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

In a non-statutory work permit scheme, a review of an initial refusal may reconsider the application in full and introduce additional grounds of refusal. The decision-maker must take account of all material considerations at the date of the review and act fairly. A new ground must be clearly identified, and the applicant must have a sufficient opportunity to respond. Published guidance may regulate the procedure but does not itself determine the existence of the review power. A policy imposing a time limit for transferring employment may be lawful and may allow exceptions in appropriate cases. A decision will not be quashed for an inadequately expressed consideration of an exception where the material advanced could not realistically have affected the outcome.

The claimant sought judicial review of three decisions refusing approval of a transfer of his work permit to a new employer. The initial refusal relied on the skills and qualifications criteria and treated the proposed employment as insufficiently similar to his previous post. On review, the latter ground was abandoned, but the Secretary of State introduced a further ground based on the requirement that a change-of-employment application be made within 28 days of leaving the previous employment.

The claimant challenged the power to introduce a new ground during review, the application of the 28-day policy and the alleged failure to follow internal guidance by seeking further information about salary and job requirements.

1. The claim was dismissed. The Secretary of State had power, within the non-statutory review process, to reconsider the merits of the application generally and to rely on additional grounds, whether or not the supporting material existed when the initial decision was made.
2. The initial decision did not conclude the decision-making process. A full review was administratively appropriate because the scheme’s criteria were interrelated and an applicant needed a means of correcting errors in the initial decision. The review had to take account of all material considerations and disregard immaterial ones. The decision-maker could abandon earlier grounds as well as add new grounds. This reasoning was supported by the approach adopted in Commissioners of Customs & Excise v Alzitrans SL [2003] EWHC 75 (Ch).
3. The review power was subject to fairness. A new ground raised on review had to be clearly identified and the applicant had to have an adequate opportunity to answer it. A new ground first raised at a later review might require prior notice and a further opportunity to respond. The ground based on the 28-day rule had been sufficiently identified, and the claimant had responded to it.
4. The 28-day policy was not challenged as unlawful. The internal guidance showed that it could be applied flexibly and that exceptional waivers could be considered. Although the decision letters did not make clear whether waiver had been considered, the material advanced in support of an exception was brief and unsupported and could not realistically have produced a different decision. The challenge therefore failed.
5. The officers had adequately explained their concerns about salary and the employer’s job requirements and had given the claimant an opportunity to provide further information. There was no legal error in their failure to take further investigative initiative.
6. The claimant was ordered to pay the defendant’s costs. Permission to appeal was refused because there was no realistic prospect of success and no issue of general public importance requiring consideration by the Court of Appeal.