Kucherov, R (on the application of) v The Secretary of State for the Home Department

On 9^th October 2014 Mr Justice Nicol dismissed an application by Ms Veronica Kucherov for judicial review of two decisions made in August 2013 refusing her entry clearance to the UK and of the decision to make an associated removal direction. Permission to appeal was granted by Laws LJ on 26^th March 2015 on the principal ground of appeal; permission was refused on two subsidiary grounds.

The appellant is an Israeli citizen who lives in Israel and who works as a self-employed graphic designer. Most of her work is obtained via contact with her website and is performed and completed by her on a computer. She has clients based in a number of countries around the world, with whom she communicates, in the main, electronically via a laptop computer, which means that she can work almost anywhere.

On 3^rd July 2013 the appellant came to the UK for a holiday. At Heathrow she was interviewed by an immigration officer. There is, unfortunately, no contemporaneous record of that interview. In the Statement of Facts relied upon by the appellant in support of the judicial review claim she summarised her account of that interview:

“On arrival to the UK on 3^rd July 2013 I was interviewed by an immigration officer in Heathrow airport. I informed him, truthfully:

a)

that I came to the UK for a holiday;

b)

explained the nature of my work, as outlined above, including that I worked remotely for clients all over the world, who ordered my services through a website;

c)

that I might work on some of such orders on my laptop while on holiday in the UK.

The immigration officer then advised me, …that since I received orders and payments for my services in Israel and paid taxes in Israel, no such work would amount to “employment in the UK” for immigration purposes, and I was free to work in this way without breaking the law or the Immigration Rules.”

In his judgment Nicol J proceeded on the basis of the appellant’s account of this interview as set out in the Statement of Facts.

Following that interview the appellant was given leave to enter the UK for a period of 6 months on the basis that employment was prohibited and she would not have access to support from public funds.

On 12^th August 2013 the appellant left the UK and went to France. On her return to Luton airport some three days later on 15^th August she was again interviewed by an immigration officer. A note of that interview, signed by both the appellant and the immigration officer is available and reads as follows:

“Q. You have been in the UK since 3/7/13. What were you doing?

A.

I was working from home and travelling in the city. My friend came to visit me and we travelled.

Q.

How many companies have you been working for in the UK?

A.

Up to five companies.

Q.

Can you name them?

A.

It was individuals

Q.

How much did you earn from these jobs?

A.

I think less than £1,000.

Q.

How did they pay you?

A.

By PayPal.

Q.

You also stated that you worked for a company [illegible words] and received $2,000 by PayPal. How long ago was this?

A.

In the last month, but it was from different jobs not one company.

Q.

You rent a room and pay about £550 per month as stated at the desk, is that correct?

A.

Yes.

Q.

What other source of income do you have?

A.

Only by graphic design.

Q.

Are you aware that you require a work permit to work and get paid in the UK?

A.

I am self-employed in Israel and I get paid into my Israeli account.

Q.

You stated that you have worked for individuals and companies in the UK in the last month and got paid by PayPal. You are based here in the UK. You have rented a room or accommodation in the UK and working from home. As such you require a permit and don’t have one.

A.

For the period I stayed in the UK it was for a minor project.

Q.

Have you understood all my questions?

A.

Yes.

Q.

Is there anything that you wish to add?

A. No.”

On the basis of the answers given by the appellant during that interview she was refused entry. The relevant part of the refusal notice stated:

“By your own admission you have previously worked and received payment in the UK and stated to the officer in interview that you would take further employment if the opportunity arose. ”

She was detained overnight and the following day removed from the UK to Israel.

Back in Israel on 19^th August the appellant applied for entry clearance to come back to the UK as a visitor. On 29^th August 2013 her application was refused on the basis that she had previously breached a condition of her leave to enter the UK (in reliance on paragraph 320 (7B) of the Immigration Rules). She was initially told that any similar application during the succeeding 10 years would be likely to be refused. Subsequently the Secretary of State accepted that this was an error and that the period of automatic refusal was amended so that it would only last for one year.

The application for judicial review sought to challenge the refusal of entry and removal direction made on 15^th August and the subsequent refusal of leave to enter issued on 29^th August 2013.

The general provision providing for regulation and control of an individual who is granted leave to enter and stay in the United Kingdom is contained in Immigration Act l971, s 3(1)(c)(i):

“3 (1) Except as otherwise provided by or under this Act, where a person is not a British citizen:

(c)

if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely—

(i)

a condition restricting his employment or occupation in the United Kingdom;”

By Immigration Act l971, s 24(1)(b)(ii) it is a criminal offence for a person, having only a limited leave to enter or remain in the United Kingdom, to “knowingly” fail to observe a condition of that leave.

