QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
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THE QUEEN on the application of SRI PRATHINIK CONSULTING LIMITED |
Claimant |
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- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
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Sasha Blackmore (instructed by Government Legal Department) for the Defendant
Hearing dates: 29 & 30 March 2017
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Crown Copyright ©
Anthony Elleray QC:
Tier 2
"The Secretary of State for the Home Department, "SSHD", has responsibility for the maintenance of the United Kingdom's Immigration Controls. The "Tier 2" Points-Based System, "PBS", operated by the UK Visas and Immigration Section of the Home Department, is a scheme which covers the employment sector. It is contained in Part 6A of the Immigration Rules. Pursuant to the scheme skilled workers from outside the European Economic Area, the "EEA", are allowed leave to enter and remain in the UK to fill particular jobs which cannot be filled by settled EEA workers. This scheme permits employers to sponsor an applicant migrant by the issue to him or her of a Certificate of Sponsorship - "COS". In order to do so an employer must be licensed by the SSHD. Possession of a CoS does not guarantee an applicant migrant leave to enter and remain in the UK but it provides him/her with most of the necessary points under the PBS. It follows that licensed sponsors play an active and crucial role in support of immigration control. Unsurprising therefore sponsors are required to comply with comprehensive guidelines in matters of detailed record-keeping and reporting, and that compliance is monitored by the SSHD. The rules are contained in the published "Guidance".
"Tier 4 is a similar, but obviously not identical, system for licensing educational institutions to sponsor students from outside the EEA to enter and remain in the UK. In that context Lord Sumption has observed, in R (New College Ltd) v. Secretary of State for the Home Department [2013] 1 WLR 2358 at 2372, paragraph 29:
"There are substantial advantages for sponsors in participating [in the Tier 4 scheme], but they are not obliged to do so. The rules contained in the tier 4 guidance for determining whether applicants are suitable to be sponsoring institutions, are in reality conditions of participation, and sponsors seeking the advantages of a licence cannot complain if they are required to adhere to them"
The same is obviously true of those who seek the advantages of a Tier 2 licence."
Guidance
"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."
Paragraph 1.3 provided:
"Sponsorship plays two main roles in the 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 cannot 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 the duties expected when sponsoring the migrant."
"You must keep the following record or documents, and make them available to us on request:
(see also Appendix D Record-keeping)
a) A photocopy or electronic copy of the relevant page, or pages, of each sponsored migrant's passport, worker authorisation (purple Registration Certificate) or UK Immigration Status Document and Biometric Residence Permit (if available), that show their entitlement to work including their period of leave to remain in the UK. Further details of your responsibilities as an employer, to prevent illegal working, are available on our pages on the gov.uk website at
b) Each sponsored migrant's contact details (up-to-date UK residential address, telephone number and mobile telephone number).
Paragraph 15.2 provided:
"You must give us, when asked, any documents relating to your sponsored migrants or the running of your organisation that we consider relevant to assessing your compliance with your duties as a sponsor. We might, for example, ask for details of your agreement practices so that we can make sure that a resident labour market test was carried out correctly."
"To make sure you are complying with our immigration laws you must:
d) Only assign a CoS to migrants who you believe will meet the requirements of a tier or category, and are likely to comply with the conditions of leave or worker authorisation "
Under the heading "Documents":
" what documents must I keep now I have a sponsor licence?
It was provided at Paragraph 16.2:
"There is no prescribed method for storing the documents, but they must be available to us on request. If you fail to keep any document specified in Appendix D and/or fail to give us any documents when we ask for them, we will take action against you."
"For information on the circumstances in which we will revoke your sponsor licence see Annex 5."
And under Paragraph 19.5:
"For information on the circumstances in which we may revoke your sponsor licence see Annex 6."
Paragraph 19.6 observed on the inability to define exceptional circumstances in which SSHD might not revoke the sponsor licence but when one of the circumstances listed in Annex 6 applied such would be viewed as a serious matter.
"One you have assigned a CoS, it can be used by the migrant you have assigned it to, to support their application at any time during the three month period from the date it was assigned. During this period a migrant cannot be assigned another CoS by any other sponsor. If the migrant does not use the CoS within this three month period to make an application, it will expire and will show as 'expired' in your SMS account. Please note that a migrant cannot apply for a Tier 2 or Tier 5 leave more than three months in advance of the start date stated on their CoS."
