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

Immigration officials may require evidence to verify that an applicant satisfies an existing requirement in the Immigration Rules. A request for documents such as tax records does not create an additional substantive eligibility criterion where it serves only to test the asserted facts. The distinction between evidence and an impermissible new rule is context-sensitive. If the applicant fails to provide reasonably requested evidence, the Secretary of State may remain unsatisfied that the Rules are met and may be required to refuse the application. Legitimate expectation cannot arise merely because an earlier change of employer was approved without investigating an issue that was not then relevant.

The claimant, a construction engineer, sought indefinite leave to remain under paragraph 134 of the Immigration Rules on the basis of five years’ continuous lawful residence and work-permit employment. The Secretary of State requested P60s, a P45 or an HMRC letter to verify his employment history. The claimant did not provide the requested evidence before the application was refused under paragraph 135.

He sought judicial review, arguing that the evidential request imposed an unlawful additional requirement outside the Rules, contrary to R (Alvi) v Secretary of State for the Home Department, and that he had a legitimate expectation arising from an earlier change of employer.

1. The claim was dismissed. Paragraph 134 required the Secretary of State to be satisfied that the relevant requirements were met, including paragraph 128(iv). Paragraph 135 required refusal where that satisfaction was absent.
2. Paragraph 128(iv), although expressed in terms of intention on entry, required the applicant to have worked throughout the relevant period in accordance with the work permit.
3. The case was materially different from R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33. Alvi concerned the creation of a substantive requirement, through a list of skilled occupations, which should have been laid before Parliament. It did not prevent officials from checking whether asserted facts were genuine.
4. Following R (Global Vision College Ltd v Secretary of State for the Home Department [2014] EWCA Civ 659), officials were entitled to make a common-sense check of veracity. The request for P60s, a P45 or an HMRC letter was a request for evidence of employment history, not a new criterion. Whether a request is evidential or substantive is context-sensitive.
5. It was unnecessary to decide whether the position would differ if the Secretary of State had insisted that only those documents could suffice. In this case the claimant failed to provide the requested evidence, did not seek HMRC evidence in time, and took no other effective steps to establish his employment. The Secretary of State was therefore entitled to remain unsatisfied.
6. No legitimate expectation arose from the earlier approval of a change of employer. The claimant had received no representation that his past employment would not later be investigated when relevant. Nor did any general policy concerning skilled migrants permit the express requirements of paragraphs 134 and 135 to be disregarded.