Udtha, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 1287 (Admin)

[2009] EWHC 1287 (Admin)Case No CO/3304/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 30 April 2009
Strand
London WC2A 2LL
B e f o r e:
DAVID HOLGATE QC
Between
THE QUEEN ON THE APPLICATION OF KHAN UDTHAClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Ajmal Hussein (Solicitor Advocate of Pothecary Witham Weld White Horse Court, North Street, Bishops Stortford, Herts, CM23 2LD) appeared for Claimant.Mr David Blundell (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]DEPUTY JUDGE: This is an application for judicial review by Mr Khan-Udtha against the decision of the Secretary of State to refuse to approve the transfer of a work permit for the Claimant.[2]The claim was brought pursuant to permission granted by Mr Justice Mitting on 25 July 2008. The claim relates to a decision given on behalf of the Secretary of State by the Border and Immigration Agency through three letters: first, on 6 October 2007; secondly, following a process of review, on 19 November 2007; and, thirdly, after a second review on 8 January 2008. The claim was filed on 31 March 2008 but no point on delay is now taken in the substantive hearing insofar as the challenge relates to the first or the second decision letters. Factual Background[3]I turn to summarise the factual background. The claimant is of Thai nationality and was born on 24 April 1973. On 3 June 2003 he was granted a work permit to work in this country as a head chef. On 15 July 2003 his work permit visa commenced. On 16 September 2003 he entered the United Kingdom. On 1 February 2007 he was granted a work permit transfer to work with a new employer - Thai Rack Restaurant - as a sous-chef. The permit issued at that stage referred to that job description. On 30 April 2007 he then left his position with the Thai Rack Restaurant. On 1 September 2007 he commenced employment at the Sukho Thai Restaurant and Lounge as a head chef.[4]On 24 September 2007 Mr Ajmal Hussein, the claimant's new employer, made a work permit transfer application. It is that application which led to three decisions, the subject of challenge in these proceedings. The application was made on form WP1. Representation[5]Mr Hussein is also a solicitor advocate in the firm of Pothecary Witham Weld instructed by the claimant to bring these judicial review proceedings. He also appeared at the oral hearing on 20 July 2008 before Mr Justice Mitting.[6]On 7 April 2009 a letter was sent by that firm seeking to remove themselves formally from the record. However, they sought to do so by a notice of discontinuance which was obviously inappropriate. The Administrative Court Office replied by letter stating that either a notice of change of solicitor should be served or a formal application should be made to the Master. Neither of those courses was followed. The firm is still on the record. Mr Hussein, as I understand it, is entitled to appear in this court as a solicitor advocate. The issue has not arisen but, if necessary, I would have been prepared to make an order under the Legal Services Act 2007 granting a right of audience to Mr Hussein. The Legal Framework[7]I turn to deal with the legal and policy framework. In Section 33 (1) of the Immigration Act 1971, a work permit is defined in the following terms:
"a permit indicating, in accordance with the immigration rules, that a person named in it is eligible, though not a British citizen, for entry into the United Kingdom for the purpose of taking employment."
No further provision is contained in the primary legislation dealing with work permits, as I understand the position. In particular there is no statutory regime set out dealing with the content of such a scheme or any power to make rules.[8]The definition to which I have just referred does expressly mention Immigration Rules. That appears to explain why the statutory definition has been included because a number of the Immigration Rules do refer to work permits. For example, Rules 128 to 132 refer to work permits as one of the prerequisites for obtaining leave to enter the United Kingdom for the purposes of employment. However, although a work permit may be essential for certain types of leave to enter the United Kingdom, a refusal to grant a work permit is not an immigration decision within Section 82 of the Nationality Immigration and Asylum Act 2002 so as to give rise to a statutory right of appeal under that Act. No other statutory right of appeal is provided where a work permit is refused. The only remedy is judicial review. The Work Permit Scheme[9]The Secretary of State's scheme is a creature of policy. It is contained in a series of published Guidance Notes. One deals with "business and commercial" applications and was the relevant guidance for the purposes of the application in this case. The contents page of that guidance contains this paragraph:
"This guidance note provides information on the criteria of the Business and Commercial work permit arrangements and advice on how to make an application. They are updated regularly, therefore, please read them before filling in the application form. This supersedes all previously issued guidance."
The official form WP1 used in this case also directs the attention of applicants to those guidance notes. Indeed, it is difficult to see how the form could be successfully completed without considering those notes.[10]Section 1 of the guidance notes gives criteria for determining applications under the scheme. Paragraph 1 (a) indicates that work permit applications may be made by UK-based employers.

(a) it is stated:

"The employee cannot use the work permit to take a different job or to work for a different employer."
[11]Although the application has to be made by a UK-based employer, no issue arises in this court about the entitlement of the claimant to bring this claim for judicial review.

