Raj And Knoll Ltd, R (On the Application Of) v Secretary of State for the Home Department

Permission to appeal may be granted where important public-law standards applied by first-instance decisions require consideration at appellate level, even though those earlier decisions are not said to be wrong. In a challenge to revocation of a Tier 2 sponsorship licence, the appellate court may need to reconsider both the decision-maker’s approach to sponsor non-compliance and the court’s supervisory approach on judicial review. Permission is also appropriate where material evidence may not have been considered below, particularly evidence bearing on compliance with sponsorship requirements. The grant of permission does not determine whether revocation was lawful or proportionate.

The claimant operated three care homes and held a licence to sponsor Tier 2 migrant workers. Following an unannounced visit and correspondence about alleged failures to comply with the applicable guidance, the UKBA revoked the licence.

The claimant sought judicial review. Haddon-Cave J refused the claim, holding that the Secretary of State was entitled to revoke the licence. The claimant applied for permission to appeal, arguing that the judge had applied too strict a standard, that the appellate court should reconsider the applicable test, and that evidence concerning the resident labour market test and a change of address had received insufficient attention.

The central question was whether the proposed appeal raised sufficiently arguable points for permission to be granted.

1. Permission granted. The claimant’s proposed appeal raised an arguable question whether the standards applied in the first-instance authorities, concerning the Secretary of State’s response to sponsor non-compliance and the court’s supervisory role, should be reviewed by the Court of Appeal. The judge did not hold that those decisions were wrong. The point was that the issues were important and warranted appellate consideration.
2. The proposed appeal also raised arguable issues concerning the individual alleged non-compliances. These included whether the advertisements and records satisfied the resident labour market test in appendix D, and whether the evidence showed substantial compliance.
3. There was evidence that the claimant had attempted to notify a change of address within the period allowed by the UKBA, but that the sponsorship-management system may have rejected the notification. The relevant email appeared not to have been considered below, or its presence in the bundle was unclear. It should be included in the appeal bundle and could be taken into account without a formal fresh-evidence application.
4. The address given for migrant workers appeared to have been misstated, although the Secretary of State knew that they worked at The Knoll. That issue might ultimately defeat the appeal, but it did not remove the arguability of the grounds.
5. The appeal was therefore to proceed before a three-judge court, with an estimated hearing length of one day. The judgment granted permission only and did not decide the substantive challenge to revocation.

• High Court, Queen’s Bench Division: Haddon-Cave J refused the claimant’s judicial review claim and upheld the Secretary of State’s entitlement to revoke the sponsorship licence.
• Court of Appeal (Civil Division): Permission to appeal was granted. The Court of Appeal directed that the appeal proceed before a three-judge court.