The Memons are a fiercely business-minded people who originate in the Sindh province of Pakistan and the Indian state of Gujarat. The Indian annexation of princely states such as Junagadh (which preferred to accede to Pakistan), after the Partition of British India, triggered an exodus of Memons and many sought refuge in the then fledgling state of Pakistan. Many settled in Karachi and the sprawling port metropolis will always be indebted to the industrious Memon community for bringing entrepreneurship and creating employment in testing economic times. In the instant case, the Pakistani claimant for judicial review, Zahid Hussain Memon was an engineer who worked in the construction industry in Luton and who had been educated in the UK. Rejecting reliance placed in Alvi  UKSC 33 (see here), sitting as deputy judge, Timothy Brennan QC held that the Home Office’s request inviting Memon to furnish documents evidencing his employment history in the UK (such as P60s and a P45, or a letter from HMRC) did not amount to the imposition of an additional threshold condition into the immigration rules.
Rather, the request was a mere request for evidence detailing Memon’s employment history and because it was not provided when asked for, the Home Office was entitled not to be satisfied about his compliance with his work permit with the inevitable result that his application had to be refused. Using form SET(O), in January 2012 Memon applied for indefinite leave to remain (ILR) based on 5 years of continuous residence. In his application he relied on a “To Whom It May Concern” letter (confirming his reliability and trustworthiness) that had not been produced for immigration purposes.
Memon was initially granted entry clearance in January 2007 on the basis of employment linked to a UK construction company called Goldstone Construction Ltd. The initial work permit was later varied as he expressed a wish to work for Gerrards Construction Ltd and the Home Office duly approved a change of authorised employer to allow this and accordingly granted, in February 2009, Memon leave to remain until February 2014 to work for Gerrards. Because in his ILR application Memon used a letter produced by Goldstone (which was undone by the onset of insolvency in 2009), the Home Office requested information in the form of P60s and a P45 or a letter from HMRC confirming his employer’s name(s) and salary details for years gone by.
In his response, Memon said that Goldstone never provided him with any documentation and that he could not provide the P60 and P45 forms. He did not say anything about the alternative letter from HMRC but nevertheless insisted on his ILR right pursuant to the five-year rule under paragraph 134 of the immigration rules. The ILR application was refused in September 2010 and, together with his pre-action correspondence threatening judicial review of the decision, Memon provided the Home Office the HMRC alternative to the P60 and P45. The problem was that the details in the HMRC evidence between 2007-2008 showed P60s for three employments but none with Goldstone (this contradicted the company’s character reference of 2009 as regards Memon). But the court did not dwell on the point and considered it unnecessary to make findings of fact about the trading history of Goldstone.
Setting out the terms of paragraph 134, paragraph 135 and paragraph 128 as they stood at the material time, the court noted that paragraph 128 is aimed at entry to the UK and towards future intention. However, it was obvious to the court that the requirement in paragraph 134, that paragraph 128(iv) must be met throughout the applicant’s stay, demanded that the applicant must work throughout his stay in accordance with his work permit. As far as the Home Office was concerned, refusing Memon’s application in the absence of the requested documentation was inevitable because he had not satisfied the requirements of paragraph 134 and his application thus fell to be refused under paragraph 135.
Memon contended that the Home Office requirement, that he must produce the P60s and P45 (or a letter from HMRC), amounted to imposing an additional threshold condition into the immigration rules with the result that leave to remain would be refused unless specified documents (or substitutes) were produced. Memon argued that the requirement was irrelevant because it was not expressed in the rules and it had not been approved by Parliament. Relying on Lord Hope DPSC’s judgment in Alvi, it was submitted that in the absence of Parliamentary scrutiny, a criterion outside the rules cannot validly be imposed by an administrative decision. Equally, relying on Lord Dyson JSC’s judgment, Memon claimed that there is no sustainable distinction between the imposition of an inadmissible substantive requirement outside the rules, and the imposition of an admissible requirement for evidence of satisfaction of criteria. The arguments were, however, rejected. Distinguishing Alvi Timothy Brennan QC held:
21. In my judgment this case does not raise an issue comparable with that which was decided in Alvi. That case concerned requirements which a migrant had to satisfy as a condition of being given leave to enter or remain in the UK. The Secretary of State had effectively promulgated a substantive rule by introducing a list of skilled occupations. It was that list which governed the question whether the job of a physiotherapy assistant was sufficiently highly skilled to attract the relevant number of points. Such a rule should have been put before Parliament.
The substantive rule found in paragraph 134 concerned satisfying, inter alia, the requirements of paragraph 128(iv). In Global Vision College  EWCA Civ 659, the Court of Appeal held that there is nothing wrong with a common sense check of veracity and that Alvi does not require officials to take what they are told at face value. Therefore, Timothy Brennan QC found at para 22 that the Home Office was “perfectly entitled” to request evidence of Memon’s work history. The court moreover held that when the requested evidence was not provided, the Home Office was right not to be satisfied about Memon’s compliance with the rules and his ILR application inevitably had to be refused because of the terms of paragraph 135.
