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

In a points-based immigration scheme, a rule excluding jobs in an establishment which provides a take-away service covers a restaurant offering both table service and take-away food. The decision-maker need not assess the proportion of take-away business.

Such an exclusion is not Wednesbury irrational merely because it is broad or may capture some establishments requiring highly skilled staff. The Secretary of State may use clear, readily verifiable criteria to prevent abuse and may give weight to administrative simplicity and practical enforcement. A later expert recommendation to remove the exclusion does not, without more, show that it was irrational when adopted or applied.

The appellant applied for leave to remain as a Tier 2 (General) Migrant on the basis of a chef’s job at an Indian restaurant. The Secretary of State refused the application because the restaurant offered a take-away service, which fell within the relevant exclusion in Appendix K to the Immigration Rules.

The Administrative Court dismissed the judicial review claim in [2017] EWHC 2917 (Admin). The appeal concerned whether the exclusion applied only to take-away restaurants or to any restaurant offering take-away food, and whether the exclusion was irrational or unreasonable.

The Court of Appeal unanimously dismissed the appeal. Newey LJ gave the judgment, with Peter Jackson LJ and Underhill LJ agreeing.

1. Construction. The wording of the exclusion was clear and unambiguous. An establishment offering both table service and take-away food naturally provides a take-away service. The wording did not require the establishment’s business to be wholly or mainly take-away, nor did it require an assessment of the proportion of take-away trade. The points-based system was intended to promote predictability, administrative simplicity and certainty at the expense of discretion, as recognised in Kaur v Secretary of State for the Home Department [2015] EWCA Civ 13, [2015] Imm AR 526.
2. Validity and intensity of review. Immigration Rules may be struck down for irrationality or unreasonableness in the Wednesbury sense. The court should nevertheless be slow to intervene where the rule was made by a Minister responsible to Parliament, particularly where it was laid before Parliament and subject to a process akin to negative resolution. The court applied the principles discussed in R v Immigration Appeal Tribunal, Ex p Manshoora Begum [1986] Imm AR 385, Kruse v Johnson [1898] 2 QB 91, and R (MM (Lebanon)) v Home Secretary [2017] UKSC 10, [2017] 1 WLR 771.
3. Application. The Secretary of State had a rational basis for treating take-away services as less associated with the most highly skilled chefs and as an indicator of establishments more commonly associated with abuse. The breadth of the exclusion, including its possible application to fine-dining establishments, did not establish irrationality. The Secretary of State was entitled to prefer a clear and readily verifiable criterion and to reject an exception which could not be defined objectively.
4. The Migration Advisory Committee’s later recommendation to remove the exclusion addressed the position in 2019. It did not demonstrate that the exclusion had been irrational when adopted in 2011 or applied in 2016. The appeal was dismissed.

Peter Jackson LJ added that a broad-brush condition which is almost universally applicable may warrant close scrutiny because it may not be universally applied, but stated that this was not an issue on the appeal.

1. Court of Appeal (Civil Division) dismissed the appeal on 22 October 2019, upholding the Administrative Court’s decision: [2019] EWCA Civ 1760.
2. High Court of Justice, Queen’s Bench Division, Administrative Court dismissed the judicial review claim: [2017] EWHC 2917 (Admin).