R Sri Lalithambika Foods Ltd v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Charles Bourne |
| Judgment Date | 27 March 2019 |
| Neutral Citation | [2019] EWHC 761 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3224/2017 |
| Date | 27 March 2019 |
[2019] EWHC 761 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Charles Bourne QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/3224/2017
Ms Carine Patry (instructed by KTS Legal) for the Claimant
Ms Julia Smyth (instructed by the Government Legal Department) for the Defendant
Hearing dates: 12–13 and 21 February 2019
Approved Judgment
Charles Bourne QC:
Introduction and legal background
This is a challenge to a decision by the Defendant on 6 April 2017, revoking the claimant's Tier 2 (General) and Intra-Company Transfer Sponsor Licence.
The Defendant has responsibility for the maintenance of the UK's immigration controls. Tier 2 is part of the “Points Based System” which regulates the admission to the UK of non-EEA nationals. The different “tiers” apply to different categories of such individuals. Tier 2 applies to skilled workers. Its essentials were described by Haddon-Cave J (as he then was) in R (Raj and Knoll) v Secretary of State for the Home Department [2015] EWHC 1329 (Admin) (a decision upheld by the Court of Appeal in a judgment to which I return below) in these terms:
“ The Tier 2 Scheme
15. 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 UK employers to recruit individuals from outside the EEA “to fill a particular skilled job that cannot be filled by a British or EEA worker”.
16. Central to the ‘Tier 2’ scheme is the role of the UK sponsor/employer. As a prerequisite to obtaining leave to enter or remain under the PBS ‘Tier 2’ route, a non-EEA worker must obtain a Certificate of Sponsorship (“CoS”) from a licensed sponsor. Employers can only issue a CoS if they are a licensed sponsor, i.e. they have been approved and placed by the SSHD upon the Register of Licensed Sponsors.
17. A CoS confirms that the non-EEA worker in question has been offered employment within an eligible category and includes a summary job description and the relevant ‘Standard Occupational Classification’ (“SOC”) Code for the particular job contained in the applicable UKBA's Codes of Practice for Skilled Workers. The CoS is held electronically on the ‘Sponsorship Management System (“SMS”) and accessed electronically.
The Guidance
18. Guidance on the PBS system in relation to the Tier 2 route is provided by the UKBA in “Guidance For Sponsors: Tier 2 and 5 of the points-based system” and took effect on 13th December 2012.”
In a further passage quoted by the Court of Appeal ( [2016] EWCA Civ 770, para 23), Haddon-Cave J continued:
“20. The principles applicable to ‘Tier 2’ and ‘Tier 4’ Points-Based Systems are similar: the watchword for both is ‘trust’.
21. The following common principles can be derived from the recent case law:
(1) The essence of the system is that the Secretary of State imposes “a high degree of trust” in sponsors granted (‘Tier 2’ or ‘Tier 4’) licences in implementing and policing immigration policy in respect of migrants to whom it grants Certificate of Sponsorship (“CoS”) or Confirmation of Acceptance (“CAS”) ( per McGowan J in London St Andrews College v Secretary of State for the Home Department (supra) (2014) EWHC 4328 (Admin) at [12]) (and see Silber J in R (Westech College) v Secretary of State for the Home Department (2011) EWHC 1484 (Admin)).
(2) The authority to grant a certificate (CoS or CAS) is a privilege which carries great responsibility: the sponsor is expected to carry out its responsibilities “with all the rigour and vigilance of the immigration control authorities” (per McGowan J in London St Andrews College v Secretary of State for the Home Department ( supra) at [13]).
(3) The Sponsor “must maintain its own records with assiduity” (per McGowan J in London St Andrews College v Secretary of State for the Home Department ( supra) per McGowan J at [13]).
(4) The introduction of the Points-Based System has created a system of immigration control in which the emphasis is on “certainty in place of discretion, on detail rather than broad guidance” (per Lord Hope in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, reported at [2012] 1 WLR 2208 at [42]).
