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
		02/11/2018

Andrew Thomas QC :

1. The Claimant is a provider of recruitment, training and consultancy services in various sectors including health and social care, computing and management. It is also a direct provider of domiciliary care services in its own right.
2. In January 2009 the Defendant granted the Claimant a 'Tier 2' Sponsor Licence. The licence permitted the Claimant to sponsor skilled workers from outside the EEA to come to the UK to fill vacancies which the Claimant had been unable to fill from the domestic labour market.
3. The evidence in this case concerns four employees who were each provided with a Certificate of Sponsorship (COS) by the Claimant enabling them to obtain a Tier 2 (General) visa. Those employees are the interested parties Mohammed Navas Pokkakkillath, Ify Sophie Odobo and Ngozi Blessing Olise, together with an ex-employee named Colin Okoro. In each case, the COS stated that they were being recruited to skilled roles. Mr Pokkakkillath and Ms Obodo were described as Business Development Managers, Ms Olise as an Accountant and Mr Okoro as a Human Resources Manager.
4. In March 2015, the Defendant commenced an investigation into the Claimant's compliance with its sponsor duties. Interviews were conducted with a director of the company and with the four relevant employees. The Defendant raised a number of concerns, in particular in relation to the information provided about the true nature of the jobs when the COS certificates were obtained.
5. By a letter dated 1^st September 2015, the Defendant notified the Claimant that its Sponsor Licence was being suspended with immediate effect. The letter set out the concerns and indicated that he was considering revocation. It invited the Claimant to make representations and to submit evidence in response to the concerns raised. The Claimant duly submitted a letter of representations on 24^th September 2015.
6. On 11^th November 2015, the Defendant notified the Claimant that it was revoking the Sponsor Licence. Detailed reasons for the decision were provided.
7. In these proceedings, the Claimant challenges the Defendant's decision to revoke the Sponsor Licence. It seeks an Order quashing the decision. It relies upon a number of grounds, now set out in an Amended Statement of Facts and Grounds dated 30^th July 2018.

i) Grounds (1) to (3) allege that the Defendant's determinations relating to the four employees were irrational and/or failed to take proper account of the relevant evidence.

ii) Grounds (4) and (5) allege procedural errors. Ground (4) alleges that the four employees were not given the opportunity to check and confirm the written record of what was said by them in interview. Ground (5) alleges that the Claimant was not given adequate details of the evidence the Defendant wanted to see or otherwise fair notice of what was expected of them. In short, it is alleged that the Defendant behaved unfairly.

iii) Ground (6) alleges that the Defendant misdirected himself as to the test for a finding of 'deception' and/or that he reached an irrational conclusion on the issue.

iv) Ground (7) alleges that irrelevant matters were taken into account.

8. The Defendant denies that the conclusions were irrational. He says that they were reasonable conclusions reached after a fair and diligent investigation. The Defendant emphasises that the Court's role is one of review, not primary decision making. The Defendant's case is that there was no unfairness in the procedures adopted because the letter of suspension had given the Claimant fair warning of the areas of concern. The letter of suspension had invited the Claimant to submit evidence in response but it had failed to do so.

Background

9. The 'Tier 2' Points Based System was first introduced in 2008. It is designed to allow skilled workers from outside the UK and EEA to come to the UK to fill particular skilled jobs which cannot be filled from among the domestic or EEA labour force.
10. Applicants for a Tier 2 (General) Visa are required to have both a specific job offer and a Certificate of Sponsorship from an employer who has been licensed under the scheme. There are other categories of Tier 2 visa (such as intra-company transfers) but those are not relevant to the present case.
11. In order to obtain a Sponsor Licence, an employer must demonstrate that it is bona fide, honest and capable of complying with the duties which are imposed under the scheme. Detailed provisions are made within the Immigration Rules and in guidance documents published by the Defendant. The sponsor is expected to discharge its duties with assiduity for as long as it continues to hold such a licence.
12. Two requirements are at the heart of the Tier 2 (General) scheme. The first is that, subject to limited exceptions, the job must be in a skilled occupation. The Guidance specifies that it must be a position at or above Level 6 in the National Qualifications Framework (NQF). The second is that the job cannot be offered to a migrant worker from outside the EEA unless the employer is unable to fill the job with a worker from the settled labour force.
13. In order to establish the fact that the a role is genuinely a skilled occupation, assessments are made against Standard Occupation Classification (SOC) codes. The Sponsor has to specify which of the SOC codes most closely matches the role for which they are recruiting. The guidance sets out example job tasks against which skill levels can be assessed.
14. The Certificate of Sponsorship is a virtual record, held on an online portal. When completing the COS online, the Sponsor is required to provide details of the job title, a summary of the job description and details of the job type (defined by reference to the relevant SOC code). The Sponsor is also required to specify the gross salary for the role.

