Just before the Christmas break, the High Court upheld the decision in Sri Prathinik Consulting Limited v Secretary of State for the Home Department (“Sri Prathinik v SSHD”), that the revocation of the company’s Tier 2 Sponsor Licence was lawful. It is important that Tier 2 Sponsor Licenced businesses in the UK comply with the Resident Labour Market Test and other Home Office rules and regulations in order to prevent Tier 2 Sponsor Licence revocation or suspension.
Tier 2 Sponsor Licence Revocation: Background of Sri Prathinik v SSHD
The Claimant had a Tier 2 Sponsor Licence in order to hire non-resident IT experts for his business after carrying out the Resident Labour Market Test and finding no suitable settled workers for the positions. The Home Office made an unannounced compliance visit to the company’s premises and found that, contrary to Appendix D of the Tier 2 Sponsor Licence Guidance, the Claimant had failed to retain evidence of the Resident Labour Market Test and therefore suspended the Claimant’s Tier 2 Sponsor Licence on the basis of inadequate record keeping. It was then discovered that the Claimant had issued the Certificate of Sponsorship (“CoS”) more than 6 months after the Resident Labour Market Test had been carried out and as a result, the Claimant’s Tier 2 Sponsor Licence was revoked.
Tier 2 Sponsor Licence Revocation: Complying with the Resident Labour Market Test
Tier 2 employers must carry out the Resident Labour Market Test before offering a position to a migrant worker. A CoS may only be assigned if the Resident Labour Market Test has been correctly carried out and no suitable settled worker is appropriate to fill the post or when the Resident Labour Market Test is not required. Further, paragraph 29.2 of the Tier 2 and 5 Sponsor Licence Guidance provides that “all CoS, restricted or unrestricted, must be assigned within 6 months of the date the vacancy was advertised”. Under Annex 5(u) of the Tier 2 and Tier 2 Sponsor Licence Guidance, failure to comply with paragraph 29.2 may be used as a mandatory ground for Tier 2 Sponsor Licence revocation. In this instance, the Claimant argued that the completion of the Resident Labour Market Test and the assignment of the CoS are two separate policies which have different penalties if breached and consequently, the Secretary of State had wrongly applied Annex 5(u) which resulted in a harsher sanction being imposed on the company.
Tier 2 Sponsor Licence Revocation: The High Court’s Decision in Sri Prathinik v SSHD
Last month, the High Court upheld the Secretary of State’s decision to revoke the Claimant’s Tier 2 Sponsor Licence, specifically referring to the leading judgement from Lord Justice Tomlinson in R (Raj and Knoll Limited) v SSHD [2016] EWCA Civ 770 in that failure to assign a CoS within 6 months of carrying out the Resident Labour Market Test is a mandatory ground for Tier 2 Sponsor Licence revocation. The Court also reiterated that the Tier 2 and 5 Sponsor Licence Guidance must be read and considered as a whole and went on to comment that although the Secretary of State had wrongfully applied Annex 5(u) specifically in this case, the decision to revoke the Claimant’s Tier 2 Sponsor Licence would nonetheless be her discretion even if it did not fall under the mandatory ground for revocation and therefore the Secretary of State was correct in revoking the Claimant’s Tier 2 Sponsor Licence.
The full High Court Decision can be found here: Sri Prathinik Consulting Ltd v Secretary of State for the Home Department 2017 EWCH 3204 (Admin) | LEXLAW Solicitos and Basrristers
Using Legal Representation to comply with the Home Office Guidance and avoid Tier 2 Sponsor Licence Revocation
Legal representatives, such as our specialist 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 Sponsor Licence Holder and help you ensure that your business is and remains compliant with all the immigration requirements and avoid Tier 2 Sponsor Licence revocation or suspension. 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 the Home Office Guidance and avoid Tier 2 Sponsor Licence Revocation
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 meet all the requirements of the relevant rules.
Our offices are based 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 successful immigration applications. 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.
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