Bajracharya, R (On the Application Of) v Secretary of State for the Home Department

Whether an immigration-rule condition is satisfied is ordinarily for the Secretary of State where the decision falls within the statutory power to grant or refuse leave. Judicial review therefore applies Wednesbury principles rather than a precedent-fact inquiry.

At the permission stage, the applicant must show a realistic prospect of establishing that the decision was unlawful. Under Appendix K, the relevant date was when the Certificate of Sponsorship was assigned. A reasonable evidential basis for finding that the employer provided a take-away service was sufficient to defeat the appeal. The employer’s later loss of its sponsor licence also made the proposed relief academic.

Mr Bajracharya, a Nepalese national, applied for leave to remain as a Tier 2 (General) worker, supported by a Certificate of Sponsorship for employment as a sous chef. The Secretary of State refused the application because the proposed employer was said to provide a take-away service and the job therefore did not qualify as a shortage occupation.

Administrative review maintained the refusal, relying in particular on an online review describing a take-away. The Upper Tribunal refused permission to apply for judicial review and certified the claim as totally without merit. Permission to appeal was later granted on the issue whether the Tier 2 requirements were met. The central questions were whether the take-away issue was one of precedent fact or Wednesbury review, whether the Secretary of State’s conclusion was reasonable, and whether the appeal had become academic after revocation of the employer’s sponsor licence.

Decision

1. The appeal was dismissed. Mr Bajracharya had no realistic prospect of successfully impugning the Secretary of State’s refusal.
2. The Court followed the approach in R (Giri) v Secretary of State for the Home Department, [2015] EWCA Civ 784, [2016] 1 WLR 4418. The question whether a condition in the Immigration Rules was satisfied was for the Secretary of State and her officials. It was not a precedent fact for the court to determine afresh. Judicial review was therefore governed by Wednesbury principles. The fact that this case concerned the Points Based System did not create a material distinction.
3. The Secretary of State had a reasonable basis for finding that the restaurant provided a take-away service. The original decision relied on the restaurant’s presence on Just Eat and hungryhouse. On administrative review, the alleged confirmations from the restaurant and those websites were unsupported by documents, while the TripAdvisor material appeared to corroborate the original conclusion.
4. The evidence supplied later would not have altered the position. The restaurant’s letter said that the service ceased after 12 August 2015; the hungryhouse letter referred only to the last successfully processed order on 11 August; the Just Eat email referred to customers being unable to order since 12 August; and the screenshots appeared to show only a temporary removal from the service by 17 August. Under paragraph 78A of Appendix A to the Rules, the date on which the Certificate of Sponsorship was assigned was crucial.
5. In any event, the appeal was academic. The employer had subsequently lost its sponsor licence, so there could be no question of requiring the Secretary of State to grant leave on the basis of a status the employer no longer held.

Lord Justice Henderson agreed with Lord Justice Newey’s judgment.

1. Court of Appeal (Civil Division): Permission to appeal was granted on the limited Tier 2 issue. On 22 February 2018, the court dismissed the appeal: [2018] EWCA Civ 277.
2. Upper Tribunal (Asylum and Immigration Chamber): Upper Tribunal Judge Coker refused the application for judicial review on 16 February 2016, certified it as totally without merit, and later refused permission to appeal.