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

A non-statutory policy governing work permits must be applied with reasonable flexibility, but significant non-compliance may justify revocation. A policy requiring the authorities to work with an employer to restore compliance does not require further action where the employer has been given reasonable opportunities to provide evidence or regularise the position and nothing more could realistically be done. The court retains a broad discretion in judicial review to refuse relief, including where the claimant’s conduct is unsatisfactory or the claim has become academic.

The claimant sought judicial review of the Secretary of State’s decision to revoke an employee’s work permit. The employee was permitted to work as an IT lecturer at one institution, but a compliance visit found that the institution had ceased trading and that the employee was working part-time in a substantially different role for a different organisation and at a substantially lower rate of pay.

The claimant relied on published guidance stating that the authorities would work with an employer to bring employment back into line with the work permit arrangements where possible. The issues were whether that policy had been complied with and, alternatively, whether relief should be granted.

1. The claim for judicial review was dismissed. The Secretary of State had acted reasonably in revoking the work permit after giving the claimant ample opportunities to demonstrate compliance.
2. The published guidance was non-statutory and required reasonable flexibility. Its provision that the authorities would work with an employer to restore compliance applied only where that was possible. It did not require the Secretary of State to continue assisting where the named employer had ceased trading, the employee’s actual work materially differed from the permitted role, salary and hours, and the claimant had not supplied reliable supporting evidence.
3. The policy was intended to ensure compliance with work permit criteria and to protect the integrity of the arrangements. Significant non-compliance could properly lead to revocation.
4. Even if there had been a reviewable failure to comply with the policy, the court would have refused relief in the exercise of its broad judicial review discretion. Relevant considerations included the nature and importance of the flaw, the claimant’s conduct and the effect on administration. The claimant’s conduct was unsatisfactory, and the matter had become academic because the employee had obtained permission to work and remain for a different employer.
5. A claimant alleging financial loss in judicial review should provide, at minimum, a definitive schedule of loss. Costs were to be assessed if not agreed.

Not stated in the judgment.