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

Immigration Rules excluding skilled-chef posts in establishments providing any take-away service were clear and unambiguous. The wording did not require the service to be the establishment’s sole or predominant business. Although the exclusion was broad and could produce harsh outcomes, it was rationally connected to the objective of identifying skilled chefs through a transparent, readily verifiable rule. The Secretary of State was entitled to prefer a bright-line criterion over fact-sensitive alternatives involving percentages, cuisine quality or the nature of the establishment. Courts should accord substantial weight to immigration-policy judgments informed by departmental expertise and advice from the Migration Advisory Committee.

The claimant, a Thai national, challenged the Secretary of State’s refusal of his application for leave to remain as a Tier 2 (General) Migrant. His sponsor operated a restaurant which primarily served customers on the premises but also provided take-away meals accounting for under 10% of turnover.

The refusal relied on Code 5434 of Appendix K to the Immigration Rules, which excluded a skilled-chef job in an establishment providing a take-away service. The claimant argued that the exclusion applied only where take-away service was the sole or predominant business, or alternatively that it was void for uncertainty and unreasonable. The Secretary of State also raised delay.

1. Construction. Code 5434 of Appendix K to the Immigration Rules HC395 clearly excluded a job in any establishment providing a take-away service. It was impermissible to read in a requirement that the service be provided solely or predominantly. The decision-maker did not have to assess the proportion of take-away business or whether the restaurant was primarily a take-away establishment (paras [36]-[40]).
2. Legal standard. Immigration Rules are the Secretary of State’s administrative practice, although they are laid before Parliament and are subject to limited democratic accountability. A challenge to such a rule lies under common-law rationality principles. The court must approach immigration-policy rules with caution, particularly where the Secretary of State has constitutional responsibility and access to specialist expertise. The relevant review was the less intensive Wednesbury standard, not a heightened human-rights justification test (paras [22]-[29], [42]-[46], [51], [63]).
3. Rationality. The exclusion was rational despite its breadth. Clear, accessible and easily verifiable criteria reduced discretion, inconsistency, abuse and administrative burden. The Secretary of State was entitled to limit access to the Shortage Occupation List and to rely on evidence that take-away establishments were generally less associated with the finest cuisine and with the level of skill targeted by Code 5434. The Migration Advisory Committee’s acceptance of the additional requirement was an important factor. The court could not second-guess those policy assessments by relying on general knowledge of the commercial take-away market (paras [47]-[65]).
4. The alternatives considered by the Secretary of State would have required subjective or difficult-to-verify assessments. Their rejection did not make the bright-line rule irrational merely because it could exclude some highly skilled chefs. The challenge under Kruse v Johnson [1898] 2 QB 01 therefore failed.
5. The claim was dismissed. The delay was justified and would not, in any event, have prevented relief (paras [66]-[68]).