The Guidance

15. The guidance document relevant to the present case is"Tiers 2 and 5 of the Points Based System: Guidance for Sponsors" ('the Guidance'). A detailed discussion of the scheme and the Guidance is set out in the judgment of Haddon-Cave J in R (Raj and Knoll Ltd) v SSHD (2015) EWHC 1329 at paras 13 to 19 and it is unnecessary to repeat it here.
16. Section 3 of the Guidance deals with "Sponsor Duties and Compliance". Paragraph 15 contains record keeping and reporting duties. Paragraph 17 deals with compliance issues, including provision for compliance checks. It states at para 17.3: "We may check sponsors at random. If you are checked it does not necessarily mean we have doubts about your compliance as a sponsor."
17. Paragraph 19, Annex 5 and Annex 6 list various circumstances which may lead to the revocation of the Sponsor Licence. The matters listed in Annex 5 are circumstances which will lead to mandatory revocation. They include the following:

"We will revoke your licence if …

…

(j) You have knowingly provided false statements or false information, or not provided information that you held when required to …

…

(ad) If we have asked you to send us any documents or information and you do not send the documents or information within the given time limit.

(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 assisgned 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. Annex 6 contains discretionary grounds for revocation. By way of preface, paras 19.5 and 19.6 state:

"19.5 For information on the circumstances in which we may revoke your sponsor licence, see annex 6.

19.6 We can't define in which exceptional circumstances we may not revoke your sponsor licence but when one of the circumstances listed in annex 6 applies, we view this as a serious and will look for evidence that you were either not responsible for what happened or, if you were, you took prompt action to remedy the situation."

19. The circumstances listed in Annex 6 include the following:

"We may revoke your licence if …

…

(f) You fail to comply with any or all of your sponsor duties.

…

(i) As a result of information available to our compliance officers, we are not satisfied that your are using the processes or procedures necessary to fully comply with your sponsor duties.

(j)We find that migrants you have sponsored or employed have not complied with the conditions of their permission to stay in the UK, or the conditions of their grant of worker authorisation and you have not been following good practice guidance set out by us or a relevant sector body."

The Claimant's Sponsor Licence

20. The Claimant has been trading since about 2006. It is a relatively small business based in South London. In 2008, the Claimant applied for a Sponsor Licence under the Tier 2 and Tier 4 schemes. The application for the Tier 2 licence was granted in January 2009. The application for the Tier 4 licence was refused and not pursued further.
21. The Claimant recruited four Tier 2 workers under the scheme. In each case, the Claimant issued a COS and in doing so provided a detailed job description of their role.
22. Mr Okoro was employed as a Human Resources Manger. The Claimant's case is that this was a skilled job which most closely met the description of SOC code 1135, Human Resource Managers and Directors. The Claimant's summary of job description said that the role was as follows:

"Provide support to other managers in the recruitment of all staff. Participate in the selection of staff, as appropriate. Work closely with senior and line managers, providing them with expert guidance, coaching and support on the full range of HR activities (including policies and procedures, terms and conditions of employment, absence management, restructuring of services, performance management etc) in order to ensure a consistent and fair approach to people management. Manage investigations, disciplinary and grievance matters in conjunction with the Director. Develop and maintain HR policies and procedures to ensure effective, fair and consistent management of staff throughout the organisation, and ensure the staff handbook is comprehensive and up-to-date. Provide support to staff on HR issues as and when required."

23. Ms Olise was employed as "Company Accountant". The Claimant's case is that her role most closely matched SOC code 2421 (Chartered and Certified Accountants). In her case, the COS provided the following job description:

"Book keeping and accounts production. Periodic (monthly, quarterly etc) management reports. Budgeting and budget monitoring. Liaise with management and other professionals to compile budgets and other costs. Cash forecast (monthly). Audit accounts and book keeping records. Payroll duties. PAYE and VAT Administration. Credit management. Accounts payable systems and procedure development, review and implementation. Investment appraisals. Company secretarial duties."

