According to UK immigration rules, if a chef works at a restaurant which provides a take-away service, he is less skilled than one who plies his trade at a restaurant that does not. As a result, restaurants which provide a take-away service cannot offer employment to chefs under the Tier 2 skilled worker route.

This policy was subject to challenge by the would-be head chef of the Thai River restaurant on Latimer Road in North Kensington, in the recently reported High Court case of R (Supawan) v Secretary of State for the Home Department [2017] EWHC 2918 (Admin).

A challenge was made in very similar terms by another chef in R (Imam) v SSHD [2017] EWHC 2917 (Admin). The arguments raised in both cases were essentially the same, and the majority of the judgment in Imam is copied and pasted from Supawan.

Both chefs argued that excluding restaurants which provided a high quality of cuisine but which incidentally happened to offer a take-away service was arbitrary and unreasonable.

The policy of the Secretary of State

The Tier 2 visa route is restricted to “skilled workers”. The role must usually be at RQF Level 6 or above, which means that applicants must generally have an undergraduate degree.

However, there is an exception to this requirement where British business struggles to recruit from the resident population. These jobs appear on the Shortage Occupation List maintained by the Home Office. It lists the roles where there is a shortage of domestic workers.

Alongside the ballerinas, high integrity pipe welders and physics teachers, skilled chefs make an appearance on the list – but only where:

the job requires five or more years relevant experience in a role of at least equivalent status to the one they are entering; and the job is not in either a fast food outlet, a standard fare outlet, or an establishment which provides a take-away service.     

The policy is justified by the Secretary of State on the basis that

It was a clear, objective and easily verifiable test… take-away services were considered to be far less associated with the finest cuisine prepared by the top 5% to 8% of skilled chefs… The offer of a take-away service was therefore considered to be a strong and clear indicator of the quality of cuisine on offer, and by association the level of skill needed in preparing it [paragraph 57 of Supawan / paragraph 53 of Imam].

Ready, steady, challenge

The chef in Supawan argued that Thai River’s delivery service comprised just 10% of its business, and that the focus should be on the nature of the establishment rather than “the fact that it also incidentally provides take-away food” [paragraph 49].

The substantive legal challenge in both cases was based on reasonability and the ancient case of Kruse v Johnson [1898] 2 QB 01. That case broadly states that the courts have a right to strike down laws where

they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men.

The court therefore spent the majority of its time considering this question, the aim of the policy and whether it was too broadly drawn.

Interestingly, the court also heard from the relevant policy team at the Home Office that different wording had been considered when framing the exception, and about why the alternative options had not been utilised. These rejected variations included excepting restaurants that

• Offered take-away, but not delivery (would permit chefs applying to work in burger joints and fish and chip restaurants, which was not the aim of the route)
• Where a certain percentage was take-away (difficult to verify, resource implications for the Home Office)
• Provided “fine dining” (too subjective)

The Secretary of State also relied on the fact that the approach had been approved by the Migration Advisory Committee.

The proof of the pudding…

Finding for the Secretary of State in both cases, Mr Pushpinder Saini QC dismissed the challenges, finding that whilst the exclusion was indeed broad, it was justified by the evidence presented to the court that take-aways were less associated with the finest cuisine requiring highly skilled chefs.

The judge also pointed out that there was a lack of evidence to the contrary. While there would certainly be exceptions, the court had not been shown any particular evidence as to the extent of the potentially unjust consequences.

Deliveroo is mentioned in the record of submissions made on behalf of the claimants. One would hope that evidence was heard that fine dining outlets, such as Michelin-starred Trishna, or Galvin at Windows, do now deliver. These restaurants appear to fall within the category of unfair but lawful outcomes: the price of a policy with a bright line rule. Given Deliveroo’s expansion in recent years, this category is likely to grow.

These decisions showcase the immense difficulty of balancing the protection of the domestic workforce with business-friendly immigration provisions: too specific and the rules become mired in complexity and impossible to navigate, but too blunt and they prevent business from hiring for roles which the Home Office would probably never have intended to exclude.

One wonders whether it is this tension which is delaying publication of the much-anticipated White Paper on the post-Brexit migration system, promised by late autumn.