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||Neutral Citation Number:  EWCA Civ 2103
||Case No: C6/2017/2535
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UT Judge Allen
 UKUT 369 (IAC)
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
SIR ANDREW McFARLANE, PRESIDENT OF THE FAMILY DIVISION
LORD JUSTICE SINGH
LORD JUSTICE COULSON
|| (1) Imrankhan Mahmdiqbal Pathan
(2) Shiful Islam
- and –
||Secretary of State for the Home Department
Mr Zane Malik (instructed by SBM Solicitors) for the First Appellant
Mr Michael Biggs (instructed by Londonium Solicitors) for the Second Appellant
Mr Alan Payne (instructed by the Government Legal Department) for the Respondent
Hearing date: 11 September 2018
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Lord Justice Singh :
- These are two appeals against the decision of the Upper Tribunal (Immigration and Asylum Chamber) ("UT") dated 7 August 2017, by which UT Judge Allen dismissed each Appellant's claim for judicial review. The UT Judge gave a single judgment in both cases since they raise a common issue of principle. He did not decide the alternative bases upon which the Secretary of State relied, by way of reasons set out in supplementary decision letters dated 5 April 2017, because those issues had become academic in the light of his decision on the principal issue.
- Permission to appeal was granted to both Appellants by Hickinbottom LJ on 30 April 2018.
- Before this Court both Appellants submit that the UT decision was wrong in law. The Secretary of State resists their appeals but also submits, pursuant to a Respondent's Notice which has been filed out of time, that in any event the appeals should be dismissed on alternative grounds, namely for the reasons set out in his supplementary decisions.
- The principal issue in these cases was, as UT Judge Allen formulated it:
"Whether an immigration applicant who has applied … for leave to remain under the Tier 2 (General) Migrant Category of the Immigration Rules and has submitted a Certificate of Sponsorship from their sponsoring employer which is valid at the time the application is made is entitled to challenge the respondent's decision not to provide [him] with a period of 60 days in which to secure an alternative sponsor, in circumstances where the sponsor's Tier 2 Licence was revoked …"
- Before this Court it became clear during the course of the hearing that the Appellants do not in fact go that far. Rather they contend that they were entitled to notice of the fact that the sponsor's licence had been revoked and a reasonable opportunity (not necessarily 60 days) to re-arrange their affairs, not necessarily to find an alternative sponsor but potentially to do other things, including making an application to the Secretary of State on an alternative basis, for example on human rights grounds or to ask for the exercise of his residual discretion, or even to leave the United Kingdom ("UK") voluntarily without the risks associated with being found to have been staying here after their leave to remain had expired.
- The fundamental question nevertheless remains whether there is any requirement of public law that the Secretary of State must in circumstances such as those of these Appellants give notice of the fact that the sponsor's licence has been revoked or whether he can simply refuse the application for leave to remain on that ground (as the Immigration Rules on their face permit him to do and indeed require him to do).
- The First Appellant, Mr Pathan, is a citizen of India who was born on 7 May 1976. He has a wife and child, who are also citizens of India and have no freestanding claims for leave to remain in the UK.
- On 7 September 2009 the Appellant was granted leave to enter the UK as a Tier 4 (General) student until 31 December 2012. He was granted further leave to remain as a Tier 4 (General) student on 1 December 2010 until 30 April 2014. He was granted further leave to remain as a Tier 2 (General) migrant on 23 March 2013 until 15 October 2015 in order to work for a food outlet, Submania Limited.
- Before the expiry of his leave, on 2 September 2015, the First Appellant made an application for leave to remain as a Tier 2 (General) migrant to continue working for Submania. That application was supported by a Certificate of Sponsorship issued by Submania. However, while that application was pending, on 7 March 2016, the Secretary of State revoked Submania's sponsorship licence. The Secretary of State then refused the First Appellant's application for leave to remain on 7 June 2016, with no prior notice that Submania's licence had been revoked.
- The Appellant made an application for an administrative review on 14 June 2016. That was refused by a letter dated 7 July 2016.
- After judicial review proceedings had been commenced in the UT and at the same time as the detailed grounds of defence were filed on or around 6 April 2017, the Secretary of State served a "supplementary" decision dated 5 April 2017. In that letter he stated that there were reasons for refusing the application in addition to what had been said previously about the revocation of the sponsor's licence. In essence the Appellant's credibility was cast into doubt. It was said that the Appellant was seeking to do a job which was not genuine.
- The Second Appellant, Mr Islam, is a national of Bangladesh who was born on 31 January 1985.
- He entered the UK with leave to enter as a Tier 4 (General) student valid from 25 September 2009 to 30 June 2011.
- Following an in-time application he was given leave to remain as a Tier 4 (General) student valid from 11 July 2011 to 4 August 2012. After a further in-time application he was given further leave to remain as a Tier 1 (Post-Study Work) migrant valid from 25 August 2012 to 25 August 2014.
