The Supreme Court held today in R (Pathan) v Secretary of State for the Home Department [2020] UKSC 41 that the Home Office’s treatment of a Tier 2 skilled worker, Mr Pathan, was unfair. Mr Pathan had applied for an extension of his visa as a sponsored worker in good time but his application was refused several months later after the Home Office had, without telling him, revoked his employer’s sponsorship licence. This revocation meant that Mr Pathan’s application was, ultimately, doomed to fail. As Lady Arden put it:

if he is kept in ignorance as to his sponsor’s shortcomings, he will not know about any revocation unless the Secretary of State informs him. There is something deeply unsatisfactory about the Secretary of State being able to take that decision which may have a profound influence on the life of the applicant, without any obligation to tell him. It is after all knowledge which is peculiarly in the Secretary of State’s possession.

Lady Arden, paragraph 69

Mr Pathan was left unlawfully resident in the UK with no warning and, after reforms by Theresa May during her time as Home Secretary, no right of appeal. The Supreme Court has now, by a majority, quashed the decision to refuse Mr Pathan’s extension request.

Notably, this is the second major case we have seen on access to justice in immigration cases in as many days.

Outcome of the case

The judgment is complicated by the fact the judges disagreed with one another. Not only that but the judgments handed down are weighty. All agreed that the treatment of Mr Pathan was procedurally unfair. Four out of five agreed that the appeal should therefore be allowed. Two out of five — a minority — held that the Home Office was obliged to grant Mr Pathan a short period of leave in order to give him the chance to remedy his situation.

The outcome of this mess is that the appeal is allowed but nothing more; while it is unlawful for the Home Office to fail to inform a person who has validly applied to extend their stay on the basis of sponsored employment that their sponsor’s licence has been revoked and their application is therefore going to be refused, there is no obligation on the Home Office to grant a period of leave to enable that person to find a new employer, say their goodbyes or similar. What good is that, then, you might well ask?

The formal outcome of the case was that Mr Pathan’s appeal was allowed. The Home Office decision to refuse his extension application was therefore unlawful and is quashed. In law, that decision has not formally yet been made, although Mr Pathan and the rest of us now know what the outcome is going to be. Mr Pathan’s residence since that non-decision was served on him on 7 June 2016 had seemed to be unlawful. It turns out that it was in fact lawful residence all along as leave was extended automatically by operation of law by section 3C of the Immigration Act 1971 while his valid and in-time application remains pending.

No doubt the Home Office will shortly issue a new refusal. However, Mr Pathan might well now be eligible for settlement under the ten-year rule that given he first arrived in 2009 and it turns out now that he has been lawfully resident ever since. I imagine he will already have varied his application by the time I write this.

Duty of fairness

Mr Pathan lost his case earlier in the Court of Appeal because his claim was interpreted as being based on his being treated substantively unfairly. Judges really don’t like that. The case had been interpreted in that way because Mr Pathan wanted 60 days of extended leave to enable him to put his affairs in order and he therefore needed to argue that it was unfair if this was not granted. However, the Supreme Court unanimously found that in reality there was procedural unfairness in the failure to give him notice of the revocation of his employer’s sponsor licence. The claim of substantive unfairness was contingent on and a consequence of this procedural unfairness.

The duty of fairness is well established. Lady Arden cites Dr Bentley’s case, R v Chancellor, Masters and Scholars of the University of Cambridge (1723) 2 Ld Raym 1334; 1 Stra 557:

…even God himself did not pass sentence upon Adam before he was called upon to make his defence. “Adam” (says God), “where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?” And the same question was put to Eve also.’”

Explaining the difference between substantive and procedural unfairness, Lady Arden wryly observes “that determination was undoubtedly a substantive decision, but the grant to Adam and Eve of an opportunity to provide an explanation was a procedural decision”. The confusion between the two arises, she says, because the same substantive decision can give rise to claims of both substantive and procedural unfairness.

Future cases

It is clear that the decision not to inform Mr Pathan of the revocation of his employer’s sponsorship licence was unlawful. Given that the Supreme Court was split 2-2-1 on what should happen as a consequence, though, it is less immediately clear what this means for future cases.

Lord Briggs, in his dissenting judgment, thought the appeal should be dismissed anyway because the refusal of the extension request was distinct from the procedural unfairness in failing to give notice of revocation of the sponsorship licence. Lady Arden and Lord Wilson agreed with one another that 60 days of leave should be granted, as occurs in student applications where the educational institution loses its sponsorship licence. Lord Kerr and Lady Black agreed with one another that this was not necessary. They held instead that Mr Pathan should have been given sufficient notice of the revocation to give him time to do something about it:

the duty to act procedurally fairly comprehends an obligation to tell somebody such as Mr Pathan immediately about circumstances which doomed his current application so that he could avail of the full period which would then have become available to allow him to do something about it.

Lord Kerr and Lady Black, paragraph 109

This would have given Mr Pathan a window of time in which to make an alternative application or, at least, pack his bags — and the bags of his family, who accompanied him to the UK — and avoid the fate of becoming an overstayer and thereby committing a criminal offence. The window in this case would, on the face of it, have been three months.

Given that four members of the court held that Mr Pathan was entitled to notice and to a chance to take action, it seems that in future cases a person in the same position as Mr Pathan will also need to be given notice and a chance to take action. The only sensible interpretation of the split outcome is that the opportunity to take action must be provided in the form of a delay between being informed of the revocation decision and refusal of the extension of leave. What period of time is necessary between these two events is unclear. In this case the period happened to be three months; that need not necessarily set a precedent for other future cases. In student cases a period of 60 days is considered adequate.

The lack of agreement between the judges means we will need to wait for the Home Office, which was quite content to give no notice at all, to decide what period is reasonable.