"The Resident Labour Market Test is there to protect the settled workforce and means that you must advertise a job you want to recruit for to give settled workers a chance to apply. You can only recruit a migrant if:
a) You have completed a Resident Labour Market Test in accordance with this Guidance and can show that no suitable settled worker is available to fill the job, or
b) The job is exempt from the Resident Labour Market Test."
"Unless an exemption applies all jobs must be advertised to settled workers for 28 calendar days. For more information on exemptions, please see exemptions from the resident labour market test. You can advertise jobs in two ways:
a) Advertise the vacancy for a single continuous period, with a minimum closing date of 28 calendar days from the date the advertisement first appeared.
b) Advertise the vacancy in two stages, with each stage being advertise for no fewer than seven calendar days but where both stages total a minimum of 28 calendar days. For example, you could at first advertise the vacancy for 14 calendar days and appoint any suitable settled worker who applies. If no suitable settled worker applies, you can't appoint a migrant worker at this stage as you must advertise the vacancy for a further 14 calendar days, making 28 calendar days in total. If no suitable settled worked applies during the first or second stage, then the resident labour market test has been passed and you can appoint a Tier 2 migrant."
Paragraph 28.17 provided:
"You must place two advertisements using the methods set out in this Guidance. In many cases, one of those will be online advertisement using the Jobcentre Plus Universal Jobmatch service This is mandatory for certain jobs. For more information on advertisement methods, please see resident labour market test Tier 2 (General) advertising methods "
Paragraph 28.24 provided:
"For each recruitment method, where you have carried out the Resident Labour Market Test, you must keep the documents listed in Appendix D. If you fail to advertise a job vacancy in line with the requirements set out in this Guidance, we will take action against you "
Paragraph 28.26 provided:
"If the job is based in England, Wales or Scotland, it must be advertised online through the Job Centre Plus Universal Jobmatch service "
"All CoS restricted or unrestricted, must be assigned within six months of the date the vacancy was first advertised. Where the vacancy has been advertised in two stages, for more information please see how to carry out a resident labour market test. The CoS must be assigned within six months from the date the first of the two advertisements appeared. [The sub-paragraph then refers to four particular exceptions to the six months limit with which I am not concerned.]"
"When you assign a CoS you must:
a) Give full details of the resident labour market test carried out, including:
- the dates the job was advertised;
- where the job was advertised;
- any relevant reference numbers including the Universal Jobmatch, Job ID number as detailed in the SMS Guidance "
"29.8. Between 6 April 2015 and 5 April 2016 there are a limited number of restricted CoS available to Tier 2 (General) Sponsors each month. The annual limit is 20,700 and they are divided in 12 monthly allocations. 2,550 restricted CoS will be available in the first month, and 1,650 in each following month The monthly total will be increased in line with any restricted CoS which have been unallocated, returned or reclaimed during the last month .
29.9. If you need to assign a restricted CoS to a migrant, you must apply for it using the restricted CoS application process..."
"29.13. When you apply for a restricted CoS you must have carried out a resident labour market test (where suitable) that meets the requirements in this Guidance
29.15. We may wish to check the information you send with your application, for example if we have doubts about its validity. If we need to make any checks, we may ask for more information or documents. You must send us any information or documents within 10 working days. If you do not your application will be rejected."
"29.41. We accept that there may occasionally be circumstances in which some of the details you enter on a successful restricted CoS application may have changed by the time the CoS is allocated to you, or you come to assign it. Although you cannot amend the pre-populated fields when assigning the CoS, you can add a Sponsor note to let us know of the following changes:
c) Start and end date - You can amend either or both of these dates but you should remember that a restricted CoS must be assigned within three months of it being allocated to your SMS account. After it has been assigned, the migrant then has only three months to use it to support an application for leave
29.43. These are the only changes you can make to a restricted CoS when you assign it. If anything else has changed, for example the SoC code or job description, you must return the restricted CoS to us, carry out a new resident labour market test (where required) and then apply again at a later date if necessary
29.45. You must only assign a restricted CoS if you intend to employ the migrant on the conditions stated on the application you made for it or in any Sponsor note added in the circumstances permitted in Paragraph 29.42-40.43. If we subsequently find that you gave false information on your application for a restricted CoS we will revoke your Sponsor Licence."
