Foreign student wins legal challenge over Home Secretary’s ‘perverse’ decision to revoke leave to remain

A judge in the Court of Session ruled that the decision by the Home Secretary to issue a notice revoking Muhammad Usman’s leave to remain on the basis that he had worked more hours than he was entitled to was “perverse”.

Student visa

Lord Burns heard that the petitioner entered the UK on a student visa in October 2016 with leave to remain until August 2017 and that he studied at Glasgow Caledonian University.

The visa allowed him to work up to 10 hours per week, but following a raid by immigration officers on the restaurant where he worked as a part-time waiter he and others were questioned by officials.

The restaurant manager told the immigration officers that the petitioner worked approximately 25 to 30 hours a week, while another colleague told them he worked on Thursday, Friday, Saturday and Sunday, but the petitioner himself insisted that he had only worked there for two weeks for 10 hours only on Fridays and Saturdays.

The petitioner was detained and served with a notice curtailing with immediate effect his leave to remain and detained on the basis that he had used “deception” in seeking his visa, but the respondent withdrew the notice accepting that it was “erroneous”.

However, the respondent then issued a further decision on 10 May 2017 based upon the contention that the petitioner was in breach of Rule 322(3) of the Immigration Rules as he had failed to comply with the condition attached to the grant of leave to remain in respect of hours worked.

The ‘wrong Muhammad’

The court was told that it was a matter of agreement that, following the visit by the immigration officers to the restaurant on 25 November, the manager of the restaurant attended at the offices of the respondent in Glasgow on 28 November and was interviewed by a Home Office official.

He stated that the petitioner had worked at the restaurant for three weeks and worked Friday and Saturday five hours per day, therefore retracting his statement given three days earlier.

It was claimed that he had become “confused” as to which Muhammad he was being asked about, there being a number of workers with that name in his restaurant

As a result of the petitioner’s detention, his solicitors asked the Secretary of State, in letters dated 1 and 2 of December 2016, to reconsider their decision to detain him bringing to their attention the fact that the manager had apparently changed his position in terms of the interview he had given.

The Home Secretary responded by letters dated 7 and 14 December 2016, both of which referred to the claim by the petitioner’s solicitors that the manager had admitted that he was mistaken in informing immigration officers that the petitioner worked between 25 and 30 hours per week and that he had signed a statement to the effect that the petitioner had not worked in excess of his permitted 10 hours per week, but the decision to detain the petitioner was maintained.

Home Secretary acted ‘unreasonably’

Counsel for the petitioner Kenneth Forrest submitted that the respondent had erred in her approach to the decision of 10 May 2017, arguing that the decision was “perverse” as one based on error in fact as the Home Secretary had failed to acknowledge the subsequent explanations given by the manager.

In doing so she had acted “unreasonably” and in a way that no reasonable decision maker would have acted.

It was argued secondly that she has “failed to exercise a proper discretion” under the Immigration Rules.

Counsel for the respondent Graham Maciver maintained that the decision was “a reasonable one” and could not be classified as perverse.

The Home Secretary had regard to the evidence as set out in the letter of 7 December, including the evidence from the manager on 25 November that the petitioner worked more than his permitted 10 hours per week, which was supported by the evidence of Mr Aria.

It was submitted that in those circumstances the respondent was “entitled” to prefer that evidence to the subsequent retraction of the manager and the statement of a petitioner that he only worked for 10 hours per week.

‘Perverse decision’

However, the judge held that the decision complained of fell short of the requirements set out in the case of Wordie Property Company Limited v The Secretary of State for Scotland 1984 SLT 345, in which Lord President Emslie stated that the Secretary of State required to give “proper and adequate reasons” for the decision, leaving the informed reader in “no doubt” as to what were the “material considerations” taken into account in reaching it.

In a written opinion, Lord Burns said: “I have come to the view that the decision complained of falls short of the requirements set out by the Lord President in that case. There is no explanation given in the decision itself as to what evidence was taken account of, far less why part of that evidence was rejected and another part accepted. In circumstances where the manager had retracted his original statement, the petitioner is left with no explanation as to why it was that the second statement was rejected.”

He added: “I am therefore unable to conclude that the respondent’s decision of 10 May was a reasonable one based upon all material considerations that ought to have been taken into account. There is no indication in the papers advanced before me or in the submissions advanced on behalf of the respondent that the terms of the manager’s statement of the 28 November was ever properly taken into account.

“That circumstance, together with the lack of any reasoning in the decision to curtail of 10 May leads me to the conclusion that the Secretary of State’s decision can be categorised as perverse since it appears to have wholly ignored, and thus failed to deal with, the fact of the manager’s statement of 28 November. For these reasons I will reduce the decision of 10 May 2017.”