Sivayogam is a religious charity, serving Hindu and Tamil communities in London. Finding priests in the UK and Europe had proven difficult so, in 2009, it applied for registration as a Tier 2 sponsor, allowing the organisation to bring in religious workers from abroad.

Its experience in R (Sivayogam) v SSHD [2017] EWHC 2575 (Admin) is a good demonstration of the value of legal advice at an early stage of sponsor licensing disputes.

Background

Where the Home Office grants a Tier 2 sponsor licence it is essentially outsourcing immigration control to the sponsoring organisation.

Employers are required to comply with the detailed guidance provided by the Home Office, which imposes “a high degree of trust” on sponsoring organisations: London St Andrews College v Secretary of State for the Home Department (2014) EWHC 4328 (Admin). The guidance requires certain records to be kept, and maintained “with assiduity” (paragraph 13 of the case just mentioned).

Where organisations do not follow the correct procedures the Home Office can suspend, downgrade or revoke a licence depending on the nature of the breach. Certain circumstances listed in the guidance will lead to mandatory revocation (Annex 5) or possible revocation (Annex 6).

Breaches and revocation decision

In December 2016 the Home Office paid an enforcement visit to Sivayogam and found the charity to be in breach of various conditions of its licence. This included two breaches under Annex 5:

• Failure to obtain planning permission for the charity’s premises
• The actual salary paid to the religious workers was lower than that for which the Certificates of Sponsorship (work permits) were issued

The charity responded in the key of contrition, addressing the concerns raised by the Home Office in a letter sent in February 2017, and providing a ‘hierarchy of workers’ document setting out the management and employee structure of the organisation.

However, revocation followed in March 2017. The Home Office cited various failings, as well as placing reliance on the frank acknowledgements made by the charity of its own shortcomings when it came to compliance with the regime.

According to the Home Office, Sivayogam was a “threat to immigration control”. As such, the decision was taken to revoke the licence rather than downgrade the organisation and place it on an action plan.

In particular, reliance was placed on a further mandatory ground of revocation: a failure to provide a hierarchy of workers list when requested to do so (a document which had, in fact, been submitted and which was to become a major issue in the proceedings that following).

Judicial review proceedings

The main issue in the case – and probably the only reason why permission was granted – was the glaring error in the revocation decision which stated that no hierarchy of workers document had been provided upon request. This was one of the three mandatory grounds of revocation, and it was wrong.

This was not enough to save Sivayogam.

Robin Purchas QC sitting as a Deputy High Court judge picked his way through the catalogue of Home Office complaints and, in the case of every other breach, found that there was sufficient evidence for the Secretary of State to arrive at the decision that she did. The judge explained [99]:

The threat to immigration control arose because of the absence of … demonstrated processes and procedures as well as the breaches within Annex 5, indicating a failure to ensure compliance with the law or the requirements of the Guidance … In my judgement it did not require the demonstration of any actual breach of immigration control. The failure to maintain the required processes and procedures to ensure compliance was sufficient to constitute a threat to immigration control.

It was left to the court to decide whether, under section 31(2A) Senior Courts Act 1981, notwithstanding the flaw in the initial decision, the outcome for the claimant would have been substantially different. The court found that it would not, and refused the request for relief.

Too little legal advice, too late

According to an FOI request I made over the summer, just over one third of sponsor licensed organisations on the Home Office register are legally represented.

Although Sivayogam were in breach of many aspects of its licence, arguments raised in court on the charity’s behalf demonstrate that sustainable points could have been made at an earlier stage in respect of both the mandatory grounds of revocation. Such interventions might have persuaded the Home Office that a suspension – rather than a full downgrade – would have been more appropriate.

In addition, earlier admissions made by the charity regarding its compliance, apparently while not legally represented, certainly seem to have undermined the mitigation later pleaded in court.