R Talpada v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hallett,Lord Justice Underhill,Lord Justice Singh |
| Judgment Date | 24 April 2018 |
| Neutral Citation | [2018] EWCA Civ 841 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C6/2016/3161 |
| Date | 24 April 2018 |
[2018] EWCA Civ 841
Lady Justice Hallett
Lord Justice Underhill
and
Lord Justice Singh
Case No: C6/2016/3161
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE KAMARA
JR140422015
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Parminder Saini (instructed by AWS Solicitors) for the Appellant
Mr David Mitchell (instructed by Government Legal Department) for the Respondent
Hearing dates: Wednesday 14 March 2018
Judgment Approved by the court for handing down
Background
The appellant applied to remain as a Tier 2 (General) Migrant under the Points Based System (“the PBS”). The Secretary of State refused the application on 24 June 2015. The appellant made a second application for leave to remain as a Tier 2 (General) Migrant. The Secretary of State refused that application on 6 August 2015 and refused to change her decision following an administrative review on 7 September 2015. The original decision, the administrative review decision and the Respondent's refusal to change her decision in response to a pre-action protocol were the subject of a claim for Judicial Review. Judge Blum considered the matter on the papers and refused permission to apply for Judicial Review. On oral renewal, on 12 July 2016, Judge Kamara also refused permission to apply for Judicial Review and refused permission to appeal to this Court.
Permission to appeal to this Court was refused on paper but granted by Lady Justice Arden on two grounds. Unusually, she also directed that a further statement should be filed from Mrs Farhat Yar, the owner of F and Y Gifts Limited, the Appellant's sponsor. Lord Justice Hickinbottom gave the Respondent leave to lodge witness statements in response from two other witnesses Ewen McKenzie and Jill Warsop. In his skeleton argument Mr Mitchell for the Respondent raised the issue of questioning Mrs Yar during the hearing before us. Rightly, he did not pursue the application. Had he done so we would have refused it. The time for deploying all relevant material was before the Upper Tribunal Judge. In judicial review proceedings it is rarely necessary for there to be live evidence, because the nature of the issues is usually such that there should be no relevant dispute of fact. If there is a dispute of fact, and it is relevant to the legal issues which arise in a claim for judicial review, the court usually proceeds on written evidence. Since the burden of proof is usually on the person who asserts a fact to be true, if that burden is not discharged, the court will proceed on the basis that the fact has not been proved. It would be an exceptional case in which oral evidence was needed by the Administrative Court – or the Upper Tribunal when exercising its judicial review jurisdiction – and even more exceptional in this court. This is not an exceptional case. We also declined to receive yet another statement from Mrs Yar in which she attempted to argue the Appellant's case, as opposed to answering the witness statements of Ms Warsop and Mr McKenzie.
Facts
The Appellant is an Indian citizen who arrived in the United Kingdom on 14 July 2009, with entry clearance as a Tier 4 (General) Student. His leave was subsequently extended until April 2015. Shortly before his leave expired and whilst still in time, on 9 April 2015, he made an application for further leave to remain as a Tier 2 (General) Migrant working as a Business Development Manager at F and Y Gifts, a licensed Tier 2 Sponsor. The application was supported by a Certificate of Sponsorship (“CoS”) from Mrs Yar. It bore the reference number C2G3K55212A issued by FY Gifts.
A CoS is an electronic document. Mr McKenzie, a Compliance Operations Manager employed by the Home Office, has explained that the sponsor must complete the form and save it online. Once it has been submitted and assigned to a case worker the mandatory fields are frozen. A sponsor may add a Sponsorship Note before the application is assigned to a case worker to allow for minor amendments, for example the misspelling of a name or to include information not included elsewhere. When a case worker considers a Tier 2 application the caseworker is instructed to mark the CoS as used. This ends the life cycle of the CoS. A CoS reference number can only be used once. This is explained in the Rules and in the Guidance.
The Secretary of State refused the first application because Mrs Yar gave the Occupation Code on the Certificate of Sponsorship as 7220. This code was not on the list of the required NQF Level 6 Occupations and the Appellant accordingly failed to gain sufficient points for sponsorship under the PBS. For the purpose of the second application, with which we are concerned on this appeal, there needed to be a CoS with the correct occupation code. Mrs Yar contacted the Secretary of State's Sponsorship and Employers Helpline.
