The Queen on the application of Ullah & Ors. v Secretary of State for the Home Department

In immigration applications depending on sponsorship, an applicant has no entitlement to expect success merely because the application appeared compliant when made. The Secretary of State may investigate a substantial and unexplained increase in salary and defer decision-making while genuine-vacancy concerns are examined.

Administrative delay is unlawful only where it is so excessive as to be manifestly unreasonable. Procedural fairness does not generally require an overstayer to be told that a sponsor is under investigation or that its licence has been suspended. Nor does it require a further period in which to find a new sponsor. The appeal was dismissed.

The appellant, a Pakistani national and overstayer, challenged the refusal of his Tier 2 application for further leave to remain. An earlier application had been refused because the proposed salary was too low. After the Secretary of State advised him to make a fresh application, he relied on a new certificate of sponsorship.

The Secretary of State initially considered the wrong certificate, withdrew that decision, and then investigated the sponsor’s substantial salary increase and the genuineness of the vacancy. During the investigation the sponsor withdrew the certificate and its licence was suspended. The Secretary of State refused the fresh application, and the Upper Tribunal refused permission to apply for judicial review. The central issues were delay, procedural fairness, notification of the sponsor-related investigation, and any opportunity to find a new sponsor.

1. Appeal dismissed. The Upper Tribunal was entitled to refuse permission to apply for judicial review.
2. On an appeal from refusal of permission, the court should assess whether the challenged decision is arguably unlawful on the grounds advanced. It should not reconstruct the decision-making process from incomplete secondary evidence where contemporaneous reasons have been given and their accuracy has not been challenged.
3. The Secretary of State was entitled to investigate the second certificate of sponsorship. The proposed salary had increased by about 50%, without apparently new responsibilities, after refusal of the earlier application for insufficient salary. A reasonable decision maker could not grant the application while holding genuine concerns about the position, salary or genuineness of the vacancy. The Secretary of State could also defer decision-making after suspending the sponsor’s licence, applying by analogy the approach in paragraph 301 of the Tier 2 Policy Guidance.
4. The appellant had no legitimate expectation that the application would succeed. His expectation was only that it would be decided lawfully, by reference to the facts, law and policy at the date of decision.
5. The delay was not unlawful. Judicial review corrects unlawfulness, rather than inefficiency or maladministration. Delay becomes unlawful only when it is so excessive as to be manifestly unreasonable. The relevant delay, even including the initial mistake, did not meet that standard.
6. Pathan [2020] UKSC 41 did not require notice of the investigation or suspension. It concerned the immediate adverse effect of revocation of a sponsor’s licence on an applicant who was not an overstayer. The Court was bound by its reasoning in Pathan and Islam [2018] EWCA Civ 2103 and Topadar [2020] EWCA (Civ) 1525, which supported the conclusion that such notification was not required.
7. There was no obligation under the Immigration Rules (HC 395 as amended) or procedural fairness to give an overstayer further leave to find a new sponsor. The appeal was dismissed.

• Court of Appeal (Civil Division): [2022] EWCA Civ 550 — appeal from the Upper Tribunal’s refusal of permission to apply for judicial review; appeal dismissed.
• Upper Tribunal (Immigration and Asylum Chamber): refused permission to apply for judicial review on the papers and, after renewal, at an oral hearing.