Talpada, R (On the Application Of) v The Secretary of State for the Home Department

A certificate of sponsorship reference number cannot be re-used after an application relying on it has been approved or refused. An official’s failure to mark the certificate as used does not alter that requirement. Common-law fairness does not require advance notice before refusing an application containing this fundamental defect.

Paragraph 245AA of the Immigration Rules concerns specified documentary evidence. It does not apply to a certificate of sponsorship, whose validity is itself an attribute attracting points. The applicable evidential flexibility policy provides no wider entitlement to correction.

Limited helpline advice and a failure to correct a sponsor’s misunderstanding do not, without an unambiguous assurance, establish a substantive legitimate expectation. Where clear rules and guidance explain the requirement, an administrative mistake enabling non-compliance does not itself make refusal substantively unfair or an abuse of power.

The appellant, an Indian citizen with leave as a student, applied to remain as a Tier 2 (General) Migrant. His prospective employer, a licensed sponsor, supplied a certificate of sponsorship with an unsuitable occupation code. The Secretary of State refused the application.

The sponsor then sought assistance from the Home Office helpline and added a sponsorship note containing a different occupation code. An official had failed to mark the certificate as used, which enabled the note to be added. The appellant submitted a second application using the same certificate reference number. The Secretary of State refused it because that number had already been used and maintained the refusal following administrative review.

The Upper Tribunal refused permission to apply for judicial review on the papers and on oral renewal. Permission to appeal was subsequently granted on two grounds. The appeal concerned whether fairness or evidential flexibility required notice and an opportunity to correct the defect, and whether the sponsor’s evidence established an assurance permitting re-use or otherwise demonstrated substantive unfairness.

Appeal dismissed unanimously. The Upper Tribunal’s refusal of permission to apply for judicial review was upheld.

1. Hallett LJ, whose reasons Singh LJ adopted, held that paragraph 77C(e) of the Immigration Rules prohibited re-use of a certificate of sponsorship reference number following refusal of the earlier application. Failure to mark the certificate as used did not change its legal status. Applicants and sponsors were responsible for complying with the precise requirements of the points-based system. The possibility of harsh outcomes did not itself establish unfairness: Mudiyanselage v Secretary of State for the Home Department [2018] EWCA Civ 65.

2. The defect was fundamental. Representations could not cure it within the second application; a further application with a new reference number was required. Common-law fairness therefore required no advance warning in these circumstances, although intervention remained possible in other cases. The administrative review was also lawful. Consideration of the helpline email would have made no difference because it contained no assurance permitting re-use.

3. Paragraph 245AA applied to specified documents required as evidence under Part 6A or its appendices. A valid certificate of sponsorship was itself an attribute attracting points. Paragraph 77A required its reference number, through which officials could inspect the sponsor’s online information. The certificate was therefore outside paragraph 245AA, regardless of whether it could otherwise be described as a document. The court left undecided whether the defect fell within the particular documentary defects relied upon. The applicable evidential flexibility guidance went no further than paragraph 245AA and provided no general facility for correcting minor errors.

4. No unambiguous promise or assurance established a substantive legitimate expectation. The court applied the formulation in Mehmood (legitimate expectation) 2014 UKUT 00469 (IAC). Limited advice about adding a sponsorship note, or failure to correct the sponsor’s misunderstanding, did not assure her that the Rules would be waived. Her later account was unconvincing, and the Upper Tribunal was entitled to reject the asserted assurance. The administrative mistake and helpline exchanges did not establish abuse of power or substantive unfairness.

5. Underhill LJ agreed that the sponsor’s disregard of clear guidance defeated the substantive unfairness complaint despite the official error. His additional observations emphasised that the inquiry concerned the Secretary of State’s conduct and that exceptional cases could require oral evidence. Singh LJ distinguished procedural fairness from substantive fairness and explained that the latter could extend beyond legitimate expectation but required unfairness amounting to abuse of power. It conferred no general discretion to overturn decisions considered unfair.

6. The court also stressed procedural rigour. Expanded grounds required proper identification, notice and permission. Judicial review ordinarily proceeded on written evidence; oral evidence remained available where exceptionally necessary.

• Court of Appeal (Civil Division): In [2018] EWCA Civ 841 , the court unanimously dismissed the appeal from the refusal of permission to apply for judicial review. Permission to appeal had initially been refused on the papers and subsequently granted by Arden LJ on two grounds.
• Upper Tribunal (Immigration and Asylum Chamber): Judge Blum refused permission to apply for judicial review on the papers. On 12 July 2016, Judge Kamara refused permission on oral renewal and refused permission to appeal to the Court of Appeal. No citation for that decision was supplied.