Bajracharya, R (On the Application Of) v Secretary of State for the Home Department

The question in this case is whether the appellant, Mr Nishentman Bajracharya, should be granted permission to apply for judicial review of the Secretary of State’s refusal to grant him leave to remain in the United Kingdom. The Upper Tribunal declined to give such permission, but Mr Bajracharya appeals against that decision. The dispute involves, in particular, issues relating to whether the restaurant that was proposing to employ Mr Bajracharya was providing a take-away service for the purpose of Appendix K to the Immigration Rules (“the Rules”).

Mr Bajracharya is a Nepalese national who was born on 20 March 1986. On 13 August 2015, he applied for leave to remain as a Tier 2 (General) worker. In support of his application, he submitted a Certificate of Sponsorship that the Ganges and Gurkha Restaurant in Plymouth had assigned to him on the previous day. This referred to Mr Bajracharya working as a sous chef for a period of three years from 12 October 2015 until 11 October 2018.

On 16 September 2015, the Secretary of State refused the application on the basis that the job was not a “shortage occupation” and, hence, that Mr Bajracharya had not qualified for the requisite 50 points for “attributes”. The Reasons for Decision explained:

“In order for your occupation to be considered as a shortage occupation, amongst other things, your employer must not offer a takeaway service, as specified under Appendix J and Appendix K of the Immigration Rules.

The weblinks www.just-eat.co.uk & www.hungryhouse.co.uk clearly show that the Ganges & Gurkha Restaurant offers a takeaway service, therefore we are not satisfied that the post you are undertaking is a shortage occupation.”

On 2 October 2015, Mr Bajracharya applied for administrative review of the Secretary of State’s decision. The application included this:

“Please note that as per the emails and verbal confirmation from the Employer, the scenario of the restaurant is as follows:

1.

This is a 150 cover restaurant

2.

The restaurant does not have any takeway menu nor does it have any mention of any take away service on its website.

3.

We have also been provided a letter from Hungry House that confirms the service was discontinued prior to the date on which this application was submitted. (An original copy of the same can be provided upon request).”

The application also stated:

“Please note that we have now gathered sufficient proof from the authorised Managers of the websites hungry house and Just-eat respectively to confirm that our client had stopped using their services PRIOR to making this application. We have also been offered to provide you their contact numbers in case if you wish to make any further clarifications in this context. Please feel free to contact us in-case you wish to contact them at your end.”

The application for review met with no success. On 8 October 2015, the Secretary of State maintained her decision to refuse Mr Bajracharya leave to remain. The Reasons for Decision explained:

“We have carefully considered all points on your administrative review however, as stated in the original refusal decision letter, you failed to satisfy the requirements of paragraph 245HD with reference to Appendix J and K of the Immigration Rules. This is because the caseworker has correctly identified that as your job is listed as a shortage occupation your prospective employers, Ganges & Gurkha Restaurant, must not offer a takeaway service. However the original caseworker has correctly shown into their investigation into your application that your employers offer a takeaway service and therefore the post you are undertaking is not a shortage occupation. This means a resident labour market test needs to be conducted which has not been indicated on the Certificate of Sponsorship (COS).

You have stated in your administrative review that your prospective employers do not offer a take away service and you have provided names and contact details for websites ‘Hungry House’ and ‘Just Eat’ for confirmation of this statement. However, having visited the ‘Trip Advisor’ website at www.tripadvisor.co.uk I can confirm that a review dated 14 August 2015 clearly states that the Ganges & Gurkha Restaurant in Plymouth offers a take away service. As this review was submitted after the date of your application we are satisfied that the caseworker correctly identified that a take away was in place. We are, therefore satisfied that the decision to refuse your application was correct and we have maintained the original decision.”

The relevant Trip Advisor review, dated 14 August 2015, was headed “Best takeaway ever” and included this:

“Had a takeaway this evening- Excellent as always.”

There followed a response from the “Manager at Ganges & Gurkha” dated 19 August, stating:

“Thank you so much for your nice review. We hope to seeing you soon.”

On 20 October 2015, Mr Bajracharya asked the Secretary of State to reconsider her decision, enclosing:

One of the screenshots attached to Mr Owen’s email included an entry for 17 August 2015 recording:

“tmpoffline Issues with Home Office Offline until further notice (Type 1 Temporarily offline)”.

An entry for 18 August similarly referred to being “Offline until further notice due to issues with the Home Office”.

