England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		8 March 2016

1. MR JUSTICE JEREMY BAKER: The Claimant, Crystal Utilities Limited, is a utilities reseller operating in East London.
2. On 24 April 2014 the Defendant, the Secretary of State for the Home Department, granted the Claimant a Tier 2 sponsor licence which enabled the Claimant to issue up to four certificates of sponsorship. On 4 December 2014 a representative of the Defendant's sponsor compliance team made an unannounced visit to the Claimant's premises and interviewed Mr Pravangshu Kumar Majumder, one of the Claimant's directors.
3. As a result of what Mr Majumder said during the course of that interview, the Defendant notified the Claimant on 7 May 2015 that its licence was suspended pending further investigation. A number of matters were raised in the suspension letter, including the Defendant's concern about the genuineness of Mr Majumder's employment as a business development manager and that the tasks that had been fulfilled by Mr Majumder for the Claimant did not appear to accord with the job description for that position.
4. On 2 June 2015 and 11 September 2015 written representations were made on behalf of the Claimant to the Defendant which, inter alia, asserted the genuineness of Mr Majumder's employment by the Claimant, and contended that the tasks he was expected to fulfil matched those of the job description for his position.
5. On 25 September 2015 the Defendant wrote to the Claimant with a notice of her revocation of the Claimant's Tier 2 sponsorship licence.
6. On 24 November 2015 the Claimant sought permission to challenge the decision to revoke its licence by way of judicial review. Interim relief was refused by Mitting J on 8 December 2015 and permission for judicial review was refused by Andrews J on 21 January 2016. This is the hearing of the renewed application for permission.
7. The grounds for judicial review are fourfold, ground one being that the Defendant has acted unlawfully, unreasonably and irrationally by revoking the sponsor licence of the Claimant in that, firstly, the Defendant has failed to consider relevant evidence and given weight to irrelevant and speculative evidence and secondly, the Defendant has made a very serious allegation that the Claimant has acted deceptively but has not supplied any evidence whatsoever to support an allegation of this gravity.
8. In relation to ground two, it is submitted that the Defendant has acted unfairly by failing to serve the evidence on which the Defendant relies.
9. Under ground three, it is submitted that the Defendant had fettered her own discretion by failing to consider downgrading the Claimant's licence and/or an action plan under annex 6 rather than revocation of the sponsor licence under annex 5 of the sponsor guidance.
10. Finally, under ground four it is submitted there has been a breach of Article 1 of Protocol 1 of the ECHR.
11. It should be noted that ground two has largely fallen away as the Defendant has since provided copies of the contemporaneous notes which were made of the interview with Mr Majumder on 4 December 2014.
12. The main basis for the decision to revoke the Claimant's licence is set out in the letter of 25 September 2015 as follows. Firstly, that although the job description for the position of "business development manager" in the certificate of sponsorship appeared to fulfil the criteria for a Tier 2 type of job, namely that the task required to be performed are those which would normally be required of a person who had achieved level 6 of the National Qualifications Framework, in reality the tasks which were being put forward by Mr Majumder were of a significantly lower level of required skill.
13. Secondly, that the vacancy for a "business development manager" did not really exist in that it had been created in order to enable Mr Majumder to satisfy the immigration requirements allowing him to remain in the United Kingdom.
14. The "Tier 2 & Tier 5 of the Points Based System - Guidance For Sponsors" in its current version sets out at annex 5 the circumstances in which the Defendant will revoke sponsorship licences. These include at (q):
15. "You employ a migrant in a job that does not meet the skill level requirements as set out in this guidance."
16. At (ae):
17. "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. In regard to the genuineness of any vacancy, paragraphs 15.13 and 15.14 of the guidance are applicable. In relation to the skills levels required for jobs Tier 2 type employment, paragraph 24.7 states:
19. "Apart from the exceptions listed below, migrants sponsored under Tier 2 (General) and Tier 2 (ICT) can only work in a skilled occupation at or above National Qualifications Framework (NQF) level 6 (or the equivalent in Scotland). This does not mean that the person employed to fill the job must be educated to that level, it means that the work that person will do is pitched at that level."
20. It is submitted on behalf of the Claimant that the material which the Defendant had to consider was insufficient for her to reach the conclusions that she did in relation to both of those matters. It is pointed out that there is nothing in the guidance or Immigration Rules to suggest that Mr Majumder had been required to reveal his previous directorship of the Claimant or, that his fellow director, Mr Selim, was required to reveal this when issuing the CoS.
21. Secondly, that insufficient consideration had been given to the explanation which Mr Majumder had provided for the fact that he had previously been employed as a director prior to the application for CoS, resigned, and was then was reappointed a director after he had been given leave to remain by the Defendant.
22. Thirdly, it is submitted that it would be surprising if Mr Majumder could, during the course of an interview, be able to describe and recollect with precision the type of tasks that were contained in the certificate of sponsorship, as opposed to the work which he was performing, such that proper allowance should be provided for those matters.
23. I have read the letters by the Defendant to the Claimant on 10 May and 25 September 2015 together with the written contemporaneous notes of the earlier interview with Mr Majumder dated 4 December 2014.
24. It is apparent from these that for the reasons provided in that correspondence, in my judgment, the Defendant was entitled on the material provided by Mr Majumder in the course of the interview to determine that the tasks which he was actually performing for the Claimant were those required of an individual with a significantly lower skill level than that that would be expected to be performed by a person with level 6 qualifications within the National Qualifications Framework such that paragraph 5(q) of the guidance was satisfied.
