In the recent case of Topadar v Secretary of State for the Home Department [2020] EWCA Civ 1525 the Court of Appeal considered two questions:

1. At what point is an immigration application decided by the Home Office?
2. Is it procedurally unfair for the Home Office to refuse an application due to the applicant’s sponsor (i.e. their employer) failing to provide additional information (without the applicant ever being made aware of the request)? 

The answers:

1. When a decision is issued – an administrative review of that decision is not an extension of the decision-making process;
2. No – there is no absolute or universal requirement that the Home Office must give an applicant prior notice of something that might affect the consideration of their application.

When is an application decided?

The answer to the first question seems uncontroversial to me. Mr Topadar had applied for a Tier 2 visa. This was refused on 27 September 2018. He submitted an administrative review. On 18 October 2018, he made a human rights claim. On 31 October 2018, the administrative review was refused.

The question for the court was whether he had successfully varied his original application on 18 October 2018. This can only be done before the application is “decided”. The court held, at paragraphs 39-40, that:

An application is decided, as a matter of ordinary language, when a decision is reached granting or refusing the application. The question in the present case is whether the process of administrative review is intended, or must as a matter of law be understood, to be part of the process of deciding the application so that the application is only decided when the administrative review is concluded…

… it is clear that the review is separate from, not part of, the process of deciding an application… It is clear that the process envisages a difference between “the decision” which is the refusal of the application and the “administrative review” which checks whether that decision was wrong.

As a result the application was decided on 27 September 2018 and could not be varied after that date. 

This is in keeping with the position in relation to appeals. It would be odd if a different approach were taken for administrative review.

Procedural fairness

The second issue is more complicated. The Supreme Court recently held that:

… in appropriate cases, the rules of natural justice may require a party to be afforded time to amend his case in a way that cures an otherwise fatal defect of which he had, without fault on his part, previously been unaware (see R (Pathan) v Secretary of State for the Home Department [2020] UKSC 41 at both [104] and [170]).

In Mr Topadar’s case, the Home Office sought further information from his sponsor, who wanted to employ him as an accounts manager. Officials were not convinced that it was a “genuine vacancy” and requested information about the job including a job description, a list of duties, and an explanation as to why an accounts manager was needed. They also requested business bank statements, a full staff list, the latest company accounts, HMRC reference numbers, a chart of all employees, marketing material, and website details.

The sponsor failed to reply and Mr Topadar’s application was refused. Mr Topadar was not aware that the information had been requested, or that his sponsor had failed to reply, until he received the refusal.    

Sounds a bit unfair. But is it procedurally unfair, bearing in mind that substantive unfairness is not a ground for judicial review?

Not unfair if it’s in the Rules

Was the Home Office required to inform Mr Topadar of the request and give him an opportunity to cure the fatal defect in his application by getting the information from his sponsor? 

The Court of Appeal decided that it was not: 

Paragraph 77J of the Immigration Rules specifically provided that, in order to consider that matter, the respondent “could request additional information and evidence from the applicant or the Sponsor” and could refuse the application if the information or evidence was not provided. In that context, there was nothing procedurally unfair in the respondent asking the sponsor for additional information and evidence. That was inherent in the system and specifically provided for in the Immigration Rules. The sponsor was told that failure to provide the additional information and evidence might result in the application being refused. [54] – [55]

The court highlighted that the information and documents requested were matters the sponsor was in a position to provide, not Mr Topadar. It was for the sponsor to respond:  

If the employer intends to employ the appellant, and has provided a certificate of sponsorship, it is incumbent on the employer to provide any additional information sought by the respondent. [57]

Lord Justice Lewis felt that the situation was different to Pathan (the recent Supreme Court case), which involved the Home Office revoking the sponsor’s Tier 2 licence:

The majority of the Supreme Court was not intending, in my judgment, to establish an absolute or universal requirement that the respondent must give the appellant prior notice of something that might affect the consideration of an application with a view to the applicant being able to take steps to address that matter. Rather, as the judgments of the majority of the Supreme Court recognise, the requirements of procedural fairness are flexible and are not set in stone. They are necessarily influenced by the context and the facts. [59]

When considering procedural fairness, context is everything.

Lesson for the future

The requirement for a job to be a “genuine vacancy” is being carried forward to the new post-Brexit immigration system. The wording is different, but the effect is likely to be the same. Under paragraph SW 5.5. of Appendix Skilled Worker (coming in to force on 1 December 2020):

The decision maker must not have reasonable grounds to believe the job the applicant is being sponsored to do:

(a) does not exist; or

(b) is a sham; or

(c) has been created mainly so the applicant can apply for entry clearance or permission to stay.

There is also reference in paragraph SW 6.3 to the sponsor needing to show “a genuine need for the job as described” when justifying the occupation code used.

The Home Office may request information to assist with their assessment of whether the job meets these requirements, and an application can be refused if this information is not provided (per paragraph 9.9.1 of the new re-drafted Part 9 of the Rules).

Any company planning to sponsor a migrant worker (which from next year will, of course, include EEA nationals) should be aware of the need to respond to any request for further information from the Home Office. Failure to reply, or to provide satisfactory answers, could lead to the application being refused.

And if this happens, following the decision in Topadar, the applicant will not be able to get the decision overturned on the basis of procedural unfairness.

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