Crystal Utilities Ltd, R (on the application of) v Secretary of State for the Home Department

On a renewed application for judicial review, a sponsor licence may be revoked where the evidence reasonably establishes that the sponsored work is below the required skill level or that the vacancy was not genuine. A finding of deception requires careful scrutiny and sufficiently cogent evidence, but the question is whether the finding was reasonably open to the decision-maker on the material available. The Secretary of State has a wide discretion to revoke a licence rather than impose a lesser sanction, such as downgrading or an action plan. Where significant breaches of the sponsor guidance are established, the court will be slow to interfere. A claim under Article 1 of Protocol 1 to the ECHR cannot succeed where the underlying decision is not arguably unlawful.

Crystal Utilities Ltd held a Tier 2 sponsor licence. Following an unannounced compliance visit and an interview with one of its directors, the Secretary of State suspended and then revoked the licence. The reasons included a finding that the director’s actual work was below the required skill level and that the advertised vacancy was not genuine.

The claimant sought judicial review on grounds including irrationality, procedural unfairness, failure to provide evidence, fettering of discretion, and breach of Article 1 of Protocol 1 to the ECHR. Permission had previously been refused by Andrews J, and the claimant renewed its application.

1. Renewed permission refused. The grounds of challenge were unarguable.
2. The Secretary of State was entitled, on the interview material and correspondence, to conclude that the work actually performed was at a significantly lower level than the level 6 work required for the sponsored role. The significant differences between the job description and the work described by the director justified that conclusion.
3. The Secretary of State was also entitled to find that the vacancy was not genuine. The relevant chronology included the director’s resignation, the issue of the certificate of sponsorship two days later, and his subsequent reappointment after leave to remain had been granted.
4. A finding of deception must be scrutinised carefully and supported by sufficiently cogent evidence. Applying Giri v Secretary of State for the Home Department [2015] EWCA Civ 784, the relevant question was whether the finding was reasonably open to the decision-maker on the material before her. The collective evidence met the required standard.
5. The Secretary of State had a choice between revocation and lesser measures under the sponsor guidance, including downgrading or an action plan. She possessed a wide discretion. Once significant breaches of annex 5 had been established, revocation was plainly within that discretion and the court would be slow to interfere.
6. The Article 1 of Protocol 1 claim was also unarguable because it depended on an unlawful decision, and no such arguable unlawfulness existed. The Secretary of State was entitled to rely on the director’s interview, since he was the person performing the tasks under investigation.

The defendant was awarded £800 for filing and serving the acknowledgment of service.

First-instance judicial review proceedings. Permission had previously been refused by Andrews J on 21 January 2016. The renewed application was refused by the Administrative Court.