(e) and (h) to (j) read:

"(e) the gross pay and conditions of employment are equal or exceed those normally given to a 'resident worker' (see paragraph 2 for a definition) doing similar work. (h) the skills, qualifications and experience needed to do the job meet specific requirements. (i) the person is suitably qualified or experienced to do the job on offer and whether there is a need for them to do the job on offer; and (j) there are suitably qualified or experienced 'resident workers' available."
[12]Paragraph 1 (e) deals with the level of pay to be expected in comparison to that normally given to resident workers. Resident workers are defined in paragraph 2 and, in essence, comprise persons who are EEA nationals or who have settled status in the UK within the meaning of the 1971 Immigration Act. Paragraph 1 (h) is important because it focuses on the skills, qualifications and experience which is required by a business seeking a work permit. It focuses on the job requirements of the business. By contrast, paragraph 1 (i) focuses on the qualities of the person, the subject of the application, being put forward as being a suitable employee to fulfil the job requirements of a business.[13]Paragraph 8 reads: "8 The gross pay and other conditions of employment should be at least equal to those normally given to a 'resident worker' doing similar work" - and obviously relates to paragraph (e),[14]Paragraph 12 appears in the section headed "The Employment: Skills, Qualifications and Experience Criteria" and reads:
"12 To qualify for a Business and Commercial work permit the job must meet the following criteria: Either - the job must require the following qualifications: (a) a UK equivalent degree level qualification; or (b) a Higher National Diploma (HND) level qualification which is relevant to the post on offer; or (c) a HND level qualification, which is not relevant to the post on offer plus one year of relevant full time work experience at National/Scottish Vocational Qualification (N/SVQ) level 3 or above; Or - the job must require the following skills: (d) 3 yearss full time experience of using specialist skills acquired through doing the type of job for which the permit is sought. This should be at N/SVQ level 3 or above."
Paragraph 12 is linked to paragraph 1 (h). In summary, the job specified in the application must require certain specified qualifications or three years' experience acquired through jobs at a certain level.[15]Paragraph 14 deals with the skill of the worker put forward in the application and reads as follows:
"14 The person should have the skills, qualifications and experience to enable them to do the job on offer. Also, the qualifications and skills of the person should be in line with the criteria outlined in paragraph 12."
That principle links with paragraph 1 (i).[16]Two categories of application may be made: tier 1 or tier 2. Tier 1 applications relate to skilled posts in multi-national companies, senior board posts, posts essential to inward investment and what are described as "shortage occupations". The significance of a tier 1 application is that there is an exemption from any requirement to advertise the post.[17]Tier 2 applications relate to all the jobs outside tier 1. This case fell within tier 2. In the case of a tier 2 application, the information required on the application form is set out in more detail under the heading "Evidence of Experience and/or Qualifications" between paragraphs 39 and 46 of the Guidance Notes. In addition, further information is required for the generality of such applications under the heading "Recruitment Search", as set out between paragraphs 47 and 72. The purpose of the recruitment search, in summary, is to demonstrate why a post cannot be filled by a resident worker. Requirements are set down to define satisfactory recruitment searches, for example, by reference to advertisements.[18]Paragraph 84 requires a change of employment application made in respect of a person already in the UK and with the benefit of a work permit, to be made on form WP1. Paragraph 96 requires that a set of declarations at the end of that form are signed by the proposed employer. Paragraph 105 makes it clear that the work permit, when issued, is issued to the employer.[19]Paragraphs 126 to 133 deal with changes of employment. Paragraphs 126, 127 and 128 state:
"126 If you want to employ a person currently in the UK, who already has a work permit i respect of a job with amother employer or if you want the person to change jobs within your organisation you should apply to Border and Immigration Agency for permission. 127 If the application involves a change to the duties and conditions of work from those on the previous work permit application a search of the resident labour market will normally be required ..... unless the application can be dealt with under the tier 1 category ..... 128 You do not need to provide evidence of a recruitment search if we receive your application either before they leave their current employment or within 28 days of the person's last day of work with their previous employer, and providing they will be doing the same type of job. You must wait for our permission before the person can start working in their new role."
Paragraph 129 deals with the information required on a change of work permit application and states:
"129 ..... For most change of employment applications we will already have details of the person, so you do not need to send evidence of their qualifications and experience."
[20]Section 5 of the Guidance Notes deals with the immigration regime, certainly as it stood at the time of that document. I draw attention to three paragraphs which illustrate some aspects of the interaction between the work permit and immigration control systems:
"171 Work permit holders who are non-EEA nationals (including non-visa nationals) who wish to come to the UK for more than 6 months must obtain entry clearance before travelling. If clearance is granted it will usually be for the full period of their stay as stated on the work permit. ..... 192 The exceptional waiving of the in-country switching rules will only be considered where there are compelling circumstances, detailed in the application and relating to the individual, which would make it unduly harsh for them to return to their country of residence."
