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

Immigration Rules excluding jobs in establishments providing any take-away service were clear and unambiguous. The exclusion applied whether take-away business was substantial or merely incidental.

Although the rule was broad and could exclude skilled chefs from high-quality restaurants, the Secretary of State was entitled to adopt a bright-line rule promoting transparency, consistency, ease of verification and prevention of abuse. In immigration policy, the court applies a less intensive rationality review unless fundamental rights are engaged. The rule was rational and lawful.

The claimant challenged refusal of his Tier 2 (General) application. His proposed sponsor was a restaurant offering both on-premises dining and a take-away service. The Secretary of State considered that Code 5434 of Appendix K to the Immigration Rules excluded the job because the establishment provided take-away service.

The claimant argued that the exclusion applied only to establishments whose business was solely or predominantly take-away. Alternatively, he argued that the exclusion was unreasonable, interfered with contractual freedom, and infringed rights under Article 1 of the First Protocol to the ECHR. The issues were the proper construction and legality of the exclusion.

1. Construction. Code 5434 of Appendix K was clear. The phrase excluding an establishment which provides a take-away service applied to any such establishment. The decision-maker was not required to assess the proportion of take-away business or whether the service was incidental. A more qualified test would have required express wording and guidance on its application.
2. Standard of review. The claimant had no right, under common law or EU law, to enter the United Kingdom in order to make a contract. The asserted contractual interests did not require a heightened standard of review. Nor did the claimant have a relevant possession for Article 1 of the First Protocol, and he lacked standing to complain of interference with the prospective employer’s interests.
3. Rationality. In immigration control, the court applies a less intensive Wednesbury review, having regard to the Secretary of State’s constitutional responsibility, expertise and political accountability. The Secretary of State nevertheless had to show a rational connection between the exclusion and the objective of identifying appropriately skilled chefs.
4. The evidence showed that the exclusion was intended to provide an objective and readily verifiable indicator of the quality of cuisine, reduce abuse, and avoid subjective or unworkable assessments based on turnover or the character of the establishment. The Migration Advisory Committee understood and endorsed the approach. The breadth of the rule and the possibility of harsh outcomes did not make it irrational.
5. The bright-line rule was therefore lawful. The contractual freedom, Article 1 of the First Protocol and reasonableness challenges failed. The claim was dismissed.