Shiful Islam, R (on the application of) v The Secretary of State for the Home Department

Common-law fairness in the immigration system is context-driven. The fairness principle requiring a Tier 4 applicant to receive time to obtain a replacement educational sponsor after an undisclosed sponsor-licence revocation does not automatically apply to Tier 2 applicants.

The Secretary of State may rationally differentiate between the routes. Tier 4 facilitates study with an education provider, whereas Tier 2 fills a particular skilled vacancy for a particular employer where no resident worker is available. The distinct policy objectives, the applicant-sponsor relationship and the substantial operational consequences justified refusing a 60-day period to find another Tier 2 sponsor.

The applicants had each applied for further leave as Tier 2 (General) Migrants using a valid certificate of sponsorship. While their applications were pending, their employers’ Tier 2 sponsor licences were revoked following concerns about compliance with the Immigration Rules. The Secretary of State consequently refused both applications because the certificates had been cancelled.

After unsuccessful administrative reviews, the applicants sought judicial review. They contended that fairness required a 60-day opportunity to find a replacement sponsor, relying on Patel [2011] UKUT 211 (IAC), concerning Tier 4 sponsorship. The central issue was whether the refusal to afford that opportunity to Tier 2 applicants was irrational.

1. The judicial review applications were dismissed. The Secretary of State’s refusal to extend the 60-day Tier 4 arrangement to Tier 2 applicants was rational and lawful.

2. The Tribunal applied the public-law irrationality standard in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The court’s role was not to substitute its view of what policy would be prudent, convenient or desirable. It had to assess whether the Secretary of State had taken account of irrelevant matters or disregarded relevant ones.

3. Patel was confined to its Tier 4 setting. Fairness does not require identical treatment across different parts of the points-based system. The relevant context includes the purpose of the route, the relationship between applicant and sponsor, and the practical consequences of the decision.

4. Tier 4 promotes access to education and may protect a student’s investment in an unfinished course. Tier 2 instead matches a named migrant to a particular skilled vacancy with a particular employer, where no resident worker can fill the role. The Secretary of State was entitled to treat a further 60-day job-search period as inconsistent with that route’s objectives.

5. The Tribunal also accepted that implementing such a period for Tier 2 cases would create significant administrative and logistical burdens. Those considerations, together with the policy distinctions, meant that the absence of a grace period was not irrational. No conclusions were required on later supplemental decisions because the determination of the 60-day issue disposed of both claims.

This was an application for judicial review. Each applicant’s refusal decision was maintained on administrative review. No appeal from a lower court or tribunal was stated in the judgment.