Shiful Islam v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Allen |
| Judgment Date | 16 May 2017 |
| Neutral Citation | [2017] UKUT 369 (IAC) |
| Date | 16 May 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2017] UKUT 369 IAC
IN THE UPPER TRIBUNAL
UPPER TRIBUNAL JUDGE Allen
The Queen (on the application of)
For Mr Islam: Mr B Malik, instructed by Londonium Solicitors on behalf of the Applicant.
For the Respondent: Mr A Payne, instructed by the Government Legal Department
For Mr Pathan: Mr A Jafar instructed via Direct Access on behalf of the Applicant
For the Respondent: Mr A Payne, instructed by the Government Legal Department
R (on the application of Islam and Pathan) v Secretary of State for the Home Department (Tier 2 licence-revocation-consequences)
Unlike the situation for Tier 4 applicants, a person whose sponsor's Tier 2 licence was revoked for non-compliance with the Immigration Rules is not entitled to challenge a decision not to provide him/her with a period of 60 days in which to secure an alternative sponsor. Patel [2011] UKUT 211 (IAC)distinguished.
These two linked cases raise a common issue which makes it appropriate for there to be one decision relating to that issue which is applicable equally to each applicant. Insofar as there are specific points relating to either applicant they will be dealt with separately at the close of the determination under headings applicable to each of them.
The central issue in this case is whether an immigration applicant who has applied to the Secretary of State for leave to remain under the Tier 2 (General) Migrant category of the Immigration Rules and has submitted a certificate of sponsorship from their sponsoring employer which is valid at the time the application is made is entitled to challenge the respondent's decision not to provide them with a period of 60 days in which to secure an alternative sponsor, in circumstances where the sponsor's Tier 2 licence was revoked for non-compliance with the Immigration Rules.
Mr Islam was granted leave to enter the United Kingdom as a Tier 4 (General) Student on 25 September 2009, and that leave was extended from the initial period elapsing on 30 June 2011 to 4 August 2012. On 25 August 2012 he was granted leave to remain as a Tier 1 (Post-Study Work) Migrant until 25 August 2014. On 23 August 2014 he submitted a Tier 1 (Entrepreneur) application which was refused on 8 December 2014 and a subsequent appeal was dismissed.
On 1 February 2016 he applied for the role of “Business Development Manager” in an Indian restaurant and relied on a certificate of sponsorship issued by Tamarind (South West) Limited trading as Viceroy. The respondent had concerns as to whether the role of the applicant was genuine and as a consequence of enquiries being made the sponsor licence of Viceroy was revoked on 21 April 2016. The refusal decision in the applicant's case was 7 June 2016 on the basis that he did not satisfy the requirements of paragraph 245HD(f) of the Immigration Rules since the certificate of sponsorship had been cancelled due to the sponsor having had its Tier 2 licence revoked.
Subsequently on 16 June 2016 the applicant submitted a request for administrative review and as a consequence of this the decision was maintained on 6 July 2016. Proceedings were issued following a PAP letter and response, on 13 September 2016.
Mr Pathan was granted leave to enter the United Kingdom as a Tier 4 dependent partner on 7 September 2009, with leave to remain until 31 December 2012. That leave was extended subsequently until 30 April 2014. On 30 January 2013 he submitted an application as a Tier 2 (General) Migrant, relying on a certificate of sponsorship issued by Submania Limited and was granted leave to remain until 15 October 2015. On 2 September 2015 he submitted a further Tier 2 application again relying on a certificate of sponsorship issued by Submania. The respondent had concerns as to whether the post on offer was a genuine vacancy, the application was put on hold awaiting the outcome of a sponsor visit and subsequently on 4 February 2016 Submania was informed that its sponsor licence had been suspended and it was invited to submit representations within twenty working days. No representations were made and the licence was revoked on 7 March 2016. On 7 June 2016 the applicant's application was refused because the CoS had been cancelled on account of Submania having had its Tier 2 licence revoked. An administrative review was sought on 14 June 2016 and refused on 7 July 2016. Thereafter the proceedings were issued.
