BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Printable PDF version]
[Help]
OUTER HOUSE, COURT OF SESSION
[2023] CSOH 13
P864/20
OPINION OF LADY CARMICHAEL
in Petition of
MOHAMMED CAMARA
Petitioner
for
Judicial Review
Petitioner: Caskie, Drummond Miller (for McGlashan MacKay)
Respondent: Pirie KC, OAG
14 February 2023
Introduction
[1]
Mr Camara is a citizen of Guinea. He is 23 years old. He has been trying since 2018
to obtain a visa to allow him to enter the United Kingdom in order to undergo trials with
professional football teams in Scotland. Mr John McKnight, who is Mr Camara's sponsor, is
also his football agent. The Secretary of State has refused Mr Camara's application on a
number of occasions. Mr Camara raised judicial review proceedings on an earlier occasion
in relation to a decision taken on 14 July 2019. The Secretary of State withdrew that decision.
A new decision followed on 10 January 2020. The Secretary of State withdrew that decision
on receipt of a pre-action letter.
2
[2]
The present petition was originally directed at a decision dated 30 July 2020. The
Secretary of State withdrew that decision. There followed a decision of 20 May 2021.
Mr Camara challenged it in an amendment to the petition. That decision also was
withdrawn. The Secretary of State again refused Mr Camara's application on 27 January
2022, and Mr Camara again amended this petition to challenge that decision . There was no
dispute between the parties that the challenge to that decision was properly before the court
and that I ought to determine it. The basis of the challenge appears at statement of fact 25 in
the amended and adjusted petition. In addition to reduction, Mr Camara seeks an order at
common law to require the decision maker to issue a decision not vitiated by error in law or
to grant his application.
The immigration rules
[3]
The conditions for entry clearance as a visitor are in the following paragraphs of
Appendix V: Visitor to the Immigration Rules.
"Eligibility requirements for visitors
V 4.1 The decision maker must be satisfied that the applicant...meets all of the
eligibility requirements in V 4.2 to V 4.6 ...
Genuine visitor requirement
V 4.2 The applicant must satisfy the decision maker that they are a genuine visitor,
which means the applicant:
(a)
will leave the UK at the end of their visit; and
....
(c)
is genuinely seeking entry... for a purpose that is permitted under the Visitor
route as set out in Appendix Visitor: Permitted Activities...; and
...
3
(e) must have sufficient funds to cover all reasonable costs in relation to their visit
without working or accessing public funds...
Decision
V 16.1 If the decision maker is satisfied... that the relevant eligibility requirements for
a Visitor are met, the application will be granted, otherwise the application will be
refused"
The application
[4]
Mr Camara submitted various items in support of his application. Those included
three affidavits from Mr McKnight. In his affidavit of 10 November 2018 he deponed that he
had an arrangement to act as Mr Camara's agent, and that he had had preliminary
discussions with several named professional football clubs in Scotland. He said that all the
clubs had stated that they were happy to see Mr Camara for an unpaid closed-door trial. He
had shown the clubs videos of Mr Camara playing football. In an affidavit dated 22 March
2019 he said that he had spoken to people connected to a number of football clubs in
England. He identified a scout for a well-known club (potentially confusingly, in the context
of this petition, Mo Camara) and said that the scout had indicated he would like to see
Mr Camara playing. In his third affidavit he adhered to what he said in the first two, and
emphasised that Mr Camara understood that it would not be in his interests, as a person
who wished to have a career in football, to breach immigration rules by overstaying or in
any other way.
[5]
He also submitted a letter dated 6 November 2018, from a journalist and
documentary maker, William McBain. The letter narrates that Mr McBain became
acquainted with Mr Camara in 2018 when he travelled to The Gambia. He explained that he
was in the editing phase of a documentary he had directed focusing on exceptional young
African footballers, and that Mr Camara was the main protagonist. He wrote that European
4
and African scouts had drawn Mr Camara to his attention, and that those scouts, and also
coaches and managers in The Gambia expected Mr Camara to go on to play at the highest
level. He enclosed stills from the documentary.