- By a decision letter dated 8 December 2014, again following an in-time application for further leave to remain, the Second Appellant was refused further leave to remain as a Tier 1 (Entrepreneur) migrant. That decision carried a right of appeal under section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002. That appeal was dismissed on 24 July 2015. The Second Appellant made an application for permission to appeal, which was finally refused on or around 5 January 2016, at which point he became an overstayer.
- At that time the rules permitted an overstayer to make an application for leave to remain within 28 days (that period has since been reduced to 14 days). The Second Appellant made such an application on 1 February 2016. He applied for leave to remain as a Tier 2 (General) migrant, pursuant to para. 245HD of the Immigration Rules, to work as a Business Development Manager at Tamarind (South West) Limited trading as "Viceroy", a restaurant, which was his sponsor. In support of that application he relied upon a Certificate of Sponsorship from the sponsor.
- That Certificate of Sponsorship was valid at the time when the application was made. However, it became invalid subsequently because the sponsor's Tier 2 licence was revoked by the Respondent, without notice to the Appellant and for reasons that do not involve any fault on his part. The sponsor's licence was revoked by the Secretary of State on 21 April 2016.
- The Appellant's application for leave to remain was refused by a decision letter dated 7 June 2016.
- The Appellant applied for an administrative review of the decision. That review was refused by a letter dated 6 July 2016.
- After judicial review proceedings had been commenced in the UT and at the same time as the detailed grounds of defence were filed on or around 6 April 2017, the Secretary of State served a "supplementary" decision dated 5 April 2017, which was in similar terms to the one sent to the First Appellant on the same date.
The judgment of the Upper Tribunal
- Before the UT, as before this Court, the fundamental basis on which the Appellants' submission was advanced was the principles of procedural fairness: see para. 9 of the judgment of UT Judge Allen, where he made reference, for example, to the decision of the House of Lords in R v Secretary of State for the Home Department, ex p. Doody  1 AC 531, at 560, in the speech of Lord Mustill, which remains a classic statement of the requirements of procedural fairness in modern administrative law. The argument was based in particular on the decision of the UT in Patel (Revocation of Sponsor Licence – Fairness) India  UKUT 211 (IAC);  Imm AR 5. I will return to that judgment later.
- Having summarised the respective arguments for the parties and having referred to the evidence filed on behalf of the Secretary of State in the form of witness statements from Mr Richard Jackson and Ms Frances Buzzeo, UT Judge Allen set out the essential reasons for his decision refusing the applications for judicial review at paras. 24-27.
- At para. 25 he said that it is important to recall that "this is an application for judicial review based on contended irrationality in the Respondent's decision in these cases." Before this Court both Mr Malik and Mr Biggs criticise that passage because, they submit, it betrays a fundamental error of law in the approach which the UT took to the question it had to decide. They submit that the Appellants' argument was not and is not that the Respondent acted in a way which was irrational; rather that it was procedurally unfair and that such questions of fairness are for the court or tribunal itself to determine.
- At para. 26 UT Judge Allen said:
"… In my view, for both policy and operational reasons, the Respondent's decision not to extend the 60 day grace period on Tier 4 cases to Tier 2 cases is a rational one. I accept that there are material distinctions which the Respondent is justified in drawing between Tier 4 and Tier 2. In particular the relationship between the Applicant and the sponsor and the purposes of granting leave are significantly different in each case. I do not read Patel as requiring in effect that its ratio in the context of Tier 4 is directly applicable to Tier 2 cases. It is clear from that and other decisions that fairness is essentially context driven, and I am persuaded that the different context identified by the Respondent for Tier 2 cases is such as to justify not extending the 60 day policy to these cases. There are clearly different policy objectives. The Tier 4 objective is to provide persons who wish to study in the United Kingdom access to appropriate educational institutions and to regulate demand from prospective students; whereas the purpose behind Tier 2 is to meet demand from prospective employers in areas of skills shortage with applicants who can fill in particular skilled vacancies where no resident worker can be found. There is materiality in the distinction drawn by the Respondent between the applicant in a Tier 4 case who is a service consumer and the applicant in a Tier 2 case who is the service supplier. The Tier 4 applicant may or may not have completed a level of study when a further application is made. In some instances therefore I accept they may be in the same position as a Tier 2 applicant who has been able to do the job for which they obtained the visa. There may in some cases therefore be an equivalence of inability to do a new course or take on a new job but that in my mind is not a material distinction such as to indicate irrationality in the Respondent's decision. Inevitably there are going to be points of coincidence between the two systems but equally I consider there are proper and clear matters of material difference between the two which I have set out above. … I also attach some weight to what is said about the logistical problems, identified at paragraph 17 of Ms Buzzeo's statement, that would arise if a 60 day grace period were to be implemented for Tier 2 applicants. Clearly there would be significant operational difficulties, including the need to establish new processes involving significant storage, management and review elements. A reasonable expectation of the Tier 2 applicant when granted leave is limited to working in a specific role for a specific employer whereas a student may although as I have said above accept not necessarily, wish to do further studies and their investment in the time they have been studying may well be adversely affected if they are unable to take advantage of a 60 day period in which to find another college."
