R Raj and Knoll Ltd v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Haddon-Cave |
| Judgment Date | 14 May 2015 |
| Neutral Citation | [2015] EWHC 1329 (Admin) |
| Docket Number | Case No: CO/3217/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 May 2015 |
[2015] EWHC 1329 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Haddon-Cave
Case No: CO/3217/2014
Zane Malik (instructed by Fernandes Vaz Solicitors) for the Claimant
Ashley Serr (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 11 th & 12 th March 2015
Introduction
This is one of the first cases to come before the courts in respect of the 'Tier 2' Points-Based System operated by the UK Visas & Immigration section of the Home Department licence scheme which covers the employment sector. The 'Tier 2' Points-Based System is a scheme operated on behalf of the Secretary of State for the Home Department ("SSHD") whereby skilled non-EEA workers are allowed leave to remain in the UK to fill particular jobs which cannot be filled by settled EEA workers.
The relevant Guidance and principles are similar to those relating to the 'Tier 4' Points-Based System licence scheme, which covers the education sector and which has been the subject of extensive judicial consideration.
By these judicial review proceedings, the Claimant challenges the Secretary of State's decisions of 16 th June 2014 and 4 th July 2014 to revoke its 'Tier 2' sponsor licence and to maintain that revocation. The effect of the revocation was that the Claimant was no longer able to employ non-EEA migrants.
The Facts
The Claimant runs three nursing homes in Deal in Kent called "Ami Lodge", "The Knoll" and "Ami Court". The Claimant employs 65 people, of whom 11 are 'sponsored' workers under a 'Tier 2' licence issued by the Secretary of State. The 11 sponsored workers have 6 dependents.
In 2009, the Claimant applied for 'Tier 2' status. On 20 th November 2009 UKBA conducted a Sponsor Management Unit ("SMU") Pre-Licence Visit of the Claimant. The Claimant was subsequently granted a 'Tier 2' licence. This permitted the Claimant to issue Certificates of Sponsorship ("CoS") to non-EEA migrants whom it wished to employ in its care home business, provided certain conditions were fulfilled. On 5 th February 2010, the Claimant issued its first CoS. Thereafter, UKBA conducted SMU Post-Registration Compliance Visits. These visits were intermittent and unannounced in accordance with its normal procedures. Visits took place on 13 th November 2010 and on 1 st February 2012. By 2013, the Claimant employed 39 'Tier 2' migrants as workers in its care homes.
UKBA visit on 30 th September 2013
On the 30 th September 2013, UKBA carried out a Licence Renewal Visit. The SSHD's compliance officers called at the Claimant's registered address, namely "79 Hythe Road, TN24 8PH". This turned out to be a news agents trading as "Raj". The shopkeeper told the compliance officers that the shop used to be owned by Mrs Amita Patel and her husband, who also owned other news agents in Deal, but they had sold these premises 'some time ago'. UKBA compliance officers then went to see and interview the Claimant's nominated Authorising Officer, Mrs Amita Patel. She admitted that, although the Claimant's CoS showed "79 Hythe Road, TN24 8PH" as the Claimant's working address, the Claimant had in fact sold these premises in 2013 and that address was never the place of work for the sponsor's 72 'Tier 2' migrants. In the light of this and other unsatisfactory findings during this visit, the SMU Compliance Report Form recommended suspension/ revocation of the Claimant's licence.
On 18 th March 2014, UKBA carried out a further unannounced inspection of the Claimant which finally led to a suspension letter sent by the SSHD to the Claimant.
Suspension letter dated 15 th May 2014
On 15 th May 2014, the SSHD wrote to the Claimant suspending the Claimant's licence. The SSHD's letter listed the issues which had been indentified during the inspection visit on 18 th March 2014 and the reasons for the suspension. These issues were five-fold:
(1) A failure to retain the required evidence to confirm that an RLMT had been undertaken in accordance with the Guidance (paragraph 2).
(2) The fact that Mrs Patel had told the compliance officer that the Claimant did not retain any copies of qualifications, shortlists or interview records relating to the recruitment of sponsored workers (paragraphs 3–5).
(3) The fact that the Claimant did not provide any evidence of the right to work in the UK of a Mr Vija Chakkalakkal Joy and Home Office Records showed that he did not have the right to work or remain in the UK; and as a result the Claimant was employing Mr Joy when he had no valid leave to remain or work in the UK (paragraphs 6–7).
