R Raj and Knoll Ltd (Appellant/Claimant) v The Secretary of State for the Home Department (Respondent/Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lord Justice Kitchin,Lord Justice Moore-Bick |
| Judgment Date | 19 July 2016 |
| Neutral Citation | [2016] EWCA Civ 770 |
| Docket Number | Case No: C1/2015/1573 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 July 2016 |
[2016] EWCA Civ 770
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE HADDON-CAVE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
(Vice President of the Court of Appeal, Civil Division)
Lord Justice Tomlinson
and
Lord Justice Kitchin
Case No: C1/2015/1573
Mr Michael Biggs (instructed by Fernandes Vaz Solicitors) for the Appellant/Claimant
Mr Rory Dunlop (instructed by Government Legal Department) for the Respondent/Defendant
Hearing date: 21 June 2016
Approved Judgment
The Secretary of State for the Home Department, "SSHD", has responsibility for the maintenance of the United Kingdom's immigration controls. The "Tier 2" Points-Based System, "PBS", operated by the UK Visas and Immigration Section of the Home Department, is a scheme which covers the employment sector. It is contained in Part 6A of the Immigration Rules. Pursuant to the scheme skilled workers from outside the European Economic Area, the "EEA", are allowed leave to enter and remain in the UK to fill particular jobs which cannot be filled by settled EEA workers. The scheme permits employers to sponsor an applicant migrant by the issue to him or her of a Certificate of Sponsorship – "COS". In order to do so an employer must be licensed by the SSHD. Possession of a COS does not guarantee an applicant migrant leave to enter or remain in the UK but it provides him/her with most of the necessary points under the PBS. It follows that licensed sponsors play an active and crucial role in support of immigration control. Unsurprisingly therefore sponsors are required to comply with comprehensive guidelines in matters of detailed record-keeping and reporting, and that compliance is monitored by the SSHD. The rules are contained in published "Guidance".
Tier 4 is a similar, but obviously not identical, system for licensing educational institutions to sponsor students from outside the EEA to enter and remain in the UK. In that context Lord Sumption has observed, in R (New London College Ltd) v Secretary of State for the Home Department [2013] 1 WLR 2358 at 2372, paragraph 29:
"There are substantial advantages for sponsors in participating [in the Tier 4 scheme], but they are not obliged to do so. The rules contained in the Tier 4 Guidance for determining whether applicants are suitable to be sponsoring institutions, are in reality conditions of participation, and sponsors seeking the advantages of a licence cannot complain if they are required to adhere to them."
The same is obviously true of those who seek the advantages of a Tier 2 licence.
The Appellant Raj and Knoll Limited operates three nursing homes in the Walmer area of Deal, Kent: The Knoll at 196 Dover Road; Ami Court, at 198 Dover Road and Ami Lodge, at 79 London Road. In November 2009 Raj and Knoll was granted a B-rated Tier 2 licence to cover three addresses: 79, Hythe Road, Ashford, Kent, the principal registered address of the business, The Knoll and Ami Court. In April 2010 this was upgraded to an A-rating, earlier concerns about record-keeping having apparently been resolved to the Respondent's satisfaction. On 16 June 2014 the SSHD revoked the licence, having earlier suspended it, and on 4 July 2014 that decision was maintained in the face of further representations. The licence was revoked because the Appellant had, in the opinion of the SSHD, failed to comply with the Guidance so far as concerned its duty to maintain and produce documents evidencing its compliance with the procedures contained in the Guidance.
By judicial review proceedings the Appellant challenged the SSHD's decision on three main grounds. First, the SSHD was said to have misconstrued one of her own letters as bringing the case within the purview of a particular rule contained in the Guidance. Second, her decision was said to be in material part irrational. Third, it was said that the SSHD had failed to consider exercising her discretion in a manner falling short of revocation. Haddon-Cave J rejected that challenge and this appeal is brought with leave of Jackson LJ. Jackson LJ granted permission to appeal principally in order that this court might examine the legal principles said by the judge to be relevant to the standard of review which the court should adopt in case of challenge to decisions taken by the SSHD in administering the scheme and monitoring compliance therewith. Jackson LJ also stayed the revocation of the Appellant's Tier 2 sponsor licence, which the Appellant has therefore continued to enjoy to this day.
