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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Onotota, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 797 (Admin) (04 April 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/797.html Cite as: [2007] EWHC 797 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		4 April 2007

The Honourable Mr Justice Silber :

I. Introduction

1. Uforma Constance Onotota, the claimant , who is a Nigerian national, challenges decisions of the Entry Clearance Officer in Lagos dated 29 August 2006 and 4 September 2006 to refuse to issue her with entry clearance until a new immigration document in the form of a work permit was received. The claimant also seeks damages by way of compensation for lost earnings. These claims are resisted and Charles J gave the claimant permission to apply for judicial review
2. This application for judicial review raises the issue of what constitutes "a valid work permit" for the purpose of paragraph 128 of the Immigration Rules ("the Rules") which provides in so far as is relevant to this application that:

"The requirements to be met by a person coming to the United Kingdom to seek or take employment…are that he: (a) holds a valid [Home Office] work permit…"

3. The claimant contends through her half-brother and her Mackenzie friend Mr. Ikie that a letter dated 22 June 2005 ("the June 2005 letter") constitutes such a work permit. Mr. Jeremy Johnson counsel for the defendant disputes that contention and he further submits that even if he is wrong and if the June 2005 letter was a work permit, it had only a life of six months with the result that it had expired before the claimant sought to rely on it in August 2006. In order to resolve this issue it is necessary to explain how this dispute arose

II. Factual Background.

4. The claimant is a Nigerian national, who on 9 December 2003 was refused entry clearance to visit the United Kingdom. In her application for entry clearance, she had said that she was going to visit her brother and that she was going to look for a nursing adaptation course. An appeal against the refusal was allowed. On 9 June 2004, she was given leave to enter the United Kingdom as a visitor for a period of 6 months.
5. Whilst in the United Kingdom, the claimant undertook a nursing adaptation course. By the June 2005 letter, an in-country "application by the claimant for an immigration employment document" was granted for a period of 60 months and I will have to return to consider the terms of this document. However, it was stated in the June 2005 letter that the claimant would have to "obtain leave to remain in order to take up this employment" and that she "should make this application for leave to remain in the United Kingdom as soon as possible, and in all cases within six months from the date of this letter". The claimant applied for leave to remain but this was refused on 6 July 2005 [21-24] on the basis that she did not have leave to enter at the time of her application for leave to remain with the consequence that entry clearance was required. The claimant returned to Nigeria on 6August 2005 and on 16 August 2005, she applied for entry clearance as a work permit holder [25-29]. This application was refused on 27 September 2005 . The reasons given for that decision were that:

"As you have travelled to the UK as a visitor on your previously issued visa, for a period between 9 June 2004 and 6 August 2005 (despite it being a 6 month visa), I am satisfied that your visa restrictions did not permit you to study in the UK for a nursing adaptation programme. I note that when you applied for the entry clearance you did not declare such intentions to the entry clearance officer. As such you did not qualify to follow such a course under the immigration rules and I am satisfied that you could therefore not have pursued a nursing adaptation programme in the UK without breaching the conditions of your visit visa.

I am therefore not satisfied that you are able or intend to undertake employment as specified in the work permit. Due to the long period you spent away from Nigeria, and the lack of supporting evidence you have presented, I am not satisfied that your employment status here is as you have claimed on your visa application form. I am thus not satisfied that you will be able to maintain and accommodate yourself in the UK without having recourse to public funds".

6. The claimant appealed against the refusal of leave to enter the UK. By a determination promulgated on 6 April 2006 , an Immigration Judge allowed the claimant's appeal. He pointed out that although the visa did not permit her to attend a nursing adaptation course, the Entry Clearance Officer was aware that one of the objects of her visit was that she would be looking for a nursing adaptation course. He therefore found that the application was in accordance with rule 128 of the Rules and that it ought to have been granted. I should add the claim form of the claimant seeks to challenge the decision of 27 September 2005; that decision has been quashed by the Immigration Judge and so it does not constitute an obstacle to the claimant obtaining employment but in any event, it has been overtaken by the two decisions which are being challenged on the present application and to which I now turn.
7. The claimant then applied for entry clearance from Nigeria but by a decision dated 29 August 2006, which is one of the decisions under challenge in the present application, the defendant refused to give entry clearance to the claimant. The reasons given by the Visa Section in the High Commission in Lagos were that:

"Unfortunately, although we are now prepared to issue a visa to your client, we cannot do so without seeing a new Work Permit issued from Work Permits UK. This is because when your client gets to the United Kingdom, she will be expected to present the Work Permit to the Immigration Officer at port. If this Work Permit is more than three months old, the Immigration Officer may decide to make further enquires. Therefore, we are requesting this document in order to minimise disruption to your client and her family on arrival in the United Kingdom".

8. Initially the claimant was informed that she needed to provide a reprint of the immigration employment document as the June 2005 letter had only been valid for six months from its date of issue, which was 22 June 2005. However, it was subsequently determined that the document which had been issued to the claimant was not a work permit valid for entry clearance to the UK under rule 128 of the Immigration Rules: it had only been valid for the purpose of an in-country application for leave to remain for employment purposes, and was therefore was not what the claimant needed which was a "valid work permit" issued for an out-of-country applicant, which is what the claimant had become when she returned to Nigeria. Entry clearance and a visa was therefore refused on 4 September 2006 by the Entry Clearance Officer on the grounds that "before we can issue the visas to [the claimant] we do need to see a new work permit that allows us to issue visas and therefore gives [the claimant] and her family leave to enter". That is the second decision challenged on this application.

