R Liral Veget Training and Recruitment Ltd v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Andrew Thomas |
| Judgment Date | 02 November 2018 |
| Neutral Citation | [2018] EWHC 2941 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/536/2016 |
| Date | 02 November 2018 |
[2018] EWHC 2941 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Thomas QC, sitting as a Deputy High Court Judge
Case No: CO/536/2016
and
Gordon Lee (instructed by Curling Moore Solicitors) for the Claimant
Ashley Serr (instructed by Government Legal Department) for the Defendant
The Interested Parties did not appear and were not represented.
Hearing dates: 23 rd October 2018
Judgment Approved by the court for handing down
Andrew Thomas QC:
The Claimant is a provider of recruitment, training and consultancy services in various sectors including health and social care, computing and management. It is also a direct provider of domiciliary care services in its own right.
In January 2009 the Defendant granted the Claimant a ‘Tier 2’ Sponsor Licence. The licence permitted the Claimant to sponsor skilled workers from outside the EEA to come to the UK to fill vacancies which the Claimant had been unable to fill from the domestic labour market.
The evidence in this case concerns four employees who were each provided with a Certificate of Sponsorship (COS) by the Claimant enabling them to obtain a Tier 2 (General) visa. Those employees are the interested parties Mohammed Navas Pokkakkillath, Ify Sophie Odobo and Ngozi Blessing Olise, together with an ex-employee named Colin Okoro. In each case, the COS stated that they were being recruited to skilled roles. Mr Pokkakkillath and Ms Obodo were described as Business Development Managers, Ms Olise as an Accountant and Mr Okoro as a Human Resources Manager.
In March 2015, the Defendant commenced an investigation into the Claimant's compliance with its sponsor duties. Interviews were conducted with a director of the company and with the four relevant employees. The Defendant raised a number of concerns, in particular in relation to the information provided about the true nature of the jobs when the COS certificates were obtained.
By a letter dated 1 st September 2015, the Defendant notified the Claimant that its Sponsor Licence was being suspended with immediate effect. The letter set out the concerns and indicated that he was considering revocation. It invited the Claimant to make representations and to submit evidence in response to the concerns raised. The Claimant duly submitted a letter of representations on 24 th September 2015.
On 11 th November 2015, the Defendant notified the Claimant that it was revoking the Sponsor Licence. Detailed reasons for the decision were provided.
In these proceedings, the Claimant challenges the Defendant's decision to revoke the Sponsor Licence. It seeks an Order quashing the decision. It relies upon a number of grounds, now set out in an Amended Statement of Facts and Grounds dated 30 th July 2018.
i) Grounds (1) to (3) allege that the Defendant's determinations relating to the four employees were irrational and/or failed to take proper account of the relevant evidence.
ii) Grounds (4) and (5) allege procedural errors. Ground (4) alleges that the four employees were not given the opportunity to check and confirm the written record of what was said by them in interview. Ground (5) alleges that the Claimant was not given adequate details of the evidence the Defendant wanted to see or otherwise fair notice of what was expected of them. In short, it is alleged that the Defendant behaved unfairly.
iii) Ground (6) alleges that the Defendant misdirected himself as to the test for a finding of ‘deception’ and/or that he reached an irrational conclusion on the issue.
iv) Ground (7) alleges that irrelevant matters were taken into account.
The Defendant denies that the conclusions were irrational. He says that they were reasonable conclusions reached after a fair and diligent investigation. The Defendant emphasises that the Court's role is one of review, not primary decision making. The Defendant's case is that there was no unfairness in the procedures adopted because the letter of suspension had given the Claimant fair warning of the areas of concern. The letter of suspension had invited the Claimant to submit evidence in response but it had failed to do so.
Background
The ‘Tier 2’ Points Based System was first introduced in 2008. It is designed to allow skilled workers from outside the UK and EEA to come to the UK to fill particular skilled jobs which cannot be filled from among the domestic or EEA labour force.
Applicants for a Tier 2 (General) Visa are required to have both a specific job offer and a Certificate of Sponsorship from an employer who has been licensed under the scheme. There are other categories of Tier 2 visa (such as intra-company transfers) but those are not relevant to the present case.
