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

A visitor’s remote self-employment may amount to prohibited employment in the UK where the activity involves accepting commissions, undertaking work and providing services while physically present here. The Immigration Rules require a fact-sensitive judgment. On judicial review, the court asks whether the immigration officer was entitled to reach the conclusion on the known facts and intervenes for irrationality or other unlawfulness. Where the activity falls clearly within the relevant employment and service provisions, no universal bright-line definition is required. A prior assurance cannot create a legitimate expectation unless based on full disclosure and expressed in clear, precise and unqualified terms. An assurance is inadequate where the visitor could not foresee what work would be undertaken.

The appellant, an Israeli graphic designer, visited the UK and worked remotely for clients. On returning from France, she admitted accepting commissions, undertaking work and receiving payment while in the UK. She was refused entry and removed. Her subsequent application for entry clearance was refused on the basis that she had breached the employment restriction attached to her leave.

Nicol J dismissed her judicial review claim in the High Court, Queen’s Bench Division, in [2014] EWHC 3749 (Admin). The appeal concerned whether the Immigration Rules had been misconstrued, whether the immigration officer’s factual approach was lawful, and whether an earlier assurance created a legitimate expectation. The central issue was whether the admitted activity fell within the visitor employment restrictions and whether refusal of entry was legally sustainable.

McFarlane LJ gave the leading judgment. McCombe LJ agreed with the result and reasoning on the facts, while the President of the Queen’s Bench Division also agreed.

1. Judicial-review approach. The court’s task was to determine whether the immigration officer was entitled to reach the conclusion formed on the facts known at the time. The proceedings were not an appeal on the facts. The decision was reviewable on Wednesbury principles and could be disturbed if irrational or otherwise unlawful.
2. Application of the visitor restrictions. The definition of employment in paragraph 6 of the Immigration Rules is wide and includes self-employment and engaging in business or professional activity. Accepting commissions from several clients, undertaking the work in the UK, submitting it and receiving payment plainly fell within that definition. The activity also amounted to providing services within the UK under paragraph 41(4). The location of some clients formed part of the overall factual matrix.
3. No bright-line definition required. Because the admitted activity was well within the relevant provisions, the judge was not required to formulate a comprehensive definition applicable to every possible factual scenario. The immigration officer was entitled to exercise judgment on the overall circumstances. The criminal offence under section 24(1) of the Immigration Act 1971 required a knowing breach, which did not make a bright-line definition necessary in this judicial-review case.
4. Legitimate expectation and disposal. The appellant’s concession that, on arrival, she could not foresee what work, if any, she would undertake was fatal to the legitimate-expectation argument. Grounds 2 and 3 had no real prospect of success. Permission to appeal on those grounds was refused, and the appeal on Ground 1 was dismissed.
5. Unresolved questions. McCombe LJ expressly declined to determine broader construction issues, including whether paragraph 6 applied strictly to employment in paragraph 41(3), given paragraph 41(4), and whether continuing foreign employment or self-employment constituted taking employment in the UK.

• Court of Appeal (Civil Division) dismissed the appeal on Ground 1 and refused permission on Grounds 2 and 3.
• High Court, Queen’s Bench Division Nicol J dismissed the judicial review claim on 9 October 2014: [2014] EWHC 3749 (Admin).