England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/11/2016

Her Honour Judge Alice Robinson:

Introduction

1. This is an application by the claimant to quash decisions of the defendant dated 8^th September and 31^st December 2015. In those decisions, the defendant revoked the claimant's licence to issue Certificates of Sponsorship under Tier 2 of the Points Based System of the Immigration Rules. On 24^th June 2015 the claimant's sponsor licence was suspended and it was given an opportunity to make representations. After considering those, on 8^th September 2016 a decision to revoke the licence was taken. That was reconsidered in the light of the further representations and evidence submitted by the claimant with a Pre-action Protocol letter and the decision maintained in the letter dated 31^st December.
2. On 14^th March 2016 His Honour Judge Blair QC sitting as a Deputy High Court Judge refused permission to apply for judicial review. The claimant renewed the application and on 26^th April 2016 Collins J granted permission.
3. Following service of the defendant's Skeleton Argument the claimant applied for permission to adduce further evidence in the form mainly of minutes and records of inspections and meetings between the claimant and his employees and officers from the UK Visas & Immigration Department of the Home Office disclosed by the defendant. The application was not opposed.

Factual background

4. The claimant is a well-established beauty salon with 17 branches in London and across the country. The head office and main branch is at 24 Topsfield Parade, Tottenham Lane, London N8 8PT. On 27^th October 2010 the claimant made an application for a sponsor licence and a B rated licence was granted on 10^th January 2011. Later that was upgraded. The claimant has been inspected a number of times since then to assess its ongoing suitability to be a sponsor. I was informed by Mr Matthew Flinn who appeared for the defendant, and it was not disputed by the claimant, that full inspections were carried out on 25^th February and 1^st May 2014.
5. An email from the Home Office to the claimant dated 11^th February 2015 records that a compliance officer had visited 24 Topside Parade twice, "more recently a few weeks ago", but had been unable to carry out an assessment as Mr Khawaja, the owner of the claimant, was not available. The email stated it was now urgent for an assessment to be carried out. Mr Khawaja replied that the proposed date was not convenient. On 31^st March 2015 compliance officers visited unannounced and they returned again on 14^th April for an arranged visit.
6. Following this the defendant made the decision to suspend the claimant's licence. The letter dated 24^th June relied upon five grounds: none of the sponsored workers were available to be interviewed on 14^th April, lack of evidence that specified sponsored workers are carrying out their duties, failure to monitor the immigration status of sponsored workers and poor record keeping relating to contracts of employment and sponsored workers' pay. It is the first two grounds that are relevant for the purposes of these proceedings.
7. In relation to those, the letter stated:

"General Sponsor Duties 1

2. Our officer visited your premises unannounced on 31 March, however, you were unavailable. Our officer organised an announced visit with you for 14 April and requested that your sponsored workers were available to be interviewed. However, on 14 April none of your sponsored workers were available to be interviewed."

The letter then referred to Tier 2 Sponsor Guidance to the effect that failure to co-operate with a compliance visit may lead to revocation of the sponsor licence. The letter continued:

"General Sponsor Duties 2

5. You assigned a certificate of sponsorship (CoS) to the following sponsored workers to be employed as sales accounts and business development managers under standard occupational classification (SOC) code 3545, the job description on their CoS states their duties are:

Muhammad Atif Naeem (C2G7Z24919H)-Start date 25 June 2014

Amitkumar Parekh (C2G3O94939L)-Start date 1 August 2014

Kumari Radha (C2G1C55030A)-Start date 13 October 2014

Shamim Akhter (C2G4T85000V)-Start date 26 September 2014

Rashid Minas (C2G6X04719C)-Start date 9 December 2013

Muhammad Hassan Ejaz (C2G6Z64779K)-Start date 10 February 2014

Liaises with other senior staff to determine the range of goods or services to be sold

Contributes to the development of sales strategies and setting of sales targets

Discusses employers or clients requirements

Carries out surveys and analyses customers reactions to product, packaging, price etc

Compiles and analyses sales figures, prepares proposals for marketing campaigns and promotional activities and undertakes market research

Handles customer's accounts, recruits and trains junior staff, produces reports and recommendations concerning marketing and sales strategies for senior management, keeps up to date with products and competitors.

6. Our officer was unable to ascertain whether the above sponsored workers are carrying out their duties as indicated on their CoS as you failed to provide any sponsored workers for interview as requested by our officer prior to the visit. You informed our officer that you employ 45-50 people. Taking this into account it is not credible that you would require six sales and business development managers for a business of your size. You have also failed to provide evidence that the above sponsored workers are carrying out their duties indicated on their CoS."

The letter then referred to Tier 2 Sponsor Guidance to the effect that assigning a CoS where there is no genuine vacancy will lead to revocation of the sponsor licence.

8. The claimant made representations and in the letter revoking the sponsor licence dated 8^th September 2015 the defendant accepted that all but the first two issues had been addressed. Under the heading General Sponsor Duties 1 the letter repeated paragraphs 2 to 4 of the 24^th June letter. It then went on to address and reject the claimant's representations that it was not told to make the sponsored workers available for interview. Under the heading General Sponsor Duties 2 the letter repeated paragraphs 5 and 6 of the 24^th June letter and referred again to the Tier 2 Sponsor Guidance. It then continued:

"17. We note that you say that you needed six sales account and business development managers to cover your 16 sites and we note that the representations state that you have only three individuals currently filling these roles. Our letter of 24 June clearly raised our concerns that the individuals detailed above were not undertaking the roles set out on their respective CoS and that we believed you had assigned CoS for vacancies that were not genuine. Our letter gave you the opportunity to submit representations including evidence against this issue.

18. Paragraph 6 of our suspension letter stated that you had not provided any evidence of the individuals undertaking the role which their CoS was assigned and we note that you have failed to submit any evidence in your representations that any or all of the individuals are or have been undertaking the roles detailed in their CoS although our letter gave you the opportunity to do so. We are not satisfied that the issue has been addressed."

