Salim v Secretary of state for the home Department

In a judicial review concerning administrative removal for breach of a restriction on working hours, the defendant bears the burden of proving the relevant precedent fact. Firm and recent evidence may include an employer’s statement implicating the claimant and an admission made under caution. Evidence such as wage records may be rejected where there is a credible basis for concluding that working hours were concealed. Once the breach is proved, the removal decision is not undermined by the absence of separate enforcement against the employer or by the claimant’s explanation that excess hours were unpaid.

The claimant held a Tier 4 visa subject to a condition restricting work to 20 hours per week. Following an inspection of his workplace, the Secretary of State decided that he had exceeded that limit and made arrangements for removal under section 10 of the 1999 Act.

Permission to bring judicial review proceedings had been granted because the evidence initially appeared uncertain. Before the substantive hearing, further evidence was produced, including the employer’s account and the claimant’s interview under caution. The claimant was unrepresented and did not attend. The central issue was whether the defendant had proved that he worked more than 20 hours per week.

1. The claim was dismissed and certified as totally without merit.
2. The claimant’s absence did not prevent the court from proceeding. He had been informed of the hearing and could apply to relist it if proper grounds were shown.
3. The question whether the claimant had worked more than 20 hours per week was a precedent fact which the defendant had to prove. The defendant’s guidance required firm and recent evidence of a sufficiently serious breach, including an admission under caution or a statement by the employer implicating the claimant.
4. The employer’s evidence that the claimant worked 24 to 26 hours per week, sometimes more, was supported by evidence that rotas were used to mask working hours. The claimant accepted in interview that he worked those hours and, at least on some occasions, exceeded 20 hours. This amounted to an admission under caution or, alternatively, was supported by sufficient employer evidence.
5. The claimant’s P60s did not provide a reliable contrary record because the evidence indicated that the rotas concealed actual hours. Whether the claimant was paid for all hours worked did not affect compliance with the working-hours restriction. The absence of any fine against the restaurant was irrelevant to the hours worked.
6. The court found the claimant’s explanation wholly implausible and concluded that the defendant had proved the breach. The claimant was ordered to pay the defendant’s costs, summarily assessed at £480 for the acknowledgement of service and £350 for the hearing, plus VAT if appropriate, within 14 days. An interim injunction prohibiting removal was discharged.

Permission to apply for judicial review was granted by HHJ Raynor QC. The substantive claim was then heard and dismissed by the High Court (Administrative Court).