III. The Issues.

9. The issues which have to be resolved on this application are:


A. whether the June 2005 letter constitutes a valid work permit within the meaning of paragraph 128 of the Rules; and

B. if so, whether it had a limited life of 6 months as contended for by the defendant.

10. It is appropriate at this stage to record two claims which are not being pursued by the claimant. First, Mr. Ikie had originally contended that as the Immigration Judge had determined that the claimant had a work permit and as that decision had not been appealed, I was bound by that decision. During the course of oral submissions, Mr. Ikie accepted that I would have to decide if the claimant had a valid work permit as a matter of law. In my view that was a proper concession first because the issue before the Immigration Judge related to an earlier refusal and second as I have heard more detailed submissions, I should be able to make my own decision. The second claim, which correctly has not been pursued, is that some form of estoppel arose because of the conduct of the Secretary of State, which somehow invalidated the decisions under challenge.

IV. Was the June 2005 letter a valid work permit within the meaning of paragraph 128 of the Rules?

11. Mr. Ikie contends that this letter is such a valid work permit but Mr. Johnson says that it is not so and that it does not satisfy the requirements of paragraph 128.
12. It is common ground between the parties that a person in the claimant's position, who does not have the right to remain in the United Kingdom, has to obtain consent to work here. Mr Johnson points out there are two separate regimes in force for such people. The first regime applies to those who make applications outside the United Kingdom while the second is only appropriate for those who apply within the United Kingdom. It is an important difference as the documents required in the case of each of these categories are different. Thus the person applying from outside the United Kingdom needs also to comply with requirements which for entry into the United Kingdom which means that he or she in the words of paragraph 128 of the rules "holds a valid United Kingdom entry clearance for entry" for someone seeking or taking work subject to certain exceptions with which this case is not concerned. This requirement does not apply to the person applying within the United Kingdom for permission to take work which is dealt with in paragraph 131 of the Rules.
13. I agree with Mr. Johnson's important submission that the documentation required for these two groups is different because those applying outside the United Kingdom need (as I have explained in paragraph 1 above) "a valid work permit" while those applying within the United Kingdom and who are given leave to remain as students, student nurses, working holiday makers or other categories require "a valid Home Office Immigration Employment document for employment". That category is wider than a work permit because in the definition section of the rules paragraph 6, it is stated that:

"Immigration Employment document means a work permit or any other document where it relates to employment and is issued for the purpose of these Rules or in connection with leave to enter or remain in the United Kingdom".

14. I also agree with Mr Johnson that the June 2005 document contains "an Immigration Employment document" and not a specific "work permit" of the kind referred to in paragraph 128 of the rules as being required for an application by a person who is outside the United Kingdom . Indeed that is what would have been expected because at the time of her application which led to her being given the June 2005 document, the claimant was in the United Kingdom. But, as I have explained when the claimant sought the entry clearance which is under review in this case, she was back in Nigeria and so would have required a work permit.
15. The June 2005 document is clearly not a work permit and it is addressed to the prospective employer of the claimant and it is headed "Application for an Immigration Employment document". In the first paragraph of this document, it is stated that it acknowledges the application for such a document in relation to the claimant who is currently in the United Kingdom and it states that she has to obtain leave to remain in order to take up this employment.
16. In my view, what was being given in the June 2005 document was an Immigration Employment document and not a specific work permit and that means that the claimant did not receive what she required for her out-of-country application for permission to work in the United Kingdom. Thus the defendant was entitled to hold that the claimant did not have a valid work permit.
17. I am fortified in coming to that conclusion by having been shown what an actual work permit looks like and which is given to somebody who applies outside the United Kingdom. A copy of it which is at page 35 of the bundle states clearly that it is "a work permit" and this critical if not crucial wording does not appear in the June 2005 document. Thus it follows that the Secretary of State was right in concluding that as was stated in the rejection of 29 August 2006 the claimant could not be given an entry permit.

V If the June 2005 letter constituted a valid work permit did it have a limited life of 6 months as contended for by the defendant?

18. As I have found that the June 2005 document is not a work permit this issue does not arise but it would be worthwhile stating that much could be done to make it much clearer so as to explain the effect of an Immigration Employment document. I am told that the present form of those documents is very much in the same form as the June 2005 document.
19. Regrettably that document talks about the application being approved "for sixty months" and then states on the following the claimant "should make this application for leave to remain as soon as possible and in all cases within six months of the date to this letter". Mr Johnson contends that the life of these documents is only six months. If that is the case that point should be stated clearly and in a prominent position on such documents. It would also be prudent for any work permit or ant immigration employment document to state clearly and prominently first whether it can be used for an in-country or for an out-of country application, second what other permission is required before the person concerned can start working and third the life of the particular document

VI. Conclusion

20. The challenge to the decision of the defendant fails as the claimant did not have a valid work permit and so no error of public law was made. At the end of the hearing, it was agreed that the successful party whether the claimant or the defendant would not seek costs. When I circulated a draft of this judgment, I asked if the claimant and the defendant should through their representatives inform me if they did not agree with my proposed order which was that:

1. The application is dismissed; and

2. There be no order for costs

21. Mr. Ikie and Mr. Johnson both expressed their agreement with this proposed order and I will make that order.