R Ullah and Others v Secretary of State for the Home Department

Hearing date: 30 March 2022

Approved Judgment

This judgment was handed down remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 11 o'clock on 4 May 2022.

Introduction

The Appellant (‘A’) is a national of Pakistan. He appeals from a refusal of the Upper Tribunal (Immigration and Asylum) Chamber (‘the UT’) to give him permission to apply for judicial review. Only the first page of the claim form appears to be in the bundle. The grounds for judicial review challenge decisions of the Secretary of State dated 29 August 2019 (‘decision 3’) and 30 September 2019 (‘decision 4’). In decision 3 the Secretary of State refused A's application for leave to remain as a tier 2 general migrant. In decision 4, the Secretary of State upheld decision 3 after an administrative review.

On 30 March 2020, the UT refused permission to apply for judicial review of decisions 3 and 4 (‘the Decision on the papers’). A renewed his application to an oral hearing. After a hearing on 16 March 2021, the UT again refused permission to apply for judicial review (‘the renewal Decision’).

On 29 September 2021, Nicola Davies LJ directed the Secretary of State to make a respondent's statement, addressing A's arguments, and, in particular, the delay between 19 November 2018 and 29 August 2019. On 12 January 2022, Nicola Davies LJ gave permission to appeal, on grounds 1–2 and 4. She refused permission to appeal on ground 3. I say more about the grounds of appeal below, in paragraph 36.

On this appeal, A has been represented by Mr Alex Burrett, and the Secretary of State by Mr Robert Harland. I thank counsel for their written and oral submissions.

The facts

A entered the United Kingdom in 2010 with leave to enter as a student. In December 2012, he was awarded a degree (Master of Science in Refugee Studies) by London South Bank University. He married on 23 December 2015, and he and his wife had a child on 10 July 2016. On 29 May 2015, A was given leave to remain as a Tier 2 migrant.

Before his leave expired, A applied to extend it (‘application 1’). On 24 July 2018, the Secretary of State refused application 1 (‘decision 1’) on the grounds that A did not meet the relevant requirements of the Immigration Rules (HC 395 as amended) (‘the Rules’), because the salary which A's sponsor proposed to pay him was not high enough.

A applied for administrative review of decision 1. In paragraph 3 of his submissions, he said that it was plain that the sponsor needed his services, and ‘would have considered increasing the salary of [A] to an appropriate rate had he been advised by the Home Office advice line that the was required to pay the employee at a rate of £33,300 per annum. The employer has now agreed to increase the salary of the employee to £33,600 per annum and has issued him with a fresh [CS]…in accordance with Appendix A of [the Rules]’.

The Secretary of State refused A's application for an administrative review of decision 1 on 21 August 2018. The Secretary of State noted that A had, in the meantime, obtained a new certificate of sponsorship (‘CS’). If A wished to rely on that, he should make a fresh application, and pay another fee, as the Secretary of State could not, on application for administrative review, consider new evidence.

A did so, under cover of a letter dated 30 August 2018. The covering letter said that A wanted to make a fresh application within 14 days of the refusal of his application for administrative review (‘application 2’). The letter added that further documents were enclosed to satisfy the salary requirement. The letter quoted paragraph 39E of the Rules. The letter said that the documents listed in the attached document check list were enclosed. The check list is missing from the bundle for this appeal. The BRPs (that is, the Biometric Residence Permits) and passports had already been submitted, the letter said.

The Secretary of State asked for information by an email dated 2 October 2018. The Secretary of State asked for the list of documents A had submitted, ‘the tracking reference number, the method you used to send the documents and the address’. If A had not submitted documents, he was asked to do so within 3 days. If the Secretary of State received nothing, she would make a decision on what she had.

A claims that the documents he relied on included a letter from the sponsor in which the sponsor explained that when, in March 2018, it had provided the first CS, it had made a mistake about A's salary. It should have been, and was, ‘£33,500’.

