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

Common law procedural fairness may require a decision-maker promptly to disclose an event which has doomed a pending application, even where representations cannot reverse the precise decision. The duty may arise where timely notice enables the affected person to use an existing lawful opportunity to vary the application or mitigate the consequences.

Where revocation of an employer’s sponsor licence invalidates a pending immigration application and the applicant remains unaware, prompt notice is required. The duty preserves opportunities already available under the governing scheme. It does not oblige the decision-maker to create a separate period of grace after notification, because that would confer a substantive benefit and modify the statutory and regulatory framework.

R (on the application of Pathan) v Secretary of State for the Home Department concerned a Tier 2 migrant whose application for further leave was supported by a valid certificate of sponsorship when submitted. While the application was pending, the Secretary of State revoked the employer’s sponsor licence. This invalidated the certificate, but the applicant was not informed until his application was refused three months later.

The applicant’s existing leave had been extended under section 3C of the Immigration Act 1971. Administrative review maintained the refusal. The Upper Tribunal dismissed his judicial review claim in [2017] UKUT 369 (IAC), and the Court of Appeal dismissed his appeal in [2018] EWCA Civ 2103, [2018] 4 WLR 161.

The central questions were whether the failure to provide prompt notice was procedurally unfair and whether fairness also required a reasonable period after notification in which the applicant could vary his application or make other arrangements.

Held, by a majority of four to one, allowing the appeal.

1. Lord Kerr and Lady Black, with Lady Arden and Lord Wilson agreeing on this issue, held that the Secretary of State was under a common law duty to notify the applicant promptly when revocation of his employer’s sponsor licence invalidated the certificate supporting his pending application. The applicant had submitted a valid application and had no knowledge of the event which made it bound to fail. Withholding information peculiarly within the Secretary of State’s knowledge deprived him of opportunities which timely notice would have preserved.
2. The duty to give notice does not depend solely on whether representations could persuade the decision-maker to reverse the precise decision. Procedural fairness can require notice where the affected person could use the information to pursue another lawful route to the same objective or to mitigate the decision’s serious consequences. Fairness was assessed when notification should have occurred, rather than retrospectively by reference to the failure of later applications.
3. Section 3C of the Immigration Act 1971 extended the applicant’s leave while his application remained pending. A further application made before determination could operate as a variation of the pending application, even if it relied on a different sponsor or another basis for leave. Prompt notice could therefore have enabled the applicant to use an opportunity already provided by law.
4. Lord Kerr, Lady Black and Lord Briggs formed the majority on the limits of the duty. Procedural fairness did not impose a positive obligation to provide a specified or additional period after notification. The duty was an obligation not to deprive the applicant of time otherwise available, rather than an obligation to create time or confer an additional extension of leave. A mandatory grace period would alter the substantive immigration framework established by the legislation and Immigration Rules.
5. Lady Arden and Lord Wilson partly dissented on that limitation. They considered that prompt notification had to be accompanied by a reasonable interval before determination. Otherwise the right to notice could be valueless or prejudicial, particularly if notification and refusal occurred on the same day.
6. Lord Briggs dissented from the disposal. Although inclined to accept that delayed notification was procedurally unfair, he considered that the delay itself caused no legally relevant detriment. The Secretary of State could lawfully have notified the applicant and refused the application immediately, so the later refusal should not be set aside merely because three months had happened to elapse.

1. United Kingdom Supreme Court: By a majority of four to one, allowed the appeal in [2020] UKSC 41. The court held that the failure to notify the applicant promptly of the sponsor-licence revocation was procedurally unfair, but that no positive duty required an additional period after notification.
2. Court of Appeal: Dismissed the appeal in [2018] EWCA Civ 2103, [2018] 4 WLR 161. It characterised the complaint as one of substantive fairness and held that the points-based rules were rational.
3. Upper Tribunal: Dismissed the judicial review claim in [2017] UKUT 369 (IAC).
4. Administrative review: Maintained the refusal of the application for further leave.