R Taste of India Ltd v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Richard Clayton |
| Judgment Date | 02 February 2018 |
| Neutral Citation | [2018] EWHC 414 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1302/2017 |
| Date | 02 February 2018 |
[2018] EWHC 414 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Richard Clayton QC
(Sitting as a Deputy Judge of the High Court)
CO/1302/2017
APPEARANCES
Mr M Gill QC and Mr J Gajjar (instructed by Law Lane Solicitors) appeared on behalf of the Claimant.
Ms S Blackmore and Mr A Mills (instructed by Government Legal Department) appeared on behalf of the Defendant.
THE JUDGE:
The claimant in these proceedings is a fast food business providing Indian food in East London employing around thirteen staff. A photograph of the restaurant is in amongst the papers. The claimant has previously had a sponsor licence to sponsor Tier 2 visas for employees in certain circumstances.
The Secretary of State revoked the claimant's sponsor licence on 2 nd February 2017 following a compliance visit on 4 th August 2016 and two sets of representations made by the claimant. On 10 th March 2017 the claimant brought judicial review proceedings, which the Secretary of State now resists.
The brief history of this matter is as follows. On 20 th January 2015 an application was made for a sponsor licence. On 13 th February 2015 a Tier 2 (General) and Tier 2 (Intra-company Transfer) sponsor licence was granted. On 4 th August 2016 there was a compliance visit. On 8 th August 2016 representations were received by the Secretary of State from the sponsor. On 12 th December 2016 the sponsorship licence was suspended. On 11 th January 2017 representations from the sponsors were received by the Secretary of State. On 2 nd February 2017 the sponsorship licence was revoked.
On 14 th February 2017 the claimants sent a pre-action protocol letter. On 9 th March 2017 the defendant responded to the pre-action protocol letter and maintained the revocation decision. On 10 th March 2017 the claimant lodged an application for judicial review. Summary grounds were lodged by the defendant on 11 th April 2017.
On 19 th May 2017 permission was refused on the papers by Amanda Yip QC sitting as a Deputy High Court Judge. On 22 nd May 2017 the claimant lodged a reply to the summary grounds of resistance. On 29 th June 2017 permission was granted at an oral renewal hearing by Dinah Rose QC sitting as a Deputy High Court Judge. On 9 th August 2017 the claimant amended their grounds.
In these proceedings, I have been provided with numerous documents which appear in six lever arch files. I have also been provided with authorities bundles comprising sixty-one authorities, plus some additional authorities provided during the hearing itself.
The case was listed for two days, 24 th and 25 th January 2018. A number of issues were raised at the beginning of the hearing involving the claimant seeking to prevent the defendant from relying upon her detailed grounds and seeking the ability to rely on additional witness statements, including expert evidence served on 19 th January 2018 and seen by counsel for the defendant for the first time on 22 nd January 2018.
Lengthy submissions covering a lot of ground took place for most of the morning of 24 th January 2018. I do not propose to rehearse these issues again. The upshot was that I decided the defendant was entitled to rely on the detailed grounds and admitted the claimant's late witness statements, subject to the defendant having the opportunity to file further witness evidence, if necessary.
In the event, it proved to be impossible to complete the hearing in two days and submissions ran into the third day. Again, this proved impossible to complete and the claimant filed written submissions in reply, served on 29 th January 2018. The Secretary of State, confining herself to any points of law, replied in written submissions on 30 th January 2017.
Factual background
In its amended grounds, the claimant stated it operated a restaurant business since 2004. The Secretary of State revoked its licence in 2012, which was challenged by judicial review and was resolved by consent. The current proceedings result from a compliance visit on 4 th August 2016.
