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

A Certificate of Sponsorship reference number used in an earlier application which was approved or refused cannot validly support a further Points Based System application. An administrative failure to mark the certificate as used does not alter that requirement.

Common law procedural fairness does not require the Secretary of State to invite representations before refusing an application affected by that fundamental defect, where representations could not cure it. Paragraph 245AA of the Immigration Rules concerns specified documents. It does not apply to a Certificate of Sponsorship reference number, which is an attribute of the application rather than specified documentary evidence. A substantive legitimate expectation requires a clear and unambiguous assurance. In the absence of such an assurance, applying the Rules is not an abuse of power.

The appellant, an Indian national, made a second application for leave to remain as a Tier 2 (General) Migrant. His sponsor used the same Certificate of Sponsorship reference number that had supported his earlier, refused application. The Secretary of State refused the second application because the reference number had already been used.

The sponsor had added a sponsorship note after a Home Office caseworker failed to mark the earlier certificate as used. The appellant contended that fairness, evidential flexibility, and an alleged assurance from the Sponsorship Helpline required the Secretary of State to accept or permit correction of the application.

Judge Blum refused permission for judicial review on the papers. On oral renewal, Upper Tribunal Judge Kamara also refused permission and permission to appeal. The Court of Appeal considered whether the refusal was procedurally or substantively unfair and whether paragraph 245AA applied.

1. Appeal dismissed. The court held unanimously that the second application was invalid because it relied on a Certificate of Sponsorship reference number already used for a refused application. Paragraph 77C(e) of the Immigration Rules was clear: a reference number could be used only once. The sponsor’s ability to add a note because of an internal administrative error did not make re-use lawful.

2. There was no breach of procedural fairness. A fundamental defect of this kind could not be cured by representations within the existing application. The only solution would have been a fresh application with a new reference number, if the appellant’s immigration status permitted it. The Points Based System requires applicants and sponsors to comply precisely with the Rules and published guidance. The court followed the approach in Mudiyanselage v Secretary of State for the Home Department [2018] EWCA Civ 65.

3. Paragraph 245AA did not apply. It concerns specified documents required by Part 6A or its appendices. A Certificate of Sponsorship is not specified documentary evidence; the relevant attribute is a valid reference number, which enables the Home Office to check information held online. The evidential flexibility policy therefore afforded no general power to correct the use of a pre-used reference number.

4. There was no substantive legitimate expectation or abuse of power. The evidence did not establish an unambiguous assurance that the sponsor could re-use the number. The Helpline advice concerned adding a sponsorship note and did not disapply the Rules. Any failure to correct the sponsor’s misunderstanding was insufficient to make enforcement of the Rules conspicuously unfair.

5. Lord Justice Singh added that procedural fairness, which concerns an opportunity to make representations, must be distinguished from substantive fairness. The latter permits intervention only for a recognised unfairness amounting to an abuse of power, not because a court regards the outcome as generally harsh. Lord Justice Underhill added that oral evidence is exceptional in judicial review, although it should be heard where genuinely necessary.

• Court of Appeal (Civil Division): dismissed the appeal: [2018] EWCA Civ 841.

• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Kamara refused, on oral renewal, permission to apply for judicial review and permission to appeal, in case no. JR140422015.

• Upper Tribunal (Immigration and Asylum Chamber): Judge Blum refused permission to apply for judicial review on the papers.