9. The letter went on to say that the other concerns had been addressed but revoked the licence on the grounds of failure to comply with the Tier 2 Sponsor Guidance relating to failure to co-operate with a compliance visit and assigning a CoS to a vacancy that is not genuine.
10. The claimant submitted a detailed letter before action and further evidence. As a result the defendant reconsidered and made a further decision dated 31^st December 2015 in which it was accepted that a mistake had been made about the first issue which was no longer relied upon. In short, the defendant had believed that the claimant had been asked to make workers available for interview on 14^th April. However, after consulting the compliance officers involved, they stated that this was not the case. It follows that, in the event, the sole reason relied upon for revoking the claimant's sponsor licence was the assertion that the claimant had failed to provide evidence that specified sponsored workers are carrying out their duties.
11. As to this, the letter dated 31^st December again repeated paragraph 5 of the 24^th June letter naming the sponsored workers and their duties. It then continued:

"10. You informed our officer that you employ 45 to 50 people. Taking this into account it is not credible that you would require six sales accounts and business development managers for a business your size, particularly when you have asserted that there are now only three people undertaking these positions. In your original representations you failed to provide evidence that the above sponsored workers are carrying out their duties indicated on their CoS."

12. The letter then referred again to the Tier 2 Sponsor Guidance before continuing:

"13. We note in your original representations that you said you needed six sales account and business development managers to cover your 16 sites and we note that the representations state that you have only three individuals currently filling these roles. Our letter of 24 June confirming the suspension of your sponsor licence clearly raised our concerns that the individuals detailed above were not undertaking the roles set out on their respective CoS and that we believed you had assigned CoS for vacancies that were not genuine.

14. Paragraph 6 of our suspension letter stated your had not provided any evidence of the individuals undertaking the role for which their CoS was assigned and we note that you have failed to submit any evidence in your original representations that any or all the individuals are or have been undertaking the roles detailed on their CoS although our letter gave you the opportunity to do so.

15. We have considered the evidence submitted in the pre-action protocol letter and note the comments made in your witness statement and the witness statements of Muhammed Atif Naeem, Pratixaben Patel, Radha Kumari and Shamim Akhtar. Although the witness statements contain examples of work undertaken by these individuals, the associated evidence does not corroborate any of the statements.

16. Much of the evidence comprises poor quality copies of treatment price lists, a daily "takings sheet" for Cleo Clinic, various screen shots showing treatments available and associated prices, blank client feedback forms, copies of two completed feedback forms and "Singhar Beauty Clinic dashboards" from Groupon Merchants. In addition there are poor quality photographs of what appears to be a display in a shopping arcade and the interior of what appears to be a salon or treatment area, a gift voucher and a loyalty card. None of this evidence can be attributed to any of your sponsored workers based on the witness statements submitted. It is considered that the witness statements fail to detail how each sponsored employee is fulfilling all of the duties stated on their CoS.

17. In our various letters we listed the duties and activities set out on the CoS for your sponsored workers. We note that despite being given the opportunity, you have not submitted evidence to show your sponsored workers liaise with senior staff to determine the range of goods or services to be sold, contribute to the development of sales strategies, set sales targets or discuss employers or clients' requirements.

18. There is no sufficient evidence of the workers analysing customers' reactions to product, packaging or price and that they undertake marketing campaigns and promotional activities.

19. A specific example which in regards to one of your sponsored workers which supports our views that the positions are not of a genuine nature relates to Muhammed Atif Naeem. We note that in the evidence submitted by you that Muhammed Atif Naeem has no experience at all in accounts/management and that he has a Master of Science. He has said in his witness statement that the business requires "lots of different sales and marketing strategies and these must be managed carefully" without providing any evidence as to what strategies he employs and manages to corroborate this.

20. Finally you have not submitted sufficient evidence of your sponsored workers undertaking market research; recruiting and training junior sales staff or that they produce reports and recommendations concerning marketing and sales strategies for senior management. In view of this we are not satisfied that the posts are genuine and the issue has not been addressed."

13. The claimant believes that the necessary evidence was submitted and also believes that the mistake made about the first issue, failure to make workers available for interview, has unfairly affected the rest of the defendant's judgment.

Tier 2 sponsor licences

14. The Points Based System ("PBS") governs the granting or refusal of leave to enter or remain for certain migrant workers. In order to employ a worker from outside the UK, European Economic Area, or certain British overseas territories and certain Commonwealth countries, the employer organisation is required to "sponsor" the worker under Tier 2 of the PBS for the duration of his/her stay in the UK. In order to do so the organisation must be in possession of a valid sponsor licence. An employer must issue a Certificate of Sponsorship (CoS) for each migrant worker they wish to sponsor which contains a description of the vacancy being filled including the job title and tasks the migrant worker is to carry out. Possession of the CoS does not guarantee that the migrant worker will be granted leave to enter the UK but that is often the result.
15. The defendant has published guidance which sets out the circumstances in which a Tier 2 sponsor licence will be granted, suspended or revoked. That applicable when the claimant's licence was revoked, Tier 2 and 5 of the Points Based System Guidance for Sponsors (6 April 2015)("the Guidance"), states:

"1.1 Sponsorship is based on two principles:

a) Those who benefit most directly from migration (employers, education providers or other bodies who are bringing in migrants) should play their part in ensuring the system is not abused.

b) We need to make sure that those applying to come to the UK for work or to study are eligible and that a reputable employer or education provider genuinely wishes to take them on.

…

1.3 Sponsorship plays two main roles in a migrant's application for permission to come to, or remain in the UK to work or study:

a) It provides evidence that the migrant will fill a genuine vacancy that can't be filled with a suitably qualified or skilled settled worker, or that they will be studying for an approved qualification.

b) It involves a pledge from the sponsor that it accepts all of the duties expected when sponsoring the migrant."