- At para. 17 UT Judge Allen concluded as follows:
"I conclude therefore that the Respondent's decision in these cases is a rational one, and that it was not unlawful for her not to afford a 60 day period to the Applicants in order to seek to obtain further Tier 2 employment. As a consequence the applications are refused."
Grounds of appeal
- Although the grounds of appeal are not expressed in an identical way in each of these two cases, there are essentially three grounds of appeal, as formulated in the case of the Second Appellant as follows:
(1) The UT applied the wrong test and erred in law in assuming the issue before it was whether the Secretary of State's decision was a rational one as opposed to whether the decision was procedurally fair.
(2) The UT erred in law in holding that there was no obligation on the Secretary of State to put the Appellant on notice as to the revocation of his sponsor's licence and to give him an opportunity to find an alternative sponsor before refusing his application for leave to remain as a Tier 2 (General) migrant.
(3) The UT erred in law in attaching weight to potential "logistical problems" identified by the Secretary of State in her evidence and in failing to give any consideration to the Appellant's particular circumstances.
- On behalf of the Secretary of State it is submitted that the UT decision was not wrong in law. It is submitted that UT Judge Allen was correct to apply the standard of rationality in a challenge of this kind. It is further submitted, if necessary, that the appeals should be dismissed for the reasons set out in the supplementary decisions dated 5 April 2017 and summarised in the Respondent's Notice.
Material legislation and guidance
- Section 3C of the Immigration Act 1971, as amended and so far as material, provides that:
"(1) This section applies if –
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.
(2) The leave is extended by virtue of this section during any period when –
(a) the application for variation is neither decided nor withdrawn,
(d) an administrative review of the decision on the application for variation –
(i) could be sought, or
(ii) is pending.
(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.
(5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).
- The relevant provisions of the Immigration Rules relating to Tier 2 (General) migrants as well as ministers of religion and sportspersons can be found in para. 245H and following. Para 245H states the purpose of these routes and definitions in the following way:
"These routes enable UK employers to recruit workers from outside the EEA [European Economic Area] to fill a particular vacancy that cannot be filled by a British or EEA worker."
- Para 245HD sets out the requirements for leave to remain in this context. Those requirements include at para (f):
"If applying as a Tier 2 (General) migrant, the applicant must have a minimum of 50 points under paragraphs 76 to 79D of Appendix A."
- Appendix A includes a requirement at para. 77A that, in order to obtain points for a Certificate of Sponsorship, the applicant must provide a valid Certificate of Sponsorship reference number. Para. 77C(f) provides that the reference number "must not have been withdrawn or cancelled by the Sponsor or by the UK Border Agency since it was assigned …".
- The relevant provisions of the Immigration Rules which apply to Tier 4 (General) students can be found in para. 245ZT and following. Para. 245ZT sets out the purpose of that route in the following way:
"This route is for migrants aged 16 or over who wish to study in the UK at an institution that is not an Academy or a school maintained by a local authority."
- On behalf of the Secretary of State Mr Payne emphasises that the purposes of the two routes therefore are very different. He submits that the purpose of a Tier 2 route is to enable a specific employer in the UK to recruit the applicant for a particular vacancy in the UK in circumstances where attempts have been made to recruit a UK or EEA worker but have not borne fruit. In contrast, submits Mr Payne, the purpose of the Tier 4 student route is to enable a person who wishes to study in the UK to do so. This is not therefore necessarily tied to a particular institution in the UK, although Mr Payne accepts that the Immigration Rules make provision for a condition to be attached to a person's leave to enter restricting the institution at which they may study in the UK. That provision was considered by this Court in Anwar v Secretary of State for the Home Department  EWCA Civ 2134. In that case this Court (comprising Peter Jackson LJ and me) held that the Secretary of State has power in law to attach such a condition but that, to be effective, that condition must be communicated clearly to the person affected in the individual case.
- At the relevant time in the case of Mr Pathan there was guidance for sponsors on Tier 2 and Tier 5 of the points based system (version 04/15), which was to be used for all such applications made on or after 6 April 2015.
- Part 14 of the guidance, headed 'Sponsor Duties', made it clear that the sponsor's responsibilities would end if the Secretary of State revoked its licence: see para. 14.3(b). In those circumstances para. 19.9 said that the consequences would be that the Secretary of State would:
(a) immediately end (curtail) the permission to stay in the UK, or worker authorisation of any migrants whom he believed were actively and knowingly involved (complicit) in the reasons for the revocation of the licence (for example, if the migrant agreed that the sponsor would arrange a non-existent job for them so that they come to the UK);
(b) reduce the length of the worker authorisation, or permission to stay in the UK of any other migrant (those who are not actively involved) to 60 calendar days. This is to give them a chance to find a new sponsor. If the migrant has fewer than 60 days or leave or worker authorisation remaining, it would not be reduced.
Para. 19.10 stated that any migrant with Tier 2 leave would have to leave the UK or face enforced removal if they had been complicit. If they had not been complicit they would also have to leave or face enforced removal if, at the end of the 60 calendar days period allowed, they had not found a new sponsor.