24. Ms Obodo and Mr Pokkakkillath were employed as Business Development Managers. The Claimant's case is that their role most closely matched SOC code 3545 (Sales, Accounts and Business Development Managers). The Claimant's job description in the COS was as follows:

"The migrant worker will be responsible for developing new business relationships, generate and negotiate new income for Liral Veget to an agreed annual target revenue, to increase year on year. Other main responsibilities include: To liaise with other members of staff to determine the range [of] services to be sold and the effectiveness thereof. To discuss employer or clients' requirements, plans, surveys and analyses customer reactions to our company's products and services. To control the recruitment and training of sales staff. To arrange external meetings with third parties for the purposes of striking any potential deals / relationships for the benefit of the company. To support senior management in augmenting sales strategies and targets. To implement preconceived sales development strategies. To manage pre-allocated budgets. To develop new sales relationships to increase business volume. To bring in new customers while retaining existing ones."

It will be noted that each of these descriptions suggests a higher managerial or senior role. There are other forms of recognised occupations (for example, individual sales representatives, administrators, payroll clerks) which fall below NQF Level 6.

The Investigation

25. On 20^th March 2015, the Defendant carried out an unannounced inspection at the Claimant's premises in order to establish whether it was complying with its duties under the Sponsor Licence. This was a joint visit along with representatives of HMRC. There were then follow up visits on 28^th April 2015 and 5^th May 2015. The four employees were interviewed on 28^th April 2015. The Claimant's Director Ms Eneanya-Bonita was interviewed on 5^th May 2015.
26. The interviews were recorded in pro-forma documents. The form and content of the employer's interview (headed "Sponsor Interview Record") is different from the form and content of the employees' (which is headed "Migrant Interview Record"). In each case, the employees have apparently signed the records both at the start and at the end of the interviews. As detailed below, there is an issue as to when the records were signed.
27. Each of the employees was asked to provide a description of the role which they were actually performing. By way of example, they said the following:

i) Mr Okoro (the Human Resources Manager) said that since he joined the company he had been involved in the recruitment of one other member of staff. He had also recruited eight students. He did checks to ensure staff attendance. He would do checks on staff files and on matters such as eligibility and immigration status. He said that he did not have access to the staff files himself. They were kept locked up and the key was held by the Director. He would only have access when he was with her. He also motivated the staff. He set targets for Ms Olise and Ms Obodo. He said that he had implemented two HR policies. It was a verbal implementation and he had no written evidence 'at the moment'. He understood that his salary was £24,500 pa.

ii) Ms Olise (the Accountant) said that she was studying to become a Certified Accountant and had one module left, but she already had an MBA in finance. She said that she was responsible for the books, for company statements and for HMRC / payroll tasks. She referred to herself (at least at one stage of the interview) as an 'Accountant's Assistant'. She clarified this, saying that she was the only accountant in the company but there was also an external accountant who was responsible for finalising the annual accounts and audit. She understood that her salary was £25,000 pa.

iii) Ms Obodo (Business Development Manager) said that her responsibilities were marketing and promoting the company's image. She had direct contact with customers by phone, email and face to face. She would carry out visits and also research companies on the internet. She did not manage any staff. When asked whether she had any other duties, she volunteered the fact that she would regularly look after the son of a friend of the Director who would come into the offices after school. She said that she was paid £2,004 gross per month, then said that her pay £31,000 pa. HMRC records showed that she had been paid £13,000. It is now accepted that this was an error.

iv) Mr Pokkakkillath (also a BDM) said that his duties included providing training, ensuring the quality of training, administration of the company, organising and delivering the company's output, and improving productivity. He worked with the training providers. He said that he was responsible for managing 4 or 5 trainee assessors who worked on a freelance basis. He also looked after the existing clients on 'major contracts' and would also liaise with colleges and other training providers. He said he was qualified to post graduate level and that his salary was about £32,000 pa. When asked whether he had any other duties he said that he "looks after the company in general."