16. Paragraph 15.12 of the Guidance provides that a sponsor must not assign a CoS where there is no genuine vacancy or role. A genuine vacancy is defined in paragraph 15.13:

"…A genuine vacancy is one which:

i. requires the jobholder to perform the specific duties and responsibilities for the job and meets all of the requirements of the tier and category. If you have already assigned a CoS the vacancy must be for the duration of the CoS; and

ii. does not include dissimilar or lower skilled duties…

We may request additional information and/or evidence from you or the migrant to establish this requirement, and may refuse the migrant's application if this is not provided within our deadline…"

17. Annex 5 of the Guidance sets out the circumstances in which a sponsor licence will be revoked;

"We will revoke your licence if:

ae) You assign a CoS for a vacancy that was not genuine. For example where:

it contains an exaggerated or incorrect job description to deliberately make it appear to meet the requirements of the tier and category you assigned it under when it does not.

it is for a job or role that does not exist in order to enable a migrant to come to, or stay in the UK."

18. The principles which apply to the Tier 2 sponsor licensing were recently summarised by Haddon Cave J in R(Raj & Knoll Limited) v Secretary of State for the Home Department [2015] EWHC 1329 (Admin) at paragraph 21:

"(1) The essence of the system is that the Secretary of State imposes "a high degree of trust" in sponsors granted ('Tier 2' or 'Tier 4') licences in implementing and policing immigration policy in respect of migrants to whom it grants Certificate of Sponsorship ("CoS") or Confirmation of Acceptance ("CAS") (per McGowan J in London St Andrews College v Secretary of State for the Home Department (supra) (2014) EWHC 4328 (Admin) at [12]) (and see Silber J in R (Westech College) v Secretary of State for the Home Department (2011) EWHC 1484 (Admin)).

(2) The authority to grant a certificate (CoS or CAS) is a privilege which carries great responsibility: the sponsor is expected to carry out its responsibilities "with all the rigour and vigilance of the immigration control authorities" (per McGowan J in London St Andrews College v Secretary of State for the Home Department (supra) at [13]).

(3) The Sponsor "must maintain its own records with assiduity" (per McGowan J in London St Andrews College v Secretary of State for the Home Department (supra) per McGowan J at [13]).

(4) The introduction of the Points-Based System has created a system of immigration control in which the emphasis is on "certainty in place of discretion, on detail rather than broad guidance" (per Lord Hope in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, reported at [2012] 1 WLR 2208 at [42]).

(5) The CAS in the 'Tier 4' scheme (the equivalent of the CoS in the 'Tier 2' scheme) is very significant: the possession by a migrant of a requisite CAS provides strong, but not conclusive, evidence of some of the matters which are relevant upon the migrant's application for leave to enter or remain (Global Vision per Beatson LJ at [12], citing Lord Sumption SCJ in R (New London College Ltd) v Secretary of State for the Home Department [2013] UKSC 51 .

(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)])."

19. Three further principles can also be distilled from the decision in Raj & Knoll:

"(9) The court should act with caution in judicial review of decisions in this field. See Raj & Knoll Ltd [22], citing Lord Brown-Wilkinson in R v Bishop Challoner School, ex p Choudhury [1992] 2 AC 182, 197E:

Moreover, the court should not approach decisions and reasons given by committees of laymen expecting the same accuracy in the use of language which a lawyer might be expected to adopt.

(10) Revocation of the sponsor's licence is likely and to be expected for any infraction of the requirements imposed by the Guidance: see Raj & Knoll at [42] citing Hickinbottom J in R (Central College of London Limited) v Secretary of State for the Home Department [2012] EWHC 1273 [42-44] and McGowan J in London St Andrews College, [31-32].

(11) 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: Raj &Knoll [46] citing McGowan J in London St Andrews College [36]."

See County Court Care Ltd v Secretary of State for the Home Department [2015] EWHC 2054 (Admin) at paragraph 28.

Submissions for the claimant

20. Miss Priya Solanki, who appeared on behalf of the claimant, condensed her submissions orally into five points which I summarise:

(1) It was procedurally unfair for the defendant not to interview any of the specified sponsored workers,

(2) The defendant failed to have regard to the claimant's previous compliance with its sponsor duties,

(3) The defendant made a mistake that the claimant had 6 sponsored sales accounts and business development managers and thereby took into account an immaterial consideration,

(4) The defendant gave inadequate reasons for her decision to revoke the licence, and

(5) The decision was irrational and the defendant did not have proper regard to the claimant's evidence

Unfairness

21. Miss Solanki pointed out that the email which preceded the visit on 14^th April did not request evidence that the above sponsored workers are carrying out their duties indicated on their CoS. The representations made on behalf of the claimant following the 24^th June letter state that

"Our client is very upset at the suggestion that his vacancies are not genuine. He asks that you substantiate this serious allegation with evidence and properly set out your issues in this regard if there are some. The issues raised in your letter are plainly inadequate. This was not a reason to suspend the sponsor licence."

The representations were accompanied by witness statements from the three sales accounts and business development managers stating who they were and their willingness to be interviewed.

22. Miss Solanki submitted that paragraph 14 of the letter dated 8^th September is exactly the same as paragraph 6 of the letter dated 24^th June and perpetuates the mistake of fact that the claimant had been asked to make the sponsored workers available for interview. The claimant made further representations stating:

"In our original letter of 22 July 2015 we asked you to substantiate this serious allegation with evidence and properly set out any issues in this regard. The issues raised in the decision letter of 24 June 2015 were plainly inadequate. They were difficult to respond to as it was simply not known why it had been concluded from the information provided that his workers were not carrying out their duties and why it was believed these were not genuine vacancies. We note that your letter of 8 September 2015 is not any more precise and in fact simply repeats what was said in the earlier decision letter. There is no real engagement with the representations and information provided in the letter dated 22 July 2015.

Our client repeats what he said above and says he was not asked to make his sponsored workers available for interview on 14 April 2015 and he should not be criticised on this basis. It is clear that the decision in this regard is inextricably linked to the first issue raised. As the first issue appears to be unlawful and irrational we state that this falls away with it….

Again we make clear that we are inviting an interview with sponsored workers so that all of these issues can be discussed with them. It is believed that if you meet with the workers you will be able to fully ascertain that they are carrying out their duties."

23. An accompanying witness statement from Mr Khawaja said:

"To me it is clear that you have decided that they do not comply with their duties because you did not interview them."

