In the case of Pathan & Anor v Secretary of State for the Home Department [2018] EWCA 2103 the Court of Appeal reminds us, once again, of the rigidity and inflexibility of the Points Based System. It is also a good reminder of the purpose and policy behind the Tier 2 visa route.

Sponsor licence revoked while visa application pending

The appellants had both made applications for leave to remain in the UK as Tier 2 (General) migrants. One of the requirements for such applications is to have a valid certificate of sponsorship from a company which has a Tier 2 sponsor licence. If the sponsor’s licence is revoked, then the certificate of sponsorship will be invalidated.

Both appellants had a valid Certificate of Sponsorship at the time of their application. But while their application was pending, the Secretary of State revoked the licences of their respective sponsors, and thereafter refused their applications for lack of a valid certificate of sponsorship. The appellants were not warned by the Home Office about the revocation. Nor were they given 60 days from the date of the refusal to find a new sponsor.

The principal issue was whether, in these cases, the Secretary of State had to give notice to applicants of the fact that their sponsor’s licence had been revoked, and whether the Secretary of State had to give them a reasonable opportunity to rearrange their affairs, whether by making a new application to remain in the UK or by leaving the UK before being subject to a re-entry ban.

No unfairness

Skipping the arguments about the differences between procedural and substantive fairness made by Lord Justice Singh (which are interesting but beyond the point of this post), the Court of Appeal came to the conclusion that it was not unfair for the Secretary of State to refuse the applications or give the applicants time to make other arrangements.

The reasons given were:

1. The purpose of the Tier 2 route does not require the Secretary of State to allow the applicants time to find a new sponsor (see more below on this point)
2. The appellants knew the rules and guidance which would apply to them when they applied, including the fact that the application would be refused if their certificate of sponsorship were invalid
3. The appellants could avoid the consequences of remaining in the UK unlawfully (i.e. re-entry bans) by leaving the UK voluntarily and applying for leave to enter again from abroad
4. There was 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 is given a “60 days grace period, or the amount left on their visa if less than 60 days) and cases such as this, where the application was refused before they were granted leave in the first place:

[The former policy] 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.

I am not sure I see why those whose leave is curtailed would need time to re-arrange their affairs and not people whose in-country applications are refused, given that in both cases the individuals concerned are already living in the UK, but I suppose the Court of Appeal would have dismissed this appeal on points 1 to 3 anyway.

Purpose of Points Based System system and Tier 2

This case is generally a good reminder of the purpose of the Points Based System, and the Tier 2 route specifically. Quoting paragraph 41 of Kaur v Secretary of State for the Home Department [2015] EWCA Civ 13:

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…[paragraph 56, emphasis added]

With regards to the Tier 2 route specifically, the appellants tried to draw parallels between their case and that of Patel (Revocation of Sponsor Licence – Fairness) India [2011] UKUT 211 (IAC), where the Upper Tribunal found that:

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 [student] applicant of such revocation and not afford him an opportunity to vary the application. [24]

The Court of Appeal disputed this parallel by drawing attention to the different purposes of the Tier 2 and Tier 4 regimes:

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. [71]

and again

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 [73].

Note on re-entry bans

Both the appellants and the judges of the Court of Appeal refer to the risk of a ten-year re-entry ban. I have written a detailed post on re-entry bans, but it is worth clarifying here that it is only an individual who is forcibly removed or deported by the Home Office (or who used deception in an entry clearance application, which doesn’t seem to be the case here) who will be subject to a re-entry ban. If a person leaves the UK voluntarily, any re-entry ban and its duration will depend on the length of their overstay and whether they left at their own expense or at the expense of the Home Office, but will never exceed five years.

It is also important to remember that re-entry bans do not apply to everyone, including those making applications under Appendix FM of the Immigration Rules relating to family life with British or settled citizens.