Datamatics UK Ltd v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Nathalie Lieven |
| Judgment Date | 19 July 2016 |
| Neutral Citation | [2016] EWHC 1780 (Admin) |
| Date | 19 July 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5599/2015 |
[2016] EWHC 1780 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Nathalie Lieven QC Sitting as a Deputy High Court Judge
Case No: CO/5599/2015
Ramby de Mello (instructed by Veja & co) for the Claimant
Rory Dunlop (instructed by Government Legal Department) for the Defendant
Hearing dates: 29 June 2016
This is an application for judicial review to quash a decision of the Defendant dated 9 October 2015 to revoke the Claimant's sponsorship licence. Permission to bring judicial review proceedings was given by Timothy Dutton QC sitting as a Deputy High Court Judge on 9 February 2016. Mr Justice Collins having granted interim relief on 18 November 2015.
The Claimant is a company which specialises in providing IT services and solutions. It employs over 600 people in India and 50 in the United Kingdom. At all material times prior to the decision under challenge it had a licence under Tiers 2 and 5 of the Points Based Sponsor Guidance, issued by the Defendant, to sponsor employees for the purpose of immigration control.
The Claimant and the Interested Parties, who are jointly represented by Mr Ramby de Mello, raise three grounds of challenge. Firstly that the decision was unreasonable, for a number of reasons including that the Defendant failed to make proper inquiries in accordance with her duties under Secretary of State for Education v Tameside MBC 1977 AC 1014. Secondly, that the Sponsorship Guidance is an authorisation scheme under Council Directive 2006/123/EC "the Services Directive", and that the Defendant's decision fails a proportionality test. Thirdly, that the Sponsorship Guidance is incompatible with s.55 of the Borders, Citizenship and Immigration Act 2009 (and article 3 of the UN Convention on the Rights of the Child).
The relevant facts of the case are as follows. On 4 May 2015 the Claimant issued a Certificate of Sponsorship ("CoS") to Aritra Kumar Ghosh, the Second Interested Party, a non-EEA national, on the basis that he would be employed as a Software Developer at Amba House, 15 College Road, Harrow HA1 1BA.
On 18 June 2015 and 8 July 2015 the Defendant's officers visited the Claimant's premises — Amba House, 15 College Rd, Middlesex HA1 1BA.
On 18 June 2015 an officer interviewed Mr Ghosh. They also interviewed three other people who had Certificates of Sponsorship. The following are excerpts from the interview of Mr Ghosh:
"Q. Where will you be working?
A. The company has many clients. I am having interviews with clients. Whoever clear [sic] me I'll work for them.
…
Q. Who will direct duties at client site?
A. The client will direct the duties.
…
Q. How do you find work?
A. Contacts are given by the company (Datamatics)
Q. Who approaches the client?
A. Contacts only by the company. We consultants approach the client directly.
Q. What happens when you find the work?
A. I will work for the company at the client site and be paid by Datamatics.
Q. What work are you doing atm?
A. Updating skills, attending interviews, meeting clients.
…
Q. Will you work here at Amba House?
A. No I will be deployed elsewhere."
On 8 July 2015 an officer interviewed Mr Gandhi, the Claimant's director. The following are excerpts from his interview:
"Q. Why does our data say that all employees including ICTs work here at 15 College rd?
A. Our staff work at other sites on a short term basis. They move around a lot.
…
Q. How do you send your consultants to 3 rd parties?
A. Some clients ask for job roles, some ask for projects to be completed others just ask for staff numbers to be sent."
Mr Gandhi, the director of the Claimant company, was also interviewed and clarified Mr Ghosh's answer by saying Tech Mahindra, HCL and Orange ' ask for people only to fill vacancies'; Dell and CRISIL ' ask for people and services like projects' and three other companies 'ask for projects, services. The sponsor directs the work of migrants.' The companies referred to are all ones that work with the Claimant.
During the visit, the officers took away copies of contracts which the Claimant had with Tech Mahindra, JCL, Orange, DELL and CRISIL.
