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- SENIOR IMMIGRATION JUDGE WARR AND DEPUTY JUDGE OF THE UPPER TRIBUNAL ROBERTSON
before the First-tier Tribunal resulted in the determination of an appeal by the Appellant against the decision of the Respondent refusing him further leave to remain to continue operating his business under the Turkey-European Community Association Agreement. The main reason given for refusal of his application by the Respondent, as set out in the reasons for refusal letter dated March was that the Appellant only worked for one business that was already established and that a chef working for one employer, regardless of how many sites that employer has, is not a self-employed individual but an employee of the business.
The Immigration Judge, by a determination promulgated on May Determination), found:
....on a balance of probabilities that the appellant is employed by one employer, Caf all be it for different branches; that he does not have contracts with any other business; that he is not self- employed but an employee and that his contract with caf amounts to disguised employment."
Grounds of application for permission to appeal to the Upper Tribunal
The Appellant applied for permission to appeal to the Upper Tribunal. His grounds can be summarised as follows:
a. There was a failure by the Immigration Judge to assess the Appellant's employment status properly in that the correct test was not employed to ascertain whether he was self employed. He had not taken into account relevant considerations and had given weight to immaterial matters; the number of businesses to which services were supplied was irrelevant in the assessment of employment status, as provided in Carmichael v National Power plc IRLR and O'Kelly v Trusthouse Forte IRLR CA. He had also failed to consider the application of the Respondent's own Immigration Directorate Instructions.
b. The Immigration Judge had failed to give adequate reasons for his finding that the Appellant was employed rather than self- employed. c. The Immigration Judge had failed to take into account relevant considerations in relation to a number of issues relating to whether or not the Appellant was providing services to more than one company, for example: concluding that the Appellant worked for only one business because he had not submitted invoices to his accountant, Mr The Appellant's evidence was that he had not submitted the invoices because he had not been paid. Mr evidence was that the Appellant had made enquires about pursuing outstanding debts.
Grant of permission to appeal
Permission to appeal was granted, on June by Senior Immigration Judge Freeman, sitting as Judge of the First-tier Tribunal, on the basis that are arguable points on the judge's finding that the appellant was employed rather than self-employed."
By way of directions, SIJ Freeman stated:
It is considered that, if the Upper Tribunal decides to set aside the decision of the First-tier Tribunal, the Upper Tribunal will be able to remake the decision without having any further hearing, if it is able to hear oral evidence from the appellant in connection with the merits of the case; and that this oral evidence can reasonably be expected to be given at the hearing opposed to at a later, adjourned hearing).
The appellant is therefore directed to ensure that this oral evidence can, if required, be given at the hearing and to inform the Tribunal in writing not later than days before the hearing, of any requirement for an interpreter, in so far as this has not already been done. parties should not, however, assume that the Tribunal will necessarily adjourn if this oral evidence is unavailable.)
An interpreter in the Turkish language will be booked: if any particular dialect is required, this must be requested in writing no later than days before the hearing."
Submissions on behalf of the Appellant and the Respondent
At the hearing, Mr Doerfel confirmed that he relied in full on the grounds of appeal; the Immigration Judge had applied an incorrect test in determining the employment status of the Appellant. At paragraph of the Determination he had given no reasons as to why he found him to be employed rather than self-employed. The evidence of the Appellant was recorded at paragraph of the determination and this evidence indicated self-employment; but the Immigration Judge does not refer to it. In the RFRL, the Respondent erred in holding that, because the Appellant only provided services to one employer, he was employed rather than self-employed; there was no reference to the other factors set out in the IDIs, such as mutuality of obligation. The Appellant was also not entitled to holiday pay or sick leave and was not subject to the company's grievance and disciplinary procedures.
A letter from a director of Caf was tendered in evidence but the writer was not present to give evidence. Mr Doerfel stated that the Appellant had not received the Directions notice which required oral evidence to be given today. A partner of Caf and therefore not the writer of the letter, had agreed to give evidence but as the Directions notice had not been received, he was not present.
Mr Bramble submitted that the Immigration Judge had found that the Appellant was not working for two of the three companies he claimed to be working for and his reasoning was clearly set out. However, he conceded that when considering the position of the Appellant in relation to Caf the Immigration Judge had given little by way of reasoning for concluding that the Appellant was employed. He therefore conceded that this was a material error of law and that the decision needed to be looked at again. Regarding the need for further evidence, the Appellant was present and was tendered by Mr Doerfel to give evidence. However, Mr Bramble stated that he did not wish to cross-examine him. With regard to the letter dated September from identified as a Director of Cafe Ltd, Mr Bramble submitted that the letter presented was not sufficient evidence and he would wish to cross- examine the writer.
Was further evidence required to re-make the decision?