(5) The CAS in the ‘Tier 4’ scheme (the equivalent of the CoS in the ‘Tier 2’ scheme) is very significant: the possession by a migrant of a requisite CAS provides strong, but not conclusive, evidence of some of the matters which are relevant upon the migrant's application for leave to enter or remain ( Global Vision per Beatson LJ at [12], citing Lord Sumption SCJ in R (New London College Ltd) v Secretary of State for the Home Department [2013] UKSC 51).
(6) There is no need for UKBA to wait until there has been breach of immigration control caused by the acts or omission of a sponsor before suspending or revoking the sponsorship, but it can, and indeed should, take such steps if it has reasonable grounds for suspecting that a breach of immigration control might occur (per Silber J in R (Westech College) v Secretary of State for the Home Department (2011) EWHC 1484 (Admin) at [17–18]).
(7) The primary judgment about the appropriate response to breaches by licence holders is that of the Secretary of State. The role of the Court is simply supervisory. The Secretary of State is entitled to maintain a fairly high index of suspicion and a ‘light trigger’ in deciding when and with what level of firmness she should act ( R (The London Reading College Ltd) v Secretary of State for the Home Department (2010) EWHC 2561 Admin per Neil Garnham QC).
(8) The courts should respect the experience and expertise of UKBA when reaching conclusions as to a sponsor's compliance with the Guidance, which is vitally necessary to ensure that there is effective immigration control (per Silber J in R (Westech College) v Secretary of State for the Home Department (2011) EWHC 1484 (Admin) at [29(d)]).”
The Court of Appeal's judgment appears to endorse those principles, subject to two caveats. At paragraph 29 Tomlinson LJ stated that it was unnecessary to decide whether the Judge was right at paragraph 21(6) of his judgment to record that the Defendant can revoke a licence if he merely suspects that a breach of immigration control might occur. And, as regards the citation of the Westech case, Tomlinson LJ at paragraph 31 pointed out that Silber J had added the important qualification “ provided of course UKBA complies with its public law duties” and that Westech was concerned with the Tier 4 scheme (for students) which is not identical to the Tier 2 scheme.
Guidance for Sponsors (“the Guidance”) imposes important and extensive duties on sponsors and explains that non-compliance is liable to result in the revocation of the sponsor's licence. I return to the relevant duties below.
Some further details about the Tier 2 system were the subject of evidence in a witness statement by David Ramsbotham whose contents are agreed, in so far as they describe how the system works.
Sponsors' compliance with their duties is policed by means of regular inspections by the Defendant's officers, known as compliance visits. These are sometimes announced and sometimes unannounced. Some are random checks and some take place because of specific concerns or allegations. Following a compliance visit, the compliance officer completes a visit report which will include investigation of comments made during the visit and checking of information provided at, or following, the visit. The report is reviewed and signed off by a manager. It is then submitted to the caseworking team which assesses the case afresh. It may decide that the sponsor's licence will be maintained. Conversely it may recommend that the licence should be immediately revoked, or suspended, or downgraded to a B rating with an action plan. Such a recommendation, supported by reasoning, is considered by a manager before action is authorised by a Grade 7 officer and a decision letter is sent to the sponsor. If the decision is to suspend, the sponsor is told what the concerns are and is given a period of time in which to respond with representations and evidence. Any representations and evidence are then considered by a caseworker who makes a reasoned recommendation to a manager, who once again reviews the recommendation and evidence and submits it to a Grade 7 officer for authorisation. The final decision is notified to the sponsor by letter, at which point the sponsor licence is revoked if revocation is the decision.
During any period of suspension the sponsor cannot issue any new CoS but can continue to employ any migrant workers whom it is sponsoring and is expected to continue to comply with all sponsor duties and responsibilities.
The Guidance provides a framework for consideration of any failures to comply with sponsor duties. It provides in particular for the most serious category of breach which “will” result in revocation and for a less serious category which “may” result in revocation:
“19.2 For information on the circumstances in which we will revoke your sponsor licence, see Annex 5 of this guidance.
19.3 If any circumstances in Annex 5 of this guidance arise, we will revoke your licence and may do so immediately. We will write to you to tell you that your licence has been revoked. There is no right of appeal and you will not be allowed to apply again for a sponsor licence until the end of the appropriate cooling-off...
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