On 3 November 2015, Mr Bajracharya’s solicitors sent a pre-action letter to the Secretary of State challenging her decision to refuse him leave to remain. After stating that a copy of Mr Giri’s letter of 14 October was enclosed, the letter went on:

“For sake of clarity, even if The Ganges & Gurkha were offering a take away service (which they are not) our client was interviewed on 11^th August 2015, our client should have still been granted leave to remain as his employment was not due to commence until 12^th October 2015, by which time, there is a gap of two months. Is the Home Office able to evidence that from 11^th August to date there has been any take away service offered, and if so, may we see this evidence?”

Further on, this was said:

“Reasons given by Home Office as to why they will not grant our client leave to remain is unfounded. How can Home Office make such a decision without considering all the evidence before them? We are confident that the Judge will be of the same view.”

The Secretary of State responded on 12 November 2015. The letter explained that the Secretary of State’s position was that Mr Bajracharya’s application for leave to remain was carefully considered and correctly refused.

On 14 December 2015, Mr Bajracharya (by then acting in person) issued judicial review proceedings in respect of the Secretary of State’s decision of 8 October. Mr Bajracharya argued in his “Grounds for Judicial Review” that he should be granted exceptional leave to remain on the basis that (a) if returned to Nepal, he would be homeless and destitute and (b) section 55 of the Borders, Citizenship and Immigration Act 2009 had not been considered. There was no express mention of Mr Bajracharya’s proposed job with the Ganges & Gurkha Restaurant, but he stated towards the end of the document:

“Rest, I would like rely on the grounds of my Pre-action.”

On 28 January 2016, the Secretary of State filed her acknowledgment of service indicating that she intended to contest the claim.

On 16 February 2016, Upper Tribunal Judge Coker refused Mr Bajracharya’s application and certified that it was totally without merit. She observed that the grounds on which Mr Bajracharya relied did not take issue with the Secretary of State’s decision that the prospective employment was not for a shortage occupation and instead advanced human rights points for the first time. When subsequently refusing Mr Bajracharya permission to appeal to the Court of Appeal, Judge Coker commented that the Secretary of State’s decision refusing leave to remain was “unarguably open to her”.

On 13 December 2016, Sir Kenneth Parker, sitting as a Judge of the Court of Appeal, granted Mr Bajracharya permission to appeal limited to the issue of whether Mr Bajracharya fulfilled the conditions of the Rules for the grant of leave as a Tier 2 worker. The Judge considered that there was “arguably a real issue of fact to be determined in the judicial review”.

It was Sir Kenneth Parker’s view that Judge Coker had been incorrect to proceed on the footing that Mr Bajracharya was not challenging the Secretary of State’s decision on the shortage occupation point. He doubtless had in mind the reference to Mr Bajracharya relying on “the grounds of my Pre-action”, but it is understandable that Judge Coker took the view she did given the emphasis on other matters in Mr Bajracharya’s “Grounds for Judicial Review”.

Finally, it is to be noted that on 19 May 2016 the Secretary of State revoked the Ganges & Gurkha Restaurant’s sponsor licence for breaches of the Rules. The letter to the Restaurant included this:

“14.

In your representations you state that you had ‘disabled’ your takeaway service on 11 August 2015, the day before assigning CoS for N Bajraqcharya and S [redacted] and have submitted evidence from ‘just eat’ to corroborate your statement. Your representations go on to say that as these individuals had their visas refused, you were unable to go forward with your expansion plans and re-instigated your takeaway service.

15.

Your representations state that assigning a CoS [i.e. Certificate of Sponsorship] under shortage occupation rules for [redacted] was a genuine error as you had a takeaway service at that time. You claim to have misread the SoC code information.

16.

We are not prepared to accept your explanation. Our guidance has always been clear in stating that an establishment offering a takeaway service does not meet shortage occupation criteria. In assigning a CoS to [redacted] you have breached your duties and responsibilities as a licensed sponsor. We further believe that you attempted to circumvent the shortage occupation rules by stopping your takeaway service immediately prior to assigning two CoS for B Bajraqcharya and [redacted] only to re-instate the service later.”

Miss Sarah Abram, who appeared for Mr Bajracharya, complained, not unreasonably, that the Secretary of State had not produced either this letter or two other documents that Mr Eric Metcalfe, who appeared for the Secretary of State, annexed to his skeleton argument until earlier this week. That fact must, I think, make us wary of placing weight on their contents. On the other hand, there is no reason to doubt that, as Mr Metcalfe told us and the documentation indicates, the Ganges & Gurkha Restaurant no longer holds a sponsor licence.