(4) The fact that the Claimant did not include a Mr Arthur Fortes on the spreadsheet used by the Claimant to monitor expiry dates (paragraph 8).
(5) The fact that all the CoS assigned by the Claimant showed "79 Hythe Road" as the working address but Mrs Patel admitted that the Claimant had never worked at that address and, anyway, that business had been sold in 2013.
The SSHD's suspension letter stated that these issues constituted a failure by the Claimant to comply with its sponsor duties (paragraph 10) and concluded:
"12. To give you the opportunity to explain the above before we begin the revocation action, we are allowing you 20 working days to make representations, including submitting evidence, in response to the issues raised in this letter. If you fail to make representations or to adequately address the issues within this time, your licence will be revoked and you will no longer be able to sponsor employees." (emphasis added)
On 30 th May 2014, the Claimant made submissions to the Secretary of State and invited her to reinstate its licence.
Revocation letter – 16 th June 2014
On 16 th June 2014 the SSHD revoked the Claimant's licence altogether. The revocation letter stated inter alia as follows:
" Dear Mrs Patel,
REMOVAL FROM THE TIER 2 REGISTER OF LICENSED SPONSORS:
RAJ AND KNOLL LTD
1. I refer to previous correspondence of 15 May informing you that your sponsor license had been suspended as a result of issues identified during a visit to your premises on 18 March.
2. You were given 20 working days to make representation against this decision, which you responded to on 30 May.
3. Having considered all the available evidence along with the accompanying documents you have submitted, we have decided to revoke the sponsor licence for the reasons listed below:
Failure to retain evidence of Resident Labour Market Test (RLMT)
…
11. We are not satisfied that you have adequately demonstrated compliance with the RLMT. Annex 5 ac) states we will revoke your licence if:
If we have asked you to send us any documents or information and you do not send the documents or information within the give time limit.
Failure to report change of business and location of employee
…
17. We are not satisfied that you have adequately addressed the reason for not reporting the correct working at address of your sponsored workers. Annex 6 g) and j) of the Tier 2 and 5 Sponsor Guidance states we may revoke your licence if:
g) You fail to comply with any or all of your sponsor duties
j) As a result of information available to our compliance officers, we are not satisfied that you are using the processes or procedures necessary to fully comply with your sponsor duties.
…
20. In light of the above, we are not satisfied that you have adequately addressed to sponsor employees or issue further CoS. Section 3 paragraphs 19.9 – 19.14 of the Sponsor Guidance provide information relating to your existing sponsored employees."
On 17 th June and 27 th June 2014, the Claimant made further submissions to the Secretary of State inviting her to reconsider her decision to revoke on a number of grounds. The Secretary of State replied on 23 rd June and 4 th July 2014 (respectively) rejecting the Claimant's grounds and stating that she could find no reason to overturn the original decision. The Secretary of State's letter of 4 th July 2014 concluded:
"You have now been given a third opportunity to address all our concerns. You have submitted no additional evidence to demonstrate [the Claimant] has addressed all the issues identified in our letter of 16 June, therefore the issues contained in this letter and the decision still apply."
The Legislative and Policy Framework
Whilst there are some differences between the 'Tier 2' and 'Tier 4' schemes (notably, the Resident Labour Market Test ("RLMT") is unique to 'Tier 2'), the essence of the schemes and the legislative policy framework is similar.
The genesis of the Points-Based System and the legislative and policy framework in relation to the 'Tier 4' system has been extensively rehearsed in previous cases and there is no need to repeat it here (see especially R (New College Ltd) v. Secretary of State for Home Department [2013] UKSC 51 and [2013] EWHC 31 (Admin) and R (Global Vision College Limited) v Secretary of State for the Home Department (2014) EWCA Civ 659per Beatson LJ).
The Tier 2 Scheme
The 'Tier 2' route for entry and leave as a non-EEA worker came into effect in 2009 under the 'Points-Based System' ("PBS"), contained within the Immigration Rules. This was introduced by an amendment to Statement of Changes in Immigration Rules, HC 395 by HC 1113 which replaced the previous 'work permit' scheme. The aim of the new scheme as set out in the Explanatory Notes to HC 1113 was to enable...
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