In order to obtain a Sponsor Licence, an employer must demonstrate that it is bona fide, honest and capable of complying with the duties which are imposed under the scheme. Detailed provisions are made within the Immigration Rules and in guidance documents published by the Defendant. The sponsor is expected to discharge its duties with assiduity for as long as it continues to hold such a licence.
Two requirements are at the heart of the Tier 2 (General) scheme. The first is that, subject to limited exceptions, the job must be in a skilled occupation. The Guidance specifies that it must be a position at or above Level 6 in the National Qualifications Framework (NQF). The second is that the job cannot be offered to a migrant worker from outside the EEA unless the employer is unable to fill the job with a worker from the settled labour force.
In order to establish the fact that the a role is genuinely a skilled occupation, assessments are made against Standard Occupation Classification (SOC) codes. The Sponsor has to specify which of the SOC codes most closely matches the role for which they are recruiting. The guidance sets out example job tasks against which skill levels can be assessed.
The Certificate of Sponsorship is a virtual record, held on an online portal. When completing the COS online, the Sponsor is required to provide details of the job title, a summary of the job description and details of the job type (defined by reference to the relevant SOC code). The Sponsor is also required to specify the gross salary for the role.
The Guidance
The guidance document relevant to the present case is “ Tiers 2 and 5 of the Points Based System: Guidance for Sponsors” (‘the Guidance’). A detailed discussion of the scheme and the Guidance is set out in the judgment of Haddon-Cave J in R (Raj and Knoll Ltd) v SSHD (2015) EWHC 1329 at paras 13 to 19 and it is unnecessary to repeat it here.
Section 3 of the Guidance deals with “Sponsor Duties and Compliance”. Paragraph 15 contains record keeping and reporting duties. Paragraph 17 deals with compliance issues, including provision for compliance checks. It states at para 17.3: “We may check sponsors at random. If you are checked it does not necessarily mean we have doubts about your compliance as a sponsor.”
Paragraph 19, Annex 5 and Annex 6 list various circumstances which may lead to the revocation of the Sponsor Licence. The matters listed in Annex 5 are circumstances which will lead to mandatory revocation. They include the following:
“We will revoke your licence if …
…
(j) You have knowingly provided false statements or false information, or not provided information that you held when required to …
…
(ad) If we have asked you to send us any documents or information and you do not send the documents or information within the given time limit.
(ae) You assign a COS for a vacancy that was not genuine. For example where:
• it contains an exaggerated or incorrect job description to deliberately make it appear to meet the requirements of the tier and category you assisgned it under when it does not
• it is for a job or role that does not exist in order to enable a migrant to come to, or stay in, the UK.”
Annex 6 contains discretionary grounds for revocation. By way of preface, paras 19.5 and 19.6 state:
“19.5 For information on the circumstances in which we may revoke your sponsor licence, see annex 6.
19.6 We can't define in which exceptional circumstances we may not revoke your sponsor licence but when one of the circumstances listed in annex 6 applies, we view this as a serious and will look for evidence that you were either not responsible for what happened or, if you were, you took prompt action to remedy the situation.”
The circumstances listed in Annex 6 include the following:
“We may revoke your licence if …
…
(f) You fail to comply with any or all of your sponsor duties.
…
(i) As a result of information available to our compliance officers, we are not satisfied that your are using the processes or procedures necessary to fully comply with your sponsor duties.
(j) We find that migrants you have sponsored or employed have not complied with the conditions of their permission to stay in the UK, or the conditions of their grant of worker authorisation and you have not been following good practice guidance set out by us or a relevant sector body.”
The Claimant's Sponsor Licence
The Claimant has been trading since about 2006. It is a relatively small business based in South London. In 2008, the Claimant applied for a Sponsor Licence under the Tier 2 and Tier 4 schemes. The application for the Tier 2 licence was granted in January 2009. The application for the Tier 4 licence was refused and not pursued further.
The Claimant recruited four Tier 2 workers under the...
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