Tier 2 Sponsorship Licence Revocation Case Study: R (Sri Lalithambika Foods Limited) v Secretary of State for the Home Department [2019] EWHC 761 (Admin)

The recent High Court case of R (Sri Lalithambika Foods Limited) v Secretary of State for the Home Department [2019] EWHC 761 (Admin) is another important lesson for Tier 2 Sponsorship Licence holders on how to remain compliant to the responsibilities of a Tier 2 Sponsor. It is important that Sponsors are aware of their on-going duties to avoid Tier 2 Sponsorship Licence Revocation. Our business immigration solicitors are experts with Points Based System applications and can conduct mock compliance audits to ensure Sponsors are fully prepared for any unannounced visits which will be conducted at any given time that the business has a valid Tier 2 Sponsorship Licence.

Background to the Tier 2 Sponsorship Licence Revocation Case

The Claimant had a South Indian restaurant which held an A-rated Tier 2 (General) and Tier 2 (ICT) Sponsorship Licence since February 2014. During an unannounced Home Office compliance visit on 9 August 2016, the Home Office (“the Defendant”) requested sight of further documents which were to be emailed by 16 September 2016. However the day after the visit on 10 August 2016 there was a fire in the flat above the restaurant and the Defendant was notified of the same on 11 August 2016. On 9 February 2017 the Defendant informed the Claimant that its Tier 2 Sponsorship Licence was suspended (“the suspension letter”). On 7 March 2017 the Claimant sent the Defendant written representations and supporting material, however, a further letter dated 6 April 2017 from the Defendant confirmed his decision to revoke the Claimant’s Tier 2 Sponsorship Licence (“the revocation letter”) on the basis that the Claimant was in breach of the Home Office Guidance for Tier 2 and Tier 5 Sponsors in respect of 14 matters.

The Claimant sent a Pre-Action Protocol letter on 31 May 2017 but the Defendant maintained his decision in a response dated 29 June 2017. The case then proceeded to Judicial Review. The Claimant argued that the Defendant’s decision to revoke the Sponsorship Licence was irrational and in most of the allegations was due to procedural unfairness as Tier 2 Sponsor Licence Revocation should be substantiated by evidence and not on suspicion alone. Based on the unannounced visit and interviews with staff, many of the breaches were related to the duties of the workers in relation to the SOC code, duties listed on their CoS and the skill level required for these positions. It was determined that the workers were not in-fact carrying out the relevant duties and did not have the required skill level. It was submitted that a large amount of evidence which could have proved otherwise was destroyed in the fire on 10 August 2016 and the Claimant was not given sufficient time to provide evidence in rebuttal of the accusations within the suspension letter.

The Court of Appeal’s decision in R on the application of Raj and Knoll Limited v Secretary of State for the Home Department [2015] EWHC 1329 (Admin) has striking similarities to this case, and makes it clear that it is not for the Defendant to piece together the necessary information to prove a sponsor’s compliance. Summarised by Tomlinson LJ at paragraph 41:

“The Appellant has failed to grapple with the simple point that, for good reason, it was required to maintain the electronic equivalent of a paper trail and that it failed to do so. It does not advance its case to question the necessity for each element in the trail.”

In this case, it was concluded that the Claimant has failed to keep sufficient records.

Judgement of the Tier 2 Sponsorship Licence Revocation Case

The Judge decided that on many of the 14 points alone would have been causing enough to revoke the Claimant’s Sponsorship Licence; therefore collectively it was abundantly clear that the Claimant had breached its duties as a Tier 2 Sponsor.  The Judge concluded that “the case emphasises that, as has been observed in previous judgments, sponsor status is a fragile gift which depends on absolute compliance with the requirements of the Guidance”.

There was overall a failure by the Claimant to respond sufficiently to the concerns expressed in the suspension letter. The appeal was therefore dismissed.

You can read the full judgement here: R (Sri Lalithambika Foods Limited) v Secretary of State for the Home Department [2019] EWHC 761 (Admin) | LEXVISA Immigration Lawyers London

What are the main Tier 2 Sponsorship Licence duties?

It is important that Tier 2 Sponsors are made aware of their duties as a Sponsorship Licence holder. The main duty is to ensure that all migrant workers have the right to work in the UK. Therefore, employers have a responsibility to ensure record keeping, amongst other things, is up to date. If there are any changes to the migrant worker’s circumstances, then the Sponsor has a duty to report this to the Home Office. It is common for the Home Office to conduct unannounced compliance visits to Sponsorship Licence premises. Therefore it is crucial that all the duties are maintained to avoid the suspension and/or subsequent revocation of the Licence.

LEXVISA specialises in Tier 2 Sponsorship Licence applications and can conduct a mock audit at a Tier 2 Sponsor or potential Tier 2 Sponsor’s business premises. Our business immigration solicitors are fully aware of a Tier 2 Sponsor’s duties and through experience are able to highlight the common mistakes made by businesses which may lead to their Tier 2 Sponsorship Licence not being granted, or being suspended or revoked.

Using Legal Representation to comply with Tier 2 Sponsorship Licence Duties

Legal representatives, such as our specialist business immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to ensure you understand your duties and responsibilities of being a Tier 2 Sponsorship Licence Holder and help you ensure that your business is and remains compliant with all immigration requirements. Our immigration solicitors can help you conduct ‘mock immigration audits’ to help identify any potential issues which could be resolved before a ‘surprise’ UKVI Compliance Audit.

Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application succeeds, all necessary documents must be provided.

This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.

Successfully comply with Tier 2 Sponsorship Licence Duties

Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your visa and immigration application before your matter even reaches the Home Office UK Visa & Immigration department. We can assist you with the preparation of your immigration and visa application and ensure that you remain compliant to all the relevant rules.

Our offices are located in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients.  We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.

Preparation is the key to avoid your Tier 2 Sponsorship Licence being suspended or revoked. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.

Contact our London immigration solicitors on 02071830570 or complete our contact form.

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