Pathan & Anor v Secretary of State for the Home Department

In the Points Based System, a challenge to refusal of Tier 2 leave after a sponsor’s licence is revoked concerns the substance of the Immigration Rules, not procedural fairness, where the applicant seeks notice or a grace period to secure another sponsor. The court must therefore assess whether the Secretary of State’s approach was irrational. The different purposes of Tier 2 and Tier 4, clear guidance that a withdrawn or cancelled Certificate of Sponsorship leads to refusal, the distinction between curtailment and refusal, and operational difficulties provided rational grounds for the policy. The court rejected a freestanding doctrine of substantive unfairness and treated equal treatment as no independent ground of review. The appeals were dismissed.

Two appellants challenged refusals of applications for Tier 2 (General) leave to remain after their sponsors’ Tier 2 licences were revoked. The revocations occurred without fault on the appellants’ part and, in one case, after an in-time application protected by section 3C leave.

The Upper Tribunal dismissed both judicial review claims in a single decision, [2017] UKUT 369 (IAC). The appellants argued that procedural fairness required notice of the revocation and a reasonable opportunity to rearrange their affairs or secure an alternative sponsor. The central issue was whether public law required such notice or opportunity before refusal under the Points Based System.

1. The appeals were dismissed. The Upper Tribunal had not erred in dismissing the judicial review claims. The Secretary of State’s alternative grounds therefore did not need to be addressed.
2. The lead judgment, given by Singh LJ and agreed by Coulson LJ and McFarlane P, distinguished procedural fairness from a complaint about the substance of a decision. Procedural fairness involves an opportunity to make representations and is an objective question for the court, as explained in R (Osborn) v Parole Board [2013] UKSC 61 and R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812. The appellants’ complaint, properly analysed, sought acceptance of an application despite failure to satisfy a substantive requirement of the Immigration Rules. It was therefore not a procedural fairness claim.
3. The court applied the reasoning in R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841 and the approach in R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25. Substantive unfairness is not a distinct ground of judicial review. Equal treatment is not a freestanding ground. The question was whether the Secretary of State’s approach was irrational or otherwise unlawful.
4. The distinction between Tier 2 and Tier 4 was rational. Tier 2 is directed to filling a particular vacancy for a particular employer and is not a general permission to work or seek work. It was a political judgment whether a migrant should be allowed to propose an alternative sponsor after revocation. The published guidance gave fair notice that an application relying on a withdrawn or cancelled Certificate of Sponsorship would be refused. The harsh consequences of refusal did not make the policy irrational, and the distinction between curtailment cases, where a 60-day period might be granted, and refusal cases was rational. The Upper Tribunal was also entitled to consider logistical difficulties.
5. Patel (Revocation of Sponsor Licence – Fairness) India [2011] UKUT 211 (IAC) was not extended to the Tier 2 context. The court expressed reservations about its reasoning but did not decide whether it was correct on its own facts. The reasoning in R (Raza) v Secretary of State for the Home Department [2016] EWCA 36 applied to the second appellant, who was already an overstayer making a fresh application rather than varying extant leave.

• Court of Appeal (Civil Division): dismissed both appeals against the Upper Tribunal’s decision, [2018] EWCA Civ 2103.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed both judicial review claims in a single decision dated 7 August 2017, [2017] UKUT 369 (IAC).