"u) You assign a Tier 2 to a migrant and on that CoS or letter we said we will allow you to give them a migrant as evidence you have carried out a resident labour market test, or, if it is a restricted CoS, on the application for that CoS you stated any of the following:
- that you carried out a resident labour market test and the test you carried out did not meet the requirements set out in this Guidance.
- that you had carried out a resident labour market test and you had not "
"c) You fail to provide any documents listed in Appendix D of this Guidance, when requested or within the specified time period
f) You fail to comply with any of your sponsor duties
i) As a result of information available to us we are not satisfied you are using your processes or procedures necessary to fully comply with your sponsor duties."
As I shall note the impugned decision cited certain documents listed in Appendix D. As already foreshadowed I shall refer to the resident labour market test as "RLMT".
Case Law
"After summarising the facts and setting out the relevant provisions from the Guidance the Judge observed that the principles applicable to the Tier 2 and Tier 4 Point-Based Systems are similar and that the watchword for both is trust. He continued:
'21. The following principles can be derived from the recent case law:
(1) The essence of the system is that the Secretary of State imposes "a high degree of trust" in the sponsors granted ('Tier 2' or 'Tier 4') licences in implementing and policing immigration policy in respect of migrants to whom it grants a Certificate of Sponsorship ("CoS") or Confirmation of Acceptance ("CAS") (per McGowan J in London St Andrew's 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 Andrew's 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 Andrew's College v. Secretary of State for the Home Department (supra) 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) v. Secretary of State for the Home Department [2013] UKSC 51.
(6) There is no need for UKBA to wait until there has been a breach of immigration control caused by the acts or omissions of the 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 court 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)]).'"
"I mean no disrespect to Mr Biggs' carefully formulated argument on that topic if I summarise it as challenging the appropriateness of the SSHD adopting a 'light trigger' approach and suggesting that the court in turn should adopt a heightened standard of reviews or otherwise the SSHD would have carte blanche to engage in oppressive decision-making."
As I have noted, the Grounds seeking review in this case have not been amended to make the "heightened standard of review point". Tomlinson LJ at paragraph 28 of Raj and Kroll also observed on "..the importance of proper record-keeping and the ability on request to produce documentary evidence of compliance with the relevant procedure is not just obvious but in any event clearly spelled out in the Guidance."
"The Scope of Judicial Review
22. Given the plethora of challenges in this field, it is worth reiterating the words of caution of Lord Browne-Wilkinson in Reg. v. Bishop Challoner School, ex p Choudhury [1992] 2 AC 182, 197), regarding the scope of judicial review: 'It is essential that in exercising the very important jurisdiction to grant judicial review, the court should not intervene just because the reasons given, if strictly construed may disclose an error of law. The jurisdiction to quash a decision only exists where there has in fact been an error of law. Moreover, the court should not approach decisions and reasons given by committees of laymen expecting the same accuracy and use of language which a lawyer might be expected to adopt.'
42. Paragraph 19.6 of the Guidance makes it clear that even where there are discretionary grounds for revocation of a licence, 'revocation can be expected in all but "exceptional circumstances". Revocation of the sponsor's licence is likely and to be expected for any infraction of the requirements imposed by the Guidance (per Hickinbottom J in R (Central College of London Ltd) v. Secretary of State for the Home Department [2012] EWHC 1273 at paras.42-44 and see McGowan J in London St Andrew's College, supra, at paras.31-32). Immediate revocation for these infractions was overwhelmingly to be expected
Postscript
46. Finally, I suggest that heed is paid to the words of McGowan J in London St Andrew's 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 support of immigration control is a heavy one. The SSHD is entitled to review faulty compliance with a cynical level of supervision.'"
"The mandatory requirements, whether they relate to the grant or the withdrawal of a licence or of highly trusted sponsor status, cannot be severed from the rest of the licencing scheme, because they are fundamental to its whole operation. It follows that either the sponsor licensing scheme is wholly unlawful by reason of its inclusion of mandatory requirements for sponsors or it is lawful notwithstanding those requirements. Neither alternative will result in these claimants being licensed. There is no half-way house."
