Elisangela Batista Dias, R (on the application of) v The Secretary of State for the Home Department

Under the Immigration Rules, a visitor who comes to the UK to care for an employer is intending to work by providing services, even where the employer continues to pay the visitor’s ordinary salary abroad. The location of payment and whether the work falls within an existing foreign employment contract do not alter that conclusion.

Where the claimant has no arguable entitlement to leave to enter, the court may decline relief concerning a policy governing the timing of removal. It may also decline to decide a wider policy challenge where the issue is unpleaded, the case has little practical significance, the facts are unclear, and no serious injustice is apparent. A written-notice requirement is not inherently irrational, although it need not be applied rigidly in every case.

The appellant, a Brazilian national employed as a housekeeper in Brazil, travelled to the UK to care for her employer while he recovered from surgery. Immigration officials refused her leave to enter on the basis that she intended to work without the required permission.

Her judicial review challenge contested both the refusal of entry and the Secretary of State’s policy of deferring removal after a written threat of judicial review. The High Court dismissed an urgent interim application and refused permission to apply for judicial review, both on the papers and on renewal. The appeal concerned the rationality of the refusal, the effect of oral and written communications about threatened judicial review, and whether removal could have been prevented.

The Court of Appeal unanimously dismissed the appeal on grounds 1, 2 and 5.

1. Refusal of leave to enter. The appellant’s own witness statement established that she intended to come to the UK to look after her employer during his recovery. That activity was work because it involved providing services. It was not a permitted visitor activity under Appendix 5 to the Immigration Rules.
2. The fact that the appellant continued to receive her ordinary salary in Brazil did not alter the analysis. During the relevant period she would perform no duties in Brazil. The only realistic conclusion was that the salary was being paid in respect of the work performed in London. It was immaterial whether that arrangement constituted a variation of the Brazilian employment contract or an arrangement outside it. The immigration officer’s decision was rational and, on the evidence, inevitable.
3. Removal-deferral policy. Since the appellant had no arguable entitlement to leave to enter and was liable to removal, the court was entitled to decline relief concerning the alleged failure to defer removal. It was therefore unnecessary to determine whether the oral notification, the later written notification, or the time available before departure satisfied the policy.
4. The court also considered that the issue was not clearly identified in the pleadings, the practical stakes were limited, the facts were not straightforward, and no serious injustice was apparent. Those circumstances made the case unsuitable for deciding a general point of principle.
5. Obiter, the court observed that a general policy requiring a written threat of judicial review before deferring removal was not obviously irrational. A degree of formality could be appropriate, although the Secretary of State need not insist rigidly on written notice in every case.

1. Court of Appeal (Civil Division): in [2023] EWCA Civ 913, dismissed the appeal on grounds 1, 2 and 5.
2. High Court, King’s Bench Administrative Court (Asylum and Immigration): Mostyn J dismissed an urgent interim application. HH Judge Dight, sitting as a High Court Judge, refused permission to apply for judicial review on the papers on 12 July 2022. On 8 September 2022, Deputy Chamber President Tudur, sitting as a High Court Judge, refused permission on oral renewal.