R Sri Prathinik Consulting Ltd v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Anthony Elleray |
| Judgment Date | 12 December 2017 |
| Neutral Citation | [2017] EWHC 3204 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2788/2015 |
| Date | 12 December 2017 |
[2017] EWHC 3204 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Anthony Elleray QC
SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
Case No: CO/2788/2015
Michael Biggs (instructed by Mayfair Solicitors) for the Claimant
Sasha Blackmore (instructed by Government Legal Department) for the Defendant
Hearing dates: 29 & 30 March 2017
Judgment Approved
Anthony Elleray QC:
By this claim the Claimant ("the Company") seeks judicial review of a decision by the Defendant ("the SSHD"). The decision was dated 22 nd May 2015 and was to revoke the Company's Tier 2 Sponsor Licence.
The Company has carried on business as an IT Consultancy. On 16 October 2013 it sought and obtained a Tier 2 Sponsor Licence because it asserted a need for experts in IT who were unavailable on the resident labour market. It acquired nine employees, eight of whom were tier 2 migrants.
The claim was issued timeously in June 2015. Permission to seek judicial review was refused on paper by Mrs Justice McGowan on 15 June 2015. However, on a renewed oral application permission to see judicial review was granted by Judge Andrew Grubb sitting as a Deputy Judge of the High Court. Judge Grubb also on an interim application stayed the decision of 22 May 2015 until further order, so that the Company was permitted to continue to employ those tier 2 migrants employed by it immediately before the decision of 22 May 2015, until further order.
The claim has involved two unusual interim features. First, the Company has sought to raise the correct standard of review (a heightened alternative to the "simple" Wednesbury unreasonable standard). By Order of Mr Justice Hayden dated 11 October 2015 provision was made for the Company to file Amended Grounds of Review to address the appropriate standard of review. A direction was consequently given that the claim should not be heard by a Deputy high Court Judge. However, the failure of the Company to file and serve such Amended Grounds timeously led Mr Justice Garnham on 21 March 2017 to refuse permission to serve Amended Grounds and to set aside the Order that the claim should not be heard by a Deputy. Second, the SSHD has not served detailed Grounds of Opposition to the claim for reasons which led Mr Justice Hayden to give relief from sanction on 11 October 2016. Thereafter, uncertainty as to whether the Company would serve Amended Grounds put off the need to finalise detailed Grounds. The SSHD did apply to Mr Justice Garnham for an order that skeleton arguments should stand as detailed grounds but that was not directly addressed in his order of 27 March 2017.
The parties have been represented throughout and now before me by Mr Biggs for the Company and Ms Blackmore for the SSHD.
By his Skeleton dated 27 March 2017 Mr Biggs raised the possibility of the Company renewing orally its application to extend time for filing Amended Grounds of Review and questioned the ability of the SHHD to appear for want of the detailed Grounds of Opposition.
However, at the outset of the hearing before me Mr Biggs disclaimed on behalf of the Company any intention to seek to renew its application to extend time for filing Amended Grounds and the parties were content that I should permit the SSHD to oppose the claim on her Summary Grounds as amplified in Ms Blackmore's Skeletons of 7 October 2016 and 27 March 2016, the latter in large measure embracing the relevant parts of the earlier argument.
Tier 2
In R (Raj and Knoll Ltd) v. SSHD [2016] EWCA Civ 770 Lord Justice Tomlinson in giving the leading judgment observed at Paragraph 1:
"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. This 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 and 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. Unsurprising 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 the published "Guidance".
Lord Justice Tomlinson at Paragraph 2 of that judgment also observed:
"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 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."
Guidance
The SSHD has issued through UK Visas and Immigration: "Tier 2 and 5 of the Points-Based System Guidance for Sponsors."
The version applicable at the time of the decision dated 22 May 2015 was that issued in April 2015. There is common ground before me that though such Guidance was stated to be used for Tier 2 (and 5) applications made after 6 April 2015 there was no different provisions in earlier versions of the Guidance that would have relevance to me. Indeed, as I shall note, the SSHD has observed in terms that there is no material earlier Guidance that is relevantly different.
The provisions of the April 2015 version of the Guidance to which I have been particularly referred include the following provisions.
Section 1 related to applications for a licence. Paragraph 1.1 provided:
"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 to study are eligible and that a reputable employer or education provider genuinely wishes to take them on."
Paragraph 1.3 provided:
"Sponsorship plays two main roles in the 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 cannot be filled with a suitably qualified or skilled settled worker, or that they will be studying for an approved qualification.
b) It involves a pledge from the sponsor that it accepts all the duties expected when sponsoring the migrant."
Section 3 dealt with sponsor duties and compliance. Under a sub-heading "Record-keeping Duties" Paragraph 15.1 provided:
"You must keep the following record or documents, and make them available to us on request:
(see also Appendix D – Record-keeping)
a) A photocopy or electronic copy of the relevant page, or pages, of each sponsored migrant's passport, worker authorisation (purple Registration Certificate) or UK Immigration Status Document and Biometric Residence Permit (if available), that show their entitlement to work including their period of leave to remain in the UK. Further details of your responsibilities as an employer, to prevent illegal working, are available on our pages on the gov.uk website at …
b) Each sponsored migrant's contact details (up-to-date UK residential address, telephone number and mobile telephone number).
Paragraph 15.2 provided:
"You must give us, when asked, any documents relating to your sponsored migrants or the running of your organisation that we consider relevant to assessing your compliance with your duties as a sponsor. We might, for example, ask for details of your agreement practices so that we can make sure that a resident labour market test was carried out correctly."
Under a heading "Complying with the Law" it was provided at Paragraph 15.12:
"To make sure you are complying with our immigration laws you must:
…
d) Only assign a CoS to migrants who you believe will meet the requirements of a tier or category, and are likely to comply with the conditions of leave or worker authorisation …"
Under the heading "Documents":
"… what documents must I keep now I have a sponsor licence?
It was provided at Paragraph 16.2:
"There is no prescribed method for storing the documents, but they must be available to us on request. If you fail to keep any document specified in Appendix D and/or fail to give us any documents when we ask for them, we will take action against you."
Under the sub-heading "Revoking a licence", "Can my licence be revoked after it has been granted?" Paragraph 19.3 provided:
"For information on the circumstances in which we will revoke your sponsor licence see Annex 5."
And under Paragraph 19.5:
"For...
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