The Queen (on the application of Topadar) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Lord Justice Males,Lord Justice Floyd |
| Judgment Date | 13 November 2020 |
| Neutral Citation | [2020] EWCA Civ 1525 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C6/2019/2952 |
| Date | 13 November 2020 |
[2020] EWCA Civ 1525
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND APPEAL CHAMBER)
UPPER TRIBUNAL JUDGE ALLEN
JR/7887/2018
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Floyd
Lord Justice Males
and
Lord Justice Lewis
Case No: C6/2019/2952
Michael Biggs (instructed by Hubers Law) for the Appellant.
Lisa Giovannetti Q.C. and William Hansen (instructed by Government Legal Department) for the Respondent
Hearing date: 3 November 2020.
APPROVED JUDGMENT
INTRODUCTION
This is an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 18 July 2019 dismissing the Appellant's claim for judicial review of a decision of the respondent refusing to grant the appellant leave to remain in the United Kingdom as a Tier 2 (General) Migrant.
In summary, the appellant came to the United Kingdom with leave to enter as a Tier 4 (General) Student. He made an application seeking to vary his existing leave and be granted leave to remain as a Tier 2 (General) Migrant. That application was refused on 27 September 2018. An administrative review of that decision was concluded on 31 October 2018 and the decision upheld. The appellant submitted that the application was not finally determined until the administrative review was complete. He contended that he was entitled to vary the application at any time until it was finally determined and had done so on 18 October 2018 by making a human rights claim. In those circumstances, he submitted that he continued to have leave to remain by virtue of section 3C of the Immigration Act 1971 (“the 1971 Act”) until the application (as varied to include the human rights claim) was decided.
Secondly, the appellant submitted that the respondent determined his application in a way that was procedurally unfair. The respondent had sought further information from the sponsor of his Tier 2 application without also notifying the appellant that further information was required and telling him that if it were not provided the application might be refused.
The respondent submitted first that the application was decided on 27 September 2018 when it was refused. Any variation of that application had to be made before it was decided, i.e. before 27 September 2018. The appellant could not vary that application by making a human rights claim on 18 October 2018. Further, the respondent submits that the human rights claim was not in any event a valid variation as it was not in the prescribed form, no fee was paid and mandatory requirements were not satisfied. Secondly, the respondent submitted that there was no unfairness in the way that she dealt with the application and, in particular, procedural fairness did not require her to notify the appellant that she had made a request to the appellant's sponsor for further information.
THE FACTUAL BACKGROUND
The appellant is a national of Bangladesh born on 9 December 1987. He was granted leave to enter the United Kingdom as a Tier 4 (General) Student on 19 November 2009. That leave was valid until 31 August 2011. He was subsequently granted further periods of leave to remain up to 6 July 2016.
The Application for Leave to Remain as a Tier 2 (General) Migrant
On 6 July 2016, the appellant applied using form FLR (O) to vary his existing leave. On 22 August 2016, he applied for leave to remain as a Tier 2 (General) Migrant. On 24 August 2016, he submitted a letter to the respondent varying his FLR (O) application to an application seeking further leave to remain as a Tier 2 (General) Migrant.
Applicants for Tier 2 (General) Migrant leave are required to score 50 points for certain attributes. This in effect required the applicant to submit a certificate of sponsorship showing that he had been offered a job which met certain criteria and paid a certain level of salary.
The appellant's application recorded that he had a certificate of sponsorship from his proposed employer, Orchid Money Transfer Ltd. It stated that the job was as an accounts manager with a salary of £21,000 a year. The sponsor provided a letter dated 22 August 2016 indicating that it was pleased to sponsor the appellant conditionally upon him being granted a successful extension of his leave to remain. It confirmed that it had a certificate of sponsorship for the appellant. A further document provided (in two paragraphs) a summary of the role and the skills required.
On 7 August 2018, the respondent wrote to the sponsor indicating that she had received applications from the appellant and a second person for Tier 2 (General) Migrant leave to remain in the United Kingdom in order to work for the sponsor as an accounts manager and sales manager respectively. The letter explained that specified information was required before the respondent could proceed further with the applications. The letter then requested the sponsor to provide information about the jobs including full job descriptions listing the duties of the proposed employees and an explanation as to why the sponsor required an accounts manager and a sales manager. The letter also requested other information including the sponsor's business bank account statements for the last 12 months, a full staff list, the latest company accounts, HMRC reference numbers, a chart of all employees, CVs for the appellant and the other applicant and marketing material and website details. It requested the sponsor to answer various questions. It stated that the information was required by 14 September 2018 and that:
“Failure to send in the information by the required date may result in the refusal of all the applications.”
The respondent did not notify the appellant that it had sought further information from the sponsor nor that failure to provide the information might lead to his application being refused.
The sponsor did not send in the information requested by 14 September 2018. It did not seek an extension of time for doing so. It made no reply to the e-mail request of 7 August 2018.
On 27 September 2018, the respondent refused the application for leave to remain as a Tier 2 (General) Migrant and notified the appellant in writing of the decision and the reasons. The decision noted that the respondent had considered whether the vacancy was a genuine vacancy within the meaning of the Immigration Rules. It noted that the sponsor had been asked to provide further information. It continued:
“We were unable to complete the above assessment because to date we have not received any of the information requested.
“Based on the evidence we have and the job description provided on your Certificate of Sponsorship and the fact that the sponsor has failed to respond to a request for information; we are not satisfied that your Sponsor would require an Accounts Manager on £21,000 per annum and we are satisfied that it is an inappropriate vacancy.
“The Secretary of State is therefore refusing your application because there are reasonable grounds to believe that the job described on your Certificate of Sponsorship is not a genuine vacancy, when assessing, on the balance of probabilities, paragraph 245HD(f) with reference to Appendix A paragraph 77H and the additional information or evidence requested under paragraph 245HD(f) with reference to Appendix A paragraph 77J of the Immigration Rules.”
The Administrative Review
On 9 October 2015, the appellant requested an administrative review of the refusal. He said that the refusal was unfair as, if the respondent had contacted him, “he could have definitely pursued his employer to get the issues being sorted”.
On 11 October 2018, the director of the sponsor company wrote to the respondent saying it had been informed that the appellant's Tier 2 application had been refused because the sponsor, as employer, had failed to provide some additional documents requested by the respondent. The letter said that the information covered various areas of the sponsor's business and as a result more time was needed to prepare them. It said that:
“I would like to confirm you that the job offered to Mr Topadar is completely genuine and we will send all the relevant document request by your office as soon as they are available as support of this claim.”
The Letter of 18 October 2018
On 18 October 2018, solicitors for the appellant wrote to the respondent. The letter said, amongst other things, that it was a human rights claim within the meaning of section 113 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) and that there was no requirement to make the claim by way of a fee paid application. It stated that the appellant had established a private life in the United Kingdom and that leave to remain should be granted under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).
The Decision on Administrative Review
On 31 October 2018, the appellant was informed that his request for administrative review had been unsuccessful and reasons were given for that decision.
The Claim for Judicial Review
By a claim form issued on 4 December 2018, the appellant sought judicial review of what the claim form described as the decision of the respondent dated 27 September 2018 that refused to grant the appellant leave to remain under the Tier 2 (General) rules, upheld on administrative review on 31 October 2018. The remedies sought were...
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