Sivayogam, R (on the application of) v Secretary of State for the Home Department

A sponsor licence may be revoked where repeated failures show that the sponsor lacks robust processes and poses a threat to immigration control. The Secretary of State’s decision attracts substantial supervisory deference and need not await an actual breach of immigration control. Mandatory and discretionary breaches should be assessed cumulatively. Where a material error is established, relief may nevertheless be refused under section 31(2A) of the Senior Courts Act 1981 if it is highly likely that the outcome would not have been substantially different.

The claimant, a religious charity sponsoring priests under the Tier 2 and Tier 5 points-based system, challenged the revocation of its sponsor licence. It alleged that the Secretary of State had wrongly found breaches concerning planning permission, salary payments and provision of a hierarchy of workers, and had irrationally refused to downgrade the licence instead.

The Secretary of State accepted that the hierarchy had in fact been provided, but maintained that the remaining mandatory and discretionary breaches independently justified revocation. The issues were whether the breach findings were lawful, whether the decision-maker had properly approached downgrading and revocation under the Guidance, and whether relief should be refused despite the admitted error.

1. Planning permission. The Secretary of State was entitled to find a breach of paragraph 15.13 and Annex 5(x) of the Guidance. The claimant had not demonstrated that suitable planning permission existed for the residential accommodation at the trading address. The accommodation was an integral part of running the religious institution for the purposes of the Guidance.
2. Salary and allowances. The evidence did not show that the sponsored workers received the allowances and total remuneration stated in their certificates of sponsorship. The Secretary of State was entitled to rely on discrepancies between the certificates, payslips and P60s, and to require the sponsor to provide supporting evidence. The breach of paragraph 31.19 and Annex 5(t) was therefore open to her on the evidence.
3. Revocation rather than downgrading. The claimant’s admitted and persistent failures, including failures concerning key personnel, SMS security, reporting of premises and payment into personal accounts, demonstrated a systematic failure to comply with sponsor duties. The absence of robust processes constituted a sufficient threat to immigration control; an actual breach of immigration control was unnecessary. Revocation rather than downgrading was rationally open to the Secretary of State under the Guidance.
4. Hierarchy error and relief. The finding of a breach under Annex 5(ee) was unsupported because the requested hierarchy had been provided. Applying section 31(2A) of the Senior Courts Act 1981, however, it was highly likely that the outcome would not have been substantially different without that error. The remaining breaches would still have led to revocation. Relief was refused.

First-instance judicial review. The judgment does not state any prior merits decision.