Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 180

 

P1162/15

 

OPINION OF LORD ERICHT

In the Petition of

ONYEKA MENUBA

Petitioner

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondents

Petitioner:  Dewar QC;  Caskie;  Drummond Miller LLP

Respondent:  McIlvride QC;  McIver;  Office of the Advocate General

23 December 2016

[1]        On 13 October 2015 the respondent’s officials attended at the premises of Aberdeen Alarm Company Ltd in Aberdeen and detained a number of foreign nationals, including the petitioner and Joseph Ochiemham, whose petition was heard by me alongside that of the petitioner.  The same submissions were made in both cases. 

[2]        The petitioner is a citizen of Nigeria.  He originally entered the UK on a student visa and his leave to remain was extended from time to time.  As at 13 October 2015 he had been granted leave to remain under a Tier 1 (Entrepreneur) visa on the basis of his company Meto Technologies Ltd.  That visa was not due to expire until 10 November 2017. 

[3]        On 30 October 2015 the respondent served on the petitioner a “Notice of Immigration Decision, Decision to curtail/Revoke Leave/Notice of Removal”.  The notice stated as follows: 

“You are a person with no leave to enter or remain in the United Kingdom (UK).  You have not given any reasons as to why you should be granted leave to remain or why you should not require leave to remain.  Therefore you are liable for removal.”

 

Reasons For Decision/Curtailment/Revocation
[4]        A decision has been made to curtail/revoke your leave so that it expires with immediate effect.  The following reasons are given: 

“You are specifically considered a person who has breached section 10(1)(a) with an offence of 24(1)(b)(ii) 1971 Immigration Act because you were granted T1 HS Entrepreneur leave to remain on 10 Nov 2014 valid until 10/11/2017 on the basis of your company Meto Technologies.  Having been granted leave to remain as Tier 1 (Entrepreneur) Migrant, your employment is restricted to the following:

 

‘You are not permitted to undertake employment as a professional sportsperson (including as a sports coach)/ you are not permitted to undertake employment other than working for the business(es) you are establishing, joining or taking over.’

 

You breached the conditions of your leave by working as a security guard for Aberdeen Alarm Company.  There are no contracts in place for services provided to Aberdeen Alarm Company by Meto Technologies, the directors have also advised that work as a security guard is in no way connected to your business.  On 20/8/2015 you were paid for 136 hours work carried out as a security guard during the period 20/7/2015 - 19/8/2015 by Aberdeen Alarm Company. 

 

It is not considered that the circumstances in your case are such that discretion should be exercised in your favour.  The Secretary of State therefore curtails your leave to [enter/remain in] the United Kingdom under paragraph 323(i) with reference to 322(3) of the Immigration Rules so as to expire with immediate effect.”

 

[5]        In statement 5 of the petition the petitioner sought inter alia:

“(i)       reduction of the decision that the Petitioner worked in breach of his conditions;  and

 

(ii)        reduction of the decision to curtail the Petitioner’s Leave to Remain in the United Kingdom.”

 

Facts
[6]        Senior counsel for the respondent made the following concessions in respect of the facts of the case.  These concessions were made solely for the purposes of the current substantive hearing, and he reserved his position in respect of these matters at any future hearing which dealt with the evidence.  The concessions were as follows: 

(1)        The petitioner procured the incorporation of Meto Technologies Ltd.

(2)        Meto Technologies Limited provided consultancy services to SmartPluz Limited;

(3)        The petitioner structured his transactions with Aberdeen Alarm Company on the basis that he would issue invoices in the names of Meto Technologies Limited, and that Aberdeen Alarm Company would not deduct Pay As You Earn as National Insurance. 

(4)        Payment for the work done by the petitioner was made by Aberdeen Alarm Company into the bank account of Meto Technologies Limited.

[7]        On the basis of the pleadings, documents produced to me and that concession, the facts can be set out as follows. 