Further, at Paragraph 29 he observed:
"The rules contained in the Tier 4 Guidance for determining whether applicants are suitable to be sponsoring institutions, are in reality conditions of participation, and sponsors seeking the advantage of a licence cannot complain if they are required to adhere to them."
That observation was cited, as I have noted, by Lord Justice Tomlinson at Paragraph 2 of his judgment in Raj and Knoll.
"Being authorised to grant such a certificate is a privilege but carries great responsibility. The Sponsor is, rightly, expected to carry out those responsibilities with all the rigour and vigilance of the immigration control authorities. That includes the proper determination of a student's ability and commitment to study and to abide by the rules. It further imposes a heavy burden on the Sponsor to ensure that the student continues to comply with all requirements; to that end the Sponsor must maintain its own records with assiduity. To achieve these results the Sponsor must be vigilant to report and if necessary expel students who appear to have failed to meet the highest requirements upon them even if they are some way through their period of study. They must follow these requirements, even if to do so is contrary to their economic interests."
At Paragraph 14 McGowan J observed:
"The SSHD continues to bear the responsibility for the grant and supervision of such trusted status to the Sponsors. The exercise of her discretion should not be interfered with lightly. She has the experience and expertise to make those decisions. The role of this court must be only to interfere if the discretion has been exercised in an unlawful way "
At Paragraph 17 she observed:
"This is not a case concerned with the sort of fundamental rights engaged by the definition of illegal entrant In cases of the instant type it is not for the court to take on the position of fact-finder or decision-maker, rather the court's role is to review and only to upset a decision which is so unreasonable as to be unlawful "
"The courts should respect the experience and expertise of UKBA (which the courts do not have) when it reaches conclusions relating to the issue of whether any acts or omissions of the sponsor might suggest it has not complied with its obligations or it might not comply with its obligations set out in the Guidance, which is vitally necessary to ensure that there is effective immigration control."
At Paragraph 29(g) he also cited the speech of Lord Browne-Wilkinson in the Bishop Challenor case, a passage I have already cited.
"42. The Guidance does not refer to 'proportionality' at all. It indicates that, where there are discretionary grounds for revocation of a licence revocation can be expected in all but 'exceptional circumstances' For any infraction of the requirement imposed by the Guidance upon a Tier 4 Sponsor, revocation of the licence is likely and to be expected, it will not be revoked only in exceptional circumstances. At the very least, the Guidance clearly reserves to UKBA a wide discretion as to whether a licence will be revoked.
43. The reason for that wide margin of discretion, even where the direct consequence of the breach may appear to be limited, has also been marked
44. With regard to sanction for any particular breach, the scheme requires UKBA to assess the appropriate penalty, because it has particular expertise so to do (a point particularly made by Silber J in Westech ). This court will be cautious when considering replacing UKBA's assessment of appropriate sanction with its own. It will only do so when the sanction is so disproportional(ity) that no reasonable authority would impose it for the relevant breaches or if it amounts to some other breach of public law. For the position to be otherwise would be to bring in disproportionality as a discrete realm of public law challenged by the back door.
45. Furthermore, a commitment to consider a sanction "proportionately" cannot be considered in a vacuum: it has to be looked at in proper context. UKBA considered this case in the proper context of the Guidance, fairly read. That Guidance required any sanction to be in accordance with the scheme of the Guidance itself, and to fall within the generous bounds of UKBA's discretion allowed by the Wednesbury test. The Guidance could not arguably have given rise to any commitment to dealing with the matter 'proportionately' in any other sense
49. neither the relatively minor consequences of the breaches, nor the severe consequences for both the claimant and its students, can arguably be described as 'exceptional circumstances'. In this context the decision to revoke may be regarded as harsh by the claimant; but it cannot arguably be considered irrational."
"This fundamental expectation that a sponsor run a rigorous recruitment process links to the core principles of sponsorship, in that those who benefit most from immigration should play a vital role in making the system work for everyone involved."
"The claimant argues that the policy guidance is to be construed in accordance with the approach to the Immigration Rules summarised by Lord Browne in Mahad v. Entry Clearance Officer [2009] UKSC 16, [2010] WLR 48 at [10]:
'The rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy.'
