In May this year, the case of R (Raj and Knoll Limited) v SSHD [2015] EWHC 1329 (Admin) was heard before Justice Caddon-Cave in the High Court of Justice. This case is quite rare as it is one of the first cases to come before the courts in respect of the ‘Tier 2’ Points-Based System operated by UK Visas & Immigration on behalf of the Home Department.
In these Judicial Review proceedings, Raj & Knoll Ltd (“the Claimant”) challenged the Secretary of State’s (“Defendant”) decision to revoke its Tier 2 Sponsor Licence and to maintain that revocation.
Facts of Judicial Review Case
In this case, the Claimant was a private company which ran 3 nursing homes in Kent and employed 65 people of whom 11 were ‘sponsored’ workers. The Claimant obtained a sponsor licence in 2009 which permitted it to issue Certificates of Sponsorship (“CoS”) to non-EEA migrants so they could work at the nursing homes.
However, in September 2013, UK Border Agency (as it was known at the time) carried out a Licence Renewal Visit at the Claimant’s registered address. They discovered that the premises were no longer owned by the Claimant (and the Claimant had not informed the Home Office of this). This led to the unit recommending the suspension/revocation of the Claimant’s sponsor licence.
Following a further inspection in March 2014, the Defendant issued the Claimant with a suspension letter citing numerous reasons such as the lack of right to work checks, discovery of an employee who did not have the right to work in the UK and the fact that all the issued CoS contained an address which the Claimant no longer owned.
The Defendant gave the Claimant the opportunity to make submissions but in June 2014 revoked the Claimant’s licence altogether.
Judge Warns Tier 2 Sponsors on Compliance
This case makes it clear that there is no need for the Home Office to wait until there has been a breach of immigration control by a Sponsor before suspending or even revoking their sponsor licence. In applying principles derived from case law, Justice Haddon-Cave stated that the essence of the sponsor licence system was that the Secretary of State (i.e. the Home Office) imposes “a high degree of trust” in sponsors and that the authority to grant a CoS is “a privilege which carries great responsibility.”
In his concluding paragraph, Justice Caddon-Cave highlighted the importance of the Home Office’s guidance for Sponsors and stated:
“there is no substance in any of the Claimant’s arguments and its judicial review challenge to the SSHD’s decision is dismissed…The SSHD was fully entitled to revoke the Claimant’s ‘Tier 2’ licence as she did. The Claimant’s attitude to the Guidance was sloppy and cavalier.”
Justice Haddon-Cave went further in citing the words of McGowan J in London St Andrews College v Secretary of State for the Home Department (2014) EWHC 4328 (Admin) [36]):
“It must be understood that the grant of [sponsor] status is a fragile gift, constant vigilance about compliance is a minimum standard required for such sponsors. The burden of playing an active role in the support of immigration control is a heavy one. The SSHD is entitled to review purported compliance with a cynical level of supervision.”
What this means for UK Businesses (Tier 2 Sponsors)
The suspension or revocation of a Sponsor’s Licence means that the employer will be banned from recruiting migrant workers in the future. Worst of all the loss of sponsorship due to one employee will have a knock on effect on all existing Tier 2 sponsored employees who will also lose their jobs. All employees sponsored under the revoked Tier 2 licence would be forced to leave the UK unless they can find a new sponsor to employ them almost immediately.
A significant aspect of the case referred to was the employer’s failure to demonstrate that immigration authorities had acted unlawfully in suspending its Tier 2 Sponsor Licence. All sponsors with a Tier 2 Sponsor Licence must be aware that in the context of an appeal following revocation there is a legal assumption that they have failed to meet their Tier 2 obligations. This leaves employers who have failed to obtain professional legal advice in danger of losing their employees and licence without remedy.
UK Immigration Compliance Solicitors for Businesses
Our advice for UK businesses/employers (corporate clients) and education providers encompasses the following:
- Ongoing compliance with UK immigration laws and sponsorship duties for Tier 2, Tier 4 and Tier 5 Sponsor;
- Advice on Prevention of illegal working;
- Assistance with Home Office Audits;
- Advising on appropriate record keeping and monitoring processes;
- Training for businesses and educational institutions, including training on compliance procedures and recruiting international staff and students; and
- Keeping you updated with the changes in UK Immigration Law.
Our team of experienced and professionally qualified solicitors and barristers are ready to provide you with effective solutions to your business immigration needs. Our expert immigration solicitors based in London, provide business clients with a tailored service and are on hand to expedite the sponsor licence process. We ensure that we help you achieve and maintain an A rated sponsor licence and provide ongoing compliance checks to ensure you are aware of your duties as a Home Office registered sponsor.
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