The Court of Appeal (CoA) was faced with the question as to whether it was unfair for a leave to remain to be refused based on the fact that the person was not aware that their sponsor’s licence had been revoked.
Background:
Mr. Tammina came to the UK in October 2008 on a Tier 4 (student) visa. He was granted a Tier 1 post-study migrant until August 2014. On 9 May 2014, he was granted leave to remain as a Tier 2 (General) migrant until the 31st of March 2017. His sponsoring employer was Ratna Marble and Granites.
Mrs. Tammina came to the UK in 2012 and was granted a leave to remain as Mr. Tammina's dependent until 31 March 2017. On the 1st of March 2017, Mr. Tammina applied for further leave to remain and relied on the Certificate of Sponsorship (CoS) issued by Ratna.
While Mr. Tammina's application was outstanding, compliance officers from the Secretary of State for the Home Department (SSHD) visited Ratna's premises on 22 June 2017 to check its compliance with its sponsorship duties. Mr. Tammina was interviewed about his job. During the interview, it was uncovered that, while having leave to remain as a Tier 1 post-study migrant he had joined Ratna in 2013 as a junior salesman, but when he applied for leave to remain as a Tier 2 (general) migrant he took on a new role within the company as a sales accounts and business development manager.
On 20 July 2017, the SSHD refused Mr. Tammina's application on the grounds that the SSHD had reasonable grounds to believe that the job that was described in his CoS was not a "genuine vacancy" within the meaning of the Immigration Rules. He unsuccessfully applied for an administrative review of that decision.
He has since received a letter asking him to leave the UK. He was then advised by the company’s lawyer that he could no longer work for Ratna and ceased to do so on the 31st of August 2017.
Mr. Tammina then brought proceedings for judicial review in the Upper Tribunal (UT) challenging the decision. On 20 October 2017, the SSHD notified Ratna that it was suspending its licence as a sponsor due to concerns that employees were not working in roles corresponding to the job descriptions in their CoS.
The judicial review was settled by consent in December 2017 with the SSHD agreeing to withdraw and remake the decision within three months of Ratna’s sponsor licence issues being resolved. The licence was revoked on 22 December 2017. The appellant was not notified and only found out about it on 8 February 2018 when his application was again refused.
The appellant later made an application to remain on human rights grounds. That was refused in 2021 and the appeal to the First-tier Tribunal was unsuccessful.
The crux of the appeal centred on whether the Home Department's failure to notify Mr. Tammina about the licence revocation seven weeks prior to refusing his application amounted to procedural unfairness.
Decision:
The CoA upheld the decision of the UT, affirming that the SSHD had not acted in a procedurally unfair manner in refusing Mr. Tammina's application.
Mr. Tammina relied on R (Pathan) v Secretary of State for the Home Department [2020] but the CoA concluded that there was a major difference between the two situations in that Mr. Tammina had prior knowledge of the sponsorship issues.
The Court found that Mr. Tammina's awareness of the SSHD's concerns about Ratna's licence meant he could have taken steps to address his residency status before the final decision. The Court agreed with the UT Judge that “if Mr. Tammina had done so, he would have found out when it lost its licence on 22 December 2017, and so would have had about 60 days to do something before the decision on his own application on 8 February 2018.” The Judge also rejected Mr. Tammina’s view that the UT Judge was wrong to assume that even if he had learned about the revocation on 22 December 2017, he would have been able to find a solution before the decision was taken. The problem is that Mr. Tammina kept in touch with Ratna and knew about the status of Ratna’s licence.
Consequently, the SSHD was not obliged to provide additional notification beyond what was already known to Mr. Tammina.
Implications:
This decision is based on very specific facts. Unlike Pathan where the courts agreed it was unfair for someone to have their leave refused while not knowing their sponsor had lost their licence, here the great emphasis was placed on the knowledge of Mr. Tammina or the fact that he ought to have known. Even though, as Mr. Tammina tried to argue, in practice, he would not have had the material time to find a new sponsor, that was not relevant in this case. The question was whether the lack of notice made the refusal procedurally unfair and the answer is no.
It is also clear that there is no general principle that a failure to give notice of revocation of a sponsor’s licence will automatically render a refusal of leave procedurally unfair, but rather it will be determined on a case-by-case basis.
