R Sun Hotel Ltd v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 18 April 2018 |
| Neutral Citation | [2018] EWHC 1553 (Admin) |
| Docket Number | CO/880/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 April 2018 |
[2018] EWHC 1553 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
THE HONOURABLE Mr Justice Supperstone
CO/880/2018
Mr E Nicholson (instructed by Marsans Solicitors & Advocates) appeared on behalf of the Claimant.
Mr J Anderson (instructed by the Government Legal Department) appeared on behalf of the Defendant.
The claimant seeks permission to challenge the defendant's decision revoking their Tier 2 sponsor licence and for interim relief. In all, there is a challenge to four decisions: first, the decision suspending the licence, dated 20 July 2017; second, the decision revoking the licence, dated 20 September 2017; third, the reconsidered revocation decision, dated December 2017; and fourth, the decision to maintain the revocation, dated 14 February 2018, in response to the pre-action protocol letter.
In summary, the factual background is that the claimant's premises at the Holiday Inn, London Kingston South, were visited by officers from the defendant's Sponsor Compliance Team (“SCT”) on 24 May and 6 June 2017. On 20 July, the defendant's SCT wrote to the claimant suspending their Tier 2 sponsor licence due to a number of concerns identified on the visits. On 17 August, the claimant made representations addressing the issues raised. On 20 September, the SCT wrote to the claimant's representatives informing them that the claimant's licence had been revoked with immediate effect.
On 13 November, the claimant sent a pre-action protocol letter. The defendant replied on 22 November, indicating that the decision would be reconsidered. The claimant's representatives replied to that letter indicating that the licences should be reinstated pending the reconsideration. On 1 December, the SCT wrote to the claimant's representatives revoking the licence. On 12 December, the claimant's representatives sent a second pre-action protocol letter, suggesting that, since the revocation decision of 20 September was withdrawn, the licence should have been reinstated in accordance with the guidance. On 19 December, the defendant responded to the statement that the revocation decision had been a clerical error. On 1 February 2018, a further pre-action letter was sent with regard to the decision of 1 December. On 14 February, the defendant responded to the pre-action letter maintaining their decision.
It is, in my view, clear from the correspondence that the defendant did not, contrary to the suggestion of the claimant's representatives, withdraw the decision to revoke the licence. In the letter dated 22 November, it was stated that the decision to revoke the licence would be “reconsidered”. The statement in the defendant's letter dated 1 December, purportedly confirming by reference to their letter of 22 November that they would be withdrawing the decision of 20 September, was plainly written in error; all that they undertook in that letter was to reconsider the decision.
The general principles applicable to the Tier 2 sponsoring regime are not in dispute. In the context of the present case, I would in particular emphasise four of the common principles referred to by Haddon-Cave J in R (on the application of Raj and Knoll) v Secretary of State for the Home Department [2015] EWHC 1329 (Admin) at [21]. First, that the essence of the system is that the Secretary of State imposes a high degree of trust in sponsors granted licences in implementing and policing immigration policy in respect of migrants to whom it grants a certificate of sponsorship (referred to as a “CoS”). Second, the sponsor must maintain its own records with assiduity. Third, 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. Fourth, the courts should respect the experience and expertise of the UKBA when reaching conclusions as to a sponsor's compliance with the guidance, which is vitally necessary to ensure there is effective immigration control.
The claimant contends that the defendant did not comply with their public law duties in reaching their decisions. The claimant raises in total ten grounds of challenge. The first is that the defendant's decision is irrational because the defendant relies on the claimant dishonestly assigning a CoS for two non-existent jobs, when the decision letter also states that the defendant was satisfied that one of the two persons, Mr Anandamyle, was performing the duties specified on his CoS. It is clear that, having reconsidered her position in relation to Mr Anandamyle in the light of the evidence she received, the decision letter of 1 December relied only on assignment of the CoS to Mr Manian as not genuine.
Paragraph 27 of the decision letter of 1 December confirms by reference to the defendant's previous letter of 20 September that she is satisfied that Mr Anandamyle is performing the duties specified on his CoS. The same point is repeated at para.35 of the decision letter. At para.36, this is contrasted with the position of Mr Manian, in respect of whom the defendant believes that false information was given when assigning his CoS. However, in para.32 of the decision letter no such distinction is drawn between the cases of Mr Manian and Mr Anandamyle. Paragraph 32 reads:
“As we are not satisfied that the above vacancies are genuine we believe that your client made false statements when assigning CoS for these roles. This is a serious breach of our trust and we believe your client has acted dishonestly by assigning CoS for the roles of Quality and Compliance Manager and BDM in order to allow Mr Manian and Mr Anandamyle to extend their stay in the UK when the vacancies did not exist at a level described on their CoS.”
Mr Anderson, who appears for the defendant, describes this as “infelicitous drafting”. That is perhaps an understatement: it is simply not correct. However, reading the decision of 1 December as a whole, it is, in my view, clear that the defendant was satisfied that Mr Anandamyle was performing the duties specified on his CoS.
Further, I accept Mr Anderson's submission that, even when reading para.32 in isolation the defendant reached an irrational decision in relation to Mr Anandamyle, that does not make the decision to revoke the licence unlawful. The defendant's findings and conclusion in relation to Mr Manian would inevitably lead to the revocation of the licence on the basis that the false information provided when assigning his CoS is a mandatory ground of revocation.
The second ground is that the defendant has erroneously exaggerated the level of the employment of Mr Manian. The defendant considered the evidence on which the claimant relied. Whether the period of employment was three years or just over two years matters not; the defendant was not satisfied that the evidence showed Mr Manian had been performing the duties specified in his CoS.
The third ground relates to the defendant's treatment of the evidence provided by the claimant in relation to Mr Manian. There is no basis for the claim that there was a failure to take relevant information into consideration. The defendant is entitled to expect that where a person has been performing a role for over two years, there will, in the ordinary course of business, be substantial evidence as to what the person has done during that period of time, and to consider whether the evidence presented is in line with what could reasonably be expected of a person undertaking the specified role. This will necessarily involve an element of evaluation.
I am satisfied that the defendant gave detailed consideration to the evidence and provided adequate reasons for concluding that the evidence did not demonstrate that Mr Manian was conducting the duties specified within his CoS (see paras.20 to 28 of the 1 December decision, read in the light of what Mr Manian said at the interview). The critical point is that the defendant was entitled to find on the evidence that Mr Manian was not performing the duties set out in the CoS. It is plain that many of these tasks involved preparation of documentary materials and therefore one would expect there would be documentation produced that could show the work that was done. During...
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