Nigerian entrepreneur successfully challenges Home Secretary’s removal decision



Lord Arthurson
Lord Arthurson
A Nigerian entrepreneur who was granted leave to remain in the UK has successfully challenged a Home Office decision to the effect that he was liable for removal over alleged breaches of his visa.
 
The Court of Session quashed the decision after ruling that officials failed to properly exercise their discretion, having regard to the “extended hinterland” of the case.
 
Leave to remain
 
Lord Arthurson heard that the petitioner Joseph Ochiemhan originally entered the UK on a student visa, before being granted leave to remain in September 2014 as a Tier 1 Entrepreneur until September 2017. 
 
The Aberdeen-based businessmen had set up an oil and gas industry IT consultancy company called Alphawhale Limited, but due to the downturn in the north-east economy he expanded his business activities to include provision of security services and did some “casual” work as a security guard for Aberdeen Alarm Company.
 
However, following a raid on Aberdeen Alarm Company by immigration officers, in October 2015 the Secretary of State for the Home Department issued a decision curtailing the petitioner’s leave to remain in the light of alleged breaches of conditions related to his status, and set directions for his removal. 
 
The petitioner successfully challenged those decisions in the Court of Session (JO v Secretary of State for the Home Department [2016] CSOH 179), following which, on 12 June 2017, a new decision was made curtailing his leave to remain.
 
‘Complex case’
 
The petitioner lodged an application for judicial review to set aside that decision.
 
Counsel submitted that while there were many areas of mandatory refusal within the immigration rules, the decision to be exercised in this case was a “discretionary one”, but it was not apparent on the face of the decision letter of 12 June 2017 that the author of the letter was even aware that the decision which he was engaged in was discretionary; and, in any event, no reasons had been given by him in respect of any such exercise of discretion in the decision-making process.
 
Having regard to the factual background involving the company set up by the petitioner its relationship with other companies in respect in particular of the role of the petitioner, it was also submitted that there were clear indicators of “complexity” in the petitioner’s case and that particular consideration required to be given to the complex question of whether the petitioner was acting as an employee or hiring out his services through Alphawhale Limited, but that had not been done in this case.
 
The judge reduced the decision after ruling that the decision maker failed to carry out a “full and balanced in the round assessment” of the petitioner’s case.
 
‘Discretionary decision’
 
In a written opinion, Lord Arthurson said: “The concept and status of entrepreneurship is undoubtedly a difficult one to put into words in the form of a short definition in rules or even in a policy document…Nevertheless, as recognised by Lord Ericht in JO, at paragraph 49, ‘The question of whether a worker is employed under a contract of service can be a complex one and turns very much on the circumstances of the particular case’.
 
“In short, for the reasons outlined by Lord Ericht, when a factual situation such as that regarding the relationship between the petitioner and his company Alphawhale Limited, and the various other bodies referred to in the decision letter and in the material available to this court, discloses a multi-faceted and nuanced position, a decision maker, such as the respondent’s official in this case, faces what can only be described as an unenviable task, even in the course of an in the round assessment exercise.
 
“Notwithstanding that characterisation of the respondent’s official’s efforts in this regard, I have however concluded that the overall conclusion reached was not one that the official was entitled to come to on behalf of the respondent on the material before him and against the whole extended hinterland of this case.”
 
He added: “In these circumstances, I am not satisfied that a full and balanced in the round assessment has been carried out by the author of the decision letter, notwithstanding an earnest attempt to do so. The decision maker has embarked upon an in the round decision making exercise in terms of the guidance set out in paragraph A41 of the Policy Guidance which is essentially incomplete and in which the final decision is not supported by the sort of comprehensive and adequate reasoning which must be required even in such a multifactorial and broad assessment process.
 
“In considering the terms of the letter as a whole including the sentence founded on by counsel for the respondent, I have concluded that nothing marks out this decision letter as one in which the author thereof even knew that he had any discretion to exercise in the course of the curtailment decision; and, further and in any event, given the terms of the decision itself, in which liability for removal has been established, it is wholly unclear from within the four walls of the decision letter what the basis is or could be for any decision by the author to refuse to exercise his discretion in the petitioner’s favour.”

© Scottish Legal News Ltd 2019



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