There was some discussion at the outset about the further decisions in each case which had been issued by the respondent. It was agreed that I would address what may conveniently in shorthand be called the 60 days' issue and hear submissions on that alone since if the appellants were unsuccessful in their challenge to the main decisions then that would render any challenge to the subsequent decisions academic.
The essence of the argument put forward on behalf of both applicants is that it is irrational for the Secretary of State not to provide Tier 2 applicants with a 60 day period in which to find an alternative sponsor. Their applications for leave to remain were refused on account of the sponsor losing its Tier 2 licence whilst their applications were under consideration. In particular the argument is based on the decision of the Upper Tribunal in Patel [2011] UKUT 211. In this case a Tier 4 applicant had been refused further leave to remain as his sponsor had been removed from the list of approved sponsors and he therefore had no sponsorship letter capable of earning him points under the points-based system. It was held that what was required to give effect to the principle of fairness was for a direction to be given that the fresh decision was not to be made for a period of 60 days from the date of the reasons decision being transmitted to the parties to enable the appellant to obtain a fresh sponsorship letter that was current and enable his existing application to be varied to include study at the institution set out in the new sponsorship letter.
In summary the argument on behalf of the applicants is that an immigration applicant is entitled under the common law to have the Immigration Rules applied to him in a way that adheres to principles of fairness. Reliance is placed on what was said by the Court of Appeal in Q [2003] EWCA Civ 364, that decision relying also on what had been said by Lord Mustill in Doody [1994] 1 AC 531 at 560. It is argued that whether the principle of fairness had to be applied identically or differently depends on the context of the legal and administrative system in question and that the Immigration Rules fall within the definition of the legal and administrative system for the purposes of Doody.
As regards what was said in Patel, emphasis was placed on paragraph 22 where it was said that where the applicant is both innocent of any practice that led to loss of the sponsorship status and ignorant of the fact of such loss of status, it seemed to the Tribunal that common law fairness and the principle of treating applicants equally meant that each should have an equal opportunity to vary their application by affording them a reasonable time with which to find a substitute college on which to base their application for an extension of stay to obtain the relevant qualification. It was noted that in curtailment of leave cases the express Home Office policy was to afford a period of 60 days for such an application to be made, and that period was thought to be equally appropriate to the case of refusal of leave. This was based on the principle of fairness. It was clear that the Home Office knew that it had suspended the college in question in January 2010 but no one else knew this. The applicant could not have known subsequently that the college's status as an approved sponsor was revoked before his application for an extension of stay was decided. It was said to be obviously unfair for the Secretary of State to revoke the college's status after the application had been made when it was an approved sponsor and not to inform the applicant of such revocation nor to afford him an opportunity to vary the application. This would not apply where the applicant had not been a bona fide student at the college or where he had participated in the practices that might have led the college to lose its sponsorship status or where he had had actual knowledge of the termination of the college's status as a sponsor.
It was argued that on the one hand fairness dictated that students who had been refused following revocation of their education provider's education sponsor licence should be treated the same as students whose leave had been curtailed and also that it was, with particular reference to the instant case, obviously unfair of the Secretary of State to revoke the college's status after the application had been made when it was an approved sponsor and not to inform the applicant of such revocation and not afford him an opportunity to vary the application. It was argued by Mr Malik and Mr Jafar that this second strand in the Patel ratio was supported in EK (Ivory Coast) [2014] EWCA Civ 1517, where it was held that the principle of fairness did not extend to requiring the Secretary of State to afford an applicant who had applied for leave to remain under Tier 4 an opportunity to correct an administrative error made by her education provider whereby it cancelled her Confirmation of Acceptance of Studies letter owing to an administrative error. The principle of fairness was said to apply only to decisions within the Secretary of State's control. It was argued that this reasoning applied equally across to the situation of Tier 4 applicants. This was on the...
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