Sri Prathinik Consulting Ltd, R (On the Application Of) v The Secretary of State for the Home Department

A Tier 2 sponsor licence is a privilege carrying substantial responsibility. The sponsor must comply strictly with the published sponsorship Guidance, including requirements to retain and produce prescribed recruitment records.

The six-month period for assigning a Certificate of Sponsorship runs from the first advertisement of the vacancy and forms part of the Resident Labour Market Test scheme. Assignment outside that period may justify revocation, even where the Resident Labour Market Test was otherwise conducted.

Judicial review remains supervisory. The court will respect the Secretary of State’s expertise and will not substitute its own assessment of the appropriate sanction. Any public law error will not justify relief where it is highly likely that the outcome would have been substantially the same.

The claimant, an IT consultancy and Tier 2 sponsor, sought judicial review of the Secretary of State’s decision to revoke its sponsor licence.

The revocation concerned, principally, the late assignment of a Certificate of Sponsorship after the first advertisement for Mr Sarwar’s post and failures to retain prescribed evidence of the Resident Labour Market Test relating to Mr Raut. The claimant argued that the six-month period concerned only the Certificate of Sponsorship, that it could not justify mandatory revocation, that the Secretary of State had waived the requirement, and that the evidential deficiencies were technical.

The central issues were the proper construction of the sponsorship Guidance, the lawfulness of the revocation decisions, and whether any error would justify judicial review relief.

1. The claim was dismissed. The revocation of the Tier 2 sponsor licence was lawful.
2. The Guidance had to be read as a whole. The six-month requirement in paragraph 29.2, requiring every Certificate of Sponsorship to be assigned within six months of the vacancy being advertised, operated as a time limit following the Resident Labour Market Test. It helped ensure that the migrant was not filling a position which could be filled by the settled workforce. The requirement was therefore relevant to the Resident Labour Market Test scheme and fell within Annex 5(u).
3. The claimant could not isolate the Certificate of Sponsorship from the Resident Labour Market Test. The Secretary of State was entitled to rely on the sponsor’s reporting that the test had been conducted and on the sponsor’s compliance with the six-month assignment period. The later approval or three-month validity period for the restricted Certificate of Sponsorship did not extend the six-month period.
4. The alleged waiver failed. The factual responsibility for complying with the six-month requirement lay with the sponsor, so the circumstances were materially different from Ex parte Mangoo Khan [1980] 1 WLR 569.
5. In relation to Mr Raut, the sponsor had not retained the screenshots required by Appendix D. The absence of a screenshot for the totaljobs advertisement and the deficiencies in the Jobcentre Plus or Universal Jobmatch material were substantive compliance failures. The Secretary of State was not required to verify documents which the sponsor was required to retain and produce.
6. The court applied the supervisory approach reflected in Raj and Knoll Ltd v Secretary of State for the Home Department [2016] EWCA Civ 770. The Secretary of State was entitled to attach weight to strict compliance, institutional expertise and the integrity of the sponsorship scheme.
7. Even if the reference to mandatory revocation had been erroneous, revocation was rationally available in the Secretary of State’s discretion. Under section 31(2A) of the Supreme Court Act 1981, relief would in any event be refused because it was highly likely that the outcome would have been substantially the same.

The concerns relating to Mr Jhanji did not themselves form a ground for revocation.

First-instance judicial review proceedings. Permission was initially refused on paper but granted on renewal. An interim stay permitted the claimant to continue employing relevant Tier 2 migrants pending determination. This court dismissed the claim.