Para. 19.12 made it clear that they would take action against any migrant with Tier 2 leave who remained in the UK after their permission to stay here had expired. This might result in migrants being detained and removed from the country and any application they make to come to the UK within the next 10 years might be refused.
- Mr Payne reminds this Court that the version of the guidance to sponsors which was applicable from 19 November 2015 (and therefore applicable to the case of Mr Islam) was phrased in a different way. In particular he draws attention to the fact that para. 19.9 was revised so that sub-para. (b) read:
"reduce the length of the worker authorisation, or permission to stay in the UK of any other migrants (those who were not actively involved) to 60 calendar days. If the migrant has fewer than 60 calendar days their leave or worker authorisation remaining, we won't reduce it."
Mr Payne emphasises that there is no longer any reference in that passage to the 60 calendar days being for the purpose of allowing the migrant concerned to find an alternative sponsor. Mr Payne submits that this was only a drafting change and that the previous version was poorly drafted. He submits that the purpose of the 60 day period was never to allow a person to find an alternative sponsor but was rather for the more general purpose of re-arranging their affairs and if necessary preparing to leave the UK voluntarily, for example if they had children at school here.
- At all material times, so far as this Court was informed, there was similar guidance in place addressed to applicants such as these Appellants. In particular we were shown the guidance concerning Tier 2 applicants (version 11/15), which was applicable on or after 19 November 2015. That made it clear, at para. 190:
"A Certificate of Sponsorship can be withdrawn or cancelled at any time by either the Home Office or your Sponsor. Where your application relies on a Certificate of Sponsorship that has been either withdrawn or cancelled, your application will be refused."
- Our attention was also drawn to paras. 242-246 of the same guidance, which concerns curtailment of leave; paras. 287-288 in Annex A, which deal with what is a valid Certificate of Sponsorship; and para. 294, which considers what happens if the Sponsor's licence has been suspended.
The decision of the UT in Patel
- As I have mentioned, the foundation for the Appellants' argument is the decision on the UT in Patel. It is common ground before this Court that that decision is not binding, not only because it is a decision of a lower tribunal but also because the context concerned Tier 4, whereas the present case concerns Tier 2. Nevertheless, on behalf of the Appellants, both Mr Malik and Mr Biggs submit that the underlying rationale behind the decision in Patel is both correct and equally applicable to the context of Tier 2.
- The judgment in Patel was given by Blake J, the then President of the Immigration and Asylum Chamber of the UT, sitting with Batiste SIJ.
- It is clear from paras. 13-15 of the judgment that the UT in that case understood the requirement to act fairly as being concerned with procedural fairness, since reference is made to the discussion of procedural fairness in the leading textbook by De Smith, Judicial Review (6th edition, 2007), at paras. 7-003 to 7-009. The judgment continued at para. 14:
"We accept the author's proposition that the law has advanced from imposing a public law requirement of fairness in particular situations, to the general proposition that wherever a public function is being performed there is an inference that the function is required to be performed fairly, in the absence of an express indication to the contrary."
- At para. 19 the UT set out the salient facts in that case as the following:
(1) The appellant was lawfully present in the UK with leave to remain as a student and was a bona fide student.
(2) He made a bona fide application for an extension of his leave to remain as a student at a college which was an approved sponsor at the time of the application.
(3) Unbeknown to the appellant the college was removed from the list of approved sponsors by the Home Office during the time it was considering the application.
(4) Removal of the college from the list of sponsors was taken at about the same time as the decision to refuse the application, there was therefore no opportunity for the appellant to be informed of the consequences on his application of the respondent's actions.
- In the present appeals both Mr Malik and Mr Biggs submit that the salient facts are materially the same. The only difference is that the present cases concern Tier 2 rather than Tier 4. They submit that is immaterial. They submit that the underlying reasoning which is to be found in paras. 20-21 of the judgment of the UT in Patel does not turn on that being a Tier 4 case and applies equally to the context of Tier 2. They remind this Court of the potentially serious consequences that can follow if a person is found to be an overstayer in this country: for example, they may be liable to be removed from the UK; they may be liable to detention with a view to such removal; they may have committed a criminal offence; and the fact that they have overstayed without leave to remain may be a reason in itself for refusing them a visa for a period of 10 years.
- Mr Malik and Mr Biggs rely on the conclusions of the UT in Patel at paras. 22-25, where it said:
"22. Where the applicant is both innocent of any practice that led to loss of the sponsorship status and ignorant of the facts of such loss of status, it seems to us that common law fairness and the principle of treating applicants equally mean that each should have an equal opportunity to vary their application by affording them a reasonable time within which to find a substitute college on which to base their application for an extension of stay to obtain the relevant qualification. In the curtailment cases, express Home Office policy is to afford sixty days for such application to be made.
23. Although we accept that there is no such policy for refusal cases, fairness requires that such cases be treated in broadly the same way. The applicant must be given an equal opportunity before refusal of application to amend it in the way we have described. This was clearly not done in this case. The Home Office knew that it had suspended the college in January 2011 but no one else did. The applicant could not have known that subsequently the college's status as an approved sponsor was revoked before his application for an extension of stay was decided.
