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

For an applicant outside the United Kingdom, paragraph 128 of the Immigration Rules requires a specific valid work permit, together with the other applicable entry requirements. An in-country Immigration Employment document is a wider category and does not necessarily satisfy that requirement. The document must be assessed according to the regime applicable when the application is made, rather than the regime applicable when the document was issued. Where the document is not a valid work permit for an out-of-country application, refusal of entry clearance involves no public law error.

The claimant, a Nigerian national, sought judicial review of decisions refusing entry clearance unless she produced a new work permit. She relied on a June 2005 document issued after an in-country application for an Immigration Employment document. Her application for leave to remain had been refused, and she had returned to Nigeria before seeking entry clearance as a work permit holder.

An earlier refusal had been quashed on appeal by an Immigration Judge. The central issues were whether the June 2005 document was a valid work permit under paragraph 128 of the Immigration Rules and, if so, whether it had expired after six months.

1. The application was dismissed. There was no public law error in refusing entry clearance, and there was no order as to costs.
2. The Immigration Rules establish distinct regimes for applicants seeking permission to work from outside the United Kingdom and those applying from within it. An out-of-country applicant must hold a valid work permit and satisfy the applicable entry-clearance requirements. An in-country applicant may instead require a valid Home Office Immigration Employment document under paragraph 131.
3. Paragraph 6 defines an Immigration Employment document as including a work permit and other employment-related documents issued for the purposes of the Rules or in connection with leave to enter or remain. That wider definition does not make every Immigration Employment document a specific work permit for paragraph 128.
4. The June 2005 document was issued following an in-country application. It acknowledged an application for an Immigration Employment document, stated that the claimant needed leave to remain before taking employment, and did not describe itself as a work permit. When the claimant later applied from Nigeria, she required the different document applicable to an out-of-country applicant. The Secretary of State was therefore entitled to conclude that she did not hold a valid work permit.
5. The alternative issue concerning whether the document lasted only six months did not arise. The judge nevertheless observed that such documents should state prominently whether they are for in-country or out-of-country use, what further permission is required before employment begins, and their period of validity.

The claimant was granted permission to apply for judicial review by Charles J. An earlier refusal of entry clearance had been quashed by an Immigration Judge, whose determination was promulgated on 6 April 2006. The present application challenged later decisions dated 29 August and 4 September 2006.