Lastly, from an earlier section, paragraph 83 reads as follows:
"83 Where a work permit is issued the person must return overseas and use the work permit to apply for entry clearance to re-enter the UK. They cannot work in the UK on the basis of the work permit alone. If they do not return overseas to gain entry clearance and begin or continue to work in the UK then they would be in breach of their immigration status and could be subject to removal from the UK."
[21]The guidance notes also deal with situations where the claimant for a work permit disagrees with the decision. This is dealt with between paragraphs 218 and 226. Paragraph 218 confers a right to ask for reconsideration. There are two sorts of review which can be undertaken. First, paragraph 219 of the guidance notes refers to a review under which the applicant submits further information. In that event, a fresh form WP1 has to be completed and a further fee is payable. In some cases however a recipient of the decision may feel an error has been made in the reasoning of the decision already issued and may make a second type of application for review, as set out in paragraph 220 which reads as follows:
"220 If you think that the decision based on the information sent in with your original application was an error, and you wish us to reconsider your previous application, please write a letter to the Business Team that dealt with your application. You should write within 28 days of the date of original decision letter and explain why you believe that the decision was wrong, with reference to the guidance notes, and make it clear that you are requesting a review of the decision on your previous application. There will be no fee for this consideration, providing you are not asking us to consider new information."
[22]It is apparent from that paragraph that where that type of review is followed no further information of any substance can be submitted, but on that basis no further fee is payable. That was the procedure pursued by the claimant in this case. As a result, the guidance notes in paragraphs 221 to 224 were applicable:
"221 The Reviews Team will consider the grounds of refusal provided in respect of your initial work permit application and also undertake a full review of all other elements of the work permit decision. 222 Before making a decision we may contact the employer/representative for further information to clarify/support the evidence provided with the initial work permit application. 223 Where we identify further grounds for refusal the decision to maintain refusal of an application will stand even when the original ground for refusal has been overturned."
Paragraph 224, in part, reads:
"The Reviews Team will only accept two reviews per original application refused ..... "
[23]During the course of argument reference was also made to internal guidance notes to case officers. That material is also available to the public on the internet. I will refer to it where appropriate when dealing with the arguments. The application for change of employment[24]I turn to summarise the application and the decisions made by the defendant. The application was made on 24 September 2007. A number of documents were submitted in support of the application but - as was explained by Mr Hussein and I accept - they related to the nature of the business making the application because it had not previously sought a work permit. It appears from Section 2 of the application form that Mr Hussein was an applicant along with his business partner Mr Uddin. Together they traded as Sukho Thai.[25]In answer to question 37 it was stated that the proposed employee had previously held a UK work permit, and the reference number of that permit was given. Under Section 8 - Qualifications and Experience - in answer to question 41 the details of the claimant were answered by referring the Agency to the original application. In answer to question 43, which requested details of the person's employment during the previous three years, no information was given but that is understandable in the light of paragraph 129 of the guidance notes. No criticism has been made of the claimant for not having given those details in answer to question 43. In answer to question 44 - "Please describe how you verified the person's qualifications and skills?" - the answer was given "By past employment history and taster evening where the person was asked to prepare a meal for up to 40 people."[26]Question 45 sought details as to why it had been decided to employ the claimant. The answer referred to his having the skills required of a head chef. The answers in section 10 turned out to be particularly important. Section 55 (a) described the main duties of the head chef.

(b) asked the question:

"What qualifications and/or skills are required for this post? You should be as specific as possible and not use general terms ..... "
The answer given to that was:
"Experience as a chef/head chef in quality venues and some experience of having worked in quality establishments in the UK."
Question 57 asked that the normal hours worked per week be stated. The answer was given as 48 hours. Question 58 asked:
"Before deductions, how much will you guarantee to pay the person excluding allowances?"
The answer was given as £15,000 a year.[27]Under Section 12: Tier 2 applications - Reasons for employing the person - once again, the person filling in the form was directed to consider the Business and Commercial notes. Question 68 asked:
"Does this person currently hold a work permit for a similar post?"
The answer is given as "Yes", in which case the form directed the applicant to go straight to the declarations on page 12 of the application.[28]When question 68 is read together with the Business and Commercial Guidance Notes it is apparent that that particular question is intended to apply when an application for change of employment falls within principle 128. As Mr Hussein confirmed to the court, he had access to these notes when he completed the form. The Decision Letters[29]The first decision letter was given on 6 October 2007. The first ground of refusal in that decision was based on the application of paragraph 12 of the Guidance Notes. In summary, it was decided that the job being offered to the claimant did not require a level of skills or qualifications which met the requirements of paragraph 12. In addition, although it appears later on in the second page of the letter, the Secretary of State made it clear that insufficient information had been provided on this aspect of the application using these words:
"Additionally, you have not stated the length of experience required for this post."