28. The Director, Ms Eneanya-Bonita, was also interviewed. Much of the interview concerned general issues of record keeping and compliance. She was asked about the respective duties of the four relevant employees. Ms Eneanya-Bonita said that Mr Okoro was responsible for the recruitment of learners, preparing brochures, setting up fairs, and checking that learners met the criteria for their courses or apprenticeships. There was a recruitment policy which he kept updated. She said that Ms Olise was recruited to replace the previous in-house accountant, who had been fully qualified. Her roles included invoicing, reconciliation, petty cash, VAT, ordering and payroll. She said that the two BDMs were required to maintain relationships with clients, to win contracts and to promote the image of the company. Ms Obodo was responsible for meeting with clients and with the colleges. She negotiated the apprenticeships. Mr Pokkakkillath's duties included writing bids for contracts, negotiating service level agreements and liaison with bodies such as awarding bodies. Strategy would be reviewed at an annual meeting. She acknowledged that records showed that two of the employees had been paid less than the specified salary and explained that this had been an error.

The letter of suspension and the Claimant's response

29. On 1^st September 2015 the Defendant wrote to the Claimant stating that the Sponsor Licence was being suspended with immediate effect. The letter went on to say that the Defendant was considering revocation. It identified a number of concerns about the Claimant's alleged failure to comply with its duties. In particular:

i) In two cases, the employees had not been paid the salary notified on the COS.

ii) The duties undertaken by Mr Okoro did not meet the description for his role as HR manager in the COS, nor was it commensurate with the applicable SOC code (1135). The letter stated:

"You have not provided any evidence of the work undertaken by Mr Okoro to date and the duties decribed both by you and by Mr Okoro clearly do not meet the full job description provided by you. Therefore we are not satisfied that the work carried out by Mr Okoro meets the job description given on his COS, or that provided by the codes of practice."

It was considered that his job corresponded to a lower level administrative job (SOC code 4215, personal assistant and other secretaries, which is NQF Level 3).

iii) In respect of Ms Olise, it was considered that "her duties bear little resemblance to those indicated by the COS and the codes of practice." The letter said "We are not satisfied that the work carried out by Ms Olise meets the job description stated on the COS or that provided under SOC code 2421" and also "You were unable to supply any evidence to show the nature of the work she has undertaken." Her role was assessed at the level of a financial or accounting technician, SOC code 3537. The letter referred to the fact that she was not fully qualified and the understanding (at that stage) that the company already had a fully qualified accountant.

iv) In respect of the two BDMs, the letter said:

"Given that you were unable to provide evidence to show that Ms Obodo and Mr Pokkakkillath undertake duties in line with both the code of practice and their job descriptions, and that the duties they describe are not in line with the roles for which they were sponsored, we are not satisfied that genuine vacancies exist for these roles."

v) It was concluded that the job descriptions had given an exaggerated or incorrect job description, and also that they amounted to false representations as to the nature of the roles.

30. The letter concluded at Para 50 as follows:

"To give you the opportunity to explain the above issues before we begin revocation, we have suspended your licence with immediate effect. You have 20 working days from the date of this letter to make representations, including submitting evidence, in response to this letter. If you do choose to submit representations, as well as responding to the points above and provide supporting documents, we will also require the following:

- HMRC P60 documents

Payslips

Evidence that payments have been made into the sponsored workers personal bank account."

31. On 24^th September 2015, the Claimant responded in a letter which ran to 13 pages. There was also a covering letter from the Claimant's Solicitors. The representions were a mixture of factual information and submissions. The errors over payments were acknowledged and evidence of the corrections was provided. The Claimant strongly disputed the assertion that the skill levels were below those required. However, it was acknowledged that in the case of Mr Okoro the job description was incorrect. The letter said:

"his job narration which I summarised during your Compliance Officer's visit may not terminologically elucidate all his responsibilities …".

32. The letter corrected the misapprehension over the employment of two accountants, explaining that the second accountant was an external accountant in private practice. It provided further details of the duties allegedly undertaken by the other three employees. It was disputed that the roles had been exaggerated or misrepresented, although it was acknowledged that:

"There may have been one or two inadvertent oversights in the course of ensuring that everything is done correctly as is always the case in every growing organisation."

33. The Defendant provided some (but not all) of the documents relating to payments which had been requested at the conclusion of the letter of suspension. No further written evidence was submitted on the issue of job descriptions or roles.