During the relevant period, paragraph 245HD of the Rules stipulated that, to qualify for leave to remain as a Tier 2 (General) Migrant, an applicant had to meet the requirements listed in the paragraph. One of these was that the applicant had a “minimum of 50 points under paragraphs 76 to 79D of Appendix A” (see requirement (f)).

By virtue of paragraph 76 of Appendix A to the Rules, an applicant applying for leave to remain as a Tier 2 (General) Migrant had to score 50 points for “attributes”. An applicant could score 30 such points if a Certificate of Sponsorship had been assigned to him and the “Resident Labour Market Test exemption” applied (see Table 11A in Appendix A). By paragraph 77E of Appendix A, however, no points were to be awarded for a Certificate of Sponsorship unless (relevantly):

“(b)

the job that the Certificate of Sponsorship entry records that the person is being sponsored to do is skilled to National Qualifications Framework level 4 or above, and appears on the shortage occupation list in Appendix K”.

There was also reference to Appendix K in paragraph 78A of Appendix A. This stated that, in order for a Resident Labour Market Test exemption to apply for a job offer in a shortage occupation, the job must (among other things):

“at the time the Certificate of Sponsorship was assigned to the applicant, have appeared on the shortage occupation list in Appendix K”.

(Mr Metcalfe stressed the words, “at the time the Certificate of Sponsorship was assigned to the applicant”.)

Appendix K to the Rules included an entry for “Chefs”. A job as a “sous chef” could fall within this category, but only if:

“the job is not in … an establishment which provides a take-away service”.

Mr Bajracharya’s case is that he has, as a minimum, a realistic prospect of establishing that the Ganges & Gurkha Restaurant did not provide a take-away service at the relevant time. That, Miss Abram argued, is apparent from the materials provided by Mr Giri, hungryhouse and Just Eat. Miss Abram suggested that the question whether the Ganges & Gurkha Restaurant was providing a take-away service should be seen as one of precedent fact for decision by the Judge. Supposing, though, that that were wrong and Wednesbury principles (i.e. those referred to in Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223) applied, there would still be a realistic prospect of successfully impugning the refusal of leave to remain.

In contrast, Mr Metcalfe submitted that the Secretary of State had reasonable grounds for believing that the Ganges & Gurkha Restaurant was providing a take-away service. It followed, he argued, that an application for judicial review would be bound to fail; Wednesbury principles, he said, are applicable. Mr Metcalfe also contended that the fact that the Ganges & Gurkha Restaurant has lost its sponsor licence means that the appeal is academic. There could, he maintained, be no question of granting Mr Bajracharya leave to remain on the basis that he would be working at an establishment that does not now have the necessary licence.

A key question must be whether the take-away service point should be approached as one of precedent fact (as Miss Abram submitted) or seen as governed by Wednesbury principles (as Mr Metcalfe contended). The answer, as it seems to me, is to be found in the decision of the Court of Appeal in R (Giri) v Secretary of State for the Home Department [2015] EWCA Civ 784, [2016] 1 WLR 4418. In that case, the Secretary of State had refused an application for leave to remain on the basis that the applicant had failed to disclose a material fact, namely that he had previously used deception in an application for entry clearance. On appeal, the applicant argued that the question whether deception had been used was one of precedent fact for decision by the Court. The Court of Appeal did not accept that contention. Richards LJ, with whom Beatson and King LJJ agreed, said that the Judge below “ought to have applied Wednesbury principles to determine the lawfulness of the decision under challenge” and that, “[b]y proceeding to ask himself whether, on the evidence before the court, the Secretary of State had proved that deception had been used, he was addressing the wrong question” (see paragraph 30). Earlier in his judgment (at paragraph 19), Richards LJ had explained:

“The decision here under challenge is a decision made in the exercise of the power conferred on the Secretary of State by section 3 of the [Immigration Act 1971] to grant leave to remain in the United Kingdom. The Rules contain detailed provisions as to how the power is to be exercised (though there is a residual power to grant leave even where it falls to be refused under the Rules). Paragraph 322(1A) is one of those provisions. Its application involves findings of fact, but that is true of a multiplicity of provisions in the Rules. If the conditions in it are found to be satisfied, leave must be refused under the Rules, but that, too, is true of many other provisions under the Rules. A finding that the conditions are satisfied has potentially serious consequences (see, in particular, the effect of paragraph 320(7B) as summarised above), but paragraph 322(1A) is again far from unique in that respect. The key point is that the statute confers the power on the Secretary of State, or the immigration officers acting on her behalf, to make the decision whether to grant or refuse leave to remain. It is for the Secretary of State or her officials, in the exercise of that power and in reaching their decision, to determine which provisions of the Rules apply and whether relevant conditions are satisfied, including the determination of relevant questions of fact. On the reasoning in [R v Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74] and [R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514], their findings on such matters are open to challenge in judicial review proceedings only on Wednesbury principles; it is not a situation in which their powers depend on some precedent fact the existence of which falls for determination by the court itself.”