It is said by the Appellant that it is obvious from the terms of the judge's judgment that there had been no argument in the court below concerning the appropriate standard of review. I am not sure that it is so obvious. It might be an inference from the manner in which the judge expresses himself, although I am not sure that it is a necessary inference. However that may be Mr Michael Biggs, who conducted the ex parte application for permission to appeal before Jackson LJ on behalf of the Appellant, says that he thinks that he pointed out to Jackson LJ that the point was not argued below although he cannot be certain. He says that he was completely satisfied that Jackson LJ had noticed that there had been no argument. What on any view Mr Biggs did not tell Jackson LJ (because he did not know, not having appeared below) was that before the judge the principles which he enunciated in his judgment were conceded by counsel then appearing for the Appellant to be correct. I accept the submission of Mr Rory Dunlop, for the SSHD, that had the question of the appropriate standard of review been a live issue before the judge, the SSHD would in all probability have wished to adduce evidence of the scale and extent of abuse in Tier 2 sponsoring in support of her contention that great weight should be given to the educated conclusions and predictions of a decision-maker expert and experienced in the field. However I need not dwell on this point because in my view this challenge to the decision of the SSHD was bound to fail whatever the standard of review adopted by the court. It is therefore unnecessary to decide whether the Appellant should be permitted to pursue the point, or whether the Respondent for her part should have challenged the grant of permission to appeal, rather than resist the point being argued on the appeal. Whether decisions of the SSHD in this field attract an enhanced level of scrutiny, and what her own approach to suspension should be, are matters to be debated, if at all, on another occasion when (a) the court is properly informed as to the background against which the point must be decided and (b) the point is determinative of a challenge to a decision of the SSHD.
The Guidance
The Tier 2 Guidance referred to above provided, at material times:
(1) Unless one of the exceptions apply, none of which is relevant to this appeal, the sponsor must conduct a Resident Labour Market Test, "RLMT", and show that no suitable "settled worker" has applied for the job before it assigns a COS to a non-EEA migrant to fill a job – see section 28 of the Guidance;
(2) Since April 2013, in order to conduct the RLMT the sponsor must advertise the job for 28 days using two methods: an advertisement through Job Centre Plus and one of a number of other methods, the relevant one here being on-line advertising – see Guidance paragraph 28.40;
(3) The sponsor must keep the documents specified at Appendix D to the Guidance, to produce, if asked, in order to prove that it had conducted the RLMT – see Guidance paragraph 28.24. Appendix D has been amended over time but, at all material times, it required a sponsor to keep the following documents where it relied on an on-line advertisement in order to conduct the RLMT:
… A screenshot from the website hosting the advertisement, on the day the vacancy was first advertised, which clearly shows all of the following:
? Name of the website.
? Contents of the advert.
? Date and the URL.
? Closing date for applications.
Note: If the website clearly shows the date the vacancy was first advertised, the screenshot can be taken at any point during the period the vacancy is advertised.
Where the advertisement is not on your own website and does not show your name, a copy of a letter or invoice from the website will be required, to prove that an advertisement was placed.
(4) The sponsor must report any change in circumstances, such as a change of its business address – Guidance paragraph 12.6;
(5) The sponsor must report, within 10 working days, changes in the circumstances of the employees that it sponsors, including a change in the place where they are working – Guidance paragraph 15.7(d).
The judge set out the principal relevant provisions from the "Guidance For Sponsors: Tier 2 and 5 of the Points-Based System" provided by the UK Border Agency which took effect on 13 December 2012 as follows:
" What is sponsorship?
1.1 Sponsorship is based on two principles;
a) Those who benefit most directly from migration (employers, education providers or other bodies who are bringing in migrants) should play their part in ensuring the system is not abused.
b) We need to make sure that those applying to come to the UK for work or study are eligible and that a reputable employer or education provider genuinely wishes to take them on.
…
1.3 Sponsorship plays two main roles in a migrant's application for permission to come to, or remain in the UK to work or study:
a) It provides evidence that the migrant will fill a genuine vacancy that can't be filled with a suitable qualified or skilled...
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