Singhar Beauty Clinic Ltd v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Her Honour Judge Alice Robinson |
| Judgment Date | 02 November 2016 |
| Neutral Citation | [2016] EWHC 2703 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6210/2015 |
| Date | 02 November 2016 |
[2016] EWHC 2703 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Her Honour Judge Alice Robinson SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: CO/6210/2015
Miss Priya Solanki (instructed by Maxwell Solicitors) for the Claimant
Matthew Flinn (instructed by Government Legal Department) for the Defendant
Hearing dates: 4 th October 2016
Approved Judgment
Introduction
This is an application by the claimant to quash decisions of the defendant dated 8 th September and 31 st December 2015. In those decisions, the defendant revoked the claimant's licence to issue Certificates of Sponsorship under Tier 2 of the Points Based System of the Immigration Rules. On 24 th June 2015 the claimant's sponsor licence was suspended and it was given an opportunity to make representations. After considering those, on 8 th September 2016 a decision to revoke the licence was taken. That was reconsidered in the light of the further representations and evidence submitted by the claimant with a Pre-action Protocol letter and the decision maintained in the letter dated 31 st December.
On 14 th March 2016 His Honour Judge Blair QC sitting as a Deputy High Court Judge refused permission to apply for judicial review. The claimant renewed the application and on 26 th April 2016 Collins J granted permission.
Following service of the defendant's Skeleton Argument the claimant applied for permission to adduce further evidence in the form mainly of minutes and records of inspections and meetings between the claimant and his employees and officers from the UK Visas & Immigration Department of the Home Office disclosed by the defendant. The application was not opposed.
Factual background
The claimant is a well-established beauty salon with 17 branches in London and across the country. The head office and main branch is at 24 Topsfield Parade, Tottenham Lane, London N8 8PT. On 27 th October 2010 the claimant made an application for a sponsor licence and a B rated licence was granted on 10 th January 2011. Later that was upgraded. The claimant has been inspected a number of times since then to assess its ongoing suitability to be a sponsor. I was informed by Mr Matthew Flinn who appeared for the defendant, and it was not disputed by the claimant, that full inspections were carried out on 25 th February and 1 st May 2014.
An email from the Home Office to the claimant dated 11 th February 2015 records that a compliance officer had visited 24 Topside Parade twice, "more recently a few weeks ago", but had been unable to carry out an assessment as Mr Khawaja, the owner of the claimant, was not available. The email stated it was now urgent for an assessment to be carried out. Mr Khawaja replied that the proposed date was not convenient. On 31 st March 2015 compliance officers visited unannounced and they returned again on 14 th April for an arranged visit.
Following this the defendant made the decision to suspend the claimant's licence. The letter dated 24 th June relied upon five grounds: none of the sponsored workers were available to be interviewed on 14 th April, lack of evidence that specified sponsored workers are carrying out their duties, failure to monitor the immigration status of sponsored workers and poor record keeping relating to contracts of employment and sponsored workers' pay. It is the first two grounds that are relevant for the purposes of these proceedings.
In relation to those, the letter stated:
" General Sponsor Duties 1
2. Our officer visited your premises unannounced on 31 March, however, you were unavailable. Our officer organised an announced visit with you for 14 April and requested that your sponsored workers were available to be interviewed. However, on 14 April none of your sponsored workers were available to be interviewed."
The letter then referred to Tier 2 Sponsor Guidance to the effect that failure to co-operate with a compliance visit may lead to revocation of the sponsor licence. The letter continued:
" General Sponsor Duties 2
5. You assigned a certificate of sponsorship (CoS) to the following sponsored workers to be employed as sales accounts and business development managers under standard occupational classification (SOC) code 3545, the job description on their CoS states their duties are:
• Muhammad Atif Naeem (C2G7Z24919H)-Start date 25 June 2014
• Amitkumar Parekh (C2G3O94939L)-Start date 1 August 2014
• Kumari Radha (C2G1C55030A)-Start date 13 October 2014
• Shamim Akhter (C2G4T85000V)-Start date 26 September 2014
• Rashid Minas (C2G6X04719C)-Start date 9 December 2013
• Muhammad Hassan Ejaz (C2G6Z64779K)-Start date 10 February 2014
• Liaises with other senior staff to determine the range of goods or services to be sold
• Contributes to the development of sales strategies and setting of sales targets
• Discusses employers or clients requirements
• Carries out surveys and analyses customers reactions to product, packaging, price etc
• Compiles and analyses sales figures, prepares proposals for marketing campaigns and promotional activities and undertakes market research
• Handles customer's accounts, recruits and trains junior staff, produces reports and recommendations concerning marketing and sales strategies for senior management, keeps up to date with products and competitors.