The decision to revoke the Sponsor Licence

34. The Defendant's decision to revoke the Sponsor Licence was communicated in a letter dated 11^th November 2015. On the issue of pay, the Defendant confirmed that it was now satisfied that the issue of underpayment had in large part been addressed. However, it maintained its decision in relation to the accuracy of the respective job descriptions in the COS of each of the four relevant employees. Some of the Claimant's points had been accepted (for example, the explanation regarding the second accountant) but the conclusions overall remained.
35. In each case, the Defendant noted that the Claimant had still failed to provide "any evidence" or "any corroborating evidence" of the duties actually performed.
36. The letter concluded that the Sponsor Licence was being revoked with immediate effect because of the Claimant's failures to comply with its sponsor duties. In particular, the letter referred to the following matters:

i) The sponsor's duties under Paragraphs 15.12(c), 15.13 and 15.4 of the Guidance had not been complied with, in that the COS did not correspond with the actual role. Notably, the Defendant relied upon a provision that the role must not include "dissimilar and/or lower skilled duties". The Claimant had failed to submit any evidence to rebut this conclusion.

ii) Annex 5(ae) applied on the grounds that in each case the COS was issued for a vacancy which was not genuine. The conclusion appears to have been that the job description was deliberately exaggerated as opposed to entirely fictitious.

iii) Annex 5(j) applied on the grounds that the Claimant had knowingly provided false information. Factually, this covered precisely the same ground as (ae) (ie. the exaggerated job descriptions).

iv) Annex 5(d) applied in that the Defendant had failed to supply the evidence of payments being made into the bank accounts of Ms Olise and Mr Okoro, which had specifically been requested.

v) Annex 6(f) and (i) both applied, on the grounds that the Claimant had not complied with its sponsor duties and/or satisfied the Defendant that it would do so in the future. There was an additional factual ground relating to the failure to notify the Defendant that Ms Obodo had had an extended period of unpaid leave.

vi) Annex 6(j) applied on the grounds that the fact that the employees were working below the skilled level authorised amounted to a breach of the conditions of their grant of authorisation.

vii) The lesser sanction of an action plan was not appropriate because there was no evidence that the shortcomings would be remedied.

Procedural History

37. These proceedings were issued on 2^nd February 2016. Permission was refused both on the papers and at an oral renewal hearing on 20^th May 2016. On 8^th December 2017 permission was granted by the Court of Appeal and the case was remitted to the Administrative Court for hearing. The case was originally listed for hearing on 26^th April 2018 but it resulted in directions being granted to clarify the pleading of the case and to identify more clearly which documents had been before the Secretary of State at the time the decision was taken. Amended Grounds were served on 30^th July 2018 and responded to by the Defendant by way of Supplemental Grounds of Response.

Grounds (1) to (3) – The true nature of the employees' roles

38. The Claimant submits that the Defendant's conclusions on true nature of the work undertaken by the four relevant employees were irrational and/or failed to take into account material evidence. There is overlap with Ground (5) which alleges a failure to specify the documents considered relevant to the concerns and Ground (7) which alleges that irrelevant factors were taken into account.
39. There is no issue as to the relevant law. The Claimant accepts that the Defendant is the primary decision-maker in a case of this nature and that the Court's role is limited to one of review. It is also common ground that the Court should apply the principles set out in the decision of Haddon-Cave J in R (Raj and Knoll Ltd) v SSHD (2015) EWHC 1329 at para 21, and subsequently approved by the Court of Appeal (2016) EWCA Civ 770 at para 23. The overarching principle is that "the watchword … is trust". It is unnecessary to repeat the detailed references, which are all subsumed in the judgments of Haddon-Cave J and the Court of Appeal. The principles are as follows:

(1) The essence of the system is that the Secretary of State imposes a high degree of trust in sponsors in implementing and policing immigration policy in respect of migrants to whom it grants a Certificate of Sponsorship.

(2) The authority to grant a Certificate is a privilege which carries great responsibility: the sponsor is expected to carry out its responsibilities with the same the rigour and vigilance as the immigration control authorities.

(3) The sponsor must maintain its own records with assiduity.

(4) 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.

(5) The Certificate (COS or CAS) is very significant: the possession by a migrant of a requisite certificate 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.

(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.

(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 he should act.

(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.