At Paragraph 40 Lord Justice Toulson expressly agreed with the observations of Thelwall J in R (WGGS) v. Home Secretary [2012] EWHC 2076 (Admin) at 34 in rejecting an argument that the use of a refusal rate for undermining status was irrational:
"In the absence of such an approach the Secretary of State would, as Mr McDonald submits she should, be bound to examine the reasons for each refusal, a task which the partial delegation of immigration powers to colleges was designed to avoid. The claimant has undertaken the exercise at some length in these proceedings, for reasons I understand, but the length and detail of the exercise underlines why the use of a refusal rate cannot be said to be irrational. There can be no in principle objection to the use of a refusal rate as the basis upon which a decision can be made where recruitment procedures are not sufficient robust."
"As to the standard of review, the existing authorities indicate the court's decision is defined to interfering if a decision-maker has behaved in an unlawful way:
(i) Bradley v. The Jockey Club [2004] EWHC 2164 (QB) per Richards J (repeatedly cited with approval elsewhere):
'The function of the court is not to take the primary decision but to ensure that the primary decision-maker is operating within lawful limits The essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision-maker and so forth The decision is unlawful only if it falls outside the limits of that discretionary area of judgment if it falls outside the range of reasonable responses to the question of where a fair balance lies between the conflicting interest.'
(ii) London St Andrews College v. SSHD per McGowan J: The court's discretion is 'only to interfere if the discretion has been exercised in any unlawful way A decision was not necessarily unreasonable or irrational if a subsequent enquiry demonstrates the position on that individual ground is not as extreme as was first thought.'"
Further, at Paragraph 51 the learned Deputy Judge referred to there being a plethora of authority indicating that the SSHD was entitled to look for strict compliance from sponsors making citations from the already noted London St Andrew's and London Reading College cases, beings cases cited by Haddon-Cave J in the Raj and Knoll case. Amongst other matters, the learned Deputy Judge (at 66) had to consider whether the decision letter had contained a new ground on which the claimant had not had an opportunity to comment. As I understand it, the learned Deputy Judge was concerned with public law in the context of whether the claimant licence-holder had a proper chance to respond on the facts. At Paragraph 72 she observed that a decision letter was not a final end date in terms of the SSHD considering submissions regarding the issues. At Paragraph 120 the learned Deputy High Court Judge noted a submission on behalf of the claimant that the case was akin to Minster Care Management Ltd v. Secretary of State for the Home Department [2015] EWHC 1593. The SSHD in that case had belatedly withdrawn a number of reasons relied upon in support of the relevant revocation letter and a number of its reasons had been unsustainable in public law. Mr Biggs was submitting that it was not highly likely that the revocation decision would still be to revoke relevant Sponsor licences so that the revocation decision in issue in that case should be quashed. The learned Judge rejected that reasoning.
"The High Court -
(a) must refuse to grant relief on an application for judicial review, and
(b) may not make an award under sub-section (4) on such an application,
if it appears to the court to be highly likely the outcome for the applicant would have been substantially different if the conduct complained of had not occurred."
The Facts
Mr Sarwar
"You say in your representations that the RLMT was carried out through advertisements on Universal Jobmatch and totaljobs group. You have provided copies of these advertisements, but they were all posted on 1st January 2014 and the CoS for Shiskir Sarwar was assigned on 10th August 2014. We therefore do not accept this as credible evidence.
6. Paragraph 29.2 a) of the Tier 2 and 5 Sponsor's Guidance states:
'All CoS, restricted or unrestricted, must be assigned within 6 months of the date the vacancy was advertised.'
7. Annexe 5 u) of the Tier 2 and 5 Sponsor Guidance states we will revoke your licence if:
'You assign a Tier 2 or a Tier 5 CoS to a migrant and on that CoS or the letter we said we will allow you to give a migrant as evidence that you will have carried out a Resident Labour Market Test, or, if it is a restricted CoS, on the application for that CoS you stated any of the following:
- that you had carried out a Resident Labour Market Test and the test you carried out did not meet the requirements set out in this Guidance.'"
There is reference to Annexe 6(c) and (i) at Paragraph 20 which harks back to complaints concerning two other employees to which I will later turn.