The relevant provisions in Part 2 of the Immigration Rules dealing with “persons seeking to enter or remain in the United Kingdom for visits” were, at the material time, set out at paragraph 40 onwards. With particular relevance to this appeal those paragraphs include the following:

“40.

For the purposes of paragraph 41-46 a general visitor includes a person living and working outside the United Kingdom who comes to the United Kingdom as a tourist…

41.

The requirements to be met by a person seeking leave to enter the United Kingdom as a general visitor are that he:

… (3) does not intend to take employment in the United Kingdom; and

(4)

does not intend to produce goods or provide services within the United Kingdom, including the selling of goods and services direct to members of the public; and

…”

“Employment” is defined in paragraph 6 of the Immigration Rules as follows:

““employment” unless the contrary intention appears, includes paid and unpaid employment, paid and unpaid work placements undertaken as part of a course or period of study, self-employment and engaging in business or any professional activity”

Before the judge two substantive points were taken, firstly that what the appellant did while in the UK between 3^rd July and 12^th August did not amount to “employment” and that she did not therefore infringe the condition of her leave to enter. Before the judge this was characterised as “the construction issue”. Alternatively the appellant submitted that, as a result of her conversation with the immigration officer on 3^rd July at Heathrow, the appellant had a legitimate expectation that her activities in the UK would be compatible with the prohibition on taking employment and that the immigration officer on 15^th August could not go back on what she had been told the previous month so as to treat her as having infringed the prohibition on taking employment (“the legitimate expectation issue”).

Having summarised the factual background and the legal context, the judge expressed his conclusion on the “construction issue” at paragraph 24 of his judgment in the following terms:

“24.

In my judgment, Mr Hansen for the Secretary of State is right to say that the proper approach to this dispute is to focus on the facts of the particular case. There may be interesting (and difficult) questions as to where precisely the line can be drawn between engaging in professional activity on the one hand and on the other communications which are merely incidental to a holiday. Furthermore, I must keep well in mind that it is not my task to hear an appeal from the factual decision of the Immigration Officer. In some circumstances, as is well known, there is such an appeal on the facts to the First-tier Tribunal. But the parties are agreed that there was no such relevant appeal in this case. Nor is it arguable that as a matter of law the Immigration Officer could only refuse leave to enter if in fact the Claimant would have taken employment if leave to enter had been granted. Put shortly, my task then is to ask whether the Immigration Officer was entitled to come to the conclusion that she did. That requires a review according to the familiar decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation.

25.

In my judgment, the Immigration Officer was so entitled. The refusal decision said that the Claimant had said in her interview that "she would take further employment if the opportunity arose". Neither the contemporary notes signed by the Immigration Officer and the Claimant, nor the Claimant's own account, has such a statement. However, even if this was not said in terms, the Immigration Officer was entitled to infer that would be the case from all the circumstances. On close scrutiny there is some ambiguity in the answers recorded by the Immigration Officer as to whether the five companies or individuals for whom the Claimant had worked were themselves UK-based. However, as I have already noted, the Claimant's own account was that she had said that one of the clients for whom she had worked had been British. As it happens, her PayPal account shows that she received payment from two individuals who paid her in sterling during the period of her first visit to the UK in July/August 2013. These payments were not large, but neither were they insignificant. Furthermore, the Immigration Officer was entitled to take account of their place in the larger picture of the Claimant's activities. She was receiving a reasonably substantial amount over the period in question. On the account which she gave to the Immigration Officer she worked for five companies or individuals. As it happens, her PayPal account shows receipts over this period from about 14 different clients.

26.

I disagree with the Claimant's submissions that there had to be a bright line test distinguishing taking employment in the UK from not doing so. In this, as in many other parts of immigration law, judgment is necessary. The Immigration Rules give Immigration Officers the responsibility for making that judgment. It is subject to the supervision of the Court, which will intervene if the decision is irrational or otherwise unlawful, but on the facts of this case, as known to the Immigration Officer at the time, I do not consider that was so.”

On the “legitimate expectation issue” after describing as “perhaps striking” the omission from the interview on 15^th August of any reference by the appellant to the assurance that she claims to have been given on 3^rd July, the judge proceeded on the basis of the factual account set out by the appellant in her Statement of Facts (see paragraph 3 above) and he concluded at paragraph 31:

“31.

Nonetheless, I agree with Mr Hansen that this did not generate a “legitimate expectation” which precluded the decision to refuse her leave to enter on 15 August. She did not on 3 July explain the scale of her activity. Nor did she say that the clients for whom she would be working included a UK-based individual or individuals. A legitimate expectation can only inhibit future administrative action to the contrary if it follows full disclosure and takes the form of a statement which is clear, precise and unqualified. The Claimant cannot show that these conditions were met. This being the case, it is unnecessary for me to reach a view on Mr Hansen's other submissions.”

