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Supreme Court judgment on procedural fairness: how this could affect you as a Sponsor or Sponsored Migrant

Posted by: Gherson Immigration

R (on the application of Pathan) (Appellant) v Secretary of State for the Home Department (Respondent)

On 23 October 2020, the Supreme Court allowed an appeal addressing the issue of whether it was a matter of procedural fairness to provide notice to a Tier 2 (General) migrant that the relevant sponsor’s licence had been revoked, prior to making a decision on the migrant’s application. 

This could become a landmark ruling which will have considerable impact on what will be considered to be the fair and proper way to resolve such cases going forward. 

Background to the case

The relevant Tier 2 migrant, who had valid leave from 23 March 2013 to 15 October 2015, submitted an application for further leave to remain on 2 September 2015 in order for him to continue his employment with the same sponsor. The application was placed on hold whilst Home Office officials visited the employer company to investigate whether the vacancy was, in fact, genuine. 

Although the Home Office provided the sponsor with an opportunity to submit representations in order to remedy some compliance issues, the sponsor did not do so. On 7 March 2016, the sponsor licence was revoked, automatically invalidating the Certificate of Sponsorship assigned to the Tier 2 migrant. At this point, the Secretary of State for the Home Department (SSHD) did not provide any notice of revocation of the sponsor licence to the Tier 2 migrant. 

As the sponsor licence was revoked, the Tier 2 migrant was unable to satisfy Paragraph 245HD(f) of the Immigration Rules (i.e. having a valid certificate of sponsorship). However, it was not until 7 June 2016, that the application, which had initially been placed on hold, was refused. The migrant was therefore left with no valid leave – as this had expired on 15 October 2015. 

The Tier 2 migrant sought to appeal the refusal of his application on two grounds – first, that he should have been provided with notification of the sponsor licence revocation when it occurred on 7 March 2016 and second, that a reasonable period of time should have been given to him in order to respond to the revocation (i.e. giving him the chance of finding an alternative sponsor).   

In the Upper Tribunal and the Court of Appeal, the Tier 2 migrant argued that the refusal of his application, without giving him the opportunity of securing an alternative sponsor, was procedurally unfair. Both the Tribunal and the Court of Appeal dismissed the Tier 2 migrant’s appeal and the Tier 2 migrant proceeded with an appeal to the Supreme Court.

The judgment

The Supreme Court allowed the appeal, ruling that the SSHD breached the procedural duty to act fairly by failing to provide the Tier 2 migrant with notice of the sponsor’s licence revocation.

However, the majority of the Justices (Lord Kerr, Lady Black and Lord Briggs) held that the SSHD was not under a further duty to provide a particular period to the Tier 2 migrant to enable him to seek a new sponsor in the UK (i.e. a fresh Certificate of Sponsorship from a new sponsor). 

The issues raised in the Supreme Court 

Issue 1: Is the failure to notify the Tier 2 migrant of the revocation of the sponsor licence a breach of the duty of procedural fairness?

The Justices unanimously decided that failure to provide the Tier 2 migrant with notice of the revocation of the sponsor licence amounted to a breach of the procedural duty to act fairly. 

Lady Arden considered that “it was a breach of the procedural duty of fairness” that the SSHD did not inform the Tier 2 migrant about the sponsor’s licence revocation which then meant that his further leave to remain application would fail instantly.

Lord Kerr and Lady Black, who delivered a joint judgment, allowed the appeal on the basis that “there was a duty on the Secretary of State to notify Mr Pathan promptly of the revocation of the sponsor’s licence, it being procedurally unfair not to do so”.  

Lord Briggs delivered a similar judgment and agreed that whilst the SSHD’s failure to notify was procedurally unfair, it did not warrant the Court setting aside the previous decision.

Lord Wilson also agreed with the majority that failure to provide a “prompt notification” was procedurally unfair.

Issue 2: Does the Court have a positive duty to provide the Tier 2 migrant with a particular grace period (i.e. similar to a curtailment notice)? 

A curtailment notice is a Home Office notification informing the relevant sponsored migrant that their right to remain in the UK has been revoked. Normally, the Home Office provides a 60-day grace period to the individual to either make another application to remain in the UK, or to leave the UK.

In this particular case, Lord Kerr and Lady Black ruled that the SSHD was not under a further duty to provide the Tier 2 migrant with any grace period in order for him to arrange an alternative application. They further stated that to impose such a duty would “involve an extra extension of leave beyond that expressly set out in the legislation/Rules”.

Lord Briggs agreed with both Lord Kerr and Lady Black and further stated that providing the Tier 2 migrant with a grace period would be a “sort of collateral advantage” that procedural fairness was not “designed to protect”. He also stated that “the integrity of a decision-making process is in general damaged rather than preserved” if the Tier 2 migrant is allowed more time to prolong a “hopeless case”.

Both Lady Arden and Lord Wilson dissented with the majority. Lady Arden contended that if the Tier 2 migrant was given a grace period to remedy the situation, the Tier 2 migrant would have had the opportunity to arrange alternative sponsorship. Lord Wilson agreed with Lady Arden and further stated that allowing the Tier 2 migrant a grace period would not be inconsistent with the Immigration Rules. 

How may the above judgment apply to you as a sponsor or a sponsored employee?

Key Criteria for a sponsor licence

A sponsor licence enables an organisation to employ overseas migrants to work in the UK. The Home Office will look to establish four key requirements before issuing a company with a sponsor licence:

  1. That the company is a genuine organisation operating lawfully in the UK; 
  2. That the key personnel, in addition to the organisation, named on the application are deemed “honest, dependable and reliable”; 
  3. That the company is capable of carrying out the duties of a sponsor, including adequate and compliant HR and recruitment processes; and
  4. That the company is able to offer genuine employment which meets the appropriate skill level and meets the relevant salary threshold.

Please note that the Home Office have the right to visit the sponsored premises unannounced, in order to enable them to carry out a compliance visit to ensure that the above requirements are being met. 

Resident Labour Market Test

In the case of Pathan, the Home Office doubted the credibility of the vacancy. If a company intends to hire an overseas migrant, the sponsor is required to prove to the Home Office that they have ensured that there are no settled workers in the UK that could fulfil the role. This is normally shown by conducting a Resident Labour Market Test (“RLMT”), whereby the sponsor would usually advertise the vacancy for a minimum 28-day period in at least two mediums listed in the Sponsor Guidance. The RLMT was designed by the Home Office to ensure that settled workers in the UK had the opportunity to apply for vacancies, prior to these being offered to overseas migrants.

RLMT post-Brexit 

The RLMT will no longer be a Home Office requirement under the new Points Based System which will become effective as of 1 December 2020. Whilst the RLMT requirement will be removed, the Statement of Changes has recently published the following requirements which will be implemented in the immigration rules under the new Points Based System: 

the decision maker must not have reasonable grounds to believe the job the applicant is being sponsored to do

(a) does not exist; or 

(b) is a sham; or 

(c) has been created mainly so the applicant can apply for entry clearance or permission to stay”.

It is therefore currently unclear as to what evidence the Home Office will request in relation to proving that a role is ‘genuine’, now that there will no longer be a requirement for the RLMT.  We will hopefully receive a further update on this requirement by the Home Office prior to the new rules taking effect as of 1 December 2020. 

Gherson has a specialist team who deal with all matters relating to sponsor licences and work permits. If you are a UK sponsor and have had your licence suspended, or if you wish to apply for an initial sponsor licence, 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.

©Gherson 2020

 

Toska Fernandez 

  Toska Fernandez

  Paralegal in our General and Corporate Teams

 

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