Supreme Court allows appeal by migrant worker not informed of visa sponsor’s licence revocation
A non-EU migrant worker who had his visa application refused after the Home Office revoked his employer’s sponsor licence and did not inform him has successfully appealed the decision of the Upper Tribunal to refuse his petition for judicial review of the decision.
The appellant, Imrankhan Pathan, also sought a 60-day period to enable him to provide a fresh certificate of sponsorship. It was argued on his behalf that the revocation of his employer’s licence was reviewable on the grounds of procedural unfairness.
The appeal was heard in the UK Supreme Court before Lord Kerr, Lord Wilson, Lady Black, Lord Briggs, and Lady Arden.
At the time the appellant made his original application, his second application for Tier 2 leave to remain, he was sponsored by his employer, Submania Ltd. He contended that the Home Office revoked his sponsor’s licence while his application was outstanding and did not inform him of this. His application was rejected on the basis that his sponsor was no longer licensed.
The appellant sought an administrative review of the decision and a 60-day period to enable him to provide a CoS, but the Home Office maintained its decision. The appellant then applied for judicial review in the Upper Tribunal, which dismissed the appeal. The case was then brought to the Court of Appeal of England and Wales.
The Court of Appeal held that the appeal raised a question of substantive fairness, which was not a free-standing ground for judicial review. Mr Pathan would have to show irrationality, which could not succeed because the rules for the points-based immigration system were drafted for rational policy reasons.
The Supreme Court unanimously held that that the Home Secretary had breached her procedural duty in failing to promptly notify the appellant of the revocation of his sponsor’s licence.
In a joint opinion, Lord Kerr and Lady Black said of this: “One only has to envisage how Mr Pathan must have reacted to the news that his Tier 2 application had been rejected because of the revocation of Submania’s licence, to understand the fundamental justice in giving him the chance to do something about it. He had every reason to believe that his application would succeed. The reason that it did not had nothing whatever to do with him.”
They continued: “Failure in the application represented a calamitous upheaval for him and his family. To ensure in those circumstances that he had timely notice that, for wholly unanticipated reason his application was bound to fail, so that he could seek to avoid its consequences seems to us to be a self-evident aspect of the duty to act fairly.”
Addressing the question of procedural fairness, they said: “There is nothing incompatible with the legislation or the Rules in allowing the affected person to know, as soon as may be, of the circumstances which imperil their application, so that they may make use of whatever time remains to them under those provisions. This does not confer a substantive benefit. It may be properly characterised as a procedural duty to act fairly.”
Duty not to deprive
Regarding whether the Home Secretary was under a further duty to provide a period of time following notification to enable the appellant to react to the revocation, three of the five Justices answered this question in the negative.
In their joint opinion, Lord Kerr and Lady Black said of this: “The duty to act fairly in these circumstances involves a duty not to deprive, not an obligation to create. It appears to us that requiring of the Secretary of State that he or she should supply a period of time for someone such as Mr Pathan during which to deal with the decision would be to impose a positive duty, and, importantly, a duty that would involve an extra extension of leave beyond that expressly set out in the legislation/Rules.”
They continued: “An obligation positively to confer a particular period of grace during which to take action would amount to the imposition of a substantive rather than a procedural duty. Essentially, the procedural duty extended to the maintaining of a fair procedure. Telling Mr Pathan at the earliest reasonable opportunity that his sponsor’s licence had been cancelled preserved the fairness of that procedure.”
Lady Arden and Lord Wilson disagreed with this analysis, and set out their own views in partially dissenting opinions. Lord Wilson, with whom Lady Arden agreed, said: “To hold that the Secretary of State owes a duty to Mr Pathan to give, and therefore that he has a reciprocal right to receive, prompt notification of the revocation is, I respectfully suggest, to give nothing of value to Mr Pathan unless it is accompanied by a duty, and a reciprocal right, of prior notification. The law should not impose a duty nor confer a right if they are of no value.”
For these reasons, the Supreme Court allowed the appeal in a 4-1 decision. In a dissenting opinion, Lord Briggs would have dismissed it despite the Home Secretary’s breach of duty.
© Scottish Legal News Ltd 2021