6. Our officer was unable to ascertain whether the above sponsored workers are carrying out their duties as indicated on their CoS as you failed to provide any sponsored workers for interview as requested by our officer prior to the visit. You informed our officer that you employ 45–50 people. Taking this into account it is not credible that you would require six sales and business development managers for a business of your size. You have also failed to provide evidence that the above sponsored workers are carrying out their duties indicated on their CoS."
The letter then referred to Tier 2 Sponsor Guidance to the effect that assigning a CoS where there is no genuine vacancy will lead to revocation of the sponsor licence.
The claimant made representations and in the letter revoking the sponsor licence dated 8 th September 2015 the defendant accepted that all but the first two issues had been addressed. Under the heading General Sponsor Duties 1 the letter repeated paragraphs 2 to 4 of the 24 th June letter. It then went on to address and reject the claimant's representations that it was not told to make the sponsored workers available for interview. Under the heading General Sponsor Duties 2 the letter repeated paragraphs 5 and 6 of the 24 th June letter and referred again to the Tier 2 Sponsor Guidance. It then continued:
"17. We note that you say that you needed six sales account and business development managers to cover your 16 sites and we note that the representations state that you have only three individuals currently filling these roles. Our letter of 24 June clearly raised our concerns that the individuals detailed above were not undertaking the roles set out on their respective CoS and that we believed you had assigned CoS for vacancies that were not genuine. Our letter gave you the opportunity to submit representations including evidence against this issue.
18. Paragraph 6 of our suspension letter stated that you had not provided any evidence of the individuals undertaking the role which their CoS was assigned and we note that you have failed to submit any evidence in your representations that any or all of the individuals are or have been undertaking the roles detailed in their CoS although our letter gave you the opportunity to do so. We are not satisfied that the issue has been addressed."
The letter went on to say that the other concerns had been addressed but revoked the licence on the grounds of failure to comply with the Tier 2 Sponsor Guidance relating to failure to co-operate with a compliance visit and assigning a CoS to a vacancy that is not genuine.
The claimant submitted a detailed letter before action and further evidence. As a result the defendant reconsidered and made a further decision dated 31 st December 2015 in which it was accepted that a mistake had been made about the first issue which was no longer relied upon. In short, the defendant had believed that the claimant had been asked to make workers available for interview on 14 th April. However, after consulting the compliance officers involved, they stated that this was not the case. It follows that, in the event, the sole reason relied upon for revoking the claimant's sponsor licence was the assertion that the claimant had failed to provide evidence that specified sponsored workers are carrying out their duties.
As to this, the letter dated 31 st December again repeated paragraph 5 of the 24 th June letter naming the sponsored workers and their duties. It then continued:
"10. You informed our officer that you employ 45 to 50 people. Taking this into account it is not credible that you would require six sales accounts and business development managers for a business your size, particularly when you have asserted that there are now only three people undertaking these positions. In your original representations you failed to provide evidence that the above sponsored workers are carrying out their duties indicated on their CoS."
The letter then referred again to the Tier 2 Sponsor Guidance before continuing:
"13. We note in your original representations that you said you...
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R Liral Veget Training and Recruitment Ltd v Secretary of State for the Home Department
...(London Reading College Ltd) v SSHD (2010) EWHC 2561 (Admin) at paras 28 to 41 (Neil Garnham QC); R (Singhar Beauty Clinic) v SSHD (2016) EWHC 2703 (Admin) at paras 61 to 63 (HHJ Alice Robinson)). What procedural fairness requires varies with the circumstances. ( London Reading at para 40......