10. At paragraph of the Determination, the Immigration Judge records:
appellant was asked whether the three companies that he had service contracts with were obliged to give him work; if they offered him work was he obliged to take it; was he given sick or holiday pay; was he paid on a hourly basis; was he entitled to bonus payment; was there anyone he could complain to; was there a difference in payment if he had to stay longer to complete the work. To all these questions he answered He further stated that he was able to send another chef if he wanted to; that if he finished the work early he would leave and if the work took longer to complete, he would stay to finish the work but not be able to charge for any extra time."
11. We note that the Immigration Judge did not reject this evidence; he had rejected the Appellant's evidence as lacking in credibility in relation to Limited and found that the contracts between
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IA145012010 (unreported)
Smart Summary
Factual and Procedural Background
The Appellant, a 37-year-old national of The State, appealed a decision by the Respondent refusing further leave to remain to continue operating a business under an international association agreement. The refusal was based on the finding that the Appellant worked for only one established business and was therefore an employee rather than self-employed. The First-tier Tribunal (FTT) Immigration Judge issued a determination concluding that the Appellant was employed by a single employer, Caf Company, across different branches, and that his contract amounted to disguised employment.
The Appellant sought permission to appeal to the Upper Tribunal, arguing that the Immigration Judge had applied an incorrect legal test for employment status, failed to consider relevant factors properly, and did not provide adequate reasoning. Permission to appeal was granted by a Senior Immigration Judge on the basis that there were arguable points regarding the employment status finding. Directions were issued concerning the potential for oral evidence and interpreter arrangements.
Legal Issues Presented
- Whether the correct legal test was applied by the Immigration Judge in determining whether the Appellant was self-employed or employed.
- Whether the Immigration Judge failed to consider relevant factors, including the number of businesses served and the application of the Respondent's Immigration Directorate Instructions.
- Whether adequate reasons were given for the finding that the Appellant was employed rather than self-employed.
- Whether the evidence on record was sufficient to re-make the decision without further hearing.
Arguments of the Parties
Appellant's Arguments
- The Immigration Judge applied an incorrect test for employment status, focusing improperly on the number of businesses served rather than the full contractual relationship.
- The Judge failed to consider relevant factors such as mutuality of obligation, which is key to determining self-employment, as established in precedent cases.
- Inadequate reasons were provided for the conclusion that the Appellant was employed rather than self-employed.
- The Appellant was not entitled to employee benefits such as holiday pay, sick leave, or grievance procedures, supporting self-employment status.
- The failure to submit invoices was due to non-payment, and evidence existed regarding attempts to pursue outstanding debts.
Respondent's Arguments
- The Immigration Judge's findings regarding the Appellant's employment status with two of the three companies were supported by reasoning and evidence.
- However, the Judge gave insufficient reasoning regarding the Appellant's status with Caf Company, which was conceded to be a material error of law requiring reconsideration.
- The Respondent did not seek to cross-examine the Appellant on his evidence but indicated that a letter from a director of Caf Company was insufficient evidence without cross-examination.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Carmichael v National Power plc [2000] IRLR 43 |
Clarification that the number of businesses served is irrelevant to employment status; focus on contractual relationship and mutuality of obligation. |
Used to establish the correct test for employment status and to highlight errors in the Immigration Judge's approach. |
| O'Kelly v Trusthouse Forte [1983] IRLR 369 CA |
Emphasizes the importance of mutuality of obligation in determining employment versus self-employment. |
Referenced to support the requirement that mutual obligations must be present to establish employment. |
Court's Reasoning and Analysis
The Upper Tribunal found that the Immigration Judge had committed a material error of law by applying an incorrect test to determine the Appellant's employment status. The Judge focused excessively on the number of businesses served rather than the full contractual context and relevant factors such as mutuality of obligation. The Tribunal noted that the Immigration Judge did not reject the Appellant's evidence indicating self-employment, as recorded in the original determination, but failed to apply the correct legal principles.
The Tribunal reviewed the evidence against the criteria set out in the Respondent's Immigration Directorate Instructions, including the absence of obligations to accept work, lack of entitlement to employee benefits, and the ability to delegate work to others. These factors supported the Appellant's claim of self-employment in relation to Caf Company.
Given the sufficiency of the existing evidence, the Tribunal concluded that the decision could be re-made without further hearing or additional oral evidence. The failure to apply the correct approach by the Immigration Judge warranted setting aside the original determination and substituting a decision in favor of the Appellant.
Holding and Implications
The Upper Tribunal SET ASIDE the First-tier Tribunal's determination and RE-MADE the decision to allow the Appellant's appeal under the Immigration Rules.
The direct effect of this ruling is to grant the Appellant further leave to remain to continue operating his business under the relevant international association agreement. No broader precedent was established beyond correcting the application of established legal principles on employment status in this context.
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