Care worker found working in restaurant loses legal challenge

The Upper Tribunal has concluded that a person in the UK on a Health Care Worker visa but encountered working at a restaurant was not undertaking supplementary employment and so his leave was lawfully cancelled. The case is R (Hridoy) v Secretary of State for the Home Department JR-2024-LON-002819.

The applicant came to the UK on a Health Care Worker visa valid from 9 August 2023 to 15 August 2026. On 13 July 2024 he was encountered by immigration enforcement working at a restaurant. The applicant’s permission to stay was cancelled the same day, with the decision letter stating that this was because he was working in breach of his visa conditions as “A condition of this visa is that you are only allowed to work related to Care workers and home carers”. He was also detained and served with a notice that he was liable to be removed from the UK.

A pre action letter was sent on behalf of the applicant on 29 July 2024 asserting that the Home Office had misapplied the skilled worker guidance and that the applicant was undertaking supplementary employment of up to 20 hours per week which was permitted under the guidance. Payslips from the applicant’s sponsor were provided as evidence that he had worked there since coming to the UK.

A response was sent, noting that the applicant had admitted in his interview that working in the restaurant was his main job since the care home did not give him regular work. Several other discrepancies in the applicant’s account and evidence were identified. The decision was maintained.

The judicial review was brought on four grounds:

Ground 1: (i) Did the decision involve a material misdirection of law regarding whether working at Junoon Helsby demonstrated breach of visa conditions? (ii) If so, is it nonetheless “highly likely that the outcome would not have been substantially different”?
Ground 2: (i) Was there a failure to apply fair procedure before cancellation? (ii) If so, is it nonetheless “highly likely that the outcome would not have been substantially different”?
Ground 3: (i) Was there a failure to take reasonable steps to obtain relevant information before the decision? (ii) If so, is it nonetheless “highly likely that the outcome would not have been substantially different”?
Ground 4: (i) Did the decision involve an irrational conclusion regarding breach of visa conditions? (ii) If so, is it nonetheless “highly likely that the outcome would not have been substantially different”?

The applicant had sought a copy of the interview transcript through a subject access request but the Home Office said this could not be located. Despite this, a copy of the interview records turned up with the acknowledgment of service.

Permission was granted, with the judge noting that the Home Secretary “must be taken by omission to accept that the decision-maker was wrong to hold that the applicant was only permitted “to work related to Care workers and home carers””.

At the hearing, the Upper Tribunal accepted the Home Secretary’s case that “this is a case of substance over form and that, even if the decision letter could have been more precisely worded, the substance of the decision was legally sound, namely that the applicant was not in genuine continuing sponsored employment with the sponsoring employer”. The tribunal noted that it was clear from the interview notes that the correct issue had been identified, which was whether the restaurant work was actually supplementary to the care work.

The tribunal also considered that the outcome would have been the same if the asserted error had not been made. This was because the evidence established that the applicant was not working for his sponsor at the time he was encountered by immigration enforcement. The tribunal held that there was no evidence to show that the applicant worked for the care home after June 2024.

The other grounds were also dismissed, on the basis that the applicant had been given a full opportunity to explain his circumstances and the Home Secretary had enough evidence to make the decision without the need to contact the applicant’s employer.

The applicant was ordered to pay the Home Secretary costs, excluding the costs of preparing the acknowledgement of service and summary grounds, because of the late disclosure of the interview records which should have been provided at pre action stage in accordance with the duty of candour (or, dare I say it, in response to the subject access request).