40. In the present case, the Claimant's submissions in outline are as follows:

i) The Defendant took an unreasonable approach to the application of SOC codes and the assessment of skill levels.

ii) The descriptions given both by the employees and the Director in interview were reasonably consistent with the COS descriptions and with the SOC codes which the Claimant had assigned.

iii) Insofar as there was any variation between the job description and the actual role, the Defendant should have considered whether it was nonetheless still a skilled occupation commensurate with NQF Level 6 or above.

iv) The Defendant failed to have regard for the fact that this was a relatively small business and the employees therefore had to be flexible about their day to day work. This was not a large organisation in which managers were supported by large administrative teams. Put bluntly, they had to 'muck in' with some of the routine tasks.

v) Further evidence would have made no difference because the Defendant had already decided that the jobs as described did not match the COS records or the SOC codes.

vi) Irrelevant matters were taken into account. For example, the fact that Ms Olise was not fully qualified; the time spent by Ms Obodo caring for a client's son; and the standard of work Mr Okoro when in fact he was dismissed for poor performance.

vii) The Defendant attached too much weight to the answers given in interview. It was submitted that describing a job is not an exact science.

viii) Significant weight should have been attached to the fact that the Claimant had in fact paid salaries which were commensurate with skilled or managerial roles.

41. The Defendant relied upon the following matters.

i) The conclusions reached by the Defendant were justified on the evidence. The job descriptions provided by the Claimant did not properly or adequately describe the employee's actual roles.

ii) The Defendant was entitled to rely on what was said in interview. The roles described by the employees did not match the COS descriptions.

iii) In any event, neither the Claimant nor the employees had provided any evidence to back up their assertions as to the actual work and the level of skill required, nor to correct anything which had been said in interview.

iv) There were admitted breaches of duty, in that Ms Eneanya-Bonita had admitted in the letter of representations that there were inaccuracies in the information provided in the COS submissions.

v) The Court should be slow to interfere with the Defendant's decision in circumstances where the Defendant's staff have considerable experience and expertise in making assessments of this nature, and in particular the application of the SOC classifications.

Conclusions on Grounds (1) to (3)

42. I am satisfied that the Defendant was entitled to conclude that the actual jobs performed by the four employees were significantly different from the descriptions provided in the COS submissions. I am also satisfied that the Defendant was entitled to attach significant weight to the fact that the Claimant had failed to provide any, or any adequate, written evidence to demonstrate the work actually undertaken by the four employees.
43. I accept Mr Serr's submission that the Court should not lightly interfere with the assessments made by specialist officers who are familiar with the task of job assessments and the application of SOC codes. There is clear evidence that the Defendant undertook a careful investigation including interviews with all of the relevant personnel. Mr Lee did not persuade me that the conclusions on the application of SOC codes were irrational. There is also clear evidence that the Claimant was given several opportunities to produce evidence to show what work was being undertaken, and the Defendant was therefore entitled to be concerned about the Defendant's failure to do so.
44. Having compared the job descriptions in the COS submissions with the answers given by the employees and the Director in interview, I am satisified that the conclusion that the job descriptions did not truly reflect the actual role was entirely reasonable. With the possible exception of the accountant, the job descriptions had implied that the roles were managerial in nature, with references to the recruitment and management of other staff.
45. The evidence of the investigation indicated that a significant element of their work was routine administration. The BDMs were in reality the front line sales team. A substantial part of the accountancy role was routine invoicing, purchasing and book-keeping when it was supposed to be a role equivalent to the status of a Chartered Accountant or Certified Accountant. It is no answer to say that was a consequence of the fact that this was only a small business if that had not been disclosed in the COS submissions.
46. As a holder of a Sponsor Licence, the Claimant was required to be scrupulously accurate in the information to be provided in the COS submissions. There was no room for artistic licence whether in the attribution of job titles or otherwise. It is no answer for the Claimant to point to individual pieces of higher-level work when the COS submissions had failed to give an accurate impression overall of the role.

Grounds (4) and (5) – Procedural errors and unfairness

47. Ground (4) involves a factual dispute. On the face of it, the written interview records were signed by the interviewees both at the start and at the end. The signature at the end is in a box which includes the following declaration:

"I have been informed that the purpose of the interview was to verify the information provided by the Sponsor to the UK Border Agency regarding my employment is a full and accurate description of the conditions of employment being undertaken. I have understood the questions put to me and confirm that I have been given the opportunity to provide additional information and provide further comments."

