Imrankhan Mahmdiqbal Pathan v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lord Justice Coulson,Sir Andrew McFarlane P |
| Judgment Date | 02 October 2018 |
| Neutral Citation | [2018] EWCA Civ 2103 |
| Docket Number | Case No: C6/2017/2535 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 October 2018 |
[2018] EWCA Civ 2103
Sir Andrew McFarlane, PRESIDENT OF THE FAMILY DIVISION
Lord Justice Singh
and
Lord Justice Coulson
Case No: C6/2017/2535
C6/2017/2542
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UT Judge Allen
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Zane Malik (instructed by SBM Solicitors) for the First Appellant
Mr Michael Biggs (instructed by Londonium Solicitors) for the Second Appellant
Mr Alan Payne (instructed by the Government Legal Department) for the Respondent
Hearing date: 11 September 2018
Judgment Approved
Introduction
These are two appeals against the decision of the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) dated 7 August 2017, by which UT Judge Allen dismissed each Appellant's claim for judicial review. The UT Judge gave a single judgment in both cases since they raise a common issue of principle. He did not decide the alternative bases upon which the Secretary of State relied, by way of reasons set out in supplementary decision letters dated 5 April 2017, because those issues had become academic in the light of his decision on the principal issue.
Permission to appeal was granted to both Appellants by Hickinbottom LJ on 30 April 2018.
Before this Court both Appellants submit that the UT decision was wrong in law. The Secretary of State resists their appeals but also submits, pursuant to a Respondent's Notice which has been filed out of time, that in any event the appeals should be dismissed on alternative grounds, namely for the reasons set out in his supplementary decisions.
The principal issue in these cases was, as UT Judge Allen formulated it:
“Whether an immigration applicant who has applied … for leave to remain under the Tier 2 (General) Migrant Category of the Immigration Rules and has submitted a Certificate of Sponsorship from their sponsoring employer which is valid at the time the application is made is entitled to challenge the respondent's decision not to provide [him] with a period of 60 days in which to secure an alternative sponsor, in circumstances where the sponsor's Tier 2 Licence was revoked …”
Before this Court it became clear during the course of the hearing that the Appellants do not in fact go that far. Rather they contend that they were entitled to notice of the fact that the sponsor's licence had been revoked and a reasonable opportunity (not necessarily 60 days) to re-arrange their affairs, not necessarily to find an alternative sponsor but potentially to do other things, including making an application to the Secretary of State on an alternative basis, for example on human rights grounds or to ask for the exercise of his residual discretion, or even to leave the United Kingdom (“UK”) voluntarily without the risks associated with being found to have been staying here after their leave to remain had expired.
The fundamental question nevertheless remains whether there is any requirement of public law that the Secretary of State must in circumstances such as those of these Appellants give notice of the fact that the sponsor's licence has been revoked or whether he can simply refuse the application for leave to remain on that ground (as the Immigration Rules on their face permit him to do and indeed require him to do).
Factual Background
Pathan
The First Appellant, Mr Pathan, is a citizen of India who was born on 7 May 1976. He has a wife and child, who are also citizens of India and have no freestanding claims for leave to remain in the UK.
On 7 September 2009 the Appellant was granted leave to enter the UK as a Tier 4 (General) student until 31 December 2012. He was granted further leave to remain as a Tier 4 (General) student on 1 December 2010 until 30 April 2014. He was granted further leave to remain as a Tier 2 (General) migrant on 23 March 2013 until 15 October 2015 in order to work for a food outlet, Submania Limited.
Before the expiry of his leave, on 2 September 2015, the First Appellant made an application for leave to remain as a Tier 2 (General) migrant to continue working for Submania. That application was supported by a Certificate of Sponsorship issued by Submania. However, while that application was pending, on 7 March 2016, the Secretary of State revoked Submania's sponsorship licence. The Secretary of State then refused the First Appellant's application for leave to remain on 7 June 2016, with no prior notice that Submania's licence had been revoked.
The Appellant made an application for an administrative review on 14 June 2016. That was refused by a letter dated 7 July 2016.