The Upper Tribunal had before it a witness statement from Mrs Yar in which she claimed that when she provided the first CoS she was unable to give the correct code because of technical problems on the Respondent's site. When she tried to assign the CoS number for the second application she was unable to do so. She emailed the Secretary of State's department and spoke on the telephone to Mrs Jill Warsop. She was advised to add a sponsorship note to the “live CoS” and was sent a user manual for adding a sponsorship note to a certificate. She duly added a note, referring to the correct occupation code, to the CoS, i.e. ref. no. C2G3K55212A, which had been used in support of the previous application. The appellant submitted the second application using the same CoS reference number C2G3K55212A. Mrs Yar claimed she had been given erroneous advice by Home Office staff.
In the witness statement prepared for this court, dated April 2017, Mrs Yar went further. She first repeated her allegation that it was a technical fault (for which the Respondent was responsible) that prevented her giving the correct code on the first occasion. As regards the second occasion, she insisted that she had four “unused CoS” in her system but her company system showed no unused CoS available. She contacted the department and was wrongly advised to “use the unused live CoS” as opposed to a new one.
Mrs Yar undoubtedly contacted the Respondent's department. She emailed the Respondent on 28 June 2015 and explained that she had assigned a CoS to her prospective employee (the Appellant) and he made an application for ‘Tier 2 General’ that was refused. She described the assigned CoS as “not utilised”. She claimed that she could not select the correct code for his future employment because it was not on the list provided and she was therefore forced to use the wrong code. She added:
“I have logged into my sms [sponsor management system] system again and realised that the relevant Code 3545 is now appearing and I now want to assign the same CoS to Mr. Talpada after rectifying the technical fault which existed in the system on 09 April 2015 when I assigned the CoS at first instance but unfortunately I am unable to do so since 0 CoS is appearing in the SMS system.”
We also know that she telephoned the Respondent's Sponsorship and Employers Helpline and spoke to Ms Warsop who was then employed by the Respondent as a Customer Services Adviser. We have what appear to be incomplete transcripts of two telephone calls Mrs Yar made to Ms Warsop. On 29 June 2015 Mrs Yar began by saying her enquiry was about “the CoS codes”. Having made an application that was refused she understood they had fourteen days to apply again. In fact, there was a time limit of fourteen days for applying for an administrative review. The rest of the conversation, if any, is missing. She rang Ms Warsop again on 3 July. She gave her details and said her call was about the CoS codes. She wanted to change an occupation code. Ms Warsop told her she could not do so but could add a sponsorship note. Mrs Yar wanted to know more and Ms Warsop informed her she could only send a guide and Mrs Yar would have to select the right code.
At no point in the transcripts we have did Mrs Yar refer to the refusal of 24 June 2015 or to the CoS used on that occasion; nor did Mrs Yar mention the availability of any unused CoS.
Ms Warsop emailed Mrs Yar on 3 July 2015 in which she recorded that the latter telephoned “regarding adding a sponsor note.” Ms Warsop explained, “As promised I have attached the User Manual Help Guide which will assist you in adding a Sponsor Note to a Certificate of Sponsorship. I hope this will be helpful.” There was no reference on the email to link it with the Appellant's application. The User Manual provides guidance on adding a note before a certificate of sponsorship is “used”. It relates only to a “live” certificate of sponsorship in the “assigned state” namely “unused”. If a CoS had been “used” the sponsor was advised to consult other guidance.
Mr McKenzie has explained that there were no technical faults on the system at the time the first application was made and that Mrs Yar's company did not have four “unused” CoS available to her, as she asserted. F Y Gifts has only ever had one CoS. It was assigned and used in the appellant's first application. However, he has discovered that the caseworker who refused the first application failed to mark the CoS as used. Had the CoS been marked as used, the sponsor would not have been able to add a sponsorship note. He maintained that the error had no significance because the sponsor cannot change the employment code by way of a sponsorship note and the CoS reference could not be used again according to the Immigration Rules. The...
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