24. It is obviously unfair for the Secretary of State to revoke the college's status after the application has been made when it was an approved sponsor and not to inform the applicant of such revocation and not afford him an opportunity to vary the application.
25. None of this applies where the applicant has not been a bona fide student at the college where he is seeking to extend his stay, or where he has participated in the practices that may have led the college to lose its sponsorship status, or where he has had actual knowledge of the cessation that the termination of the college's status as a sponsor either before the application for an extension of stay was made or shortly thereafter and when he had adequate opportunity to amend the application by seeking to substitute an approved college for an unapproved one."
- At para. 29 the UT said:
"In those circumstances no lawful decision has been made on the application and the application remains to be determined by the Secretary of State or the relevant officer and the leave to remain granted pursuant to s. 3C [of the Immigration Act 1971] continues uninterrupted. A direction may be given to that effect where necessary specifying the time needed before the application can be determined to allow a fair opportunity to make representations."
- The Appellants also emphasise what was said by the UT at paras. 33-34: they submit that the UT was unimpressed in that context with arguments made by the Secretary of State based upon cost or administrative difficulties. They submit that procedural fairness is required even if there would be cost or administrative inconvenience associated with it. They submit that is as true in the present context as it was in the context of Tier 4 cases in Patel.
Subsequent decisions of this Court
- On behalf of the Appellants Mr Malik and Mr Biggs submit that, far from having been disapproved or overruled by this Court, the decision of the UT in Patel has been approved in subsequent cases. They place particular reliance on two cases.
- The first is the decision of this Court in EK (Ivory Coast) v Secretary of State for the Home Department  EWCA Civ 1517;  Imm AR 2. That case, like Patel, concerned a Tier 4 student. In that case, as a result of an administrative error for which the applicant had no responsibility, the sponsor college withdrew her Confirmation of Acceptance for Studies ("CAS") letter, which had been valid at the time when she made her application for leave to remain to continue her studies: see para. 24 in the main judgment, which was given by Sales LJ.
- It was for that reason that Sales LJ concluded that there was no breach by the Secretary of State of the public law duty to act fairly. As he said at para. 25:
"… The Secretary of State is not responsible for the general unfairness which the appellant has suffered. That is the result of actions and omissions by [the college]. …"
- Furthermore, at para. 38, Sales LJ referred (among other cases) to the decision of the UT in Patel but distinguished those cases as follows:
"The authorities in which the general public law duty of fairness has been found to impose additional obligations on the Secretary of State in the context of the PBS [Points Based System] have been materially different from the present case. It has been held that where the Secretary of State has withdrawn authorisation from a college to issue CAS letters, fairness requires that she should give foreign students enrolled at the college a reasonable opportunity to find a substitute college before removing them: Patel (revocation of sponsor licence – fairness) India  UKUT 211 (IAC); Thakur (PBS Decision – Common Law Fairness) Bangladesh  UKUT 151 (IAC); and see Alam at para. 44. But that requirement was found to arise where there had been a change of position of which the Secretary of State was aware, and indeed which she had brought about, in circumstances in which the students were not themselves at fault in any way, but had been caught out by action taken by the Secretary of State in relation to which they had had no opportunity to protect themselves. In the present case, by contrast, the Secretary of State had no means of knowing why the Appellant's CAS letter had been withdrawn and was not responsible for its withdrawal, and the fair balance between the public interest in the due operation of the PBS regime and the individual interest of the Appellant was in favour of simple operation of the regime without further ado."
- The other decision of this Court is R (Raza) v Secretary of State for the Home Department  EWCA Civ 36;  Imm AR 682. That case too concerned a Tier 4 student. It is clear from para. 13 and paras. 27-30 that submissions were made on behalf of the Secretary of State to the effect that the decision in Patel was wrong and had subsequently been disapproved by this Court. In giving the main judgment Christopher Clarke LJ rejected that submission: see para. 38. However, he did not think that Patel assisted the appellant in that case because it was distinguishable on its facts. This is because, at the time when the appellant made his application to extend leave to remain, he was not any longer lawfully present in the UK with leave to remain as a student: see paras. 14 and 16-18.
- The decision of this Court in Raza presents a formidable difficulty for the Second Appellant, Mr Islam, as Mr Biggs fairly acknowledged. Mr Biggs sought to distinguish Raza but I am not persuaded that it is possible to do so. In my view, the essential reasoning of Christopher Clarke LJ at paras. 16-17, applies equally to the case of Mr Islam in the present case:
"16. … There is an important distinction between the circumstances in Patel and those of the present case. In Patel the applicant's leave to remain was in force. He was applying for a variation of that leave and, in the particular circumstances of that case, fairness required that in dealing with that application the SOS [Secretary of State] should afford him a further opportunity to vary it. If the SOS declined the application without doing so his status would be transformed from lawful resident to unlawful overstayer.