The judge therefore concluded that the immigration officer was entitled to refuse leave to enter and that there was power to detain pending removal and that the entry clearance officer in Israel was entitled to refuse a subsequent application for entry clearance. The application for judicial review was therefore dismissed.

The appellant is a litigant in person and is currently not in the UK and therefore unable to appear before this court. Her case on appeal has been presented with conspicuous clarity, force and charm by Mr Pavel Stroilov, her McKenzie friend. In view of the exceptional circumstances generated by her inability to attend the proceedings, the court gave leave to Mr Stroilov to present oral argument at the appeal hearing to supplement his skeleton argument.

The primary ground of appeal (Ground 1) challenges the judge’s decision on the “construction issue” on the basis that the judge failed to consider whether the immigration officer had misconstrued the Immigration Rules so as to extend the prohibition on “taking employment in the UK” to the appellant’s continued “self-employment in Israel”. It is argued that this was a question of law, whereas the judge determined it as a matter of fact for the immigration officer which could only be overturned by the court on Wednesbury principles.

Ground 2 asserts that the judge took into account an irrelevant consideration, namely that one or more of the customers for the appellant’s services for work undertaken during her time in the UK was British. It is argued that either the appellant’s work related activities in the UK were in breach of the condition on her leave of entry or they were not. Ground 3 argues that the judge was wrong to hold that a legitimate expectation did not arise. At the full hearing before this court Mr Stroilov orally renewed the application for permission to appeal on Grounds 2 and 3, following the earlier refusal by Laws LJ.

In presenting the appeal under Ground 1 Mr Stroilov submits that, before applying any definition of “employment” to the facts of this case, it was necessary for the judge to interpret the wide ranging and open-ended definition of “employment” in paragraph 6 of the Immigration Rules so as to establish a bright-line definition which would provide clarity to cases such as this which lie, in his submission, in a grey area on the edges of the activity for which control is intended. He submits that it is plainly absurd to suggest that, during her physical presence in the UK, a foreign visitor is prohibited from even lifting a finger to perform any duty which may arise in connection with her foreign employment or self employment, for example dealing with an urgent email. The interpretation of the law, he submits, was a matter for the judge, and the judge’s failure to provide a comprehensive construction of paragraph 6 before turning to the application of that definition to the facts in this case was a fundamental flaw and an abdication of the court’s responsibility.

Separately, but as part of the overall submission, Mr Stroilov argues that a distinction must be drawn between “employment (including self employment) in the UK” and, conversely, a visitor’s employment in her own country. In this case he submits that the appellant was doing no more than continuing her self employment in Israel when she worked on her computer in the flat that she was renting in London.

In his oral submissions Mr Stroilov underlined the need for clarity in the definition of “employment” in the light of the potential liability to criminal prosecution of a visitor who acts in breach of such a requirement. Much of the force of that particular submission was, however, neutralised by the fact that a criminal conviction may only be achieved under Immigration Act l971, s 24(1) where the visitor has breached the relevant requirement “knowingly”.

In responding to the appeal, on behalf of the Secretary of State, Mr William Hansen submits that it is not necessary, in this case, for the court to go further than the wording of the definition as it appears in paragraph 6 of the Immigration Rules. He argues that, although this is a very wide, non-exhaustive definition, as a matter of law and fact the activity admitted to by the appellant must fall within it. On her own admission the appellant was engaging in business or in professional activity in the UK for which she was being paid. In doing so she was working for one or more British clients and being paid for that work in sterling.

With respect to Ground 2, Mr Stroilov argued that there was no distinction to be made as between the geographical location of the appellant’s clients. Either her activity was in breach of the “no employment” condition in respect of all her clients or it was not. Mr Stroilov did, however, accept that this ground was little more than a point within the overall factual matrix of the case.

Finally, with respect to Ground 3, Mr Stroilov was forced to concede that the initial conversation with the immigration officer on 3^rd July could only have been prospective as the appellant would not have been able to forsee just what work she would undertake, if any, during her stay in the UK.

Mr Stroilov’s stimulating and well argued submissions invited the court to consider a range of possible factual scenarios which were, in my view, much nearer to, or indeed beyond, the outer perimeter fence of the definition of “employment” as it appears in Rule 6. Contemplation of an individual who simply deals with one or two urgent emails from his office in a foreign country, or an artist or writer who may have inspiration for some future project are, in my view, some distance removed from the facts of this case. The opening questions and answers of the interview of 15^th August demonstrate in clear terms the appellant’s breach of the employment condition:

“Q. You have been in the UK since 3/07/13. What were you doing?

A.

I was working from home and travelling in the City…

Q.

How many companies have you been working for in the UK?

A.

Up to five companies.”