The Home Office argued on the basis of para 94 of Lord Dyson JSC’s judgment in Alvi that it would have been at most a procedural requirement if Mr Alvi had been requested to produce the formal certificate of qualification to corroborate the claim that he was a qualified physiotherapist. The evidence of the qualification would not amount to creation of a new, and illegitimate, rule or criterion that only physiotherapists with certificates were admissible to the UK. Timothy Brennan QC explained at para 23 that context determined whether a requirement amounts to a request for evidence or to the imposition of a criterion, and distinguishing Alvi, he therefore held in Memon’s case that the request for formal documentation in relation to work history asserted fell “clearly on the ‘evidence’ side of the line.” The court found it unnecessary to make a decision about the scenario whereby the Home Office demanded P60s and a P45 but rejected other evidence of employment such as bank statements, wage packets, pay slips, contracts, letters of appointment and resignation.
Memon frustrated his own case by not providing the P60s and a P45 and by belatedly providing HMRC evidence. Coupled with this, his lack of diligence in proving his employment with Goldstone meant that the Home Office correctly concluded that he did not fulfil the relevant criteria.
An alternative argument in relation to breach of a legitimate expectation, connected to the approved change of employer from Goldstone to Gerrards in 2009, was rejected by the court which held that Memon’s work history was not, at the time of change of employer, directly relevant to any criterion which had to be satisfied under the rules in order for the transfer to be approved. So there was nothing untoward in investigating his work history later on and he himself did not raise any arguments about why any past default would not be investigated should it become relevant later.
The court did not feel the need to read into the undeveloped point that skilled migrants benefitted the UK. Memon claimed that the value of skilled migrants was accepted as matter of policy with the result that the immigration rules needed to be interpreted accordingly. Timothy Brennan QC instead reasoned:
26. … I see no underlying policy in the relevant provisions which would entitle the defendant, or the court on judicial review, to disregard the express terms of paragraph 134 and the consequences mandated by paragraph 135.
In the Alvi judgment, the Supreme Court held that any requirement which a migrant must satisfy as a condition of being given leave to enter or leave to remain is a rule. The court strongly criticised the drafting of the Immigration Act 1971 and Lord Dyson JSC remarked at para 98 that the Home Secretary “can seek to amend the 1971 Act and introduce a clear expanded definition of what constitutes a rule”.
Just a year later in New London College  UKSC 51 (see here), Lord Sumption JSC was equally distressed by the drafting of section 3 of the 1971 Act. Although he dismissed the appeal and found that the criteria for sponsorship licences did not have to be laid before Parliament, Lord Sumption JSC nevertheless began his judgment by noting that the four-decade old statute “has not aged well” and is “ill-adapted to the mounting scale and complexity of the problems associated with immigration control”.
In Alvi, at para 89, Lord Dyson JSC accepted “as a general proposition, that there is conceptual difference between a substantive requirement and the means by which it is satisfied.” On the other hand, he nonetheless lamented that the 1971 Act contains no definition of a substantive requirement of the rules and “without the fixed point of a defined substantive requirement, the suggested definition of a rule becomes a chimaera.”
But in some ways the Alvi judgment was always “Alvi proof” because a literal application of the test creates capricious results. For example, one cannot expect a (daily) fluctuating number (such as the RPI, oil prices, or a manipulated benchmark such as LIBOR, see here, here, here and here) to be laid before Parliament for it to comply with what Lord Hope and Lord Dyson said. It can only be cross-referenced to another source and this was confirmed by the tribunal in Ferrer  UKUT 304 (IAC) (see here). So Alvi may have been a defeat for the Home Office but it is proving hard for claimants to take the decision beyond its logical conclusion.
Infamously, Alvi was also a work permit holder who had later been refused leave to remain under Tier 2 (General) of the points-based system. The Supreme Court dismissed the Home Secretary’s appeal and upheld the Court of Appeal’s judgment, in which Jackson LJ had at para 44 quashed the two refusal decisions, in Alvi’s favour.
In the present case, the court remained alive to maintaining context and it rightly concluded that rather than rely on the “Alvi argument” Memon should have done more to cooperate with the Home Office in his visa application. After all, they, and not the courts, are the ones who ultimately produce the residence permits. The Alvi argument may have betrayed Memon, but it appears that he was also poorly advised on his application by what the judgment bizarrely describes as his “agents”. But whether Zahid Hussain Memon will become like Hussain Zulfiquar Alvi, whose initial judicial review claim was dismissed by Lord Carlile QC but who went on to win in the Court of Appeal, remains to be seen. As for the Supreme Court’s repeated calls for a solution to the problems associated with the 1971 Act, frankly we have to give Mrs Theresa May full credit for giving the justices the Immigration Act 2014 to grapple with instead!