[30]I accept the submission for the Defendant that that ground was maintained in the two subsequent decision letters and indeed elaborated.[31]The second ground of refusal arose from the answer to question 68 on the application form. The applicant had made the application on the basis that the proposed job was for work similar to the post authorised under the existing work permit. In the first decision letter the Secretary of State disagreed and took the view that the post of a sous-chef was not similar to the post of a head-chef. Not surprisingly, that stance was not maintained in the subsequent decision letters.[32]The first decision letter also concluded by referring to the two types of review available to the applicant substantially in accordance with the terms of the principles. It made clear that any review would involve a full review of all elements of the work permit decision.[33]Mr Hussein, on behalf of the claimant, responded to the first decision by a letter of 29 October 2007. In relation to the agency's second ground of refusal dealing with the answer to question 68 on the form, he argued that there was no significant difference between a sous-chef and a head chef and that the claimant should be able to transfer from one job to the other.[34]The decision on the first review was issued on 19 November 2007. The first part of the decision letter maintained and elaborated the first ground of refusal given in the letter of 6 October 2007, as can be seen from the third and fourth paragraphs:
"When assessing whether a job meets the criteria for the issue of a work permit we do not judge it on the job title alone, we take various pieces of information into account, for example, the job description, the job requirements and salary level. In this case none of the above show this job to meet the skills criteria as previously described. The requirements for the job are purely experience as a chef or head chef, you have not stated at what level this experience would need to be at or how much experience would be required. In addition, the minimum salary we would acecpt for a head chef that requires a minimum of 3 years experience at NVQ level 3 or above is £18,000 per annum for a 40 hour week. You are proposing to pay Mr Khan-Udtha only £15,000 for a 48 hour week which, if calculated to a 40-hour week, would be £12,500. This is significantly below the minimum for a post that would meet the skills criteria and further shows that your post of head chef would not require an individual with 3 years experience at NVQ level 3."
[35]The letter went on to abandon the second ground of refusal given in the first decision letter and introduced a new ground of objection in these terms:
"With regards to the refusal on the advertising criteria, it is true that the caseworker has failed to take full notice of the circumstances of the application. If this were a change of employment application we would accept that the post sous-chef and head chef are similar enough to treat the application without applying the advertising criteria. However this is not a change of employment application. Notification was received by this Department in May from Mr Khan-Udtha's previous employer informing us that Mr Khan-Udtha left their employment on 30 April 2007. We are therefore unable to treat this as a change of employment and the full advertising criteria must be met."
I note in passing that there was no reference in that paragraph to the Agency being willing to consider exceptional circumstances.[36]Mr Hussein responded to that letter on 16 February 2007 by asking for a second review. He correctly pointed out that the defendant's objection to the similarity of the role of a sous-chef and a head chef had succeeded because the point had been abandoned. But, in my view, he wrongly suggested that the Secretary of State had also abandoned the first ground of objection, that is to say whether he had shown that the new business required a chef at a level satisfying paragraph 12 of the Guidance Notes. It seems to me - reading in particular from the second page of his letter - that he was confusing the job requirements of the employer's business with the applications and experience of the proposed employee.[37]Paragraph 12 is a freestanding requirement which regulates the ability of businesses in this country to obtain work permits for non-resident workers if the job they wish to create falls below the levels of qualification or experience set out in paragraph 12. In this case there is no challenge to the legality of paragraph 12.[38]Mr Hussein went on to query the relevance of certain information which had been sought or referred to by the Agency, such as salary details. He has not challenged in this court their approach to that issue, or the relevance of such information.[39]In any event, I accept the explanation given on behalf of the Secretary of State that details of that kind are relevant to assessing the specification for the job put forward by an applicant in order to see whether the business needed an employee of a kind satisfying pragraph 12. The information being sought was also relevant to the application of paragraph 1 (e).[40]Lastly and importantly, in his letter under the heading of Transfer of Work Permit Application, Mr Hussein said:
"You say that the previous employer notified you that the applicant had left that employment in April 2007 ..... This is a point that could have and should have been raised in your original letter of refusal as you are presumably now saying that as the transfer application was not made within 28 days of having left the previous employment, it is not a valid transfer application."
He went on to say:
"I accept that this may be a crucial point. However I believe that as you failed to raise this in your original letter of refusal, you are barred from raising this now ..... The review that I sought was in relation to grounds detailed in your original letter of refusal and as such, I have a legitimate expectation that the review will deal only with those points and the submissions that I put forward in response."