17. By contrast in the present case the applicant had after 14 April 2012 no extant leave to remain. He was not asking to vary a leave which he already had: that leave had expired. He was making a fresh application for a grant of leave to remain. If his application was refused his position would not change from lawful resident applying for a variation to unlawful overstayer making a fresh application for leave to remain. He was already an overstayer. That would remain the position if the appellant was given a 60 day opportunity to find a new sponsor. It does not seem to me that fairness required the Secretary of State to give him a third bite at the cherry."
Other relevant decisions of this Court
- In the recent decision of this Court in R (Citizens UK) v Secretary of State for the Home Department  EWCA Civ 1812, I sought to set out a summary of the relevant authorities relating to the duty of procedural fairness at common law: see paras. 68-84. In brief concurring judgments both Asplin and Hickinbottom LJJ agreed with my judgment: see paras. 178 and 185. In the course of my summary I referred to the decision of the Supreme Court in R (Osborn) v Parole Board  UKSC 61;  AC 1115 and summarised what it held in the following way at para. 81 of my judgment:
"… The Supreme Court confirmed the proposition that the test for whether there has been procedural fairness or not is an objective question for the Court to decide for itself. The Court's function is 'not merely to review the reasonableness of the decision-maker's judgment of what fairness required': see para. 65 (Lord Reed JSC)."
- I also sought to summarise relevant principles of public law, in particular the distinction between procedural fairness and substantive fairness, in my concurring judgment in R (Talpada) v Secretary of State for the Home Department  EWCA Civ 841, at paras. 56-65. I said at para. 56:
"… In my respectful view, it would be advisable not to use phrases such as 'public law fairness' because that simply begs the question whether what is meant is procedural fairness or substantive fairness."
- At para. 57 I said:
"Procedural fairness (or, as it is sometimes called, the duty to act fairly) is the modern term for what used to be called the rules of 'natural justice'. Those rules have two limbs. The first limb is the rule against bias (either actual or apparent), which used to be given the Latin expression nemo iudex in sua causa. The second limb is audi alteram partem ('hear the other side'). Since public law no longer talks of 'judicial' or 'quasi-judicial' disputes, even the notion of a 'hearing' now seems inapt but the fundamental requirement of the second limb of procedural fairness is to give an opportunity to a person whose legally protected interests may be affected by a public authority's decision to make representations to that authority before (or at least usually before) the decision is taken …"
- It is important to start with the fundamental purpose which lay behind the introduction of the Points Based System ("PBS"). That has been emphasised by this Court in a number of authorities, including the following summary by Burnett LJ (as he then was) in Kaur v Secretary of State for the Home Department  EWCA Civ 13;  Imm AR 526, at para. 41:
"The points based system for determining whether to grant leave to enter or remain in the United Kingdom, which applies to students as well as a number of other categories of applicant, is designed to achieve predictability, administrative simplicity and certainty. It does so at the expense of discretion, that is to say it is prescriptive. The consequence is that failure to comply with all its detailed requirements will usually lead to a failure to earn the points in question and thus refusal …"
- To that helpful summary I would respectfully add that another of the purposes of the PBS approach is to achieve consistency of treatment as between different applicants. This is as much in the interests of applicants for leave as it is in the interests of the state.
- The second point by way of introduction which needs to be made is that, speaking for myself, I have considerable reservations about the correctness of the reasoning of the UT in Patel. For example, I note that, at para. 22 (which I have already cited earlier), Blake J apparently in one and the same breath invoked both what he called "common law fairness" and "the principle of treating applicants equally". It would appear, as I have said, that what he had in mind when he referred to "common law fairness" was what I would call the rules of procedural fairness, in other words what used to be called the rules of natural justice. However, the principle of equal treatment, itself a doctrine whose very existence remains controversial in modern public law (as will be seen later in this judgment), is not an aspect of procedural fairness at all. It has to do with the substance of decisions and not the procedure by which they are made.
- Nevertheless, this is not the place for this Court to consider whether Patel was correctly decided on its own facts or not. As Mr Payne fairly accepts, the Secretary of State did not appeal in Patel itself. Furthermore, arguments were made on behalf of the Secretary of State in Raza that Patel had been wrongly decided but were rejected by this Court, although I do not regard that decision as binding on this Court, since the actual decision in Raza was adverse to the individual in that case and it was held that Patel was distinguishable on its facts.
- What is in issue in the present appeals is whether this Court should now extend the reasoning in Patel to the Tier 2 context. In those circumstances it seems to me to be appropriate for this Court to assess the arguments advanced by Mr Malik and Mr Biggs on their own merits rather than by reference to earlier cases. That is what I now address.
- The fundamental argument which both Mr Malik and Mr Biggs make is that notice of the revocation of the sponsor's licence was required as a matter of procedural fairness. Indeed Mr Malik went so far, as I understood him, as to disavow any reliance on the doctrine of "substantive fairness" at all. In contrast, Mr Biggs did invoke the concept of substantive fairness if and insofar as he needed to although his primary submission was based on procedural fairness. The reason why both Mr Malik and Mr Biggs are keen to rely on the doctrine of procedural fairness only may be that they recognise that it is only in that context that the question is one for the Court itself to decide as an objective matter. This is why they criticised the reasoning of the UT in the present case for referring to the concept of rationality.