[8]        On 2 June 2015 Meto Technologies Ltd entered into a contract for services with Smartpluz Consulting Ltd.  The services involved “installation, configuration and upgrading of used PCs, networking of Pcs, design and construction of websites, troubleshooting of Pcs”  Meto Technologies Ltd issued invoices to Smartpluz Consulting Ltd in respect of services provided under the agreement.  The agreement specified a fee of £15.00 per hour.  The invoices specified that they were for “computing IT services” and set out the number of hours charged at £15.00 an hour and the total sum due.  The invoices were on 7 September 2015 for 42 hours, total of £630;  14 September 2015 for 36 hours, total of £540;  21 September 2015 for 36 hours, total of £540;  28 September 2015 for 48 hours, total of £720 and 5 October 2015 for 36 hours, total of £540.  Meto Technologies bank statements show receipt of these sums from Smartpluz Consulting Ltd, and indeed various payments from Smartpluz from July 2015. 

[9]        Meto Technologies Ltd issued three invoices to Aberdeen Alarm Company in respect of “security services”.  These were dated 16 June 2015 for 101 hours, total of £656.50;  20 July 2015 for 216 hours, total of £1,404 and 20 August 2015 for 136 hours, total of £884.  The invoices specified that payment was to be made into Meto Technologies Ltd’s bank account, into which payment was made. 

[10]      Further to the cooperation of Aberdeen Alarm Company, the respondent issued a “No Action Notice” indicating that Aberdeen Alarm Company was not liable for a civil penalty for employing the petitioner. 

 

Grounds of petition
[11]      The petitioner sought judicial review on the same grounds and in respect of the same submissions as in the petition of Mr Ochiemham.

 

Precedent Fact
[12]      I find against the petitioner in respect of his submissions on the doctrine of precedent fact for the reasons set out in my opinion in that case.

 

Traditional Judicial Review Grounds
[13]      The issue which the respondent required to address in the decision of 13 October 2015 was whether the petitioner was in breach of the condition that he “was not permitted to undertake employment other than working for the business(es) you are establishing, joining or taking over”. 

[14]      The petitioner’s position is that his initial intention was and remains to operate as an IT consultancy, but as  a result of the downturn in the oil industry and Aberdeen’s economy generally he required to diversify his business activities to include provision of security services. 

[15]      The issue for the respondent was whether the work undertaken for Aberdeen Alarm Company was on a contract of service with Aberdeen Alarm Company, or was work for Meto Technologies Limited. 

[16]      For the reasons set out in my opinion in the Ochiemham petition, by focussing on the work for Aberdeen Alarm Company the respondent took too restrictive a view of what requires to be taken into account by her. 

[17]      As in the Ochiemham case, it must have been obvious to the respondent that this was not a straightforward case where the worker was working full time for one employer.  He had been working for Aberdeen Alarm Company for a period of only around three weeks, from 20/7/2015 - 19/8/2015, and that had been on a casual basis.  The respondent knew that the petitioner was an entrepreneur and that he conducted his entrepreneurial activities through Meto Technologies Limited. 

[18]      In these circumstances the respondent was required in terms of her own guidance to “take into consideration the factors set out at” the Employment Status Index.  The respondent did not take these factors into account.  These factors required her to consider the business of Meto Technologies, rather than restricting her decision to the petitioner’s relationship with Aberdeen Alarm Company.  In particular this should have included consideration of the services provided to any other parties such as SmartPluz Ltd.

[19]      Further, in the Decision Letter, the respondent failed to take into account the invoice from Meto Technologies Ltd to Aberdeen Alarm Company Ltd.

[20]      Further, in the Decision Letter of 13 October 2015 the respondent founds on advice given to the respondent by the directors of Aberdeen Alarm Company that the work is in no way connected to the petitioner’s business.  In my opinion no reasonable Secretary of State could have founded on that advice.  The directors of Aberdeen Alarm Company cannot be expected to have any knowledge of the business of Meto Technologies Ltd

[21]      The respondent having failed to take into account relevant matters and having acted unreasonably, the decision letter of 13 October 2015 falls to be reduced.  These grounds of reduction relate to the decision making process and not to the merits of the substantive decision and I express no view as to whether taking into account all the factual matters set out in this opinion the petitioner had breached the condition of his visa.

[22]      I uphold the petitioner’s first and second pleas in law and make the orders sought in paragraph 5(i) and 5(ii) of the petition; repel the respondent’s pleas in law and reserve meantime the question of expenses.