R (on the application of Pathan) v Secretary of State for the Home Department

The Supreme Court held that the Secretary of State breached the common law duty of procedural fairness by failing to inform a Tier 2 applicant, who was employed by a sponsor whose licence the Home Office had revoked while his application was pending, that the sponsor’s licence had been revoked. The court treated the issue principally as procedural unfairness (rules of natural justice) rather than a free-standing attack on the substantive Immigration Rules.

The court reviewed the relevant Immigration Rules and guidance (including paragraph 245HD, Appendix A paragraphs 77A and 77C, and the provisions governing curtailment at paragraphs 323 and 323A) and section 3C of the Immigration Act 1971 (as amended). It concluded that where the revocation is effected by the Secretary of State and is likely to be unknown to the applicant, fairness ordinarily requires prompt notice so that the applicant can take steps (for example a variation under section 3C) to avoid the inevitable failure of the application.

The court, however, divided on remedy: while a majority found no positive common law duty to grant a specific extra period (such as 60 days) of lawful leave beyond statutory or Rules-based protections, the court uniformly held that withholding prompt notification was procedurally unfair and warranted quashing of the impugned decision on that basis.

This appeal concerned a Tier 2 (General) migrant whose employer, Submania Ltd, held a sponsor licence and provided a valid certificate of sponsorship (CoS) when the claimant applied for further leave to remain. While his application was pending the Home Office revoked Submania’s sponsor licence, invalidating the CoS. The Home Office did not inform the applicant of the revocation and later refused his application on the basis that the sponsor was not licensed. The applicant sought administrative review and then judicial review; the Upper Tribunal and the Court of Appeal dismissed his challenges.

Nature of the claim: judicial review of the Secretary of State’s decision to refuse the Tier 2 application on grounds of procedural unfairness (failure to give notice of licence revocation and thus to afford an opportunity to avert the fatal consequence) and, in substance, a collateral challenge to the operation of the Immigration Rules as applied.

Procedural history: Upper Tribunal (Judge Allen) [2017] UKUT 369 (IAC) dismissed the claim; Court of Appeal ([2018] EWCA Civ 2103) dismissed the appeal holding the complaint to be one of substantive rather than procedural unfairness; the matter was then brought to the Supreme Court.

Issues framed: (i) whether the Secretary of State’s failure to inform the applicant of the revocation of his sponsor’s licence was reviewable as procedural unfairness (a breach of the rules of natural justice); (ii) if so, whether procedural fairness required the Secretary of State to provide the applicant with a specified period (eg 60 days) to seek alternative sponsorship or otherwise to adjust his position; (iii) whether such a complaint, if substantive, could succeed absent irrationality of the relevant Rules.

Court’s reasoning and disposition: the Court (majority) concluded that the failure to inform the applicant of the revocation amounted to a breach of the common law duty of fairness because the revocation was an action taken by the executive of which the applicant was unaware and which had the effect of dooming his application; prompt notice would have enabled an opportunity to vary the pending application under section 3C of the Immigration Act 1971. The Court emphasised the distinction between procedural fairness (opportunity to know and respond to material information) and substantive review (irrationality), and held that this was a procedural complaint. The Court was divided on whether the duty extended to a positive obligation to grant a prescribed extra period of leave: some members considered the duty required allowing time to take averting steps (eg 60 days), while the majority held that imposing a fixed period would amount to creating a substantive benefit outside the Rules and statute. The appeal was allowed on the ground of procedural unfairness (failure to give prompt notice), but there was no free-standing common law obligation to grant a fixed extension of leave.

Appeal allowed. The Secretary of State’s failure to inform the applicant, whose sponsor’s licence the Home Office had revoked while his Tier 2 application was pending, was a breach of the common law duty of procedural fairness because it deprived him of an opportunity to take averting steps (for example to vary his application under section 3C). The court was divided on whether the common law required a positive obligation to grant a fixed additional curtailment period; the majority held there was no such obligation because that would create a substantive benefit outside statute and the Immigration Rules.

Upper Tribunal (Immigration and Asylum Chamber) [2017] UKUT 369 (IAC) - claim dismissed; Court of Appeal [2018] EWCA Civ 2103 - appeal dismissed; appeal to the Supreme Court [2020] UKSC 41 - appeal allowed on grounds of procedural unfairness regarding failure to give prompt notice of sponsor licence revocation.