In a letter dated 3 September 2015 the Defendant informed the Claimant of her decision to suspend the Claimant's sponsor licence. The Defendant considered that the Claimant was in breach of its sponsor duties because;
a. It was in breach of the general sponsor duties because Mr Ghosh had said in interview that the "client" rather than Datamatics would direct his work. The letter referred to paragraph 39.46 of the Sponsor Guidance.
b. It was in breach of its general sponsor duties as Mr Ghosh had not been brought into the UK to undertake a specific project or service. The vacancy for which the CoS was assigned was not genuine. Further, the claimant had provided false information in this respect;
c. The Claimant had breached its sponsor duties by failing to make reports that it was required to provide under the terms of its Licence, e.g. it had failed to report that three persons it had sponsored had not in fact commenced employment and it had failed to report that a migrant it sponsored was working at a client site.
The Claimant was informed that the licence was suspended with immediate effect and given 20 days to make any representations.
On 9 September 2015 the Claimant, through Mr Gandhi, responded in a detailed letter. In respect of the suggestion that the clients rather than Datamatics directed Mr Ghosh's work, Mr Gandhi explained that in essence this was a misunderstanding. The client, in this case Care Homes Sites, interviewed Mr Ghosh to ensure his suitability for working on their premises. He was not interviewed in order to search for jobs. Mr Gandhi also referred to the fact that the other people at Datamatics, with CoSs, who had been interviewed, had been accepted by the UKBA as working in accordance with the Sponsor Guidance. He made reference to the contracts with various other companies. Mr Gandhi said that the Claimant supplied the work orders. Mr Gandhi argued that the Claimant was the employer of Mr Ghosh and that the Defendant had misunderstood what was said in interview and misconstrued its contracts with customers. Mr Gandhi admitted that the Claimant had made errors in reporting, but suggested that in one case the UKBA already had the relevant information, and in another case the location of the work was not permanent. The Claimant did not suggest, in this letter, that revocation would have an adverse effect on any children.
In a letter dated 9 October 2015 the Defendant revoked the Claimant's Tier 2 licence "the decision letter". The decision letter set out three issues which were found to be contraventions of the Sponsor's Guidance.
Firstly, there was reference to Mr Ghosh's answer in interview that " the client will direct the duties". Reference in the letter was made to paragraphs 39.44 and 46 in the Guidance and then paragraphs 8 to 10 of the decision letter state;
8. "In your representations you have stated that you never said that the work undertaken by your sponsored workers is directed by the clients and that this point has been misinterpreted by our compliance officers. However the interview record confirms that you stated "some clients ask for job roles, some for projects and some ask for staff numbers" [sic]. Therefore we accept that some of your clients request projects and you provide them with a service which is allowed under the points based scheme. However you have also confirmed that you also supply staff to clients which is a clear breach of paragraphs 39.44 and 39.46 of the Tier 2 and 5 Sponsorship Guidance as stated above.
9. This is corroborated by the HCL contracts you supplied during the compliance visit which clearly states that you are supplying staff. Furthermore the CRISIL contract you supplied substantiates that you are providing staff and your organisation has been referred to as a recruitment agency. Additionally we note that the Orange letter dated 30 June states that the services for Srinivasan Jagadeeshan have been extended and the duties have been decided by the client along with the time scale of each task. This confirms that your client is directing the duties for your sponsored workers. We are not satisfied that you have addressed this issue as you are acting as an employment agency supplying labour to third parties.
10. This contravenes Annex 5 y) of the Tier 2 and Tier 5 Sponsor Guidance which \ states:
We will revoke your licence if:
You are an employment agency or business and you have supplied migrants that you are sponsoring to a third party as labour."
Secondly, the decision letter at paragraphs 11–16 refers to Mr Ghosh's interview to demonstrate that he had not been brought to the UK to undertake a specific project or service.
11. In your representations you have stated that Mr Ghosh was not being interviewed for his technical abilities or finding a job but required to work in a care home which is a sensitive environment. We accept that Mr Ghosh was being interviewed to be cleared as indicated on interview record. However we note Mr Ghosh clearly stated on interview record dated 18 June that the client will direct the duties. Therefore Mr Ghosh is being supplied to a third party as labour. We are not satisfied that you have addressed this issue.
12. Annex 5 ae) of the Tier 2 and 5 Sponsor Guidance states we will revoke your licence if:
You assign a CoS for a...
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