Home Secretary ‘entitled’ to revoke Nigerian entrepreneur’s visa over ‘work for another business’

Aberdeen-based businessman Oko O-Ono had set up his own engineering consultancy company offering services to the oil and gas sector, but also worked as a security guard to “promote his business”.

He sought judicial review of the decision of the Secretary of State for the Home Department to curtail his leave to remain over his “failure to comply with a condition attached to the grant of leave to enter or remain”, but a judge in the Court of Session ruled that the security work was not “within the scope of his permission”.

Lord Summers heard that the petitioner, a Nigerian national and qualified engineer, had obtained a BSc in Geology and Mining and an MSc in Petroleum Engineering in the UK and applied for permission to remain.

He was granted leave until 6 January 2018 under the provisions made for entrepreneurs who wish to establish businesses in the UK, in a letter dated 6 January 2015, which stated that the petitioner was not permitted to “undertake employment other than working for the business(es) you are establishing, joining or taking over”, following the wording of the Tier 1 (Entrepreneur) Policy Guidance.

The petitioner established a company called “Omega Geoservices and Consultancy Ltd” and through the company offered his services to the oil and gas sector.

The company operated from 6 January 2015 to the termination of his permission to remain on 10 September 2015 when he was detained, but during that period only one contract was agreed and only two invoices for services rendered – amounting to £5,672 – although it was accepted that but for the petitioner’s detention this work was likely to have continued.

The prospect of his company continuing to trade ended on 10 September 2015 when he was detained after immigration officials visited his home and documents from a company called Search Recruitment, which showed that the petitioner had worked as a security guard.

There were also pay advice slips in the petitioner’s name from Search Consultancy and a contract of employment with Aberdeen Alarm Company Ltd, which according to the respondent showed that he had breached a condition of his leave to remain and was liable to removal.

The petitioner argued that since the Home Office Guidance permitted him to commence and run other businesses he was “at liberty” to work as a security guard.

It was argued that in reaching the decision to terminate the petitioner’s leave to remain, information had been left out of account which showed that he was not an employee and that he had sought to provide his services as an “independent contractor” trading under a trading name “Prime Enterprises”.

The petitioner argued his work as a “self-employed” person for Aberdeen Alarm Company Ltd was not in breach of his permission to remain.

He claimed that where work was undertaken which was “ancillary” to the business of the company, this work should not be regarded as a separate form of employment but was work which was “covered by his permission”.

It was argued that employment, whether on an employed or self-employed basis, which was undertaken so as to “develop business links with potential clients” in the sector in which the company traded was work “within the scope of his permission”.

He argued that in light of this the respondent should have exercised the discretion under the policy to allow the petitioner to remain.

However, the judge ruled that in taking up employment with Search Consultancy the petitioner took employment “outside the scope” of his permission.

In a written opinion, Lord Summers said: “While the Policy Guidance distinguishes employment from self-employment, it does so to show that both are legitimate ways in which a person can work for the business that has been established, joined or taken over. The underlying requirement is that the work must be for the business the entrepreneur has established.

“Thus where the entrepreneur branches out into another business it does not matter in my judgement whether the employment with the new business is in a self-employed or employed capacity. Provided the justification for granting leave to remain applies to the new business venture as it did to the original business venture there is no breach of the conditions of leave.

“Thus it does not matter whether his work for Aberdeen Alarm Company Ltd was as an employee or as a self-employed person. I do not consider that the Policy Guidance is focussed on the form of the petitioner’s employment. The key is whether the work being done whether as an employee or a self-employed independent contractor employment is for the benefit of a business that the petitioner has ‘established, joined or taken over’.”

The judge held the Home Secretary was “entitled” to conclude that the work the petitioner was performing for Search Consultancy and Aberdeen Alarm Company Ltd was work “for another business” and that the decision maker did not err in curtailing leave to remain.

He added: “The petitioner sought to argue that in working for the security firms he was seeking to promote his own business. It was argued that this would enable him to make contacts which would be for the benefit of his business. The respondent was entitled to take a sceptical view of this claim.

“I have no reason to doubt that the petitioner wished to grow his business and had he had opportunity the company might have gone on to be a success. The fact remains however that in this initial stage of establishing his business the petitioner took employment as a security guard working in the evenings for a very low wage.

“I have nothing but sympathy for him if, as appears to be the case, he worked on his business during the day and worked as a security guard to supplement his limited income at night. The case however cannot be decided on the basis of sympathy but on whether the petitioner has demonstrated that his legal challenges have been established. I did not consider however that this work was within the scope of his permission.”