25. The Defendant was entitled to take into account the nature and extent of the differences between what was being described by Mr Majumder in that interview with the skills which had been set out in the certificate of sponsorship. These were, differences of a significant degree, such that the Defendant was entitled to reach the view that she did in relation to that matter.
26. Moreover, taking both this and the relevant chronology of events into account, I am also satisfied that the Defendant was entitled to determine that the claimed vacancy for a "business development manager" was not a genuine one in accordance with paragraph 5(ae) of the guidance; that chronology being that Mr Majumder had originally been appointed as a director of the Claimant on 26 February 2012; he then resigned on 1 July 2014; two days later on 3 July 2014 the Claimant issued the certificate of sponsorship to him; thereafter on 22 September 2014, after the Defendant had granted Mr Majumder leave to remain in the United Kingdom, he was reappointed as a director of the Claimant.
27. In reaching this conclusion, I am of course mindful, and, as it can be reasonably anticipated, that the Defendant was also, of the cogency of evidence required to establish deception: see RP (Proof of Forgery) [2006] UKAIT 00086 and Singh [2012] UKAIT 00162, a matter which has most recently been considered in the judgment of Richards LJ in the case of Giri v Secretary of State for the Home Department [2015] EWCA Civ 784 where at paragraph 32 he stated:
28. "I accept that a finding that deception has been used should be scrutinised very carefully, but I do not accept that the relevant question is anything other than whether it was reasonably open to the decision maker on the material before him to find that deception had been used."
29. In my judgment, the Defendant in this case was not bound to accept the explanation in respect of this chronology which Mr Majumder had provided. I am satisfied that the collective evidence in this case reached the appropriate standard of proof and the requisite degree of scrutiny that is required in relation to it.
30. It is correct that in all such cases the Defendant has a choice as to whether or not to revoke a certificate of sponsorship, as opposed to taking a less serious course of action, such as the downgrading of the level of tier to which a company may issue certificates of sponsorship and/or an action plan under annex 6 of the guidance. However, it is apparent that the Defendant has a wide discretion in such cases.
31. Moreover, it is clear that, where there have been breaches of annex 5 of the guidance, these are matters of greater significance, such that this court will be slow in reaching a conclusion that the Defendant was not entitled to revoke a sponsor's licence. In my judgment, there are no arguable grounds that the Defendant was not entitled in this case to revoke the Claimant's licence, rather than taking an alternative and lesser course of action. On any view, once having determined, as the Defendant was entitled to do, that there had been significant breaches of annex 5 guidance, it was clearly within her discretion to revoke the Claimant's sponsorship licence.
32. In the circumstances, any claim for a breach of Article 1 of Protocol 1 of the ECHR would be required to be predicated upon the basis of an unlawful decision. There is no such arguable unlawful decision existing in this case and the claim under the ECHR, therefore, also is unarguable.
33. In the grounds for the renewed application for permission, it is contended that the Defendant was not entitled to rely upon what Mr Majumder said during the course of his interview on 4 December 2014 as he was not an appropriate person to whom these questions should be posed. Rather, it should have been the other director, Mr Abdur Selim.
34. Although this is not a matter which has been argued orally before me, I do note that it is a matter which was alluded to in an early witness statement, which had already been taken into account during the course of these proceedings, from Mr Majumder dated 1 June 2015. Mr Selim has also provided a witness statement dated 19 November 2015 and Mr Majumder a further one dated 26 November 2015.
35. In my judgment, there is nothing arising from these witness statements which would have precluded the Defendant from properly relying upon the answers provided by Mr Majumder in his interview on 4 December 2014. Mr Majumder was the person who was actually carrying out the tasks which were being investigated by the Defendant at the time, and any language difficulties do not appear to have been an extent from which any unfairness could have been likely to have arisen. In my judgment, there is nothing within any of these witness statements to have amounted to any other reason for preventing the Defendant's reasonable reliance on the results of that earlier interview.
36. Accordingly, for these reasons, the grounds upon which judicial review have been sought of this decision are unarguable and the renewed permission is refused.
37. MISS SCOLDING: My Lord, the only question is that of the payment of the acknowledgment of service costs in the sum of £800. Andrews J did order them, but indicated that if there is a reconsideration, the matter would need to be considered afresh.
38. MR JUSTICE JEREMY BAKER: Yes.
39. MISS SCOLDING: My Lord, we ask for £800 for the filing and serving of the acknowledgment of service.
40. MR JUSTICE JEREMY BAKER: For the?
41. MISS SCOLDING: For the filing and serving of the acknowledgment of service, which is the usual basis upon which costs can be awarded --
42. MR JUSTICE JEREMY BAKER: Yes.
43. MISS SCOLDING: -- in this case.
44. MR JUSTICE JEREMY BAKER: Miss McCarthy? (Pause)
45. Is there anything else you can say against that submission?
46. MISS MCCARTHY: No, my Lord.
47. MR JUSTICE JEREMY BAKER: Thank you very much indeed. Miss McCarthy, Miss Scolding, thank you very much indeed for your assistance.
48. I will make that order.
49. MISS SCOLDING: Would you like me to draft the order, my Lord?
50. MR JUSTICE JEREMY BAKER: Please. If you would send it through electronically, I will --
51. MISS SCOLDING: Yes, I will send it through electronically, my Lord.
52. MR JUSTICE JEREMY BAKER: Thank you very much indeed.
53. MISS SCOLDING: Thank you.
54. MR JUSTICE JEREMY BAKER: Thank you very much, both of you, for your assistance.