- In my view, however attractively their submissions were made, they must be rejected. In truth, the present cases are analogous to the case of Talpada, where I said, at para. 58:
"… The reality of the complaint is that, despite what the Immigration Rules require, the Respondent should have been prepared to accept something else, namely a COS number which in fact had already been 'used'. That has nothing to do with any duty on the Respondent to 'hear' the Appellant before taking her decision. In reality it is concerned with a matter of substance, namely whether the requirements in the Rules should be complied with in full or whether the Respondent should be prepared to dispense with one of those requirements. In my view, it makes no difference to this analysis to say that the requirement in the Rules is itself concerned with a matter of procedure rather than, for example, whether a person should be granted leave to remain or a work permit. The important point is that this is nothing to do with procedural fairness in the sense outlined above. It is to do with whether a substantive requirement of the rules themselves needs to be complied with in making a relevant application. …"
- If the Appellants had been correct in their fundamental submission that what they contend for is required by the rules of procedural fairness, I would have agreed with them that the UT fell into error in the present case by referring to the concept of rationality. This is for the reasons I set out in Citizens UK, citing the decision of the Supreme Court in Osborn. However, that fundamental submission seems to me to be wrong. As I have said, in my view, the complaint in the present case is properly to be analysed as one of substantive rather than procedural unfairness.
- For that reason it is also important to recall what I said in my judgment in Talpada at paras. 59-65. Although, as Sir Thomas Bingham MR observed in R v Inland Revenue Commissioners, ex p. Unilever plc  STC 681 (in the passage cited at para. 60 of my judgment in Talpada), "the categories of unfairness are not closed and precedent should act as a guide not a cage", it should be emphasised that it is only unfairness which amounts to "an abuse of power" which is justiciable in this context: see para. 61 of my judgment in Talpada and the citations set out there and at paras. 59 and 62.
- Against that background of authority it is important to bear in mind what I said in my judgment in Talpada, at para. 64:
"Normally public law is not concerned with the substance of public decisions. Judicial review has a very important role to play in the maintenance of the rule of law in this country but the role of the courts, however important, is a limited one. Our role is principally to correct errors of law made by public authorities and ensure that fair procedures have been complied with. This is why the courts will correct, for example, a misdirection of law by a public authority; will ensure that all relevant considerations are taken into account; that irrelevant considerations are not taken into account; and will insist upon procedural fairness where the duty to act fairly applies. This is also why the remedy which will usually be granted when an application for judicial review succeeds is a quashing order or some other remedy which has the result that the matter is remitted to the public authority concerned, so that it can reconsider its decision in accordance with law and after complying with relevant procedural requirements. What the outcome should be on reconsideration is usually not a matter for the court. It is rare for the court to substitute its own view for what the substantive decision should actually be. Usually the only basis on which the court can concern itself with the substance of the decision is irrationality. (For this purpose I put to one side issues which may arise under European Union law or under the Human Rights Act 1998, when the task of the court may be different.)"
- It is also important to bear in mind what I said at para. 65:
"As I have said, in appropriate cases, the court will and must be able to correct an abuse of power. The doctrine of substantive fairness is an important tool which enables the court to ensure that a public authority acts lawfully and, in particular, does not abuse the powers which have been entrusted to it by Parliament. However, that doctrine does not and should not give the court a wide-ranging discretion to overturn the decision of a public authority where it considers it to be unfair. This is not only because that risks blurring the important dividing line between the function of the court and the function of the executive. It is also because the doctrines according to which a court will interfere with the decisions of the executive need to be set out in reasonably clear and predictable form so that everyone can arrange their affairs accordingly. This (the principle of legal certainty) is as much an important aspect of the rule of law as is the need to correct abuse of power."
- What I said in Talpada now needs to be read in the light of the more recent decision of the Supreme Court in R (Gallaher Group Ltd) v Competition and Markets Authority  UKSC 25;  2 WLR 1583 and, if anything, has been reinforced by what was said in that case. Although Gallaher was not cited before us, it is (to say the least) very doubtful that any freestanding doctrine of substantive fairness has survived the decision of the Supreme Court in that case. At the very least the judgments in the Supreme Court reinforce the view to which I have in any event come in the present appeals. At para. 41, after a lengthy analysis of the authorities, Lord Carnwath JSC (with whose judgment the other members of the Court agreed) said:
"In summary, procedural unfairness is well-established and well-understood. Substantive unfairness on the other hand – or, in Lord Dyson MR's words … 'whether there has been unfairness on the part of the authority having regard to all the circumstances' – is not a distinct legal criterion. Nor is it made so by the addition of terms such as 'conspicuous' or 'abuse of power'. Such language adds nothing to the ordinary principles of judicial review, notably in the present context irrationality and legitimate expectation. It is by reference to those principles that cases such as the present must be judged."
