England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE HADDON-CAVE)

		Royal Courts of Justice Strand London, WC2A 2LL
		10 June 2015

1. LORD JUSTICE JACKSON: This is an application for permission to appeal to the Court of Appeal. The facts giving rise to this application are as follows. The claimant runs three care homes in Kent. They are known as The Knoll, Ami Lodge and Ami Court. The claimant operates its business from The Knoll and I understand that most of the staff employed by the claimant are located there. During the period under consideration the claimant employed 65 staff, of whom 11 were Tier 2 migrants.
2. On 18 March 2014, the UKBA made an unannounced visit to the claimant's premises. The UKBA were not satisfied with the results of that visit and on 15 March 2014 they sent a letter to Mrs Patel, the director of the claimant who is responsible for the day-to-day management, stating that the claimant had failed to comply in a number of respects with the guidance which governed the operation of the Tier 2 points-based system. The claimant took such steps as it deemed appropriate in response to that letter. The UKBA was dissatisfied with the result. On 16 June 2014 the UKBA sent a further letter to the claimant stating that the matters in issue had not been properly addressed. In the circumstances, the UKBA was revoking the claimant's licence as a sponsor under the Tier 2 points-based system.
3. The claimant was aggrieved by that decision. On 11 July 2014 the claimant commenced judicial review proceedings against the Secretary of State, seeking to quash the decision of 16 June to revoke the licence.
4. The grounds upon which judicial review was claimed were in essence these. The claimant maintained that it was a diligent sponsor which had sought to play by the rules. The breaches which had occurred were of a minor nature. The Secretary of State's decision to revoke the sponsorship licence was excessive and disproportionate. It would have a substantial effect on the running of the claimant's care homes which provided a vital service to vulnerable members of the community. There was a difficulty in recruiting sufficient staff resident in this country and therefore a need to resort to the services of migrant workers.
5. The judicial review claim came on for hearing in May 2015 before Haddon-Cave J. The judge reviewed the witness statements lodged by the claimants, in particular the witness statement of Mrs Patel to whom I have previously referred, and a witness statement of Mr John who was the director of Vostek Limited, a company which carried out recruitment services in the healthcare industry. The judge came to the conclusion that the principles which he should apply included the following set out in paragraph 21 of his judgment:

"(6) There is no need for UKBA to wait until there has been breach of immigration control caused by the acts or omission of a sponsor before suspending or revoking the sponsorship, but it can, and indeed should, take such steps if it has reasonable grounds for suspecting that a breach of immigration control might occur (per Silber J in R (Westech College) v Secretary of State for the Home Department (2011) EWHC 1484 (Admin) at [17-18]).

(7) The primary judgment about the appropriate response to breaches by licence holders is that of the Secretary of State. The role of the Court is simply supervisory. The Secretary of State is entitled to maintain a fairly high index of suspicion and a 'light trigger' in deciding when and with what level of firmness she should act (R (The London Reading College Ltd) v Secretary of State for the Home Department (2010) EWHC 2561 Admin per Neil Garnham QC).

(8) The courts should respect the experience and expertise of UKBA when reaching conclusions as to a sponsor's compliance with the Guidance, which is vitally necessary to ensure that there is effective immigration control (per Silber J in R (Westech College) v Secretary of State for the Home Department (2011) EWHC 1484 (Admin) at [29(d)])."

6. The judge in his judgment then addressed the evidence concerning the individual noncompliances. He came to the conclusion that the Secretary of State was entitled to revoke the licence. Accordingly, he refused the claim for judicial review. The claimant is aggrieved by the dismissal of its claim and applies to the Court of Appeal for permission to appeal.
7. The principal ground of appeal is that in the paragraphs which I have just read out the judge applied too strict a standard. The decisions relied upon by the judge were all first instance decisions, and the appropriate test to be applied by the Secretary of State and the appropriate test to be applied by the court on judicial review ought to be reconsidered at an appellate level.
8. I have come to the conclusion that there is force in this point. I am not saying that the decisions which the judge relied upon were wrong, but these are important questions and it is in my view now an appropriate time for the test set out in those cases to be reviewed by the Court of Appeal.
9. The second ground of appeal which Mr Biggs on behalf of the claimant advances is this: when one looks at the individual noncompliances, it can be seen that there has been a high level of compliance. The evidence put before the judge to demonstrate this received very brief attention in the judgment. If Mr Biggs succeeds in relation to the appropriate test, it may be that the Court of Appeal would take a different view from the judge in relation to the individual noncompliances which are alleged.
10. The first area which Mr Biggs relies upon relates to the resident labour market test. The test requires a sponsor to place advertisements in this country for local workers before resorting to migrant workers. The UKBA took the view that the advertisements placed by the claimant and the records relating to those advertisements did not comply with the requirements of appendix D. There is an issue about that, as to which see the statement made by Mr John of Vostek which is in the bundle. That matter is dealt with very briefly by the judge in paragraph 34 of his judgment.
11. The next matter to consider relates to the address from which the claimants were operating. The claimant left its address in early September 2013. There was a letter from the UKBA to the claimant on 17 October 2013 pointing out that the claimant had not given notice of its change of address. The letter said:

"In this case, prior to suspending your licence we are giving you 14 days to submit a change of address request via the sponsor management system."

12. It appears from the evidence before the court that the claimant did indeed endeavour to comply with that direction within the 14-day time limit, but according to the evidence of Mrs Patel the computer system operated by the UKBA rejected the attempts to notify a change of address. It appears that the email of 17 October 2013 may not have been before the judge at the hearing below. It appears that it probably was not because it receives no mention in the judge's judgment. That is purely a matter of criticism for the representatives of the claimant. At the same time, one would expect the Secretary of State to place this email before the court as it formed a vital part of the evidence in the case. It seems to me that if the Court of Appeal is reconsidering this case in any event, it ought to take into account the email dated 17 October 2013. It is not entirely clear whether this was in the bundle before and overlooked or not. It does not require the formality of an application to adduce fresh evidence, but it certainly should be included within the appeal bundle.
13. There is a separate matter concerning the address at which the migrant workers were based. That does appear to have been misstated, but, as Mr Biggs points out, the Secretary of State was well aware that the employment address for all the migrant workers was The Knoll. This fact may be the biggest obstacle in the claimant's appeal; indeed it may, for all I know, lead to the failure of the appeal. I do, however, take the view that there are arguable points for the reasons indicated above. Therefore, I grant permission to appeal. Estimated length one day; three-judge court, one of whom may be a High Court judge.