After judicial review proceedings had been commenced in the UT and at the same time as the detailed grounds of defence were filed on or around 6 April 2017, the Secretary of State served a “supplementary” decision dated 5 April 2017. In that letter he stated that there were reasons for refusing the application in addition to what had been said previously about the revocation of the sponsor's licence. In essence the Appellant's credibility was cast into doubt. It was said that the Appellant was seeking to do a job which was not genuine.
Islam
The Second Appellant, Mr Islam, is a national of Bangladesh who was born on 31 January 1985.
He entered the UK with leave to enter as a Tier 4 (General) student valid from 25 September 2009 to 30 June 2011.
Following an in-time application he was given leave to remain as a Tier 4 (General) student valid from 11 July 2011 to 4 August 2012. After a further in-time application he was given further leave to remain as a Tier 1 (Post-Study Work) migrant valid from 25 August 2012 to 25 August 2014.
By a decision letter dated 8 December 2014, again following an in-time application for further leave to remain, the Second Appellant was refused further leave to remain as a Tier 1 (Entrepreneur) migrant. That decision carried a right of appeal under section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002. That appeal was dismissed on 24 July 2015. The Second Appellant made an application for permission to appeal, which was finally refused on or around 5 January 2016, at which point he became an overstayer.
At that time the rules permitted an overstayer to make an application for leave to remain within 28 days (that period has since been reduced to 14 days). The Second Appellant made such an application on 1 February 2016. He applied for leave to remain as a Tier 2 (General) migrant, pursuant to para. 245HD of the Immigration Rules, to work as a Business Development Manager at Tamarind (South West) Limited trading as “Viceroy”, a restaurant, which was his sponsor. In support of that application he relied upon a Certificate of Sponsorship from the sponsor.
That Certificate of Sponsorship was valid at the time when the application was made. However, it became invalid subsequently because the sponsor's Tier 2 licence was revoked by the Respondent, without notice to the Appellant and for reasons that do not involve any fault on his part. The sponsor's licence was revoked by the Secretary of State on 21 April 2016.
The Appellant's application for leave to remain was refused by a decision letter dated 7 June 2016.
The Appellant applied for an administrative review of the decision. That review was refused by a letter dated 6 July 2016.
After judicial review proceedings had been commenced in the UT and at the same time as the detailed grounds of defence were filed on or around 6 April 2017, the Secretary of State served a “supplementary” decision dated 5 April 2017, which was in similar terms to the one sent to the First Appellant on the same date.
The judgment of the Upper Tribunal
Before the UT, as before this Court, the fundamental basis on which the Appellants' submission was advanced was the principles of procedural fairness: see para. 9 of the judgment of UT Judge Allen, where he made reference, for example, to the decision of the House of Lords in R v Secretary of State for the Home Department, ex p. Doody [1994] 1 AC 531, at 560, in the speech of Lord Mustill, which remains a classic statement of the requirements of procedural fairness in modern administrative law. The argument was based in particular on the decision of the UT in Patel (Revocation of Sponsor Licence – Fairness) India [2011] UKUT 211 (IAC); [2011] Imm AR 5. I will return to that judgment later.
Having summarised the respective arguments for the parties and having referred to the evidence filed on behalf of the Secretary of State in the form of witness statements from Mr Richard Jackson and Ms Frances Buzzeo, UT Judge Allen set out the essential reasons for his decision refusing the applications for judicial review at paras. 24–27.
At para. 25 he said that it is important to recall that “this is an application for judicial review based on contended irrationality in the Respondent's decision in these cases.” Before this Court both Mr Malik and Mr Biggs criticise that passage because, they submit, it betrays a fundamental error of law in the approach which the UT took to the question it had to decide. They submit that the Appellants' argument was not and is not that the Respondent acted in a way which was irrational; rather that it was procedurally unfair and that such questions of fairness are for the court or tribunal itself to determine.
At para. 26 UT Judge Allen said:
“… In my view, for both policy and operational reasons, the Respondent's decision not to extend the 60 day grace period on Tier 4 cases to Tier 2 cases is a rational one. I accept that there are material distinctions which the Respondent is justified in...
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