48. The Claimant relies upon letters signed by three of the employees in which they each say that they signed the records only at the start of the interview. They each say that the answers were not read back to them to confirm the accuracy of what had been recorded. The Defendant does not accept the allegation as to when signatures were given.
49. I am satisfied that there is no merit in the complaint. There are two separate points.

i) I do not accept that there was anything inappropriate about the conduct of the interviews. The Claimant has not asked to cross-examine the investigating officer in these proceedings. Moreover, on the Claimant's own case the employees are professional people educated to a high level. The forms are perfectly clear. There is no reason to doubt that the employees fully understood the declarations which they made when they signed the forms.

ii) The officer must keep an accurate note of what is said, but neither the Guidance nor the form itself require the officer to read the contents back to the witness for verification. There is no 'declaration of truth'. Outside a criminal investigation, there is no general obligation to require an interviewee to verify the accuracy of the record. Obviously, that may affect the weight which can subsequently be attached to the record both by the Defendant and by a Court conducting a review such as in the present case. If appropriate, allowance should be made for the possibility of mistakes or misunderstandings. However, in the context of the present case, I am satisfied that the evidence as a whole was sufficiently clear. The concerns which arose from the interviews were set out in the letter of 1^st September 2015 and the Claimant was given the opportunity to comment upon them. There was no unfairness.

50. In relation to ground (5), the Claimant alleges that the process was unfair because the Defendant failed to specify the evidence which he wished to see in order to confirm or refute the concerns about the Claimant's discharge of its sponsor duties. I am satisfied that the complaint is totally without merit, for a number of reasons.

i) The duty on the Defendant was to give the Claimant fair notice of the concerns which he had and a fair opportunity to respond to those concerns, whether by evidence or otherwise. (See: R (London Reading College Ltd) v SSHD (2010) EWHC 2561 (Admin) at paras 28 to 41 (Neil Garnham QC); R (Singhar Beauty Clinic) v SSHD (2016) EWHC 2703 (Admin) at paras 61 to 63 (HHJ Alice Robinson)). What procedural fairness requires varies with the circumstances. (London Reading at para 40). A similar argument was rejected by HHJ Dight in R (Manzay Ltd) v SSHD (2016) EWHC 2582 (Admin), in the context of an RLMT issue, in which he said: "In my judgment, the defendant does not have to spell out precisely what documents the employer needs to produce." I agree.

ii) The duty is to give fair warning of the issue and a fair opportunity to respond. I am satisfied that the Defendant did precisely that in this case, not least by virtue of the letter dated 1^st September 2015. In the passages which I have quoted at Paragraph 29 above, the Defendant made his concerns clear, including (repeatedly) the concern that the Claimant had failed to produce adequate evidence to demonstrate the true nature of the employees' work. Paragraph 50 of the letter then explicitly invited the Defendant to submit evidence to address those concerns.

iii) On behalf of the Claimant, Mr Lee submitted that a duty to specify what documents should be produced can be inferred from the Guidance at Paragraphs 15.2 and 17.6. These state as follows:

"15.2 You must give us, when asked, any docuements 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 recruitment practices so that we can make sure that a resident labour market test was carried out correctly."

"17.6 We may also carry out checks on any licensed sponsor by telephone, or by letter, asking for evidence to support any information you have given us either before or after your licence was granted."

In reject that submission. These paragraphs confirm that the Defendant has the power to request specific documents and that a licensed sponsor has a duty to comply with the request. However, it does not follow that these passages in the Guidance impose a duty on the Defendant in all cases to specify the precise documents which are required.

iv) In his submissions, Mr Lee argued that it was unfair for the Defendant to make an open-ended request for evidence (which he characterised as "show us what you've got"). I reject that criticism, both as a matter of principle and on the facts of this case. The Defendant's request was focussed in that areas of the concern were clearly identified.

v) As a matter of practicality, it would be an impossible burden on the Defendant in all cases to specify what documents he wants to consider. In most cases, the Defendant is not sighted on what evidence the Claimant may have. Where there is an issue relating to salary paid, it will be obvious to the Defendant that he will need to see evidence of bank statements and P60s. However, where (as in this case) there is an issue as to what work the employees have in fact been carrying out, it is the employer who will know what documents will best demonstrate those facts. In this case, the process was fair.

