Procedural Fairness in Skilled Worker Applications
In Topadar v Secretary of State for the Home Department  EWCA Civ 1525 the Court of Appeal provided further clarification on the boundaries of procedural fairness in cases relating to skilled worker applications.
Topadar concerned an application made under the Tier 2 (General) Migrant route. 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 Tier 2 (General) route will be replaced by the Skilled Worker Route on 1 December 2020. The issues in dispute and the Court of Appeal’s judgment are also relevant to future applicants under the new Skilled Worker Route.
Procedural Fairness in Skilled Worker Applications
In a previous post we considered the case of R (Pathan) v Secretary of State for the Home Department  UKSC 41, where the Supreme Court 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the Home Office had acted unfairly by not informing a Tier 2 General skilled worker that their sponsor’s licence had been revoked. In Topadar the Court of Appeal was asked to consider whether a similar procedural duty exists in cases where the Home Office requests further information from a sponsoring employer and the sponsor fails to provide that information.
Mr Topadar (the Appellant), a Bangladeshi national, entered the UK as a Tier 4 Student and subsequently applied to switch to the Tier 2 (General) Migrant route. As a Tier 2 (General) Migrant he had to provide a Certificate of Sponsorship (CoS) showing he had been offered a job meeting certain criteria and a certain salary threshold. The Home Office wrote to the sponsoring employer requesting further information. Mr Topadar was never informed of this request, and when the sponsor failed to respond to the Home Office his application was refused.
Mr Topadar applied for administrative review. Before the administrative review was decided, he attempted to vary his application to include an Article 8 human rights claim. The administrative review upheld the Home Office’s decision to refuse the application.
In a judicial review before the Upper Tribunal, Mr Topadar argued that the Home Office had a procedural duty to notify him that further information was being sought from his sponsor before refusing his application. As a separate point, he also argued that an immigration application is only decided once any administrative review process has been completed, meaning Mr Topadar could vary his application (for example with a human rights claim) up until that point. The Upper Tribunal rejected both arguments.
The Court of Appeal focused on two issues:
- At what point is an immigration application decided by the Home Office?
- Did the Home Office act in a procedurally unfair way by refusing the application without informing the applicant that a request for information had been sent to the sponsor and had not been complied with?
The Court of Appeal agreed with the Upper Tribunal. It decided that:
- The immigration application had been decided at the point of the Home Office’s initial refusal notice. Administrative review did not extend the decision-making process. An applicant could not vary an application while administrative review was being conducted.
- The Home Office had not been procedurally unfair as the Immigration Rules state it can request further information from a sponsoring employer; the Home Office had no obligation to inform the applicant of this.
On the first point, the Court of Appeal explained that the legal framework (the Immigration Act 1971 and the Immigration Rules) maintained a clear distinction between: (a) the Home Office’s decision to grant or refuse an application, and (b) the administrative review of that decision. Had Parliament intended for administrative review to be treated as an extension of the decision-making process, then it would not have included sections such as 3C(2)(d) of the 1971 Act which make specific allowances for leave to continue while administrative review is pending.
On the second point, the Court distinguished this case from Pathan. In the latter, Mr Pathan was already employed by his sponsor and had applied to renew his leave on the basis he had a valid CoS at the time of his application. When this sponsorship was revoked, the Home Office had a duty to provide a delay between notifying him of the revocation and rejecting his application. This would mean Mr Pathan could act on that knowledge and try to avoid the criminal consequences of being an overstayer. Mr Topadar argued that had he been told of the request, he would have either chased his sponsor to provide the relevant information, found an alternative sponsor, or made a different application for leave to remain.
The Court of Appeal considered Topadar to be a different case entirely. Here the Immigration Rules clearly stated that the Home Office “could request additional information and evidence from the applicant or the Sponsor” and could refuse the application if this was not provided. The Home Office’s actions were thus provided for in the Rules, and the Home Office had followed the procedure.
The Court of Appeal poured cold water on any suggestion that Pathan had established a universal requirement on the Home Office to give applicants notice of issues that could affect their application in order for the applicant to be able to address them. The Court made clear that procedural fairness is a flexible requirement which varies on a case-by-case basis. The Court cited several cases to demonstrate that where a decision-making body disbelieved the account of an applicant (on matters where the applicant had specific knowledge or was best-positioned to answer) then it was procedurally unfair not to inform the individual and provide them an opportunity to comment. In Topadar, however, it was for the sponsor, not Mr Topadar, to supply the information to allow the Home Office to make its assessment on whether the vacancy was ‘genuine’.
Under Appendix Skilled Worker (which comes into force on 1 December 2020) the Home Office must also be satisfied that the applicant’s job is a ‘genuine vacancy’. Equally, the Rules stipulate that the Home Office can request further evidence from the sponsor and refuse the application if such information is not provided. This judgment should serve as a warning to sponsors that a failure to reply promptly or supply satisfactory evidence will risk jeopardising the applicant’s application. Sponsors should bear in mind the time it may take to compile necessary documentation such as tax and company financial statements when planning to sponsor a skilled worker migrant. Skilled worker applicants may well wish to encourage their sponsors to reply in time, but they will need to be proactive and cannot expect to be kept informed of when such requests for information are made by the Home Office.
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