[6]
On 13 July 2021 the Secretary of State wrote this to Mr Camara's solicitors:
"Your UK visa application is currently under reconsideration following a legal
challenge to your earlier decision. Your previous refusal notice highlighted concerns
we had with your application and you have challenged these points. We are
carrying out a full reconsideration, in order to ensure we reach a balanced decision
on your application we would like to give you the opportunity to directly address
the concerns we have previously raised. We would therefore like to ask you to
provide some additional information in support of your application. I would be
grateful if you could reply to this email with the following supporting evidence, in
PDF format:
You have applied stating that you will be attending closed door trials with a
number of UK football clubs. This could only happen with the knowledge
and invitation of those clubs. Please could you provide evidence from all of
the professional football clubs in the UK that have invited you to pre-
arranged trials, as stated by you.
Evidence that your sponsor, John McKnight, is an active football agent/scout
and has any affiliation to any professional football clubs in the UK.
Your application makes references to your abilities as a footballer. Please
could you provide evidence of your footballing career to date, letters from
former clubs you have represented such as, international call ups at youth or
senior level, goal scoring record, statistics, appearances and team league
position from previous seasons.
Are you currently representing a football club? Is so please can you provide
evidence of this and the level the club play at. If not please can you provide
evidence of the last club you represented and the level this was at.
You have stated that the well-known ex player Mo Camara has expressed an
interest in watching you trial, are you able to provide anything from
Mr Camara supporting this statement and his interest in your career.
Evidence of your current circumstances and how you yourself are
supported on a daily basis in The Gambia or Guinea, living situation, bank
account, any employment income, familial ties."
[7]
Mr Camara's solicitors responded:
5
"1.
In respect of your first bullet point, as noted in previous petitions and the
petition currently before the Court of Session, we submit that this request
misunderstands the nature of the arrangements by which relatively junior, but
talented, footballers are provided with trials by professional football clubs in
Scotland. Such arrangements are that individuals will be invited to attend a training
session upon recommendation by an appropriate individual. Such arrangements are
unlikely to be formal in nature as the Decision Maker seems to assert. However, the
position of Mr Camara's agent is that he has been advised that Mr Camara will be
invited to undergo trials with a professional football club once he is in the United
Kingdom.
2.
In respect of your second bullet point, as noted in previous petitions and the
petition currently before the Court of Session, there is no requirement for football
agents in the United Kingdom to be registered with FIFA. FIFA abolished its
Player's Agents Regulations and the licensing system for players' agents in April
2015 and replaced it with Regulations on Working with Intermediaries. Each
Football Association is responsible for its own registration process, and the position
taken by the Scottish Football Association is that an intermediary must be registered
each time he is involved in a transaction. A copy of the Scottish Football
Association's Intermediary Regulations is attached for your information confirming
this. As such, Mr Camara's agent will only have to register as an intermediary when
he is involved in a transaction and it would be unreasonable for him to provide
further information at this stage.
3.
In respect of your third bullet point, we would remind the Decision Maker
that Mr Camara is a relatively young individual. Such statistics are not routinely
recorded at the level that Mr Camara has played at to date. Mr Camara has currently
returned to Guinea due to the Coronavirus pandemic and is therefore unable to
produce letters from the football clubs he has played for. However, we would
remind the Decision Maker that a letter has been submitted previously by
William McBain, an independent individual, who refers to Mr Camara as the main
protagonist of a documentary highlighting exceptional African footballers.
Mr McBain makes reference to highly regarded individuals within Gambian football
believing that Mr Camara will go on to play professional football at the highest level.
The Decision Maker therefore has independent information about Mr Camara's
abilities as a footballer which ought to be taken into account. We would remind the
Decision Maker that the progress of Mr Camara's career has been stalled by the
refusal to allow him Entry Clearance to the United Kingdom for the purpose of
attending sporting trials.
4.
In respect of your fourth and sixth bullet points, we can advise that
Mr Camara has, at present, returned to Guinea due to the Coronavirus pandemic.
We understand from Mr Camara's agent that he continues to train on a daily basis."
6
The Secretary of State's decision
[8]
The Secretary of State did not appear to dispute the information from the solicitors to
the effect that Mr McKnight did not need to be registered as an intermediary until such time
as he became involved in a transaction. There was no dispute that Mr McKnight had
provided documents demonstrating his willingness and ability to provide accommodation
and financial resources for Mr Camara's proposed visit. Mr Camara would therefore have
sufficient funds for his visit without working or accessing public funds.
