Do I have time to find a new Tier 2 Sponsor?
On 23 October 2020 the Supreme Court in R (Pathan) v Secretary of State for the Home Department  UKSC 41 held that the Home Office had acted unfairly by not informing a Tier 2 General skilled worker that their sponsor’s licence had been revoked.
What is a Tier 2 General skilled worker?
The Tier 2 General visa category is for individuals who have an offer of a skilled job in the UK from a licensed Tier 2 Sponsor. The individual must also have a valid certificate of sponsorship (CoS) provided by the sponsoring employer.
Mr Pathan (the Appellant), a Indian national living in the UK, made an application for further leave to remain (LTR) under Tier 2 in order to continue working for his sponsoring employer. He provided a CoS issued by his sponsor, and his application was made in good time. In the period that followed, the Home Office revoked his sponsor’s licence. Mr Pathan, however, was not notified of the revocation until nine months later when his application for LTR was refused. This meant Mr Pathan and his family were required to leave the UK.
Mr Pathan applied for an administrative review of the decision, seeking an extension to allow him to provide a new CoS. The Home Office refused this application. The Upper Tribunal and Court of Appeal both dismissed his claim for judicial review.
The Supreme Court case concerned two main issues:
- Whether the failure to notify Mr Pathan of the revocation of his sponsor’s licence was reviewable under the public law ground of procedural unfairness; and
- Whether the Home Office was required to provide Mr Pathan with a leave extension to deal with the revocation decision.
The Court was split. Even when in agreement, the judges differed in their reasoning.
Nevertheless, the Court’s determination was that:
- The appeal should be allowed (four out of five judges agreed);
- The Home Office’s delay in notifying Mr Pathan of the revocation of his sponsor’s licence was procedurally unfair (four out of five agreed); and
- The Home Office did not have a duty to provide a particular period of time following notification for Mr Pathan to make an alternative application or otherwise deal with the revocation decision (three out of five agreed).
The Court went to great lengths to draw a distinction between procedural and substantive unfairness. Informing Mr Pathan of the revocation as soon as reasonably possible would preserve the fairness of the procedure. Mr Pathan would have known his application was set to fail, and he would have had an opportunity to act on that knowledge — for example by securing a new sponsor, varying his application to rely on human rights grounds, or making plans to leave the UK with his family and avoid the criminal consequences of becoming an overstayer.
Conversely, requiring the Home Office to grant a specific extension of time for Mr Pathan to respond fell outside the duty of procedural unfairness. Mr Pathan had asked for a 60-day extension, mirroring that granted to Tier 4 students when their educational providers lose their sponsorship licenses. Under the Immigration Act 1971 s3.C, leave had already been extended while his valid and in-time application was still pending. A majority of the judges rejected the 60-day extension request as it would involve modifying the processes set out by legislation and the Immigration Rules (a substantive matter).
The ruling may ultimately represent little more than a pyrrhic victory for Tier 2 skilled workers. There may be a procedural duty on the Home Office to provide a delay between notifying an applicant of revocation and then rejecting their application, but we are still in the dark over what constitutes a reasonable period. Worryingly, Lord Briggs (in his dissenting opinion) explained how the Home Office could have notified Mr Pathan of the revocation on the day it happened, and rejected his Tier 2 application that same or the following day. Four of the judges cited the need to give the applicant a reasonable opportunity to do something about the revocation as the basis for the finding of procedural unfairness. Applicants will hope the majority’s view will result in a more generous interpretation than the one provided by Lord Briggs. What the Home Office deems to be a reasonable period, however, remains to be seen.
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For expert advice in relation to Tier 2 General visas and other Immigration advice, contact our immigration barristers on 0203 617 9173 or via our enquiry form below.