I assume from that last sentence that when Mr Hussein said "I" he was meaning the claimant.[41]From those passages it is clear that Mr Hussein was, at least at that stage, aware of the substance of paragraph 128 of the Guidance Notes. The period of 28 days had not been mentioned in the earlier decision letter of the Secretary of State. I have noted the allegation of a legitimate expectation: this principle was mentioned briefly at the hearing. I deal with it briefly. The argument is unsustainable. The published guidance document made it clear that a review could result in new grounds of refusal. In addition, in this case the 28-day period had expired well before the application was made in September 2007 let alone the first decision letter. The failure therefore to refer to that new ground in the first decision letter could not have resulted in any change of position or related prejudice; nor could it be described as an abuse of power.[42]Mr Hussein was alert to the risk that the defendant might be applying the principle in paragraph 128 strictly. For that reason he wrote a further paragraph asking for the application of discretion. It reads as follows:
"Having received your letter of 19 November 2007 (almost one week after the date of the letter and only after having made a further chasing call to see what was happening), I have obviously made further enquiries. I am told by the applicant that although he had not been to work for a few months due to poor health and personal commitments, he believed he was still under the employment of his previous employer and had not received anything to indicate Otherwise. It is not unreasonable to expect that a foreign national with very little grasp of English would have no idea about the '28 day' transfer aplication rule as clearly, having come to the UK legally, it is unlikely that he would do anything which would prejudice his work permit. Whilst I appreciate the saying that 'ignorance of the law is no defence' it is reasonable to expect that the work permit unit will exercise discretion and judgement taking into account the full circumstances of an application such as this, something which you have conceded in writing to have failed to do."
[43]The second review was then carried out and resulted in the decision letter of 8 January 2008. In the second paragraph of that letter the Secretary of State stated:
"Please note that when undertaking a review of an application, at the request of an employer or their representative, we reconsider the application in its entirety. Therefore if new points of concern are identified these can be introduced at the review stage."
The Secretary of State therefore maintained her position in accordance with her guidance notes that where a review is carried out it is open to the decision maker to produce new grounds in the decisions on the review.[44]Later on in the letter the Secretary of State stated:
"Furthermore we note your comments regarding the issue of salary and would like to address this point by explaining that the pay and other conditions offered to an overseas national should be at least equal to those normally given to a resident worker doing this kind of work. We use a range of salary information proffered from within the various professions to determine the going rate for jobs. These are determined at regular meetings between our Policy Team and representatives of those industries. This is an important factor when considering the merits of an application. The salary offered, in this instance, for the post of head chef falls below and does not reflect the current rate for a head chef. Finally in answer to question 55 (b) of the application, you have not stated the length/level of the experience required to undertake this role, therefore, if the role can be undertaken by an individual without 3 years relevant experience at NVQ3 or above, then the post does not meet the strict occupational skills criteria for the work permit arrangements. The low salary on offer also reflects the level of the post. Consequently on further review of the application we consider our previous decision was correct."
[45]In those paragraphs the Secretary of State elaborated and maintained the first ground of refusal which has been set out in the original decision letter, also repeating a point made previously about the lack of information in response to question 55 (b). The application for judicial review[46]The judicial review claim was then lodged. It focussed largely on the question of whether the Secretary of State was entitled to add a new ground of refusal during the review process. A range of arguments have been raised by the claimant on paper but in the course of argument they have been refined. As Mr Hussein said in his submissions, there are two main issues for the court to resolve: first, whether the defendant had power to introduce new grounds at the review stage; secondly, if the Secretary of State was entitled to introduce paragraph 128 as a new ground for refusal, whether her reliance upon it in this case was unlawful; thirdly, and a subsidiary point, Mr Hussein repeated his arguments that the Secretary of State failed to follow her own policy guidance on seeking information from applicants for work permits, in this case relating to(a) the job requirements of the employer's business and(b) salary levels. Whether there is a power to introduce new grounds at the review stage[47]I deal with the first ground. Mr Hussein in his helpful submissions argued that when the first decision on an application is made, the applicant and the proposed employee are entitled to know the full grounds upon which that decision has been reached so they may judge how to react, for example, whether to seek judicial review and, if so, on what basis. He submits correctly that the question of whether it is lawful for the Secretary of State to add a ground cannot be determined merely by the issuance of a policy document such as the published Guidance Notes to which I have already referred.[48]I accept Mr Blundell's submission that if such a power exists, then the existence of such published guidance, as to the procedure to be followed, may well be relevant in considering the fairness of that procedure.[49]Mr Hussein placed considerable weight on the decision of the Court of Appeal in R v Westminster City Council ex p Ermakov [1996] 2 All ER 302. That was a challenge to a local housing authority's decision under the Housing Act 1985 that a homeless person had become homeless intentionally. In that case there was a statutory duty to give reasons. The main principles in that authority were set down by Lord Justice Hutchison (pages 315 to 316). In particular the issue in that case concerned the admissibility of affidavit evidence in judicial review proceedings adding to the reasons stated in a notice of decision. In summary, it was held that affidavit evidence may be admitted to elucidate or exceptionally to correct or add to reasons, but that should be within the constraints of elucidation and not stray into the territory of fundamental alteration or contradiction.[50]Hutchison LJ also stated that there are good policy reasons to support those principles. In particular the case law emphasises that the purpose of reasons is to inform the parties why they have won or lost and to enable them to assess whether they have any grounds for challenging an adverse decision. To permit wholesale amendment or reversal of stated reasons is inimical to that purpose. It may encourage a sloppy approach to decision making and it may also give rise to potential practical difficulties.[51]Mr Blundell also drew attention to the fifth principle laid down by

Lord Justice Hutchison where he said:

"(5) Nothing I have said is intended to call in question the propriety of the kind of exchanges, sometimes leading to further exposition of the authority's reasons or even to an agreement on their part to reconsider the application, which frequently follow the initial notification of rejection. These are in no way to be discouraged, occuring, as they do, before, not after, the commencement of proceedings. They will often make proceedings unnecessary."