Discussions and Conclusion
"The grant of a licence confers a responsibility that carries significant duties. By being part of the scheme individual employers become an important part of border control and as such a high degree of responsibility attaches to the licence-holders. Licence-holders are expected to fully familiarise themselves with all duties and obligations under the scheme on an ongoing basis and ensure strict compliance with such duties."
"self-evidently from the above [number of responses] the Home Office cannot check every Sponsor's compliance even annually, although there is a regular programme of visits As noted above, the Home Office monitors compliance with the Tier 2 system and takes action when abuse is found, but it must also rely on Sponsors to carry out their duties assiduously. This is a very important part of sponsorship."
"(1) The Sponsor must assign the CoS to a migrant they wish to employ within six months of the first advertisement of that vacancy: see para.29.2 of the Guidance.
(2) A 'restricted' CoS must be assigned to a migrant within three months of the date it is allocated to the Sponsor: see 29.12. After three months, it will expire. As above, it must also be assigned within six months of the position being first advertised.
(3) Once assigned to a migrant, the CoS can be used to support the migrant's application which is made during the three month period from the date it was assigned: see para.23.8 of the Guidance."
"The six month time period has been in place since 2008 when the scheme began. The Secretary of State considers it is a reasonable period of time from the date of first advertising the vacant position. It allows for a proper Resident Labour Market Test to take place but also provides a fundamental incentive to fill vacant positions promptly, particularly given the fluctuating nature of the employment market: recalling, of course, that the core theory behind tier 2 is to fill specific positions that cannot be met from the settled workforce. This core purpose of an RLMT test would be defeated if the job could be advertised for one month and the vacancy was in fact accepted many months or even a year or two later, when the advert would not be an indicator as to whether there was a current worker in the settled workforce who could do the job."
"I accept Shiskir Sarwar was assigned after six months of the advertisement. However, I wish to confirm that on 4th June 2014 we applied to the Defendant for issuance of a restricted CoS. In the request form we provided full details of the date of advertisement and other information. On 11th June 2014 this CoS was approved by the Defendant to be valid until 11th September 2014.
10. I was acting under the good faith belief that the validity period was granted by the Defendant in full knowledge of the fact that the advertisement for the relevant position was first posted on 1 January 2014 so I signed the CoS on 10th August 2014 without any expectation that this would attract the Defendant's criticism."
Mr Raut
"2(e) Where the vacancy was advertised on the internet, including where it is advertised on your own website (where this is permitted) you must keep a screenshot from the website hosting the advertisements, on the day that they can see it is first advertised, which clearly shows:
- the name of the website; and
- the contents of the advert; and
- the date and the URL; and
- the closing date for applications.
NB: If the website clearly shows that the date of the vacancy was first advertised, a screenshot can be taken at any point during the period the vacancy is advertised.
Where the advertisement is not on your own website and does not show your name, a copy of the letter or invoice from the website will be required, to prove that an advertisement was placed.
2(g) Where the vacancy has been advertised online through Jobcentre Plus or Jobcentre Online, you must keep a screenshot from the relevant Government website which clearly shows all of the following:
- the logo of the relevant Government website posting the job advertisement;
- the contents of the advert;
- the vacancy reference number (for Universal Jobmatch vacancies this is the 'Job ID number' and for Jobcentre Online this is the 'Job reference number');
- the date;
- the URL (for Universal Jobmatch vacancies this also contains the Job ID number); and
- the closing date for applications."
"We therefore accept that you have partially addressed this issue."
"You state that the RLMT was carried out for advertisements on Universal Jobmatch and totaljobs.com. You have provided copies of advertisements placed on Universal Jobmatch, businesslink.gov.uk and totaljobs.com. However, the totaljobs.com advertisement does not appear to be a screenshot, it consists of just text with no URL, and the screenshot of the businesslink.gov.uk advertisement does not show the date the vacancy was first advertised or the date the screenshot was taken. We therefore do not accept this as credible evidence and this issue has not been fully addressed."
"We may revoke you licence if:
(c) You fail to provide any document listed in Appendix D of this Guidance, when requested within the specified time limit
(i) If as a result of information available to us we are not satisfied you are using the processes or procedures necessary to fully comply with your Sponsor duties."
Discussion
Mr Jhanji
Conclusion