24. Miss Solanki submitted that it was plain that the claimant did not understand what was required of him and that this was not an unreasonable conclusion given the wording of the decision letters which suggested that the failure to interview the sponsored workers was a key part of the finding that insufficient evidence had been provided as to their duties. Evidence of that could easily be provided by interviewing the workers, the claimant had repeatedly invited the defendant's officers to interview the sponsored workers and in the circumstances of this case it was irrational and unfair not to do so.
25. She submitted that what fairness demands depends on the facts of each case, R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, per Lord Mustill at page 560. Here the claimant was facing an adverse decision and should have been given the opportunity to respond in the way requested by the workers being interviewed. The claimant had not been told properly and plainly what was alleged by the defendant. Mr Khawaja did not understand what evidence was missing or what documents were wanted. Interviewing the workers would have provided what was required.
26. In support of this submission she relied upon R (The London Reading College Limited) v Secretary of State for the Home Department [2010] ELR 809. There revocation of a Tier 4 sponsor's licence was found to be unlawful on the grounds that the defendant had failed to give the College fair notice of her concerns so as to give them a proper opportunity to address them. In paragraph 40 Mr Neil Garnham QC, sitting as a Deputy High Court Judge, said:

"[Counsel for the defendant] is right to say that what procedural fairness demands varies with the circumstances. The subject matter, the character of the decision-maker, the framework in which he operates and the kind of decision to be made, are all relevant. In my judgment, at least as important as the commercial consequences for the licence holder of losing his licence are the risks to proper immigration control of permitting an unscrupulous or ineffective or inefficient college to continue to hold a licence. But nonetheless there is an irreducible minimum of information which a licence-holder must be told if he is to have a proper chance to respond in these circumstances."

Previous compliance

27. Miss Solanki submitted that there had been numerous visits by compliance officers in 2014 and 2015 prior to the visits which led to revocation of the claimant's licence. The officers who visited spoke to migrant workers during these visits. The CoS's for the sales accounts and business development managers that the defendant was concerned about had existed for some time. In those earlier compliance visits officers must have been satisfied with the workers and their compliance with their duties as no concerns were raised at those stages.
28. In those circumstances the defendant should have taken into account the claimant's previous compliance record by looking at the notes of visits and speaking to the relevant compliance officers. This was particularly the case given the 'light trigger' approach the defendant was entitled to adopt and the seriousness of the consequences to the claimant. Failure to do so meant the defendant had failed to have regard to a material consideration as a matter of law.

Mistake of fact

29. Miss Solanki submitted that after the letter dated 24^th June which referred to six sales accounts and business development managers, the claimant had corrected the position:

"We would like to make it clear that our client has only three active Certificates of Sponsorship for individuals employed as Sales Account and Business Development Managers. The workers on the Certificates of Sponsorship are Muhammad Atif Naeem, Kumari Radha and Shamim Akhter. The other three mentioned are not in employment with our client. Amitkumar Parekh had his visa refused and left the country and in fact never worked with the company, Rashid Minas had his employment terminated in November/December 2014 and Muhammad Hassan Ejaz resigned in March 2015. Our client informed the Secretary of State about these facts and/or the Secretary of State should have been aware of the same.

It is absolutely credible that our client would need six Sales Account and Business Development Managers. There are 16 sites to manage, six in London, one in Welwyn Garden City, one in Brighton, one in East Leach, one in Grays, one in Bristol, one in Mansfield, three in Manchester and one in Liverpool. We are due to open a 17^th site in Milton Keynes.

Given the area covered by his company, the fact that staffs are employed at each branch and the number of sites it is imperative that he has his number of Sales Account and Business Development Managers. You will be aware that customers in each region are different and as such marketing, campaigns and promotional activities are catered accordingly. Competitors in each area differ and it is important management keep up to date with the same. If he did not have this management in place his stores could not managed adequately or at all and he most certainly would be in breach of his duties…"

30. Paragraph 17 of the letter dated 8^th September appears to indicate that the defendant understands that a mistake has been made:

"We note that you say that you needed six sales account and business development managers to cover your 16 sites and we note the representations state that you have only three individuals currently filling these roles…"

31. However, paragraph 14 is in the same terms as paragraph 6 of the 24^th June letter and continues to refer to it not being credible that the claimant would need six sales accounts and business development managers. The claimant again made the position clear in his further representations. Notwithstanding this, paragraph 10 of the final letter dated 31^st December continues to make the same mistake, referring to six managers. Miss Solanki submitted that it is clear that the business had moved on and was only employing three sales managers, yet the defendant repeatedly and mistakenly took into account the figure of six. The six managers were not all working at the same time and one of them never worked for the claimant at all. The defendant had taken into account an immaterial consideration and in consequence the decision was unlawful.

Reasons

32. Miss Solanki criticised the reasons given in the letter dated 8^th September. Ignoring the error as to the number of sales accounts and business development managers, in effect the only reasons given for revocation were those set out in the last sentence of paragraph 14:

"You have also failed to provide evidence that the above sponsored workers are carrying out their duties indicated on their CoS."

One line was completely inadequate to deal with the matter and failed to deal with the representations made by Mr Khawaja by providing any clarification as to what it was the defendant was seeking by way of evidence that had failed to be provided.

33. Miss Solanki did not refer to the 31^st December letter in the course of her oral submissions about reasons. In response to a question from the court she accepted that there is no challenge to the adequacy of the reasons given in that letter which is separate from her fifth ground of challenge that the decision is irrational. The 31^st December letter plainly is intended to replace the earlier decision and in those circumstances, in my judgment the reasons ground of challenge falls away.

