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Last gasp of the take-away rule
Credit: Hemant Latawa on Unsplash

Last gasp of the take-away rule

Just when you thought the rule excluding chefs at take-away restaurants from the Tier 2 Shortage Occupation List had been tested to destruction, there arrives yet another valiant attempt to navigate this uber-niche corner of a corner of the Immigration Rules in R (Imam) v Secretary of State for the Home Department [2019] EWCA Civ 1760. The case was unsuccessful, but the Rules have since been changed to abolish the notorious take-away rule altogether.

Hold the spice

As regular Free Movement readers will know, the Tier 2 work visa scheme is designed for “skilled workers”, which the Home Office classifies as those in roles at degree level (RQF 6) or higher.

However, the Home Office also recognises that there are certain roles where there is a shortage of manpower already in the UK, and where the skills requirement is relaxed as a result (down to RQF 4). Those eligible roles appear on the Shortage Occupation List.

Whilst chefs appear on this list, only those who worked in certain types of establishments were eligible. Those working in restaurants which offered a take-away service were excluded.

This affected Indian restaurants in particular, which have been reportedly been closing at a steady rate since the introduction of the exclusion in 2011.

Further legal background can be found in our write-ups of the key recent cases in this area: R (Supawan) v SSHD [2017] EWHC 2918 (Admin) and R (Bajracharya) v SSHD [2018] EWCA Civ 277.

Might as well have a pop(adom)

Mr Imam, a chef attempting to ply his trade at the Alishaan Indian Restaurant in Sompting, West Sussex, raised two issues:

Was the Exclusion, correctly construed, limited to “take-away restaurants” or did it extend to other restaurants from which take-away food could be obtained?

Was the Exclusion irrational or unreasonable and so invalid?

On the rationality point, Mr Imam argued (at paragraph 23) that

There was insufficient evidence of a rational link between the Exclusion and the … purpose of identifying chefs with the appropriate skills. …[the Home Office could not] explain why an establishment providing a take-away service was any more vulnerable to abuse than other restaurants and neither is there evidence demonstrating that restaurants providing a take-away service, when considered as an independent category, were in less need of skilled chefs than other restaurants. 

These arguments, variations of themes already well-explored in Supawan and Bajracharya, did not find fertile ground in the Court of Appeal.

On construction, the court batted away attempts to differentiate a “take-away restaurant” from a restaurant that offers food which one could take away: the Home Office policy aim was sound, and it had to draw a line in the sand somewhere (paragraph 16).  

And on rationality, the court agreed (paragraphs 25-27) that the exclusion had a rational basis:

there is no evidence that it was unreasonable for the Secretary of State to consider that take-away services were “far less associated with the finest cuisine prepared by the top 5% to 8% of skilled chefs” or that the offer of a take-away service was “a strong and clear indicator of the quality of cuisine on offer, and by association the level of skill needed in preparing it”.

A point of wider significance?

Another point raised in the case – which failed here but may be of wider significance – was an attempt to rely on a Home Office reversal of policy as part of the rationality challenge.

Following the Migration Advisory Committee’s recommendation, the Home Office recently announced the “vindaloo visa”. This is intended to “save the nation’s curry houses” (which is kind of like kicking someone half to death and then boasting about how you drove them to hospital).  

This is not a visa at all, of course. It is merely the scrapping of the take-away exclusion. This means that chefs at restaurants which offer a take-away are now eligible for the Shortage Occupation List.

In another words, had Mr Imam made a similar visa application today under the “vindaloo visa” amendment then he would be accepted.

Mr Imam argued in this case that the MAC report (which led to the Home Office policy reversal) showed that the entire basis of the exclusion was irrational.

The Court of Appeal held that the policy was amended due to changes in consumer behaviour, and referred to the fact that in 2011 (when the policy was introduced), Deliveroo et al did not exist. Now that even fine-dining restaurants were delivering, it was open to the Home Office to amend the rules to reflect this.

But it would be interesting to see a rationality challenge along these lines in cases of other reversals, such as the scrapping of the Resident Labour Market Test, where there had been a policy shift less explicable on the basis of a change of circumstances, and where the MAC essentially found that it had never really worked.

Nick Nason

Nick is a lawyer at Edgewater Legal, simplifying immigration law for individuals and businesses.

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