In these proceedings, the claimant has filed the following: two witness statements from Ziaoudine Sarabadine, director of the claimant, dated 7 th March 2017 and a second witness statement from him is dated 10 th August 2017; a witness statement from Fransicu Silva, the claimant's human resources and compliance manager, dated 10 th March 2017 and second witness statement from her dated 14 th July 2017; a witness statement from Prasantha Dehuri, a tandoori chef with the claimant, dated 3 rd July 2017; a witness statement from Rajkumar Mani, who says he is a friend of Mr Dehuri and deals with the complaint concerning the payment of £1,880 from Mr Dehuri to him on 22 nd October 2018; a witness statement from Baskaran Subramani, the claimant's Chettinadu chef dated 3 rd July 2017; a witness statement from Tul Bahadur Ale, a North Indian curry chef working for the claimant, dated 3 rd July 2017; a witness statement from Manikandan Lakshmanan, a North Indian chef, dated 3 rd July 2017; plus a third witness statement from Mr Sarabadine dated 10 th January 2018; a witness statement from Mr Tahir Khan, director at Law Lane Solicitors, dated 10 th January 2018; and a further three witness statements served on 19 th January 2018: Mr Sarabadine's fourth witness statement; Mr Khan's second witness statement and a witness statement from Debra Spurway, who gives what I regard as expert evidence on behalf of the claimant regarding the role of a human resources manager of the claimant. The defendant relied on two lengthy witness statements, one from Mr Ramsbottom and another from Mr Windle.
The defendant submits that the scale of the immigration context should be appreciated when assessing the defendant's decision making in this case. There are approximately 25,000 Tier 2 and Tier 5 sponsors. There were over 50,000 applications for Tier 2 visas in 2016 in the context of over 3 million applications for entry clearance between 2016 and 2017. There were nearly 130,000 admissions a year to the UK in 2016, which includes all British, EEA and other nationals passing through immigration control.
The Secretary of State further submits that proper immigration control is a major operation and carrying it out assiduously is of obvious importance to the national interest. She submits that this is the context in which it is important that sponsors play their role- and that the benefits and responsibilities of sponsorship, if not carried out with assiduously, have a real possibility of harming immigration control and the national interest. The Secretary of State therefore contends that the sponsor exercise and privilege is part of the important system of immigration control.
Legal framework
The relationship between the Immigration Rules and sponsorship guidance was considered by the Supreme Court in R (on the application of New London College Limited) v Secretary of State for the Home Department [2013] UKSC 51, [2013] 1 WLR 2358, which held that the Home Secretary had a range of ancillary and incidental administrative powers outside those laid in the 1971 Act which she could use in order to administer the system of immigration. Lord Sumption at para.29 said the following:
“The Immigration Act does not prescribe the method of immigration control to be adopted. It leaves the Secretary of State to do that, subject to her laying before Parliament any rules that she prescribes as to the practice to be followed for regulating entry into and stay in the United Kingdom. Different methods of immigration control may call for more or less elaborate administrative infrastructure. It cannot have been Parliament's intention that the Secretary of State should be limited to those methods of immigration control which required no other administrative measures apart from the regulation of entry into or stay in the United Kingdom. If the Secretary of State is entitled (as she plainly is) to prescribe and lay before Parliament rules for the grant of leave to enter or remain in the United Kingdom which depend upon the migrant having a suitable sponsor, then she must be also be entitled to take administrative measures for identifying sponsors who are and remain suitable, even if these measures do not themselves fall within section 3(2) of the Act. This right is not of course unlimited. The Secretary of State cannot adopt measures for identifying suitable sponsors which are inconsistent with the Act or the Immigration Rules. Without specific statutory authority, she cannot adopt measures which are coercive; or which infringe the legal rights of others (including their rights under the Human Rights Convention); or which are irrational or unfair or otherwise conflict with the general constraints on administrative action imposed by public law. However, she has not transgressed any of these limitations by operating a system of...
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R Sri Lalithambika Foods Ltd v Secretary of State for the Home Department
...Both parties now agree that there is no heightened level of scrutiny. The test is Wednesbury rationality: see Taste of India v SSHD [2018] EWHC 414 (Admin) per Richard Clayton QC at paragraph 34 The parties agree that the rationality of the Defendant's decision will be assessed by referenc......