Ping On 3 Ltd v Secretary of State for the Home Department

Revocation of work permits following compliance concerns is lawful where the employer is given a meaningful opportunity to respond and the decision-maker considers the material provided. Conflicting response periods do not establish unfairness without resulting prejudice. The central issue is whether the permitted workers are still performing the specific roles for which permission was granted. Where the employer fails to provide evidence addressing that concern, the Secretary of State may revoke the permits. Judicial review is limited to whether the decision was irrational or unreasonable on the information available when it was made.

The claimant restaurant company sought judicial review of decisions by the Secretary of State maintaining the revocation of the work permits of three employees. The revocation followed a compliance visit which identified concerns about employment contracts, pay, working hours and, principally, whether the employees were performing the specific jobs described in their applications.

The claimant alleged procedural unfairness, failure to follow guidance, inadequate consideration of its evidence, improper exercise of discretion, failure to consider alternatives and irrationality. Permission to bring the claim had previously been granted by HHJ Behrens. The central issues were whether the procedure was fair and whether the revocation decisions were irrational or unreasonable.

1. Claim dismissed. The procedure gave the claimant an opportunity to respond before the decision and to make further representations on two reconsiderations. It was therefore not procedurally unfair.
2. The different time limits in the earlier correspondence were unfortunate, but caused no prejudice. The claimant responded within the shorter period, and its failure to address the job-role concern continued through the subsequent reviews.
3. The decision-maker properly considered the material supplied, including the accountant’s letter, contracts, wage slips and attendance records. Those materials addressed some concerns but did not establish what work the employees were actually performing.
4. The Secretary of State’s discretion was reviewable only on conventional Wednesbury grounds. Given the failure to provide evidence that the employees continued to perform the skilled roles for which they had been admitted, revocation was neither irrational nor unreasonable.
5. The guidance contemplated working with employers to restore compliance where possible. It did not require the Secretary of State continually to remind the claimant of an issue which had been clearly identified and left unanswered. Nor was there an obligation to interview each employee; the responsibility lay on the claimant to satisfy the Secretary of State that the permitted work was being performed.
6. The importance of the permits to the employees and business did not make the decision unlawful. The application was assessed on the information available when the decision was made, and later evidence could not retrospectively establish irrationality.
7. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment if not agreed.

Permission to bring the judicial review claim was granted by HHJ Behrens. The Administrative Court dismissed the claim and ordered the claimant to pay the defendant’s costs, subject to detailed assessment if not agreed.