[52]The applicability of cases such as Ermakov depends on when the legitimate decision making process comes to an end. In this court Mr Blundell has not conceded that there is a duty to give reasons when an application for a work permit is decided. Nevertheless he recognises the force of the argument that when a work permit is refused, elementary common law principles would suggest that reasons ought to be given. In this case he says that reasons were given in any event. In that context, he accepts that when the legitimate decision-making process is concluded the principles in Ermakov would be applicable to reasons in fact given. He said, and I agree, that Ermakov does not resolve the question before this court as to whether the Secretary of State has a power to review an initial decision by adding new grounds not relied upon in that decision.[53]Mr Hussein also points to internal guidance given to case officers, in particular to two passages. First, the guidance states:
"Before refusing an application, caseworkers should make every effort to obtain all necessary information pertinent to the case unless it is irrevocably flawed and make sure that they refuse an application on all possible grounds."
Secondly, he refers to the following:
"When refusing an application for someone who is in the UK, an L860 ..... should be drafted. This letter should detail all grounds for refusal."
He makes the straightforward submission - how can effect be given to those guidance notes to case officers if there is a power to review which would then allow them to add new grounds? However those paragraphs have to be read alongside the rest of the guidance notes, including the Business and Commercial Guidance Notes to which I have previously referred, including, in particular, the process described for the review of decisions in paragraphs 218 to 226.[54]The two passages to which Mr Hussein referred do not provide a legal basis for holding that there is no power to carry out a review by adding additional grounds of refusal. Because they may be read consistently with the parts of the Guidance Notes which allow for the addition of grounds, my interpretation of the passages upon which he has relied is that they are an exhortation to case officers as to how they should go about their work. They set out sound guidance as to how they should do their job so as to promote administrative efficiency but they do not answer the legal question which the court has to determine.[55]Mr Hussein, on this part of the argument, also referred to another passage in the internal guidance to case officers specifically dealing with the application of paragraph 128 and the 28-day rule. The passage reads as follows:
"The application is received more than 28 days after the person's previous employment ended - This should be considered as a new application and therefore treated as First Permission. New advertising of the job would normally be required in these circumstances, however the EO/HEO may consider waiving the advertising criteria and approving the application exceptionally. If this course of action is approved, the caseworker must ensure that the approval letter states that the case has been approved on an exceptional basis. If waiving the advertising criteria is not appropriate and, after checking with the employer or their representative, no recruitment search has been carried out, the application should be refused and paragraph P83A included in the refusal letter. Caseworkers should note that all refusal reasons should be included in the refusal letter and all letters should be tailored to the individual application."
