Memon, R (on the application of) v The Secretary of State for the Home Department [2015] EWHC 205 (Admin)

Case No CO/13800/2012[2015] EWHC 205 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/02/2015
Before
TIMOTHY BRENNAN QCSitting as a Deputy High Court Judge
Between
THE QUEEN (on the application of) ZAHID HUSSAIN MEMONClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Anton van Dellen (instructed by Abbott Solicitors) for ClaimantRussell Fortt (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 27/01/2015
JudgmentTimothy Brennan QC :Overview
[1]In this claim for judicial review the claimant challenges the decision of the defendant, made on 19 September 2012, to refuse his application for indefinite leave to remain in the United Kingdom. At the core of his challenge lies the defendant’s requirement for him to produce forms P60 and P45 (or a suitable letter from Her Majesty’s Revenue and Customs) so as to evidence the asserted facts of his employment in the United Kingdom between relevant dates. The claimant says that for the defendant to refuse his application when he failed to produce those documents was unlawful because the defendant was not entitled to require such evidence from him. Accordingly, he contends, the refusal should be quashed and the defendant should be required by mandatory order to grant him indefinite leave to remain in the United Kingdom.

Narrative

[2]The claimant is an engineer who works in the construction industry and who had previously studied in the UK. He received entry clearance on 25 January 2007 based on a work permit issued on 21 December 2006 on the application of a UK construction company called Goldstone Construction Ltd (Goldstone) of Luton. He therefore returned to the UK from Pakistan on 11 February 2007.[3]In due course the claimant wished to work for Gerrards Construction Ltd (Gerrards), also of Luton, and the defendant duly approved a change of authorised employer to permit this. On 5 February 2009 the claimant was granted leave to remain in the United Kingdom until 5 February 2014 in order to work for Gerrards.[4]On 23 January 2012 the claimant (using agents) applied on form SET(O), signed on 14 January 2012, for indefinite leave to remain in the UK based on 5 years of continuous residence. There was an associated application for his dependent wife, on which nothing additional turns. The supporting documentation included a letter dated 16 February 2009 from a Martin Conway, described as “Head of Human Resources” at Goldstone, and addressed “To Whom It May Concern”. It seems likely, in view of its date, that the letter was originally written in connection with commencement of the claimant’s employment with Gerrards, and not for immigration purposes.[5]As well as mentioning the reliable and trustworthy character of the claimant the letter included the following passage “This is to confirm that Mr Zahid Hussain Memom was working with us under work permit arrangements as a Building Engineer from February 2007 on full time and permanent basis. He left this job in January 2009 for better carrier prospectus” [sic, clearly “career prospects” was meant].[6]On 24 January 2012, immediately after receipt of form SET(O), an officer of the defendant based at the General Group Managed Migration Directorate at Croydon made to the claimant’s agent a request for original documentation, expressed as follows (sic):
“Documents required: Your client’s first work permit approval was authorising him to work for Goldstone Construction Ltd. Your client have submitted a letter dated 16 February 2009 from Goldstone Construction Ltd confirms that he worked with them from February 2008 to January 2009. You might be aware that this company is since in liquidation and it is no more operational to confirm your client’s employment details. As such, to support this, please submit us either – P60 for the tax years ended 05 April 2007, 2008 and P45 on leaving the employment with Goldstone Construction ltd OR A letter from HMRC confirming your client’s employer’s name/s and salary details during the tax years ended 05 April 2007, 2008 and 2009 in the United Kingdom … If you fail to provide the required documents, the application will be considered on the basis of the documents that you have already provided. This may result in your application being refused in accordance with paragraph 322(9) of the Immigration Rules, that is the failure by an applicant to produce within reasonable time information, documents or other evidence required by the Secretary of State to establish his claim to remain under these rules.”
[7]A P45 is of course the familiar tax record given to an employee by the employer at the end of his employment, to be given by the recipient to the next employer. A P60 is a tax record given annually, just after 5 April, by an employer to an employee. An “employer” here is someone who pays earnings to someone within the charge to tax on employment income. The Income Tax (Pay As You Earn) Regulations 2003 (2003/2682), regs 2, 36 and 67 provide the formal underpinning.[8]On 31 January 2012 the claimant replied to the request. He asserted that Goldstone had never given him any kind of documents, that he had now tried to get documents from them but that since the company was no longer in existence he could not. He nonetheless asserted an entitlement to indefinite leave to remain pursuant to paragraph 134 of the Immigration Rules (the five year rule). The claimant was here saying that he was not able to provide the forms P60 and P45 which had been requested, but he made no attempt at that stage to meet the defendant’s request by the suggested alternative route, namely a letter from HMRC.[9]In the absence of the requested documents the application was refused on 19 September 2012. That decision is the subject matter of the judicial review claim.[10]Pre-action protocol correspondence ensued after the decision and further pieces of documentation were produced. They included a letter from HMRC dated 10 December 2012, submitted by the claimant for the first time with the judicial review claim on 20 December 2012 (a day more than three months after the decision). The HMRC letter said:
“We have on record, and the P60s for, the following employments. 8 July 2007 to 31 August 2007 Mann Construction Ltd 3 October to 9 December 2007 O’Neil & Brennan Construction Ltd 11 March 2008 to 1 September 2008 Tamdown Services Ltd.”
[11]So HMRC’s records appeared to show that the claimant may not have been in the employment of Goldstone for the whole of the period from February 2007 to January 2009 as Goldstone’s letter had asserted.[12]Further material about Goldstone, again post decision, suggests that Goldstone may have ceased trading in or around 2007, which would be consistent with the claimant working for others from July 2007. It is not necessary, on this judicial review application, to make findings of fact about the trading history of Goldstone, nor about the accuracy of Goldstone’s letter of 16 February 2009, and I do not do so.[13]I record that the claimant’s counsel asserted orally, on instructions, that the claimant never received any documentation from Goldstone, that he was sometimes paid in cash by Goldstone and sometimes by cheque and that of the three paying employers referred to in HMRC’s letter, two were agencies in the construction business and one was a construction company. This material does not prove that the claimant was employed by Goldstone throughout and, in any event, all the material postdates the relevant refusal and is irrelevant to it.

