Pakistani health worker who applied for skilled worker visa on immigration bail loses petition against refusal decision

About this case:

• Citation:
  [2024] CSOH 62
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Harrower

Petitioner AH initially entered the UK on a two-year student visa, which the Home Secretary at the time concluded was an attempt to enter the UK to claim asylum by deception. He argued that the decision to refuse his application was made prematurely and irrationally, and that she had wrongly concluded he did not intend to study in the UK.

The petition was heard by Lord Harrower. Forrest, advocate, appeared for the petitioner and Olson, advocate, for the respondent.

Mere screening interview

The petitioner arrived in the UK in August 2021 and enrolled as a student at Napier University. On 25 November 2021 he submitted an asylum claim, for which he was given a screening interview at the Glasgow Asylum Unit. When asked why he could not return to his home country, he stated that the Pakistani government had tried to kill him on several occasions, and that they would “shoot members of the political party I am a member of on sight”.

On the basis of these answers, the respondent formed the suspicion that AH had used deception in order to enter the UK, and on the day of his interview in January 2022, he was issued with a Notification of Liability to Detention. He was later placed on immigration bail and allowed to work up to 20 hours per week in line with his original visa. Having obtained a certificate of sponsorship from his employer as a health and care worker, he then applied for permission to stay in the UK on that basis.

The reasons for refusal given by the respondent were that the petitioner was on immigration bail at the time of his application to stay as a skilled worker, citing paragraph SW2.2 of the relevant Immigration Rules, and that in any event he had used deception to enter the UK as a student. It was submitted for the petitioner that the respondent had made her decision prematurely. The January 2022 interview was a mere screening interview undertaken to establish the general nature of his case, not to establish the reasoning in detail.

It was further submitted that there had been no exploration of the petitioner’s state of mind at the time he first came to the UK. He had fully intended to study at Napier and was unaware on his arrival that he was entitled to seek additional humanitarian protection. For the respondent it was submitted that there was no requirement to carry out a full interview following the screening interview, and that the fact that AH was on immigration bail at the relevant time was sufficient to merit refusal.

Sufficient reason

In his decision, Lord Harrower said of the petitioner’s immigration bail: “I was unable to accept counsel for the petitioner’s submission that, in order to apply the Immigration Rules, the court was required to investigate why the petitioner had been placed on immigration bail. Rather, the rule seemed to me to be perfectly clear. It was the fact that the applicant was on immigration bail at the relevant time that was critical.”

He continued: “The validity of the decision to place the petitioner on immigration bail formed no part of his present case. There was therefore no discussion of the questions that might have arisen if it had been. On the face of it, the petitioner would appear to be out of time insofar as any challenge to the decision to place him on immigration bail is concerned.”

Lord Harrower concluded on this issue: “It is striking that the argument from immigration bail had been left unanswered both in the petition and in the petitioner’s Note of Argument. I was left unpersuaded by counsel’s belated attempt to answer it by arguing that the court required to investigate the reasons why an applicant had been placed on immigration bail. In my view the fact that AH was on immigration bail at the relevant time gave the Home Secretary a sufficient reason to refuse his application for permission to stay in the UK as a skilled worker.”

Briefly addressing the argument on deception, he added: “Even if the Home Secretary might ultimately be proved to have been correct in her assessment of AH’s original reasons for coming to the UK - indeed just because she might well have been correct in her assessment about such a serious matter as whether AH had practised deception - she should, in my view, have put those concerns to AH for his comment.”

It was therefore held that the Home Secretary was entitled to refuse the petitioner’s application on the ground that he was on immigration bail when it was made, and the petition was therefore refused.