The responsibility to take the utmost care to ensure that the Points Based System, Immigration Rules and guidance are followed remains with the sponsor. A Mr Talpada attempted to challenge the applicability of the Rules and guidance to his case on the facts and by using common law legal principles of unfairness and legitimate expectation. The Court of Appeal dismissed the claim for judicial review in R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841.

The court reviewed the relevance and applicability of the two legal principles, their connection to the politically charged area of immigration law and provided direction on how to successfully plead them. This case is therefore useful for practitioners looking for ways to challenge the rigours of the Points Based System.

A Certificate of Sponsorship cannot be used twice. Full stop

Mr Talpada was a Tier 2 General migrant whose first application to extend his leave was refused because his sponsor failed to insert the correct occupational code on the Certificate of Sponsorship (CoS). The caseworker deciding the case failed to mark the CoS as “used”. The same Certificate of Sponsorship then appeared as “live” and available for use in the SMS system, so the sponsor re-used the rejected number from the first application.

The case contained an element of “he said, she said”.  Mr Talpada’s sponsor had contacted the Sponsorship and Employers Helpline (now known as the Business Helpdesk) seeking guidance on how to correct the occupational code, but failed to mention the wider circumstances including the SMS error and her intention to re-use the rejected Certificate of Sponsorship.

The second application was refused and paragraph 77C(e) of Appendix A applied, which states that a CoS cannot be used twice. Words to similar effect were quoted from the Tier 2 and 5 Guidance (version 04/15, replicated in the current guidance). The second refusal was the subject of judicial review.

No legitimate expectation

The crux of the review was in the second ground of appeal, which alleged that the sponsor was given an assurance by the Sponsorship and Employers Helpline that the CoS number could be re-used. Mr Talpada argued that because of this assurance, there was a legitimate expectation that the application wouldn’t be refused.

This principle was considered in Mehmood (legitimate expectation) [2014] UKUT 469 (IAC). President McCloskey explained that a legitimate expectation arises:

…where there is an unambiguous promise or assurance by a public official in which the affected citizen reposes trust.

Lord Justice Hallett applied this principle at paragraph 46, concluding:

The evidence from the sponsor did not come close to the criteria for establishing legitimate expectation… the contact between the sponsor and the department does not suggest any disavowing of the fundamental requirement in paragraph 77C (e) that a new CoS number should be used.

Underhill LJ mentioned that if the sponsor had been clear in indicating her intention to re-use a previously rejected CoS, then any assurance provided could potentially establish a legitimate expectation. This is an important point to note when dealing with the Business Helpdesk.

Argument from common law fairness rejected

The first ground of appeal largely replicated Mandalia v Secretary of State for the Home Department [2015] UKSC 59. In this instance it was alleged that the Secretary of State was obliged to put Mr Talpada on notice about the deficient Certificate of Sponsorship before refusing the application, as paragraph 245AA and the associated evidential flexibility policy applied. As a result of this and the failure to mark the CoS as used, the Home Office did not operate a fair system to enable the decision to be made.

Hallett LJ rejected this argument and quoted Underhill LJ’s comments in Mudiyanselage v Secretary of State for the Home Department [2018] EWCA Civ 65:

Occasional harsh outcomes are a price that has to be paid for the perceived advantages of the PBS process… the responsibility is on applicants to ensure that the letter of the requirements of the PBS is observed.

Finally, Singh LJ criticised Mr Talpada’s representative for “evolving” the two grounds of appeal into five improperly pleaded grounds. The courts are now minded to discourage this behaviour and impose “procedural vigour” in public law proceedings.

Be cautious when pleading legal principles

This judgement is worth a read in full by any practitioner considering the use of public law principles to overcome harsh outcomes from the Points Based System. See Singh LJ’s comments in particular, at paragraphs 55 to 69.

Legitimate expectation seems to be trending as a ground for judicial review. There is no hard and fast rule of how to successfully plead it within immigration law at the moment, so keep an eye on the judgments (which will of course be covered on Free Movement). Pleading unfairness shouldn’t be done lightly as the court will only interfere with decisions made by the Secretary of State when there has been an extreme abuse of power, which was definitely not the case here.