Rather than simply responding to one or two emails, the appellant’s admissions establish that she accepted commissions for her services from some five individual clients, undertook the work and submitted it to her clients. She also received payment. One or two of those clients for whom she worked in that period were based in the UK. On any view the admitted activity must qualify as “engaging in business or any professional activity” and is therefore within the parameters of Rule 6. In like manner the appellant did “provide services within the United Kingdom” as specified in paragraph 41(iv). In relation to this latter point, Mr Stroilov was forced to concede that his argument was in difficulty in relation to paragraph 41(iv) and he responded merely by asking rhetorically what the situation would be if all of the appellant’s clients had been based in Israel, which, of course, is not the case on the facts here.

I do not accept that, in the circumstances of this case where the appellant’s activities were well within the definition in paragraph 6, the judge was required to produce a comprehensive bright-line definition of “employment” applicable to any one of the myriad set of factual circumstances that might exist from case to case. In the context of an application for judicial review, Nicol J was entirely justified in holding that the target of the proceedings was the conclusion formed by the immigration officer on the facts disclosed in the appellant’s interview and that that decision was only susceptible to challenge on Wednesbury principles.

For the reasons that I have given, the approach taken by Nicol J to the “construction issue” was entirely correct and the appeal on Ground 1 wholly fails.

As was accepted during submissions, the point argued under Ground 2 is, in reality, no more than a specific aspect of the factual matrix. So far as Ground 3 is concerned, the inevitable concession that, upon her first arrival in the UK, the appellant could not forsee what, if any work, she might undertake, is fatal to her argument with respect to legitimate expectation. Any appeal based upon Ground 2 and/or Ground 3 would have no real prospect of success and permission to appeal should therefore be refused.

In consequence, if my Lords agree, this appeal must be dismissed.

I agree that the appeal should be dismissed. I do so for essentially the reasons expressed by Nicol J in paragraphs 24 to 26 inclusive of his judgment which are quoted by McFarlane LJ in paragraph 15 above.

It seems to me to be clear that in the light of the answers given by the appellant in her interviews with the immigration officers, which my Lord has quoted, the officer who dealt with her on 15 August 2013 was entitled to reach a decision to refuse her entry to the UK because of the potential for infringement of the “no employment” requirement. It was not necessary for him to examine in detail whether the precise activity that had been conducted in the past had infringed the requirement or to make a precise assessment of whether what the appellant was likely to do if permitted re-entry would or would not amount to an infringement. It was a matter for the officer’s judgment, as Nicol J said, whether or not re-entry was desirable in the light of the officer’s judgment as to whether or not the rules had been or would or would not be infringed if re-entry were permitted. In expressing myself in these terms I am not setting out a “test” to be applied in all circumstances, but merely agreeing that the judge was correct in his finding that the officer had been entitled to reach the decision to refuse entry on the facts of the case as they appeared to him on the day in question.

I would not wish to go further in examination of the construction of the provisions of the Immigration Rules that are in play. It seems to me that those rules, as presently drafted, give rise to a number of awkward questions of construction that do not require to be answered in this case. For example, and again I express no view, it may be moot whether rule 6 applies strictly to the word “employment” in rule 41(3) or whether there is a “contrary intention” in view of the separate provision for production of goods and provision of services in rule 41(4). As another example, even if rule 6 does apply, does one “take employment in the United Kingdom” (my emphasis) when one continues the activities of a foreign employment or self-employment usually conducted abroad. The word “take” is a difficult one in this context. As the judge remarked, there may be interesting and difficult questions as to where precisely the line is to be drawn on the facts of the particular case. None of these issues has been fully argued and I wish to avoid deciding them.

Mr Stroilov in his submissions found it hard to see what appears to me to be the clear distinction between a case such as this, where (as the judge said in paragraph 24) the court had to decide whether the immigration officer was entitled to conclude that he should refuse entry in the light of the work restrictions as a whole on the one hand, and on the other hand a case where a court has to decide in the context of a criminal prosecution whether a visitor has knowingly broken a condition of leave to enter or remain. In the latter case, it is at least likely (if not inevitable) to be necessary to draw a “bright line” in deciding whether or not the conduct alleged amounts to a breach of the relevant condition. In the former type of case (such as the present) it is not necessary, in my view, for the officer to make a “bright line” decision or speculation as to whether the subject’s likely activity will contravene the rule or not, in the light of what he has been told and what he infers from what he has been told. As the judge said, it is a matter of judgment in the light of the known circumstances overall. I agree with what McFarlane LJ says on this point in paragraph 29 above.

For all these reasons, I would prefer not to be drawn into arguments as to whether, on a true construction of the rules, what the appellant did or intended to do infringed or would have infringed the prohibition on “work” overall. However, as indicated, I too favour the dismissal of the appeal. I agree.

For the reasons given by McFarlane LJ, I agree that this appeal should be dismissed.