That passage clearly refers to the ability of a case officer to waive compliance with the 28-day rules when an application is made for change of employment.[56]Mr Hussein submitted that from internal records it appears - and I accept - that three officers considered this application before the first decision letter was issued. He submits that it should have been obvious to one of them at least that the 28-day rule applied and that because it was not relied upon as a ground of refusal, that rule must have been taken into consideration and a waiver must have been granted.[57]I am not prepared to draw that inference. No application was made for a waiver prior to the first decision and there is no evidence that either the 28-day rule or the waiver of that rule was considered. Subsequent letters from the Secretary of State have been expressly drafted on the basis that reliance on the 28-day rule was a new ground. There is no basis for concluding that the Secretary of State has deliberately misled this court by failing to reveal an alternative and somewhat different decision at an earlier stage to waive the 28-day rules.[58]The only proper conclusion is that the 28-day rule was not taken into account in the first decision. I therefore have to decide this first question on general principles of public law.[59]In my view the Secretary of State did have the power in the review process to review the merits of the application generally and thereby rely upon additional grounds, whether or not material to support that new ground was in existence at the time of the first decision. My reasons are as follows. First of all, there is no prohibition or constraint in the legislation to prevent that happening or to suggest that it would be inappropriate.[60]Secondly, it is sound administrative practice to incorporate a process of review in the non-statutory system for the consideration of applications for work permits. I refer in particular to paragraphs 1-062 to 1-064 of Smith's Judicial Review, Sixth Edition.[61]Thirdly, if there were to be no process of review at all and the decision contained an error of judgment - as in the case of the October decision letter where the Secretary of State has said that the position of sous-chef and head chef were dissimilar - then an applicant could not ask for that error of judgment to be reversed. Of course, if it were merely an error of judgment then in many cases there would probably be no grounds for judicial review. It is therefore important that there should be a process of review in this system.[62]Fourthly, it follows that when the first decision was issued the decision making process had not been concluded. I accept that a review should be conducted on the basis of full jurisdiction and not a partial basis. It might often be unrealistic to revisit a single judgment questioned by an applicant without seeing that matter in the context of the facts of the case and the principles of the scheme as a whole, many of which, it seems to me, are inter-related.[63]Fifthly, the corollary of full jurisdiction is that the Secretary of State is obliged to take into account all material considerations at the time of the further determination and to exclude any immaterial considerations at that stage. It therefore follows that she may not only abandon earlier grounds of refusal but may also rely upon additional grounds of refusal.[64]Sixth, the power to review has to be exercised in accordance with principles of fairness, as was accepted by Mr Blundell. For example, if a new ground is raised in the decision on the first review then the applicant has the opportunity to deal with it so long as the point is clearly identified. In the present case I accept that the additional point was clearly identified in the second decision letter as is apparent from Mr Hussein's reply of 16 December 2007.[65]If a new ground is later raised at the second review decision stage then consideration will need to be given as to how the requirements of fairness may be satisfied, for example, by giving notice to the applicant of the point and, secondly, by affording an adequate opportunity to deal with it. The way in which the requirements of fairness are met will need to be considered carefully and will depend upon the particular facts of each case.[66]Seventh, there is a helpful authority in this area, namely a decision of Mr Justice Blackburne in Commissioners of Customs & Excise v Alzitrans SL [2003] EWHC 75 Ch. This was a case where an illegal smuggling operation had been undertaken involving consignments of vodka sent to the UK. Unwittingly a Spanish haulage firm supplied the lorry and trailer which was then used for the transportation of the vodka. The legislation - the Customs & Excise Management Act 1979 - gave power to a Customs official to forfeit not only the vodka but also the lorry and trailer used for that illegal purpose.[67]Section 152 of the Act also gave the commissioners a discretion to restore forfeited or seized property. An application was made in that case, not surprisingly, by the innocent party for the restoration of the lorry and trailer. That application was rejected by Customs & Excise on a wholly spurious basis, namely that because they had not asked for the vodka to be returned - in which they had never had any interest - they could not have the lorry and trailer back. Not surprisingly, the lawyers acting for Alzitrans asked for the Commissioners to review their decision which they had power to do under the statue, namely under Section 15 of the Finance Act 1994. That power of review was not exercised in that case within the statutory time limit and so the original decision was deemed to have been confirmed by default. Nothing turns on that.[68]There was then an appeal to the VAT and Duties Tribunal under the statute. It was at that stage that the Commissioners relied upon new grounds to support their decision not to return the vehicle and trailer. There was argument before Mr Justice Blackburne as to whether they were entitled so to do. His conclusion at paragraph 37 was that, first, when asked to do so at a review stage, the Commissioners should give reasons for their decision. At paragraph 38 he concluded that it was open to the Commissioners on a process of review to advance different reasons in support of their decision from the ones which had originally been given. He said:
" ..... the 1994 Act empowers the Commission to confirm or withdraw or vary a decision when required to carry out a review of that decision under Chapter II of the Act. Implicit in this is a freedom, even when confirming a decision, to give reasons for the decision which are different from those which originally led to its making ..... I do not consider that that means that the Commissioners are bound by the reasons originally given for the decision thereby confirmed. Were it otherwise, and it were plain that the reasons originally given were manifestly bad but the decision could be justified on other grounds, the (almost) inevitable consequence is that an appeal to the tribunal against the decision would result in the matter having to be referred back to the Commissioners for a further review ..... "