Irrationality

34. Miss Solanki referred to paragraph 14 of the decision dated 31^st December and submitted that the assertion that "the associated evidence does not corroborate" any of the witness statements submitted is completely incorrect. Paragraph 16 goes on to list the evidence and then wrongly states "none of this evidence can be attributed to any of your sponsored workers based on the witness statements submitted."
35. The claimant's representations list the witness statements submitted followed by the documents relevant to each. Each document can be related back to and supports the witness statement. For example, the statement of Muhammed Atif Naeem refers to improving services through loyalty cards (paragraphs 9 and 10), client feedback surveys (paragraph 11), advertising including on the internet using Groupon etc and facebook (paragraphs 13 and 14) and keeping account of daily sales (paragraph 15). This is supported by the material listed under his witness statement in the representations in precisely the same order:

"m. Customer Loyalty card

n. Blank Client Feedback Forms

o. Two completed Client Feedback Forms

p. Groupon Payment History/Merchant Centre Management

q. Groupon Voucher Redemption Management/Merchant Centre for Singhar Beauty Clinic (showing over 14,400 vouchers being used)

r. Poster Advertisement for Anti aging treatments

s. Advertisement for New Treatment, Brow Perfect

t. Facebook site for Singhar Beauty Clinic, showing adverts for offers

u. Blank weekly Cash Sheets"

36. The same points could be made by reference to the statement of Radha Kumari and the documents listed under it in the claimant's representations. Further, all the witness statements described their liaison with Mr Khawaja and each other (by email, on the telephone and at meetings) and provide evidence of each sponsored worker's duties which related back to the duties specified in the CoS. Miss Solanki supported this by cross referring each duty in the CoS to parts of each witness statement. Further, the complaint in paragraph 19 of the 31^st December letter that Mr Naeem has no experience in accounts/management is unjustified as his witness statement shows that he is engaged in the business with a lot of the ideas coming from him.
37. Additionally, the defendant had failed to have regard to the representations made concerning the number of sales accounts and business development managers:

"In our letter of July 2015 we submitted that it is absolutely credible that our client would need three Sales Account and Business Development Managers.

There are 16 sites to manage, six in London, one in Welwyn Garden City, one in Brighton, one in East Leach, one in Grays, one in Mansfield, three in Manchester and one in Liverpool. They are due to open and 17^th site in Milton Keynes.

Given the area covered by the company, the fact that staffs are employed at each branch and the number of sites it is imperative that he has his number of Sales Account and Business Development Managers. You will be aware that customers in each region are different and as such marketing, campaigns and promotional activities are catered accordingly. Competitors in each area differ and it is important management keep up to date with the same. If he did not have this management in place his stores could not managed adequately or at all and he most certainly would be in breach of his duties."

38. She submitted that the conclusions in the 31^st December letter are irrational because the defendant has not considered the evidence with care. Someone who had properly considered the material could not have written the letter.

Submissions for the defendant

Unfairness

39. Mr Flinn submitted that the mistake as to whether the officers had asked to interview sponsored workers on 14^th April 2015 had been acknowledged and rectified in the decision dated 31^st December, see paragraph 6. The revocation decision was reconsidered in the light of the correct position and maintained. The defendant did not rely on lack of co-operation as a discretionary basis for revocation nor did the defendant rely on the lack of availability of sponsored workers for interview as contributing to her concern as to whether the posts were genuine. The earlier mistake had played no role in that final decision to maintain revocation of the licence.
40. Further, the failure to interview any of the sales accounts and business development managers was not irrational. The fact that interviews may be requested does not mean that they are mandatory before the defendant can fairly and reasonably conclude that there have or may have been compliance failures.
41. Mr Flinn relied upon the judgment of Laws LJ in R(Khatun) v Newham London Borough Council [2004] QB 37 at paragraph 35:

"…it is for the decision-maker not the court to conclude what is relevant subject only to Wednesbury review. By extension it gives authority also for a different but closely related proposition, namely that it is for the decision-maker and not the court, subject again to Wednesbury review, to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor accepted or demonstrated as such…"

Laws LJ went on to the refer to the judgment of Neill LJ in R v Kensington and Chelsea Royal London Borough Council, ex parte Bayani (1990) 22 HLR 406 at p.415:

"The court should not intervene merely because it considers that further enquiries would have been sensible or desirable. It should intervene only if no reasonable housing authority could have been satisfied on the basis of the enquiries made."

42. Having given a clear indication of the nature of her concerns in the letters dated 24^th June and 8^th September, the claimant had multiple opportunities to provide the defendant with evidence that the sales accounts and business development managers were carrying out their CoS duties through submission of witness statements and documentary evidence. The claimant did so and that evidence was considered. The defendant was entitled to take the view that interviews were not required and reach conclusions on the basis of the evidence presented to her.

Previous compliance

43. As to past compliance, the defendant was entitled to rely upon the findings of the visits on 31^st March and 14^th April as well as the subsequent material submitted by the claimant. Employment situations, especially those involving migrant workers, are fast changing which is recognised by the system for repeat compliance visits. Failure to look back to previous compliance is not an error of law.
44. Further, the situation had in fact changed significantly. At the time of the previous full compliance visits on 25^th February and 1^st May 2014, the claimant only employed two sales accounts and business development managers. Hence there were no concerns about this particular position. There were no notes of the two visits which took place before 31^st March 2015 because the officers had turned up but nothing could be done, hence the email dated 11^th February 2015 which said officers had been unable to carry out an assessment.
45. In any event, he submitted that the defendant had to consider the position at the time of the revocation decision and there was nothing in the records of the visits in 2014 (which had been disclosed) which realistically could have led to a different decision being made.

Mistake of fact

46. Mr Flinn submitted that the defendant was well aware, on the basis of the claimant's representations, that it was employing only three sales accounts and business development managers at the time of the revocation decision, see paragraphs 10 and 13 of the 31^st December letter. The point of concern was that the claimant had acquired six CoS for the role of sales accounts and business development managers from 9^th December 2013 to 13^th October 2014 and having regard to the evidence including the size of the business, there was insufficient material to satisfy the defendant that these had all been for genuine vacancies.
47. It also follows from the information submitted by the claimant as to the dates when various sales accounts and business development managers left that between 13^th October 2014 and November/December 2014 there were five sales accounts and business development managers and between November/December 2014 and March 2015 there were four sales accounts and business development managers. Notwithstanding the representations of the claimant, the defendant was entitled to be sceptical that this was necessary for a business employing 45-50 people. The fact that there were only three working in that role at the time of the decision was a point against the claimant who had argued in its representations that it is credible that six would be needed.
48. Further, the evidence in the witness statements did not support the claimant's arguments. Shamim Akhtar says he works out of London, Radha Kumari worked at Wimbledon and Muhammad Atif Naeem refers to the Burnt Oak branch. None of the evidence submitted explains how the individuals fulfilling the role of sales accounts and business development managers covered the different sites of the claimant's beauty salons.