51. I would finally add that the Claimant submitted a bundle of evidence which, it says, it would have relied upon had the requests been more specific. I have considered this material. The material contains little evidence of any substance. It is limited in scope and in much of it in any event reinforces the overall impression that the relevant employees were largely undertaking routine, lower level work. I am not persuaded that it would have made any difference to the revocation decision.

Ground (6) – The finding that false representations were made

52. The Claimant submits that the Defendant misdirected himself in reaching the conclusion that the Claimant had knowingly provided false information in the COS submissions. The Claimant's case is that the decision failed to acknowledge that, where an allegation of dishonesty is made, the burden of proving dishonesty is on the Defendant and a high degree of proof required. The Claimant relied upon the decision in AA (Nigeria) v SSHD (2010) EWCA Civ 773 and RP (proof of forgery) (Nigeria) (2006) UKAIT 00086 at para 14, both of which are asylum cases.
53. In the present context, there is no issue that what the Guidelines contemplate is deliberate misstatement. Annex 5(j) applies where the Defendant has "knowingly provided false statements or false information" and Annex 5(ae) refers to the use of "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". There is no ambiguity in the wording, and the seriousness of the issue is reinforced by the fact that these are conclusions which lead to mandatory revocation.
54. In the context of the present case, I am satisfied that the Defendant has taken a correct approach to this determination. In the decision letter dated 11^th November 2015 the Defendant set out verbatim the criteria in 5(j) and 5(ae). The language used by the Defendant in respect of the findings was that he was "not satisfied" that the jobs described in the COS submissions were genuine vacancies. The Defendant found in all four cases that the jobs did not match the descriptions in the COS submissions and in my judgment he was entitled to draw the inference that they had been deliberately misdescribed.
55. The proper approach to such investigations and determinations arises out of the scheme of licensed sponsorship, as set out in the Guidance. It is also informed by the established principles identified in Raj and Knoll. A licensed sponsor has been entrusted to carry out specific and important functions on behalf of the immigration authorities. In doing so, the licensed sponsor has undertaken to comply with its duties, including duties to provide information and to produce written records when required to do so. The Defendant does not know what takes place behind the closed doors of the employer organisation. The power to require the Defendant to provide evidence to demonstrate that it has been discharging its duties assiduously, and that it can continue to do so in the future, is therefore essential to the proper administration of the scheme and to the legitimate public interest in maintaining immigration controls.
56. It is not unlawful for the Defendant to require a licensed sponsor to produce evidence to demonstrate that it has complied with its duties. That is not unfairly reversing the burden of proof. It is simply the proper application of the Guidance. The system cannot operate without the diligent cooperation of the sponsors.
57. In this case, I am satisfied that the evidence of the interviews gave rise to a genuine concern that the jobs were in reality significantly different from the descriptions given in the COS submissions, and moreover that the jobs were at a significantly lower level of seniority. The Claimant was given a fair opportunity to refute these concerns but failed to do so. I am satisfied that it was entirely proper to draw the conclusion that the job descriptions had been deliberately exaggerated.
58. Mr Lee further submitted that inferences could not be drawn from a failure to provide information because a licensed sponsor is not obliged to respond to unwarranted demands made by the Defendant. I reject that submission. The Guidance is clear that the Defendant is entitled to make random checks on licensed sponsors to confirm that the duties are being complied with. The licence is a privilege not an entitlement. I am also satisfied on the facts of this case that the Defendant did have reasonable and probable cause for the concerns raised.
59. In any event, the arguments raised in respect of the application of Annex 5(j) and 5(ae) are not sufficient for the claim for judicial review to suceed. The Claimant has failed to address the fact that a third mandatory ground for revocation (Annex 5(ad)) was made out (see para 36(iv) above). Three discretionary grounds were also made out and there is no evidence of any exceptional reason why revocation should not have followed as a result. If it were necessary to do so, Section 31(2A) of the Senior Courts Act 1981 would in my judgment apply.

Ground (7) – Irrelevant material taken into account

60. This ground added nothing to grounds (1) to (3) and was not pursued with any emphasis at the hearing. I dismiss this ground.

Conclusion

61. For the reasons stated above, I am satisfied that all of the Claimant's grounds fail. The conclusions reached by the Defendant were reasonable and justified, and were the result of an investigation which was fairly conducted. The claim for judicial review is dismissed.