- In similar vein, Lord Sumption JSC said, at para. 50:
"… to say that the result of the decision must be substantively fair, or at least not 'conspicuously' unfair, begs the question by what legal standard the fairness of the decision is to be assessed. Absent a legitimate expectation of a different result arising from the decision-maker's statements or conduct, a decision which is rationally based on relevant considerations is most unlikely to be unfair in any legally cognisable sense. …"
- I would also observe that, in Gallaher, the Supreme Court held that, while the principle of equal treatment could be regarded as an aspect of rational behaviour, it does not in itself constitute a freestanding ground for judicial review: see paras. 24-30 (Lord Carnwath) and para. 50 (Lord Sumption). That therefore undermines to a significant extent the reasoning of the UT in Patel, which (as I have mentioned earlier) relied on the principle of equal treatment in the same breath as the principles of procedural fairness.
- In all the circumstances it seems to me that the essential question then becomes whether there was in the present context such unfairness as to amount to irrationality. I am unable to accept the submission that there was. This is essentially for the reasons which are set out in the witness statements filed on behalf of the Secretary of State and relied upon in submission by Mr Payne. In essence the reasons are as follows.
- First, the purpose of the two regimes, Tier 2 and Tier 4, are very different. This is expressly set out in the Immigration Rules themselves, as I have mentioned earlier. The purpose of Tier 4 is to enable students from overseas to come to this country to pursue their studies. If a particular educational institution's licence is revoked by the Secretary of State, it is understandable why a period of grace should be given to that student to try to see if they can pursue their studies at another institution in this country. There may be no good public interest reason to refuse them that opportunity. In contrast, the whole purpose of the Tier 2 regime for migrant workers is to match up their application for leave with a particular vacancy in this country in circumstances where the local labour market (including for this purpose the EEA) has been shown not to lead to a suitable worker being employable. In those circumstances, it is pre-eminently a political judgment on the part of the Secretary of State whether people should be able to put forward an alternative sponsor if the particular sponsor has had its licence revoked. People may reasonably disagree on whether that would be a good thing or a bad thing. However, as a matter of law, this Court cannot possibly stigmatise the decision which the Secretary of State has taken as being irrational.
- Secondly, I do not consider there to be any unfairness, certainly not such as to be irrational, in circumstances where fair notice was given to everyone concerned, including these Appellants, that the regime which would apply would be exactly the one which was applied to them. This was made particularly clear in para. 190 of the guidance for applicants which I have quoted earlier.
- Thirdly, although the consequences could on one view be regarded as being harsh, on another view they can be avoided by the voluntary action of an applicant by leaving the UK and applying for leave to enter again by reference to an alternative sponsor from overseas. In that way, the risks (and I do not underestimate them) of potential liability to removal, detention pending removal, the possibility of a criminal prosecution for overstaying in breach of immigration law and the likelihood that a future application for entry clearance would be refused for 10 years, can all be avoided by voluntarily leaving the UK and applying from overseas. I stress again in that context that no-one who is given leave as a Tier 2 migrant can have any reasonable expectation that they will be permitted to remain in this country if the particular employer who is their sponsor has its licence revoked. This is because, as I have already said, the Tier 2 scheme is closely tied to there being a particular vacancy in the labour market which cannot otherwise be filled. It is not a general permission to come to this country for the purposes of work, still less for the purposes of looking for work.
- Fourthly, there is a rational basis for the distinction drawn by the Secretary of State between cases where a person has his or her leave to remain curtailed and the present sort of case. Where leave is curtailed, as a matter of policy, a period of up to 60 days grace will be given but it is important to appreciate that in such a case the individual concerned may still have several years leave to run and so a considerable reduction will be imposed on them. If they have less than 60 days leave left they will not be given any more leave. If they have more than 60 days leave left they will be allowed a period of 60 days. That is both understandable and reasonable, given that people may have to re-arrange their affairs, including perhaps having to move children out of school. However, the fact that the Secretary of State is willing, as a matter of policy, to afford such a period of grace in cases where leave to remain is curtailed does not, in my view, render his decision not to do so in the present context irrational.
- It follows that, in my view, the UT Judge did not fall into error (as submitted by the Appellants) when he referred to the standard of review being rationality. Nor did he err by referring to the logistical difficulties which the Secretary of State would face and which are evidenced in the witness statements filed on his behalf. In my view, it was permissible for the UT Judge to have regard to that evidence and to such difficulties. This is because, as I have said, he did not fall into the fundamental error of thinking that questions of procedural fairness were to be determined by reference to the standard of rationality. This was not, when correctly analysed, a case of procedural unfairness at all.
- I would therefore reject all of the Appellants' grounds of appeal. In the light of that conclusion it is unnecessary to address the Secretary of State's alternative submission that the decision of the UT should be upheld in any event for the reasons set out in the supplementary decision letters and in the Respondent's Notice.
- For the reasons I have set out above, I would dismiss these appeals.
Lord Justice Coulson:
- I agree that, for the reasons given by Singh LJ, these appeals should be dismissed. For the avoidance of doubt, although it is irrelevant to their disposal, I also agree with his reservations about the correctness of the reasoning in Patel (para. 58 above).
Sir Andrew McFarlane P:
- I also agree.
Note 1 A similar passage is to be found in the current edition (the 8th edition, 2018), at paras. 7-003 to 7-010. [Back]
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