
(Computer-Aided Transcript of the Palantype Notes ofWordwave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
for The Claimant did not appear and was not representedMiss Kate Grange (instructed by the Treasury Solicitor, London WC2B 4TS) appeared for Defendant
J U D G M E N T(Usher left court to call the claimant)
[1]THE USHER: No answer to call, my Lord.

LORD CARLILE: In that event I shall proceed to give an extempore judgment on the understanding that this is effectively what was requested by the claimant in his fax received by the defendant this morning.

[3]The claimant is Mr Jimmy Ochieng. He applies to judicially review the decision of the Secretary of State for the Home Department of 26th September 2007. The Secretary of State's decision was to revoke the work permit granted to Mr Ahsan Jamil Pasha ("Mr Pasha"), who was an employee of the claimant.[4]Permission for judicial review was granted on the papers by Mitting J. Mitting J noted that the grounds of challenge were, as he put it, incoherent and probably unsound. The learned judge noted in granting permission that there were significant discrepancies between the work performed by Mr Pasha and his remuneration and the description given thereto. More of that later. He noted in particular that paragraphs 154 and 155 of what is called the Guidance Note to Applicants, issued by the defendant, includes the following statement. Work Permits (UK) will "work with you to take steps to bring employment back in line with the work permit arrangements".[5]There is no allegation of deception in this case, another factor noted by Mitting J. Work Permits (UK) did not state that the claimant had knowingly deceived it, nor does the defendant so contend, or at least not quite. The view of the learned judge was that it might be arguable that Work Permits (UK) and the defendant had not complied with a publicly announced policy.[6]On 13th March 2008, in accordance with observations made by Mitting J when granting permission, the claimant served some additional and amended grounds of challenge. They focus on the alleged lack of compliance with the defendant's published policy, which is now contained in paragraphs 171 to 172 of the Guidance for Employers, an updated version of previous guidance.[7]The factual background is as follows. Mr Pasha, who is a Pakistani national, arrived in the United Kingdom on 2nd October 2003. He was granted leave to remain as a student. On 2nd July the claimant, a director of something called "the Gym Music School", applied for a work permit for Mr Pasha which was granted on 9th July 2004. On 14th September 2004 Mr Pasha was granted leave to remain until 30th August 2006, in line with his work permit. Mr Pasha was employed as an information technology lecturer and his salary was stated to be £20,800 per year.[8]The claimant made an application for an extension of the work permit on 30th August 2006. The application was approved on 22nd September 2006 and leave was granted until 30th August 2011. This application showed the employer to be the Gym Music School and the job title was stated as IT lecturer. The salary had increased substantially. The claimant indicated that Mr Pasha would be paid £41,600 per year for a 40-hour week. Mr Pasha's employment contract, dated 27th December 2006, showed his job title as IT teacher.[9]An important event occurred on 17th January 2007. Nick Gates and Anna Betts are compliance officers with what is called the Sponsor Management Unit of the UK Border Agency. On that date, 17th January 2007, they carried out what is called a compliance visit and interviewed the claimant. A report of the visit was produced after the inspection. At the visit it was discovered that the Gym Music School had ceased trading. In fact it subsequently transpired that it had been dissolved much earlier, on 14th February 2006. This means that the application for an extension of the work permit made in 2006 was made after the Gym Music School had been dissolved. It was also discovered that the claimant, Mr Ochieng, was currently the director of an organisation called Jimmis College. It was found that Mr Pasha was not working in accordance with the work permit. In particular, he was doing no or almost no lecturing. He was helping with the running of the college in the absence of the director. He was working from the claimant's home. He was being paid not £41,600 per year, but between £300 and £400 per week on piecework, well under one half of the £41,600 per year. He was working part-time.[10]In addition, during the visit it was found that of the 40 to 50 students enrolled at the college, the majority were not attending classes. At the time of the compliance visit, there were 37 students who had not attended the previous week, at least 70 per cent of the students, and at the end of the previous term the college only had 28 students attending on a regular basis. This meant that the college was in breach of the Immigration Rules regarding overseas students.[11]The compliance officers, Miss Betts and Mr Gates, asked for wage slips, but they were not provided. They concluded, rightly, that the employment of Mr Pasha was not compliant with the work permit and they recommended that revocation action should be considered.[12]In the months following the visit, which as I have already said occurred on 12th February 2007, the claimant failed to submit any wage slips to the defendant, though he had been requested to do so at the time of the visit. On 27th July 2007 the defendant wrote to the claimant, setting out the manner in which the claimant was non-compliant with the work permit criteria. The defendant requested that the claimant provide full supporting evidence to demonstrate that the reasons for non-compliance did not apply as had been stated. The information was to be supplied by 10th August 2007, with the clear warning that revocation action would follow on the work permits already issued to the claimant's company if the information was not provided.[13]The claimant responded on 7th August 2007, seeking to clarify certain matters. He stated that he had indicated during the visit that he was intending to apply for permission for Mr Pasha to work for Jimmis College, which he said was run by the same management as the Gym Music School. There were references to a further application and some wage slips. The wage slips, however, showed that Mr Pasha was working for Jimmis Ltd in February and March 2007 and for the Gym Music School between April and July 2007. No explanation was provided to solve the mystery of how Mr Pasha was working in the spring and summer of 2007 for a music school which had ceased trading some 15 to 18 months earlier.[14]In a letter of 26th September 2007 the Secretary of State communicated a decision to revoke Mr Pasha's work permit, giving as reasons, first, that he was not undertaking his permitted role as an IT lecturer and was in fact undertaking various duties on a piecework basis and, secondly, he was not receiving his permitted salary of £41,600, but a salary of £16,000.