The States Complaints Board found in favour of Mr R Ahmad, who brought the case against Deputy Chief Minister Lyndon Farnham, who refused his appeal.
As Economic Development Minister, Senator Farnham sits on the Housing and Work Advisory Group. But he rules on appeals under his remit as Deputy Chief Minister.
Mr Ahmad moved to Jersey with his family in 2015 to work for professional services firm EY as a licensed employee, with the company being given permission to employ him as an ‘essential’ worker.
On 27 August 2018 he took unpaid leave to travel to Pakistan to look after his mother, who had suffered a stroke, and returned on 1 February 2019. He had previously advised Customer and Local Services of his intention to leave the Island and been told to ‘complete an online form confirming this’.
He applied for entitled-to-work status – granted after five continuous years of residency – in October 2020, which would allow him to set up his own business in the Island, but this was denied on the grounds that he had left Jersey for a period. Someone who is entitled to work does not require permission to work for any company.
Mr Ahmad argued that EY had kept his job open to him and that he had arranged for his daughter to be home-schooled during his absence from the Island.
He also pointed to government policy which said that for time away from the Island to care for a parent or child, entitled and entitled-to-work employees ‘may’ be treated as ordinarily resident. He argued that the minister had ‘room for discretion’ to apply this for licensed or registered workers, such as himself, as well.
In response, representatives of Senator Farnham said that the regulations ‘did not allow him to exercise any discretion in determining whether or not the conditions to establish entitlement-to-work-only status had been satisfied’.
But the SCB took the view that the policy guidelines allowed ‘very extensive discretion’ on the matter and that Mr Ahmad had provided evidence that he had remained settled in Jersey.
The SCB also said that existing government policy on ‘continuous residency’ in the Island was ‘discriminatory and unsustainable’ for workers who had weaker residential and employment qualifications, namely those who did not have entitled or entitled-to-work status.
The ruling says: ‘In this case, as in all cases, the onus is on the claimant to show that his or her settled purpose has not changed. In the view of the board, Mr Ahmad did just that: he ensured that his employment remained open for him for the fixed period, and he arranged home schooling with the Jersey education authorities for his daughter.
‘He also made arrangements for mail to be forwarded to his employer’s office in Jersey. In ideal circumstances, Mr Ahmad would have retained his rented domestic accommodation in Jersey, but that was not financially feasible for him. Nevertheless, the board considers that Mr Ahmad had produced prima facie evidence of his settled purpose of continuing to live in Jersey.’
The board added that while the appeal was ‘considered by all members of the Housing and Work Advisory Group, the final decision was made by the Deputy Chief Minister’.
It added that: ‘The board was surprised that the Deputy Chief Minister was part of the Housing and Work Advisory Group and was not detached from the group. It was recalled that the Environment Minister did not participate in determining planning applications so that he could remain impartial when considering the recommendations arising from third-party appeals.’
The ruling added that ‘harsher criteria in respect of caring for family members outside the Island to persons without entitled-for-work or entitled status is discriminatory and unsustainable’ and called for identical policies to be applied regardless of residential and employment status.
The board has requested that the decision is reviewed and the Deputy Chief Minister provides a formal response within two months. The panel comprised chairman Geoffrey Crill, Tina Chatterley and Sue Cuming.