Irrationality

49. Mr Flinn submitted that the complaint of irrationality amounted to no more than disagreement with the merits of the revocation decision. The argument could only succeed if it met the test of irrationality identified by Lord Diplock in Council of Civil Service Unions v Minster for the Civil Service [1985] AC 374 at p.410 namely that it would have to be established that the decision was:

"…so outrageous in defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it."

Mr Flinn also relied upon a number of the principles set out in Raj & Knoll including that the defendant imposes a high degree of trust on sponsors (paragraph 21 (1)), the authority to grant a CoS is a privilege with carries great responsibility (paragraph 21(2)) and the defendant is entitled to maintain a fairly high index of suspicion and a 'light trigger' (paragraph 21 (7)), according respect to the experience and expertise of the decision-maker (paragraph 21(8)).

50. The claimant's evidence was unclear and unimpressive and the defendant had ample basis to maintain the revocation decision in the letter dated 31^st December. The evidence had not been linked together in the way Miss Solanki had done in her Skeleton Argument. Further, there were gaps in the evidence which, taken together with the fact that Muhammad Arif Naeem had no experience in the beauty industry and the inherent unlikelihood of a business employing 45-50 people requiring CoS for six sales accounts and business development managers, entitled the defendant to conclude that there was insufficient evidence to satisfy her as to the genuine vacancy point. The claimant's case amounted to an allegation that the defendant had failed to look on the claimant's evidence charitably when in fact she was required to do the opposite.
51. A lot of the documents are generic with no clear link to individuals. Further, the statements relied upon the same documents e.g. the loyalty cards were relied upon by Muhammad Atif Naeem and Shamim Akhtar. Mr Flinn pointed out that the analysis carried out in the claimant's Skeleton Argument also showed the statements relied upon the same documents. For example the analysis relating to advertisements relied upon pages 319-330, 337-340 and 344-347 of the bundle (Naeem), pages 330, 337, 344, 347 and 312-315 (Kumari) and pages 330, 337, 344, 347 and 312-315 (Akhtar). However, pages 319 to 328 all relate to the Wimbledon shop which is Kumari's responsibility. Pages 330 and 337 to 340 contain no reference to the Burnt Oak branch where Naeem works nor any indication that he was involved in their production.
52. Mr Flinn submitted it was proper for the defendant to conclude that there was insufficient evidence Naeem was involved in market research. Paragraph 8 of his statement says:

"Part of my job was the promotion of the business. I would look into the market, consider what other beauty salons are doing and compare us, are we for example not providing a certain type of service. Sometimes I would actually visit other salons close by, browse in there, inquire about matters and see what the insides looked like and how they felt if that makes sense. I would then feed this back to the other managers…"

He further submitted that if that was the quality of the evidence relied upon the defendant was entitled to say it was not good enough. There was no mention at all of training junior staff or setting sales targets. In this respect paragraph 15 of Naeem's statement was identical to paragraph 15 of Kumari's statement. The evidence is repetitive, lacks detail, is filled with assertions and the documents are generic and not linked to any individual.

53. Mr Flinn made similar points about other evidence and submitted that if the claimant wanted to engage in this highly trusted activity it must deal with the defendant's concerns. The decision does not prevent the claimant from employing non migrant workers and it may now re-apply for a sponsor's licence as 12 months has passed since the initial revocation.

Discussion

Unfairness

54. The claimant's concern that the defendant made a mistake relating to the availability of sponsored workers for interview on 14^th April 2015 is understandable. The decision letters before the 31^st December letter repeatedly state that the claimant failed to make its sponsored workers available for interview on 14^th April. In addition to relying on this as a separate ground for discretionary revocation, it was also relied upon in support of the concern that the sponsored workers were not carrying out the duties specified in their CoS and as a ground for mandatory revocation, see paragraph 8 of the letter dated 24^th June and paragraph 14 of the letter dated 8^th September.
55. Not until after these proceedings had been issued on 8^th December 2015 was the position corrected in the letter dated 31^st December. Paragraph 6 of that letter states that the officers conducting the compliance visit made a mistake in their report by stating that they had asked for sponsored workers to be available for interview on 14^th April when that was not in fact the case. Further, the paragraphs in which this point had been relied upon relating to revocation on the grounds of lack of evidence that sponsored workers were carrying out the duties specified in their CoS remained the same in the letter dated 31^st December save for removal of the first sentence. Miss Solanki submitted that the points made in the rest of the paragraph, which were retained in the 31^st December letter, had been informed by the lack of interviews yet the defendant continued to rely on them. In effect, if the defendant had not made the mistake in the first place she would not have been concerned that sponsored workers were not carrying out the duties specified in their CoS, or the sponsored workers would have been interviewed and those concerns would have been met.
56. In order to consider the merits of this argument it is necessary to examine the wording of the letters, and in particular the letter dated 31^st December, with care. Paragraph 6 of the letter dated 24^th June and paragraph 14 of the letter dated 8^th September are the same and say this:

"Our officer was unable to ascertain whether the above sponsored workers are carrying out their duties as indicated on their CoS as you failed to provide any sponsored workers for interview as requested by our officer prior to the visit. You informed our officer that you employ 45-50 people. Taking this into account it is not credible that you would require six sales and business development managers for a business of your size. You have also failed to provide evidence that the above sponsored workers are carrying out their duties indicated on their CoS."

57. In my judgment this paragraph makes three separate points:

(1) The claimant had failed to make sponsored workers available for interview so the officer could not ascertain whether they were carrying out the duties indicated in their CoS

(2) It is not credible 6 sales accounts and business development managers would be required for a business of this size, and

(3) There is no evidence the sponsored workers are carrying out the duties specified in their CoS.