[9]
The reasons for refusing the application related (a) to the absence of information,
other than from Mr McKnight and from Mr Camara's solicitors, that Mr Camara has been
offered trials by football clubs; (b) the absence of information from other sources about
Mr Camara's career to date; (c) the absence of information about how he supported himself
financially, or was supported, in The Gambia or Guinea.
[10]
The decision letter contains more than one passage relating to the absence of
confirmation from any club that it had offered Mr Camara a trial:
"Other than the statements by your solicitor and sponsor, the information you have
provided does not show that any such trials have been agreed or any arrangements
made ... You have said agreement for these has been made with four different clubs
but the information you have provided does not show these clubs have agreed to
trials or have had any contact with you or your sponsor. I am not satisfied of this by
the affidavits submitted by your sponsor because the information you provided does
not demonstrate that your sponsor has any experience as an agent or include
anything from the clubs that you say have enquired about trials. Any information
can be provided on an affidavit. If incorrect information were to be provided on an
affidavit, there would be no consequences or further action taken against the person
who submitted the incorrect information. If such trials were agreed, some form of
correspondence from the club in question would be readily available.
...
Your solicitor's response [to the request in the email of 13 July 2021] was that
arrangements such as an invitation would be informal in nature and that you would
be formally invited once actually in the UK. However, I am satisfied that had you
been invited to a trial by Scottish Premier League Clubs ... there would be at least
7
one letter confirming this invitation, or that it would, following our request, have
been possible to have obtained confirmation from them of any informal
conversations that had taken place."
[11]
The Secretary of State was not satisfied that there would be no record of
Mr Camara's career to date, given the claims made about his ability as a footballer.
Mr Camara had not responded to the specific request for information about his current or
most recent team. He had never provided vouching of what he said his income was, either
at the time of his application or subsequently. She was not satisfied by the explanation
given by the solicitors for the absence of evidence about whether Mr Camara was currently
playing for a team or about the last team he played for.
Submissions
Mr Camara
[12]
In relation to the absence of confirmation from a club or clubs about having offered a
trial, Mr Caskie submitted that football clubs would not provide written evidence that they
had offered an individual a closed door trial. That was the deliberate and normal practice of
football clubs, adopted because of commercial sensitivities. If they confirmed that they had
offered someone a trial, that might assist rival clubs in identifying talented, unsigned
players. Further, circumstances might alter so that the club were no longer seeking someone
to fill a particular role, and they would not wish to have committed to providing a trial.
[13]
Counsel was particularly critical of the Secretary of State's approach to
Mr McKnight's affidavits. Mr Camara had now challenged a number of decisions by way of
judicial review. It was clear that the affidavits would be put before the court. They were
statements on oath. Dishonest statements in them might come to the attention of the
prosecution authorities. Mr McKnight might be prosecuted for perjury.
8
[14]
The Secretary of State had relied on Mr Camara's failure to progress in his career, but
that failure resulted from her earlier decisions to refuse his visa application. Mr Camara was
Mr McKnight's first client, and every agent must at some stage have a first client. It was
irrelevant that Mr McKnight was not a registered or active agent.
[15]
Mr Camara had submitted payslips when he made his application . The form he had
submitted had a box checked indicating he had done so. It appeared that the Secretary of
State had lost them. The absence of vouching was immaterial in any event, as the sponsor
could fund the trip. There was no dispute that his pay was low. He was not relying on a
substantial income as evidence that he had an incentive to leave the United Kingdom at the
end of his visit.
The Secretary of State
[16]
The Secretary of State had provided notice in the email of 13 July 2021 as to the
information that she was looking for, and Mr Camara had not provided it. The requests for
information were not unreasonable. They related to matters about which the Secretary of
State required to be satisfied, and she was entitled to take into account the absence of
evidence that should be readily available: TK (Burundi) v Secretary of State for the Home
demonstrate a material error of law: PA v Secretary of State for the Home Department 2020
SC 515, paragraph 32. Administrative decisions must be read in a realistic and practical
way: Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] 1 WLR 413,
paragraphs 26 and 46 - 50. The weight to give to a relevant consideration was a matter for
the decision maker: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759,
pages 764F - H and 780E G.
