Case No: CO/4205/2008

Neutral Citation Number: [2009] EWHC 2194 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham 
B4 6DS

Date: Monday, 15th June 2009

Before:

HIS HONOUR JUDGE McKENNA
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Between:

	RAZAK	
Claimant	
	- and -		
	
SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Defendant	

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(DAR Transcript of 
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Mr R de Mello of counsel appeared on behalf of the Claimant.
Ms L Bush and Ms D Tate of counsel appeared on behalf of the Defendant.
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Judgment
His Honour Judge McKenna:

1.	This is a claim for judicial review brought by Muhammed Abdul Razak against the Secretary of State for the Home Department’s decision of 7 February 2008 refusing an application made by the Falcon Group UK Fuel Services and Garage, the claimant’s previous and potential future employers, for a work permit.

2.	Permission was granted at the paper application stage by a Deputy High Court Judge, Mr Timothy Corner QC, who observed when giving permission that it was arguable that the defendant’s decision of 7 February 2008 did not deal adequately with the materials submitted by the claimant since the defendant’s review letter of December 2007.  No doubt prompted by that indication, the Secretary of State by letter dated 8 April 2009 reviewed the position but came to the same decision, that is to say, she refused the application.  The letter of 8 April 2009 is at pages 19 and following in the bundle.

3.	The background to this application is that the claimant is a citizen of Sri Lanka who arrived and claimed asylum which was refused in July 1999.  He was however granted temporary permission and permission to work and began working for the Falcon Group as an assistant manager, I think from December 2001 until May 2006.  In May 2007 the Falcon Group made a work permit application to employ the claimant in the post of network operations manager.  The application was refused, the defendant’s assessment being that the claimant lacked the relevant experience to undertake the job, his salary was low and the Secretary of State had been provided with insufficient evidence relating to the employer.  A review was requested but the decision to refuse was maintained on review.

4.	In October 2007 a second work permit application was made seeking to allow the claimant to work for them as a fuel station manager at a higher salary.  That application was refused in November 2007.  A request was made to reconsider the decision and the Secretary of State responded again at the end of December 2007 refusing once again.  

5.	Thereafter in January 2008 two documents which have been referred to as expert reports were submitted to the Secretary of State.  The first and more substantive document is a report from a Mr Muhammed Faisal Ishfaq (that document is pages 18 and following in the bundle) the second is a letter from a firm of chartered accountants, signed by a Mr Khan dated 25 January 2008.  Mr Ishfaq subsequently on 8 June of this year has produced a further document, which is at pages 113 and following in the bundle, which sets out his qualifications and unlike the first report  is CPR-compliant.

6.	For the sake of completeness I record that the Secretary of State wrote again on 7 February 2008.  Again, having reviewed the material she refused the application.  Thereafter these judicial proceedings were issued and subsequently the 8 April 2009 further decision letter issued.

7.	I have been referred during the course of argument to a number of documents in the bundle.  These include the original advert for the fuel stations manager which appears at page 54 of the bundle, relevant extracts from the work permits guidance for employers document which begins at page 81, and in particular  the paragraphs to which I have been referred, being 12, 15 and 16 which appear at page 85 and 47, 48 and 55-57, which appear at pages 124-125 inclusive in the bundle.  In particular paragraph 47 provides that an employer will need to show why he or she cannot fill the post with a resident worker.  In most cases the employer will need to give details of recruitment methods and  give reasons why they did not employ a suitably qualified or experienced resident worker or one who with extra training could do the job, and then the recruitment methods  used including advertising should be appropriate to the job and represent a genuine attempt to employ suitably qualified or experienced people.

8.	It is submitted on behalf of the claimant that in accordance with the decision in Humphries & Ors v Secretary of State for Work and Pensions [2008] EWHC 1585, paragraphs 69-73, and in particular in paragraph 73, that it is for the court to decide how the scheme should be interpreted having regard to its purpose and scope, and it is not, for example, a matter for the Secretary of State to construe correct policy and apply it, and it is said that in this case the Secretary of State failed to follow her own policy and that her decision can properly be characterised as irrational and unreasonable.  

9.	There is also a submission, I think, in respect of the earlier decisions that inadequate reasons were put forward. 

10.	Much was made of the contents particularly of Mr Ishfaq’s report in seeking to rebut as it were the reasoning put forward by the Secretary of State in her April 2009 letter. 

11.	To my mind the April 2009 letter gives a full and detailed reasoning for the Secretary of State’s refusal.  Insofar, therefore, as the claimant still relies on a reasons challenge, if I can so describe it, to my mind there is no merit in that allegation, at least following the April 2009 decision.  

12.	In truth this claim turns on whether the Secretary of State acted irrationally in refusing the application, on the twofold basis primarily that the claimant lacked the necessary level of skills and experience on the one hand, and secondly on the basis that the employer had failed to demonstrate that the post could not have been filled by a resident worker.  

13.	It is of course perfectly reasonable that the claimant should disagree with the reasoning of the Secretary of State on these two issues, but to my mind on both grounds there was material upon which the Secretary of State could properly come to the conclusion that she did and that plainly she did not act irrationally in reaching the conclusions that she did.  They were conclusions which were open to her on the evidence which was submitted and in the exercise of her discretion. 

14.	It follows in my judgment that this application fails and I will dismiss it.

JUDGE McKENNA: Ms Bush, is there anything else?

MS BUSH: Yes, my Lord.  Thank you for that and I would make an application to the Secretary of State’s costs to be assessed if not agreed.

JUDGE McKENNA: Mr de Mello?

MR DE MELLO: Yeah.

JUDGE McKENNA: Okay.  The claimant to pay the defendant’s costs of the application, on the standard basis, detailed assessment if not agreed.  Mr de Mello, are you publicly funded?

MR DE MELLO: We were, but that was withdrawn.

JUDGE McKENNA: So you don’t seek any costs order yourself?

MR DE MELLO: Only until such time as it was withdrawn .

JUDGE McKENNA: Very well.

MR DE MELLO: Thank you.

JUDGE McKENNA: Thank you both very much.

MS BUSH: Thank you very much my Lord.