They were then served notices stating that their leave would be curtailed so that it expired with “immediate effect” because they had breached the terms of their visas.
However, following petitions for judicial review a judge in the Court of Session ruled that the Home Secretary acted “unreasonably”.
Lord Ericht heard the petitions of Joseph Ochiemhan and Onyeka Menuba together.
Both Mr Ochiemhan and Mr Menuba originally entered the UK on student visas before being granted leave to remain in Scotland under Tier 1 (Entrepreneur) visas, which were not due to expire until later in 2017, on the basis of their respective companies Alphawhale Ltd and Meto Technologies Ltd.
But with the north-east economy declining, they both provided security work via those companies for Aberdeen Alarm Company on a “casual” basis.
However, Aberdeen Alarm Company had been cooperating with the respondent in a planned operation and asked the petitioners to attend its offices with their passports and visas.
Immigration officers then raided Aberdeen Alarm Company’s offices and detained “a number of foreign nationals,” including Nigerian citizens Ochiemhan and Menuba.
They were then served notices in October 2015 that they were liable for removal from the UK on the grounds that they were “not permitted to undertake employment other than working for the business(es) you are establishing, joining or taking over”, and that they breached the conditions of their leave “by working as a security guard for Aberdeen Alarm Company,” even though they had worked only part-time for three weeks.
The decision letters also noted that the petitioners were unable to provide any evidence of a contract for consultancy services with Aberdeen Alarm Company or any other firm.
The petitioners sought judicial review of the decisions on the grounds of Wednesbury unreasonableness.
In the Ochiemhan case it was argued that the decision was taken “without a proper foundation in fact” and that there was “no proper basis in fact to support it”.
It was also submitted that the respondent had “failed to take account of relevant and material considerations”.
But senior counsel for the respondent argued that the question was whether in all the circumstances no reasonable Secretary of State could conclude that in substance rather than form the petitioners were undertaking employment.
It was submitted that it was nothing to the point that Alphawhale Ltd may have on other occasions provided consultancy or other services: the question was whether in acting as a security guard for Aberdeen Alarm Company on this occasion the petitioner was in breach of the condition of his visa.
However, the judge ruled that the Home Secretary failed to follow her own guidance and take into consideration a number of relevant factors.
In a written opinion, Lord Ericht said: “In my opinion by focussing on the work for Aberdeen Alarm Company this takes too restrictive a view of what requires to be taken into account by the respondent. The respondent’s policy and guidance makes clear that other services provided by Alphawhale Limited are highly relevant to the decision as to whether the petitioner had breached his condition.
“The respondent did not take these factors into account.
“These factors required her to consider the business of Alphawhale, rather than restricting her decision to the petitioner’s relationship with Aberdeen Alarm Company. In particular this should have included consideration of details of similar services to other customers and the contractual terms on which they were provided.
“Accordingly in deciding that the petitioner had breached the condition by working as a security guard for Aberdeen Alarm Company the respondent failed to take into account relevant considerations. Further, the respondent failed to take into account factors which were suggestive of a contractual relationship between Alphawhale Ltd and Aberdeen Alarm Company.”
In the case of Menuba, for the same reasons, the judge ruled that by focussing on the work for Aberdeen Alarm Company the respondent took “too restrictive” a view of what required to be taken into account and concluded that the decision letter should be reduced because the Home Secretary acted “unreasonably”.
In his written opinion, Lord Ericht said: “As in the Ochiemham case, it must have been obvious to the respondent that this was not a straightforward case where the worker was working full time for one employer. He had been working for Aberdeen Alarm Company for a period of only around three weeks, from 20/7/2015 – 19/8/2015, and that had been on a casual basis.
“Further, in the decision letter, the respondent failed to take into account the invoice from Meto Technologies Ltd to Aberdeen Alarm Company Ltd.
“Further, in the decision letter of 13 October 2015 the respondent founds on advice given to the respondent by the directors of Aberdeen Alarm Company that the work is in no way connected to the petitioner’s business.
“In my opinion no reasonable Secretary of State could have founded on that advice.”