9
[17]
The criticisms about the approach to the affidavits were ill-founded. Mr McKnight
would not be liable to prosecution for perjury. That crime required that the statement be
made in judicial proceedings and made under an oath that the person who made it was
required to take: Gordon, The Criminal Law of Scotland, 4th edition, paragraphs 55.03, 55.05
and 55.13. The affidavits were not sworn for the purpose of these proceedings but for a visa
application, and there was no requirement for statements to be on oath in that context.
Decision
[18]
Mr Camara requires to demonstrate that it is not reasonable, in the Wednesbury sense,
for the Secretary of State to have refused his application on the basis of the information
before her. The question for her was whether she was satisfied that Mr Camara was
genuinely seeking entry for the purpose of undergoing closed door trials. She provided
clear notice to Mr Camara, in the email of 13 July 2021, of the matters about which she was
concerned, and invited him to submit further material to address her concerns.
[19]
On a fair reading, the Secretary of State did not refuse the application for entry
clearance because Mr McKnight was not a registered football intermediary. Rather, she
assessed the information provided to her against the background that he was not. She was
not bound to accept the information from Mr Camara, Mr McKnight and Mr McBain,
although she might have been entitled to do so. She was entitled to take into account the
absence of independent supporting evidence when that would ordinarily be available and
there is no credible explanation for its absence: TK (Burundi), passages cited above.
[20]
Mr Camara provided no evidence to the Secretary of State that it is normal practice
for football clubs not to provide written confirmation of having offered an individual a trial.
That point was developed for the first time in the written and oral submissions in t his case.
10
The Secretary of State cannot be criticised for not having taken that matter into account .
That explanation was not before her at all.
[21]
It was not unreasonable to ask for confirmation from at least one club of the offer of a
trial. On the hypothesis that the explanation for the absence of that is correct, there would
be nothing obviously preventing Mr Camara from obtaining a letter from a football club
stating that it is their policy neither to confirm nor deny that they have offered a trial and/or
that that is normal practice in the industry.
[22]
Regardless of whether a representation is in an affidavit or some other form, acting
to facilitate a breach of immigration law by a person who is not a UK national is, as
Mr Caskie pointed out, an offence: Immigration Act 1971, section 25. A misleading
statement by a sponsor might well give rise to a penal consequence. To that extent the
Secretary of State was wrong to say in unqualified terms that there would be no
consequences for the author of such a statement. That error is not material. First, although a
person who swears an affidavit is on oath as to the truth of the content, the content may not
in fact be true. The Secretary of State was under no obligation to accept the content of the
affidavit as true. Second, it is obvious, looking at the decision letter as a whole, that the
decision would have been the same, absent the error: Holmes-Moorhouse, paragraph 51. The
Secretary of State was concerned about the absence of information from the named football
clubs to confirm that they had offered trial.
[23]
I am not satisfied that the Secretary of State acted unreasonably in refusing to grant
the application on the basis of the information provided to her. None of the documents
submitted in support of Mr Camara's application names any team for which he has played.
There is no mention of what position or positions he plays in . It is not unreasonable for the
11
Secretary of State to require vouched detail about matters of that sort where an application is
for entry clearance to undergo trials with professional clubs.
[24]
The Secretary of State was entitled to regard the explanation for the absence of
evidence about Mr Camara's current or last team that Mr Camara had returned to Guinea
due to the Coronavirus pandemic and was therefore unable to produce letters from the
football clubs he has played for as unsatisfactory. It is not obvious from that explanation
why he would have no documentary record of having played for particular clubs, or why
his presence in Guinea would necessarily prevent him or his solicitors from approaching
those clubs for a letter confirming that he had played for them.
[25]
There may be some force in counsel's submission about the significance, or lack of it,
of the absence of payslips vouching Mr Camara's claim that he received pay as a trainee
footballer at a particular rate mentioned in his application (£20.49 per month). He has never
suggested that his means in Guinea or The Gambia were an incentive for him to return.
That said, however, the fact that Mr Camara did not have a job that provided him with a
financial incentive to return was clearly a relevant factor for the decision maker to assess as
part of the whole circumstances of the application.
[26]
I refuse the petition. Had I considered that the Secretary of State had materially
erred in law, I would have confined the remedy to reduction .
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2023/2023_CSOH_13.html