58. Logically the second point is freestanding and does not depend on the first. As to the third point, while this may have resulted from the fact that sponsored workers had not been interviewed, it is also a separate point in that evidence may be provided in a number of ways, not merely by interview. Indeed, licensed sponsors are routinely asked to provide documentary evidence to show they are complying with their sponsor duties. Further, the letter states "You have also failed to provide evidence that the above sponsored workers are carrying out their duties indicated on their CoS" (emphasis added). The use of the word 'also' supports the view that this was an additional point to the fact that interviews had not been conducted.
59. Paragraph 10 of the 31^st December letter maintains the second and third points while dropping the first. On the face of it, these are separate points not tainted by the previous mistake about sponsored workers not being available for interview. Further, the letter has to be read as a whole. Paragraph 6 makes absolutely clear that the defendant recognises a mistake was made in this respect and that "the issue has been addressed". The lack of any apology might be regarded as churlish but there is no indication that the point has any further relevance to the letter.
60. Further, paragraph 32 of the letter dated 8^th September should be contrasted with paragraph 24 of the letter dated 31^st December:



8^th September:

"As already stated, you have acted in contravention of Annex 5 ae) and Annex 6 u) of the Tier 2 and 5 Sponsor Guidance. Circumstances set out in Annex 5 are mandatory reasons for revocation. Downgrading your licence is not appropriate due to the seriousness of your non-compliance with the sponsor duties."

31^st December:

"As already stated, you have acted in contravention of Annex 5 ad [this is a typo for 'ae'] of the Tier 2 and 5 Sponsor Guidance. Circumstances set out in Annex 5 are mandatory reasons for revocation. Downgrading your licence is not appropriate due to the seriousness of your non-compliance with the sponsor duties."

This also shows that the defendant has dropped any reliance upon the allegation of failure to make sponsored workers for interview which was only a breach of Annex 6 of the Guidance, not Annex 5.

61. When assessing the separate issue as to whether the CoS had been issued for genuine vacancies, the defendant was entitled and indeed bound to consider what evidence was available as to whether the sponsored workers were carrying out the duties specified in their CoS. The claimant's representations assert that "it was simply not known why it had been concluded from the information provided that his workers were not carrying out their duties". However, paragraph 15.13 of the Guidance makes clear that the defendant may request information to establish the requirement that a vacancy is genuine and paragraph 6 of the letter dated 24^th June states that "You have also failed to provide evidence that the above sponsored workers are carrying out their duties indicated on their CoS." It is clear that an issue was being raised as to the lack of evidence on this point and paragraph 22 of the letter states it is giving the claimant an opportunity to explain the issues referred to in the letter.
62. In my judgment a reference to "evidence that the above sponsored workers are carrying out their duties indicated on their CoS" is quite clear and the claimant should have known what was being sought. Indeed, it is apparent that the claimant did understand what was being sought because when the request to interview sponsored workers made in response to the 24^th June letter was not taken up, the representations made in response to the 8^th September letter include detailed statements and supporting documentation relating to the duties of the sales accounts and business development managers.
63. The rationale for the decision in The London Reading College case as expressed by the Deputy Judge was that the college had not been given fair notice of the defendant's concerns so as to give it a fair opportunity to address them. In my judgment for the reasons I have given, the claimant had fair notice of the defendant's concerns, it had a fair opportunity to address them and it attempted to do so in some detail through witness statements and documents.
64. Miss Solanki did not dissent from Mr Flinn's submission that failure by a decision-maker to carry out further enquiries can only be challenged on Wednesbury grounds. There is no evidence that the defendant failed to have regard to the claimant's request that the sponsored workers be interviewed. The only basis on which the failure to conduct interviews could be attacked is that it was irrational. Having regard to the fact that it is for the claimant to satisfy the defendant that it is complying with its sponsorship duties, that evidence was requested as to whether the sales accounts and business development managers were carrying out their duties indicated on their CoS and that detailed written evidence was provided in response, I do not consider it can be said that the failure to conduct interviews was irrational.

Previous compliance

65. In my judgment the submissions of Mr Flinn are a complete answer to this ground of challenge. True it is that the defendant conducted full compliance visits on 25^th February and 1^st May 2014 at which time no concern was raised about the role of sales accounts and business development manager. However, the list of persons for whom the claimant had issued a CoS in that role as listed in the decision letters indicates that on those dates there were only two persons employed in that role, Rashid Minas whose start date was 9^th December 2013 and Muhammad Hassan Ejaz whose start date was 10^th February 2014.
66. By the time of the compliance visits in 2015, i.e. within a period of about seven months, four further CoS for that role had been issued. The position appeared to have changed significantly and the defendant was entitled to give close scrutiny to that fact and assess the situation as her officers found it in 2015. Further, Miss Solanki did not point to anything in the records of the 2014 visits which was inconsistent with the views expressed on behalf of the defendant in the 2015 decision letters.
67. The email dated 11^th February 2015 which refers to two previous visits makes clear that no assessment had been carried out then because Mr Khawaja was not available. It follows that it cannot be assumed that the defendant's officers were satisfied that the claimant was complying with its sponsorship duties so far as the sales accounts and business development managers were concerned on those dates.
68. In my judgment the defendant was not required as a matter of law to have regard to previous compliance in the circumstances of this case such that failure to do so rendered the decision to revoke in 2015 unlawful.

Mistake of fact

69. There cannot be any doubt that the defendant understood the representations made by the claimant quoted above that it currently employed only three sales accounts and business development managers. This is referred to in terms in paragraph 17 of the letter dated 8^th September and paragraph 10 of the letter dated 31^st December.
70. In my judgment the argument that the defendant has made a mistake of fact is based on a misunderstanding of the decisions. Whatever the current position, the letters are pointing out that six CoS had been issued between December 2013 and October 2014, a period of 10 months, and an organisation the size of the claimant would not be expected to have a need for six sales accounts and business development managers. Further, even if there were not six at the same time, as Mr Flinn pointed out, there were five between 13^th October 2014 and November/December 2014 and four between November/December 2014 and March 2015. The defendant was entitled to take all this into account, particularly given the importance identified in Raj & Knoll of respecting her experience and expertise in these matters.
71. Further, the claimant's representations were contradictory in this respect. On the one hand they asserted that it was credible that a business with 17 branches would need six sales accounts and business development managers but on the other hand relied upon the fact that there were now only three without any explanation as to how they covered the 17 sites. As Miss Solanki herself drew attention to, the claimant also told the compliance officers that it was going to employ more sales accounts and business development managers. Notes made by compliance officers during the visit on 31^st March or 14^th April record the following information was provided although it is not clear by whom:

"Any anticipation to recruit. Additional CoS in anticipation of Milton Keynes and Birmingham – not set in stone. Birmingham signed lease is going to forward. MK not yet. Brighton opening on 16/4/15 but only kiosk in a mall"

72. In my judgment there was no mistake of fact and the defendant was entitled to take into account that six CoS for sales accounts and business development managers had been issued within a short period of time, a number which the claimant appeared to consider was entirely reasonable but which the defendant did not believe was credible for an organisation of the claimant's size.