[69]I adopt the reasoning of Mr Justice Blackburne in that case and take the view that it lends support to the conclusions I have reached independently as to how the work permits scheme should be analysed and applied.[70]For these reasons I therefore reject the first ground of challenge. Whether the 28-day rule was applied improperly[71]The second ground of challenge was that the power had been exercised improperly with regard to the "28-day rule". There has been no challenge to the legal entitlement of the Secretary of State to adopt as a policy the principle in paragraph 128, provided, says Mr Hussein, that it is a policy which is exercised, or may be exercised, flexibly and may have regard to exceptional circumstances. From the internal guidance which I have already cited, it is apparent that the policy is intended to be exercised flexibly and that waivers may be considered.[72]Although this issue does not arise for decision in this case, given the way in which the challenge has been argued, nevertheless Mr Blundell has helpfully explained the objectives of the work permit scheme and the rationale for the 28-day rule. This is dealt with in his skeleton argument between paragraphs 26 and 29 in particular. In general, I see no reason to criticise any of that explanation. It may be that in other cases particular points may need to be examined as to how the 28-day rule and the possibility of exceptions are applied on the facts of individual cases. But nothing further needs to be said in this case about that.[73]The complaint which has been put forward in this part of the case falls into two parts. It is said, first of all, that the Secretary of State has failed properly to consider in the second and/or third decision letters whether an exceptional circumstances case has been made out so as to result in the grant of a fresh work permit. In my view, the letter of Mr Hussein dated 16 December 2007, in one very short paragraph, did put forward circumstances which he claimed could be considered exceptional. This was in the context of a period of delay which was in the order of four to five months rather than something just in excess of 28 days. More importantly, no supporting evidence was put forward.[74]I have considered the second and third decision letters carefully. From those letters I cannot be satisfied that the issue of waiver or the making of an exception was considered by the Agency and the matter is not resolvable from the internal records. In my view the reasoning in the decision letter should have been clearer on that aspect. But I am not prepared to quash the decision on this ground because - even if the material which was advanced on behalf of the claimant had been taken into account in deciding whether to accede to the application on an exceptional basis - the material put forward was so exiguous that I do not think it could possibly have led to any other decision.[75]The other aspect of this second ground of challenge is that it is suggested that the reaction of the Secretary of State to rely on the 28-day rule was disproportionate. No basis has been put forward as to why proportionality would need to be considered in this challenge. In Alzitrans, Article 1 of the First Protocol was clearly engaged. I say nothing further about whether any human right or fundamental right might be engaged in future cases involving the application of the work permit scheme. Even if the concept of proportionality were to be relevant in the present case, no proper evidence has been put forward to enable the court to reach a view on that aspect. In particular there has been no evidence from the claimant as to his circumstances in 2007, for example, the reasons why the work permit matter was not dealt with sooner. The material which has been put forward by Mr Hussein has not been supported by any substantive evidence.[76]For those reasons the second ground of challenge fails. The alleged failure to comply with internal guidance[77]The third ground of challenge relates to the failure of the officers - the agency - to comply with internal guidance by seeking more information to enable them to consider all the circumstances of the application. This relates to two aspects: first, details of the level of salary to be paid and, secondly, the job requirements of the business. From the extracts that I have already cited from the decision letters, in my judgment it is apparent that the officers did take adequate steps to indicate the concerns they had and, in at least one instance, indicated the information that should be forthcoming. Taken together with the internal guidance notes, the Agency's concerns were adequately and fairly explained and it was open for the applicant to submit further information. It was also possible - if there were any doubt about the matter - for the applicant to clarify what might be further required by writing a letter or by telephone to the Agency. There is no evidence that that was done.[78]I do not think it right therefore to criticise the decision makers in this case as having erred in law because they did not take any further initiative to seek information. This challenge fails.[79]MR BLUNDELL: I am grateful for that judgment. There is one consequential matter which is costs. In the light of your judgment and in the light of the fact we went into a second day, I ask for an order that the claimant pay the defendant's costs, to be subject to detailed assessment if not agreed.[80]DEPUTY JUDGE: There is not a schedule of costs. Can you resist that, Mr Hussein?[81]MR HUSSEIN: It was not a case completely without merit. Permission was granted and bearing in mind a challenge like this has not been brought before, to order costs would be a bar to justice for future challenges. It is in the public interest that this should be allowed.[82]DEPUTY JUDGE: I understand what you say. My decision is that there will be an order for costs on the basis sought. That is the proper course to take. Are there any other applications?[83]MR HUSSEIN: Can I seek permission to appeal?[84]DEPUTY JUDGE: You certainly can. Why do you ask me to grant permission to appeal? I am sure you know the test.[85]MR HUSSEIN: I make formal application - - - - -[86]DEPUTY JUDGE: Sorry?[87]MR HUSSEIN: I understood that permission should be sought at the end of this judgment.[88]DEPUTY JUDGE: Yes. You are quite right. Is there anything you want to say in support of that?[89]MR HUSSEIN: I have not considered it, I am afraid.[90]DEPUTY JUDGE: You are right. The application should now be made. I refuse it. You will have to ask the Court of Appeal for permission to appeal if you think it appropriate. I refuse the application on two grounds. First, no realistic prospect of success in my judgment. Secondly, I do not believe the case raises some issue of general public importance which, on the facts of this case, ought to be considered by the Court of Appeal.[91]Is there anything further? I thank everybody, particularly you Mr Hussein, for the way you put the case yesterday. I found it helpful.