[15]Further requests were made by the claimant for a review, and finally a review request by the claimant on 23rd October 2007 was refused by the Secretary of State on 2nd November 2007.[16]I turn to the relevant policy guidance. Work permits are not provided for in the Immigration Rules, but are the subject of non-statutory guidance published by Work Permits (UK), which is now part of the UK Border Agency, an agency of the Home Office. The guidance sets out what is required of employers and the circumstances in which a work permit application can be refused. The relevant part of the guidance is called "Business and Commercial — Guidance for Employers". The aim of the arrangements is to strike a balance between enabling employers to recruit or transfer skilled workers from abroad and protecting job opportunities for British residents. Work permits for jobs other than in certain categories or sectors where there is a recognised shortage of skills domestically have to be preceded by a nationwide advertising procedure. A work permit will only be granted on the basis that there is not a resident worker who can fill the vacancy. Where an employer wishes subsequently to change the conditions of employment from those stated in the work permit, Work Permits (UK) requires notification. This is clearly set out in the guidance.[17]Section 4 of the Guidance for Employers deals with the issue of verifying applications and abuse. At paragraph 151 it is stated:
"... we must also be confident that applications meet the work permit criteria, and that the statements and information that employers and representatives provide are a true reflection of what actually happens whilst the work permit holder is in the job concerned."
[18]In paragraph 171 the guidance says:
"If we find discrepancies on applications where the work permit has already been issued and the overseas worker has taken up the post, we will work with you to take steps to bring the employment back in line with the work permit arrangements if possible."
The words "if possible" are there for a purpose.[19]In this case the Secretary of State submits that the claimant was given a reasonable opportunity to prove that the work permit criteria were in fact being complied with. The Secretary of State took all practical steps in terms of working with the claimant in the following ways: first, opportunities were given to the claimant to adduce evidence showing that the employment was in fact in line with the work permit criteria; second, at the compliance check the claimant took the opportunity to seek advice as to how to apply to change the employment of Mr Pasha. However, what work could the Secretary of State do with the claimant, given that the Gym Music School was no longer trading and that the claimant had indicated that he wanted to apply to change Mr Pasha's employment to a different role in a new institution, that is to say Jimmis College? The claimant knew what work needed to be done and the fact is that he did not do it. In these circumstances, in my judgment the Secretary of State has complied with paragraph 171 of the policy.[20]I bear in mind that the policy is exactly that. It is non-statutory and that there must be a reasonable level of flexibility, with appropriate scope for dealing with the particular facts of each individual case. There is ample authority for that proposition. It is trite law and I need not repeat the authority here.[21]It is important that there should be compliance with work permit criteria for the sake of good administration. It is absolutely clear to applicants that any significant non-compliances will be taken seriously by Work Permits (UK), and in appropriate cases a failure to comply with the work permit may lead to the revocation of the work permit. This in my judgment is such a case and nothing further could in fact have been done in this case to bring the employment back into line.[22]In those circumstances there was no failure on the part of the Secretary of State to comply with the published guidance for employers. In my judgment the Secretary of State acted reasonably in revoking the work permit after giving the claimant ample opportunities to demonstrate compliance with the work permit criteria. On the facts of this case, there was nothing more that could have been done in order to work with the claimant to bring the employment back into line.[23]Further, I am mindful that this court has a broad discretion whether to grant a remedy in judicial review. In considering how that discretion should be exercised the court can take into account a number of factors, including the nature and importance of the flaw in the challenged decision, the conduct of the claimant and the effect on administration of granting the remedy. Authority for that can be found, for example, in Nichol v Gateshead Metropolitan Borough Council (1988) 87 LGR 435, at page 460.[24]Even if I were wrong in my finding that there was no failure by the Secretary of State susceptible to judicial review, I would exercise my discretion to decline a remedy. This is because the conduct of the claimant does not warrant the grant of a remedy in this case, given that at the time of the application for an extension of the work permit on 30th August 2006 the Gym Music School had been dissolved; that at the time of the compliance visit in 2007 Mr Pasha's work was significantly different from that permitted in terms of job role, salary and hours worked; that the college was in breach of the Immigration Rules; and that the wage slips simply cannot have been correct.[25]Further, I decline relief because, happily, this matter is now entirely academic, in the sense that Mr Pasha has been granted a work permit and leave to remain for a different employer and reinstatement is no longer an option. For these reasons, even were I wrong in my principal findings, I judge that a remedy available under judicial review should not be provided in this case.[26]I should add one other thing. The claimant states that he suffered significant financial loss as a result of the Secretary of State's decision. I have seen no evidence of such loss whatsoever. If claimants wish to assert financial loss and claim that there is a basis upon which such loss can be recovered in judicial review, then they must, at the very least, provide a definitive schedule of their loss upon which the court can work.[27]MISS GRANGE: My Lord, thank you. My Lord, we would ask for our costs of this application, to be assessed if not agreed.

LORD CARLILE: Costs to be assessed if not agreed must follow.

[29]MISS GRANGE: My Lord, I am grateful.

LORD CARLILE: I am grateful to you and those instructing you. Thank you very much.

[31]MISS GRANGE: Thank you.

Cited in 2 later judgments