Irrationality

73. With its' representations following the 8^th September decision letter the claimant submitted witness statements from Mr Khawaja and the three sales accounts and business development managers and accompanying documentation. Miss Solanki did not submit that the defendant had failed to have regard to this material because it is referred to in some detail in the 31^st December decision, see paragraphs 15 and 16. Her complaint is that the defendant's reasons and decision to uphold revocation of the sponsor's licence are inconsistent with the material and no reasonable decision-maker could have reached the conclusions that she did.
74. It is worth reiterating at this stage that this is a very high threshold to overcome. It is not sufficient that the court may disagree with the defendant's decision or even take the view that most people would disagree with it. Applying the words of Lord Diplock in the CCSU case relied upon by Mr Flinn, only if the decision is one "so outrageous in defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it" will the decision be held to be unlawful.
75. Paragraph 14 of the 31^st December letter makes the point, which was not challenged by Miss Solanki, that the claimant did not submit any evidence that the sales accounts and business development managers had been undertaking the work specified in the CoS with the original representations. None of the evidence enclosed with the Pre-action Protocol letter was included in the original representations. It cannot be said that this is irrelevant to evaluating the merits of that evidence.
76. Paragraph 15 refers to the witness statements submitted and then says "Although the witness statements contain examples of the work undertaken by these individuals, the associated evidence does not corroborate any of the statements." In my judgment that statement has to be read in the light of the paragraph that follows which summarises the documentary evidence submitted and then states "None of this evidence can be attributed to any of your sponsored workers based on the witness statements submitted." This is a simple and accurate statement of fact.
77. First, although the witness statements describe work undertaken by the sponsored worker, they do not exhibit any of the accompanying documents. Thus there is not evidence from a witness saying this – exhibit A - is a document I created or arranged to be created. Second, there is nothing on the face of the documents themselves to link them to any of the sponsored workers. They are generic and, apart from those relating to the Wimbledon clinic, are unrelated to any particular site of the claimant. Accordingly, there is no direct link between the witness statements and the documents. The only link between the statements and the documents is any inference that might be drawn from the representations which list the statements followed by the documents and any inference that might be drawn from the description of the activities in a witness statement and a particular document.
78. Against the background of suspicion arising from the issuing six CoS for a business this size in less than a year and the failure to submit any evidence before, in my judgment the defendant was entitled to take the view that inferences were not good enough and direct evidence should have been provided.
79. Further, even the inferences are unclear. For example, the statement of Rhada Kumari states that she keeps a breakdown of sales for each therapist (paragraph 15). However, the only document naming therapists and sales is not in the list of documents under her statement in the representations and it names therapists who are completely different from those she names as working in the Wimbledon salon for which she is responsible (paragraph 8). As Mr Flinn pointed out, the claimant relied upon documents for more than one witness even though they could only be related to one witness's salon (advertising material relating to the Wimbledon site).
80. Other criticisms can be and were made by the defendant. Many of the assertions made in the witness statements are completely unsubstantiated, even by inference. For example, the statement of Rhada Kumari refers to mailing offers to clients (paragraph 7) and setting targets for individual employees (paragraph 13). There is no documentary evidence to support either statement. Other examples are given in paragraph 17 of the 31^st December letter: liaising with senior staff (e.g. there are no minutes of any meetings), contributing to the development of sales strategies and sales targets (e.g. no documentary evidence of any strategies or targets) and discussing employers or clients' requirements (e.g. no internal memos or reports detailing these). Similarly, there is no corroboration as to any marketing strategies Muhammad Atif Naeem employs, and whether introducing loyalty cards and advertising was evidence of a marketing "strategy" was a matter for the defendant's judgment. Indeed, the complete absence of any documents which could be directly linked to any of the sales accounts and business development managers such as reports, internal memos or emails is striking.
81. Some of the evidence was simply repeated verbatim in more than one statement. Other evidence was very general. So far as analysing customers' reactions to product, packaging and price (paragraph 18 of the 31^st December letter), the evidence appeared to be confined to customer feedback forms that simply asked to rate the service on a scale of 1 to 5 with no opportunity to comment specifically on product, packaging or price (Naeem paragraph 11) and talking to staff about what customers are saying (Kumari paragraph 9 and Akhtar paragraph 10). In my judgment the defendant was perfectly entitled to say that was not sufficient evidence of carrying out the work specified in the CoS.
82. Further, there are duties specified in the CoS which are not mentioned at all in the statements. For example, Shamim Akhtar does not refer to proposals for marketing campaigns (paragraph 18 of the 31^st December letter) and Muhammad Atif Naeem makes no mention of recruiting and training junior staff (paragraph 20 of the 31^st December letter). Therefore, the defendant was entitled to say in the last sentence of paragraph 16 of the 31^st December letter: "It is considered that the witness statements fail to detail how each sponsored employee is fulfilling all of the duties stated on their CoS."
83. Having regard to the high degree of trust which the defendant places in licensed sponsors with the corresponding heavy burden on them and the high index of suspicion which the defendant is entitled to adopt I do not consider it can properly be said that the defendant's assessment of the claimant's evidence was one which no reasonable decision-maker could have adopted. Accordingly, in my judgment this ground of challenge is not made out.
84. For all these reasons the judicial review claim fails.