In the bundle for this appeal there is a letter dated 8 August 2018 from the sponsor, signed by Hamera Bano, who is described as a ‘Director HKS Consultancy Group’. She had looked at A's unsuccessful application and had seen that the sponsor issued a CS in March 2018. She apologised: ‘there was an error made by us in terms of the salary entered which was at the entry level which you are not, and should have been at a higher level as you are a [sic] experienced member of staff therefore your salary is £33,5000 per annum, Please note we have already agreed to pay you £33,500 as a qualified and experienced member of staff. We have also issued you with a new [CS]’.

On 10 October 2018 (‘decision 2’) the Secretary of State refused application 2 on the grounds that the proposed salary was not high enough. It is common ground that the Secretary of State mistakenly relied on the first CS, and not on the second CS. A applied for an administrative review of decision 2. On 19 November 2018 the Secretary of State accepted that she had made a mistake, and withdrew decision 2.

In response to this Court's order dated 29 September 2021, the Secretary of State served a Respondent's statement (‘the Statement’). Paragraph 5 of the Statement refers to the Secretary of State's GCID notes, that is, the notes from her digital database. The note for 19 November 2018 recorded that the caseworker had made a mistake by considering the first, and not the second, CS. The decision maker was returning the case for reconsideration. The note continues: ‘It should also be noted that probably there are GVR concerns’ due to the sudden increase of £11,600 in A's salary after the refusal of application 1. Mr Harland told us during the hearing that ‘GV’ stands for ‘genuine vacancy’. He added that he would try to find out what the ‘R’ stands for. In an email after the hearing, his solicitor explained, on instructions, that ‘GVR’ stands for ‘Genuine Vacancy Rule’. That is a succinct reference to the requirement of paragraph 77H(a) of the Rules (‘the Rules’) (see paragraph 49, below).

The notes record a full analysis of the information about the sponsor which was available to the Secretary of State on 22 January 2019. This occupies about a page of the notes. It also records the caseworker's decision to ask for more information from the sponsor. The information was detailed. It occupies one and a half pages of the notes. At that stage, the last compliance visit had been on 18 November 2014.

On 22 January 2019, the Secretary of State wrote to the sponsor, asking for further details of A's salary. The Secretary of State asked for a reply by 5 February 2019. The sponsor asked for more time to reply because the relevant member state of staff was on leave until 28 February 2019. On 27 February, the Secretary of State gave the sponsor an extension of time until 29 March 2019. On 22 March 2019, the Secretary of State received a response. The sponsor said it was emailing its accounts, and 12 months' wages slips for A. The email, which is pasted into the notes, then gave a long but somewhat vague description of A's job. A ‘hierarchy chart’ was attached. The email ended with an invitation to ‘come to the office and visit us too’.

The application seems to have been assigned to a new caseworker on 8 May 2019. The caseworker had emailed another official who had ‘carried out GVR inquiries’.

On 20 May 2019, application 2 was being reconsidered. The GCID note says that its author had made further inquiries of the sponsor. The GCID note observes that the sponsor had three directors and 19 employees. It listed their job titles. Seven further employees did not appear on an organogram but were listed separately. 20 staff were on a total salary of £327,165. The sponsor wanted to recruit A on a salary of £33,600. The company seemed to have a top-heavy management structure, and a lot of roles which sounded similar. The sponsor had issued 21 CSs. It already employed five Tier 2 migrants, and wished also to employ A.

The turnover in the 2018 income statement was £4,324,659. There was over £300,000 cash in hand to pay salaries. The sponsor's accounts showed that, while ‘on the surface’ the sponsor seemed to be operating, it was not doing so ‘very productively given the huge amount of debt owed’. That sum was £2,048,650. The decision maker had a concern ‘whether this company genuinely needs another individual in a management role given that company has so many already’. When the sponsor's Director was asked about the salary increase, she said that the company policy was to...