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

In assessing eligibility under the Highly Skilled Migrant Programme, the Secretary of State was entitled to evaluate independently whether claimed experience was genuinely at senior or specialist level. An employer’s description of a post as senior or specialist was not conclusive. The applicant bore the burden of providing evidence addressing the published criteria.

It was not irrational to assess a governmental organisation by analogy with a company, or to treat an organisation with about 50 employees as equivalent to a small company. Nor was it irrational to conclude that an applicant who was not at board level, had several superiors and lacked evidence of budgetary or independent decision-making responsibility did not satisfy the senior-work criterion. Inconsistent reasoning during reviews did not, on the evidence, establish a closed mind or procedural unfairness.

The claimant applied from Pakistan for approval under the Highly Skilled Migrant Programme. He claimed 75 points, including 50 points for at least 10 years’ graduate-level work experience with at least five years in a senior or specialist role.

The Secretary of State accepted 15 points for academic qualifications and 25 points for graduate-level work experience, but refused the claimed senior-level points. Following several reviews, the final decision maintained the refusal and awarded 40 points. The claimant sought judicial review on grounds of substantive irrationality and procedural unfairness.

The central issues were whether the decision that the claimant’s work was not senior or specialist was irrational, and whether the changing reasoning during the review process showed that the application had been approached with a closed mind.

1. Rationality. The claim failed because the conclusion that the claimant did not satisfy the senior-level work criterion in paragraph 8.2.2 of the guidance was one which the Secretary of State could reasonably reach. The question was whether the decision was one which no reasonable Secretary of State could have taken on the information before him.
2. The assessment of senior or specialist work was for the Secretary of State. The decision-maker was not required to accept the applicant’s assertion, or an employer’s description, that a post was senior or specialist. The applicant had to provide evidence addressing the relevant guidance criteria.
3. It was rational to assess the Pakistan Council of Science and Technology by analogy with a company and, on the evidence that it had about 50 employees, to treat it as equivalent to a small company. The claimant had not established that the Ministry of Science and Technology should instead be treated as the relevant large organisation, or that the computer centre was a relevant departmental unit of that organisation.
4. The claimant was not at board level, had several people senior to him and there was no evidence that he controlled a budget or made key decisions without clearance. The conclusion that his duties did not demonstrate senior-level work was therefore rational. The court also stated, alternatively, that the same conclusion would not have been irrational even if the Ministry were treated as a large organisation.
5. Fairness. The changing explanations, including some questionable or imprecise reasoning, did not establish that officials approached the reviews with a closed mind. The contemporaneous notes indicated independent consideration at each stage. The fairness challenge therefore also failed, and in any event would not have justified quashing a decision that was substantively open to the Secretary of State.
6. The claim for judicial review was dismissed. The claimant was ordered to pay 85 per cent of the defendant’s costs up to 20 March 2009 and the defendant’s costs from 23 March 2009, subject to detailed assessment if not agreed.

This was a first-instance judicial review. Permission was granted by Charles J on 1 August 2008 after the grounds were amended and narrowed. The claim was dismissed by the Administrative Court.