The Immigration Rules

[14]Under paragraph 134 of the Immigration Rules as they stood at the material time:
“Indefinite leave to remain may be granted on application to a person provided: i) he has spent a continuous period of 5 years lawfully in the UK, of which the most recent period must have been spent with leave as a work permit holder (under paragraphs 128 to 133 of these rules), and the remainder must be any combination of leave as a work permit holder […] ii) he has met the requirements of paragraph 128(i) to (v) throughout his leave as a work permit holder […] iii) he is still required for the employment in question, as certified by his employer.”
[15]Paragraph 135 provided that “Indefinite leave to remain in the United Kingdom for a work permit holder is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 134 is met”[16]So far as relevant, paragraph 128 provided: The requirements to be met by a person coming to the United Kingdom to seek or take employment […] are that he: i) holds a valid Home Office work permit; and ii) … iii) is capable of undertaking the employment specified in the work permit; and iv) does not intend to take employment except as specified in his work permit. […]”[17]Paragraph 128 is expressed in terms of entry to the UK and of future intention but it is clear that the requirement in paragraph 134 that paragraph 128(iv) is to be met throughout the applicant’s stay has the effect that the applicant must be working, throughout his stay, in accordance with his work permit.[18]In the absence of the documentation sought, it is contended by the defendant that refusal was inevitable, because the defendant was not satisfied that the claimant satisfied paragraph 134 and therefore paragraph 135 required that the application be refused.

