On 23 October 2019 the Court of Appeal handed down an important judgment in relation to the Tier 2 (General) Migrant category.
The facts of the case were as follows: Mr Imam applied for leave to remain as a Tier 2 (General) Migrant on the basis of being offered a job as a chef by a restaurant in West Sussex. In 2016 the Secretary of State refused his application because the restaurant in question offered a take-away service, which disqualified it as an employer under Appendix K of the Immigration Rules. Mr Imam’s appeal against the refusal by way of judicial review proceedings was dismissed.
Prior to October 2019, Appendix K stated that jobs “in either a fast food outlet, a standard fare outlet, or an establishment which provides a take-away service” (emphasis added) did not qualify for the purposes of obtaining the relevant leave. From this month, however, the relevant part of the Immigration Rules has been amended to state that a skilled chef can qualify where “the job is not in either a fast food or standard fare outlet” – the reference to an establishment “which provides a take-away service” has been removed.
The question before the Court of Appeal was whether the exclusion of establishments that provide a take-away service was limited to “take away restaurants” or whether this definition incorporated all restaurants where a take-away service was offered. Furthermore, the Judges had to decide whether the exclusion laid down by the wording in the Immigration Rules prior to October 2019 was irrational or unreasonable and therefore invalid.
The afore-mentioned exclusion was a result of the Migrant Advisory Committee’s (“MAC”) report published earlier this year. The report suggested that stakeholders considered that the “take-away clause” created “a serious block to the industry” by preventing the recruitment of good quality chefs and therefore a fuller utilisation of the Tier 2 category. This exclusion was introduced into the Immigration Rules by way of an amendment on 9 September 2019, with the Rules stating that it would come into force on 6 October 2019.
In his judgment, Lord Justice Newey noted that the Appellant had referred to “a take-away restaurant” as opposed to a restaurant that provided any form of take-away service. According to the Court, any interpretation to the contrary would be absurd due to a take-away service being present everywhere.
The Court concluded that there was no evidence to prove that the Secretary of State was unreasonable in assessing that take-away services were “far less associated with the finest cuisine prepared by the top skilled chefs” and that in evaluating the quality of take-away cuisine an appropriate assessment would be made of the level of skill required by the chef to prepare it. The Court ruled therefore that the fact that the majority of restaurants do not qualify did not constitute an argument in favour of the Appellant. The Court concluded that the Secretary of State was justified in establishing a policy which could exclude a large number of restaurants on the basis of the practical difficulty in identifying which restaurants would be considered “fine dining establishments” and which would not. Furthermore, with regards to the recommendations made by the MAC, the Court noted that provisions which the MAC had proposed in 2011 could not be said to have become “irrationally broad or indiscriminate” by 2016.
It is worth asking how far this judgment and the current Immigration Rules take the current gastronomy and restaurant market into account.
The Financial Times has reported that JustEat (headquartered in London) has agreed a £9 billion all-stock merger with Takeaway.com. It is evident that the take-away food market is expanding rapidly. What necessarily follows, it may be argued, is that the demand for skilled chefs can only increase – a demand driven by the proliferation of take-away service providers and the public’s increasing expectations on quality.
As things stand, Appendix K no longer refers to restrictions relating to establishments “which provide[s] a take-away service”, however, it does retain a restriction on applications from chefs seeking to work in fast food or standard fare outlets. This upholds therefore the Secretary of State’s intention and policy of ensuring that only a small percentage of skilled chefs would qualify for the grant of leave under the Tier 2 category.
It is worth noting, however, that the Court expressed the view that “over the years, with the arrival of services such as Deliveroo, the Exclusion may have come to apply more widely”.
Our Corporate Team has extensive experience of all Tier 2 matters and regularly provides advice and assistance to corporate clients in the catering and hospitality industry. If you have any questions or queries relating to the Tier 2 category, please do not hesitate to contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
Paralegal in our General Immigration team