In my view, the position can be no different in the present case, which similarly concerns the application of the Rules. It must, accordingly, be for the Secretary of State and her officials to determine whether the requirements of Appendix K to the Rules are satisfied and, in particular, whether the Ganges & Gurkha Restaurant was providing a take-away service. It is true that, as Miss Abram pointed out, the Giri case did not involve (as this case does) the Points Based System for the grant of leave to enter and remain, but that cannot be a relevant distinction.

If, as I think, Wednesbury principles apply, the next question must be whether Mr Bajracharya has a realistic prospect of persuading the Upper Tribunal that the Secretary of State was not reasonably entitled to conclude that the Ganges & Gurkha Restaurant was providing a take-away service.

Miss Abram argued that he does. The application for administrative review explained that there had been “emails and verbal confirmation” from the Ganges & Gurkha Restaurant to the effect that the restaurant “does not have any takeaway menu” or any mention of a take-away service on its website, a letter from hungryhouse said that the take-away service had been discontinued prior to the date on which Mr Bajracharya’s application was submitted, and “sufficient proof” had been gathered from the managers of hungryhouse and Just Eat “to confirm that [the Ganges & Gurkha Restaurant] had stopped using their services PRIOR to making this application”. In the light of this information, the Secretary of State could not (so Miss Abram submitted) reasonably decide that a take-away service was still being provided when Mr Bajracharya made his application for leave to remain (13 August 2015) or the Certificate of Sponsorship was assigned to him (12 August).

In my view, however, there plainly was a reasonable basis for the Secretary of State’s decisions of 16 September 2015 and (following the administrative review) 8 October. As regards the first of these decisions, the caseworker had found that “[t]he weblinks www.just-eat.co.uk & www.hungryhouse.co.uk” indicated that the Ganges & Gurkha Restaurant offered a take-away service and Mr Bajracharya had not as yet made any reference to evidence from Mr Giri, hungryhouse or Just Eat. By the stage of the administrative review, the Secretary of State had been told of things that the Ganges & Gurkha Restaurant, hungryhouse and Just Eat were said to have confirmed, but Mr Bajracharya had not produced any documents substantiating his claims and the Trip Advisor review appeared to bear out the view taken on 16 September. Miss Abram commented that there was no way of verifying what was said in the Trip Advisor review or of knowing whether the review was posted on the day it was written, but (a) the Ganges & Gurkha Restaurant thanked the author for his review and (b) the “this evening” mentioned in the review would naturally be taken to be the evening of the day of posting.

In fact, it seems to me that the Secretary of State would have been reasonably entitled to conclude that the Ganges & Gurkha Restaurant was providing a take-away service on the day the Certificate of Sponsorship was assigned to Mr Bajracharya (which, having regard to paragraph 78A of Appendix K, must be a crucial date) even if she had already been provided with the documents with which she was supplied on 20 October (as to which, see paragraphs 7 and 8 above). On its face, the letter from Mr Giri said that the Ganges & Gurkha Restaurant’s take-away service had ceased to be in use “after” 12 August rather than by that date; the letter from hungryhouse did not state that the take-away service was no longer available by 12 August but merely that the final “successfully processed and confirmed order” had been placed on 11 August; the email from Just Eat spoke of customers having been unable to order “since” 12 August, which might mean after 12 August; and the screenshots that were attached appear to confirm no more than that the restaurant had been taken offline temporarily by 17 August.

The conclusions I have arrived at thus far are sufficient to dispose of this appeal. For the reasons I have indicated, I consider that Mr Bajracharya has no realistic prospect of successfully impugning the Secretary of State’s conclusion that the Ganges & Gurkha Restaurant was providing a take-away service. I also, however, agree with Mr Metcalfe that the appeal is academic. The fact that the Ganges & Gurkha Restaurant no longer has a sponsor licence must, as it seems to me, of itself mean that there could be no question of requiring the Secretary of State to accede to an application that depended on the restaurant having a status that it has now lost.

I would dismiss the appeal.

I should like, finally, to thank Miss Abram for the help she has provided on a pro bono basis.

I agree, and wish to add my thanks to both counsel for their helpful and well-focussed submissions.