The arguments

[19]The claimant’s main point is that the defendant’s requirement that the claimant produce the P60s and P45 (or a letter from HMRC) amounted to putting an additional threshold condition into the Immigration Rules to the effect that leave to remain will not be granted unless certain documents (or substitutes) are produced. Such a requirement is not in the rules, has not been approved by Parliament and is therefore not an admissible criterion. A criterion outside the rules cannot validly be imposed by administrative decision without Parliamentary scrutiny. Reliance is placed on the decision of the Supreme Court in R(Alvi) v Secretary of State for the Home Department [2012] UKSC 33, [2012] 1 WLR 220, particularly the judgments of Lord Hope of Craighead DPSC at [57] and of Lord Dyson JSC at [94]. Further, it is argued, there is no sustainable distinction between the imposition of an inadmissible substantive requirement outside the rules, and the imposition of an admissible requirement for evidence of satisfaction of criteria, see Alvi at [88]-[89], [92] (Lord Dyson JSC).[20]In my judgment this case does not raise an issue comparable with that which was decided in Alvi. That case concerned requirements which a migrant had to satisfy as a condition of being given leave to enter or remain in the UK. The Secretary of State had effectively promulgated a substantive rule by introducing a list of skilled occupations. It was that list which governed the question whether the job of a physiotherapy assistant was sufficiently highly skilled to attract the relevant number of points. Such a rule should have been put before Parliament.[21]In the present case, the substantive rule is that to be found in paragraph 134, concerning satisfaction of (among other things) the requirements of Paragraph 128(iv). In R(Global Vision College Ltd v Secretary of State for the Home Department [2014] EWCA Civ 659 the Court of Appeal made the point that the decision in Alvi does not require officials to take what they are told at face value; there is nothing wrong with a common sense check of veracity (see the judgment of Beatson LJ at [6(ii)], [61], [63], [66]. The defendant was perfectly entitled to ask for evidence of the claimant’s work history and, when that evidence was not forthcoming, not to be satisfied about his compliance, with the inevitable result that his application had to be refused because of the terms of paragraph 135.[22]As was submitted on behalf of the defendant, if in Alvi the Secretary of State had asked for sight of the formal certificate of qualification of someone claiming to be a qualified physiotherapist, that would not amount to creation of a new, and illegitimate, rule or criterion that only physiotherapists with certificates could be admitted to the UK. It would be at most a procedural requirement (see Lord Dyson JSC at [94]).[23]Whether a requirement amounts to a request for evidence or to the imposition of a criterion is context-sensitive. In the context of the present case, a request for formal documentation of a claimant’s asserted work history falls clearly on the “evidence” side of the line. It is not necessary to decide what might have been the position if the defendant had taken the intransigent position that only P60s and a P45 would do and that the requirement for evidence could not be satisfied by other means, for example by submission of bank statements, wage packets, pay slips, contracts, letters of appointment and resignation and the other ephemera which are typically created during an employment relationship. The claimant in the present case did little to help himself. He failed to produce the P60s and P45, did not contact HMRC until it was too late, and took no other steps to prove (if indeed it was the case) that he was employed by Goldstone throughout the relevant period. He cannot complain that the defendant was not satisfied that he fulfilled the relevant criteria.[24]The claimant briefly raised other arguments.[25]It was suggested that there had been a breach of a legitimate expectation which he enjoyed. This expectation is said to have arisen when the defendant approved the change of employer from Goldstone to Gerrards in 2009. The defendant did not take the opportunity to enquire into the claimant’s work history at that time, and it was submitted that it was unfair to do so later. The short answer to this point is that the claimant’s work history was not, at the stage of change of employer, directly relevant to any criterion which had to be satisfied under the rules in order for the transfer to be approved. The claimant does not contend that he disclosed that he might have been paid by or through persons other than Goldstone and so his work history did not arise for consideration at that stage. No representation was made to him that any past default would not be investigated should it become relevant later.[26]A further submission was made by reference to the facts that the claimant had made the UK his home, had worked in the UK and had valuable skills that were of use to the UK. It was said that the Immigration Rules should be construed as a whole by reference to a policy, said to be inherent, that skilled migrants such as the claimant should be enabled to settle here. The point was not developed further. I see no underlying policy in the relevant provisions which would entitle the defendant, or the court on judicial review, to disregard the express terms of paragraph 134 and the consequences mandated by paragraph 135.

Conclusion

[27]In those circumstances, I dismiss this claim for judicial review.