Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 172

P570/16

OPINION OF LORD BOYD OF DUNCANSBY

In the petition

HIBBAH LTD

Petitioner

against

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Petitioner:  Bryce;  DAC Beachcroft Scotland LLP

Respondent:  Webster;  Office of the Advocate General

13 December 2016

[1]        The petitioner trades as Khushis Indian Restaurant.  It employed non-EEA nationals.  For that purpose it held a Home Office licence.  It was revoked by the Secretary of State by letter dated 27 May 2016.  The petitioner seeks the reduction of that decision.

[2]        Having considered the Petition, Answers, Productions, Notes of Argument and the oral submissions of counsel, I shall refuse to reduce the decision letter, sustain the respondents third plea-in-law and dismiss the petition

[3]        On 11 June 2013 the petitioner assigned a Certificate of Sponsorship (CoS) to Mr Sammy Singh for the role of business development manager under the standard occupation classification (CoS) code 3545.  The CoS sets out Mr Singh’s duties and these are recorded in the decision letter of 27 May at paragraph 4.  Business development manager is a Tier 2 occupation.  In revoking the petitioner’s sponsor licence the Secretary of State concluded that Mr Singh was not working as a business development manager but as a restaurant manager, a Tier 3 occupation with an CoS code of 1223.

[4]        Sponsors are required to comply with certain obligations.  These are set out in the UK visas and immigration document entitled “Tiers 2 and 5:  Guidance for Sponsors”.  In particular Chapters 14 and 15 specify the duties that apply.  In assigning a CoS under Tier 2, the sponsor guarantees certain basic requirements set out in paragraph 15.19.  While there was some debate as to whether it was a continuing guarantee or one that was confined to the rules in force at the time of the assignation, I am satisfied that it is a continuing guarantee or warranty.  That is consistent with the language used throughout Chapters 14 and 15, the specific obligations contained therein and indeed with common sense.

[5]        Annexe 5 sets out the circumstances in which the Secretary of State will revoke the sponsor’s licence.  Parties accepted that revocation is mandatory if one of the circumstances is met.  Annexe 6 sets out circumstances in which the Secretary of State may revoke the licence.  In these circumstances revocation is discretionary.

[6]        The decision letter sets out contraventions of Annexe 5 (k), (q), (r), (u), (ff) and (hh) and Annexe 6(f), (i), and in (j) of the Tier 2 and 5 sponsor Guidance.

[7]        The argument before me centred on two main issues.  First, whether or not male fides or dishonesty was a requirement for a finding of a contravention of Annexe 5 circumstances.  Secondly, whether or not the Secretary of State acted irrationally in finding that Mr Singh was working as a restaurant manager as opposed to business development manager.  A further argument centred on whether the Secretary of State acted irrationally in holding that the petitioner had acted dishonestly in knowingly providing a false statement or false information (circumstance 5(k)).

[8]        There was also some discussion as to whether the Secretary of State could have dealt with the matter in some way short of revocation.  That issue is not focused in the petition or Note of Argument for the petitioner.  The Secretary of State deals with the possibility of downgrading the licence and issuing an action plan in paragraphs 52 and 53.  She concludes that downgrading is not appropriate due to the seriousness of the non-compliance.  She was entitled to reach that conclusion.

[9]        The issue of whether or not dishonesty is a requirement for revocation was dealt with by Lord Malcolm in the recent case of Experience of India Ltd v  The Secretary of State for the Home Department 2016 CSOH 161.  The same arguments as were presented in that case were presented in this one.  Mr Bryce represented the petitioners in both cases.  Lord Malcolm concluded that dishonesty was not required for the reasons set out in paragraphs 12-14 of his Opinion.  I agree with that analysis and adopt it.

[10]      Turning to whether the decision is irrational, I am satisfied that it is not.  Mr Bryce submitted that there was a certain overlap in the functions of business development manager and restaurant manager.  He further submitted that the Secretary of State accepted that Mr Singh was carrying out some duties that fall within the role of business development manager.  That is no doubt true but it seems to me that the question for the Secretary of State was what were the core functions of the worker.

[11]      The petitioner was subject to four compliance inspections on 15 November 2013, 6 May 2014 and 20 January and 18 February 2016.  The reasons for the revocation are set out in detail within the decision letter in particular at paragraphs 7 to 14 and 17 to 22.  The evidence is conveniently summarised in paragraph 7 of the respondent’s Note of Argument.  It included inter alia the repeated presence on inspections of Mr Singh in the restaurant greeting the public on entry in a manner indicative of acting as the restaurant manager;  his wearing of a badge describing him as simply “manager”;  his accepted responsibility for managing large party bookings;  his presence in the restaurant on a Saturday evening;  a commendation for customer service on the petitioner’s website;  and deficient documentary material demonstrative of Mr Singh performing a business development role notwithstanding the passage of time since first employed.

[12]      The petitioner complains that on the visits in 2013 and 2014 there was no finding by the Secretary of State of non-compliance with the CoS.  The business had not changed in size of a purpose in that time.  Accordingly it was submitted the Secretary of State was inconsistent in now holding that the petitioner was working as a restaurant manager as opposed to a business development manager.  However the evidence available following the inspections in 2016 was different.  In particular there was a lack of any substantial evidence that Mr Singh had been carrying out the functions of business development manager despite the passage of time since earlier inspections.

[13]      I turn to the question of whether the Secretary of State’s conclusion that the petitioner had acted dishonestly was irrational.  I was informed by Mr Bryce that it is this finding that has most upset the petitioners’ directors since it reflects on their reputation.  On the other hand even if the Secretary of State was not entitled to conclude that the petitioner had acted dishonestly, that finding can have no bearing on the outcome since it relates only to one of the grounds of revocation.  Accordingly even if the Secretary of State’s conclusion that the petitioner had acted dishonestly was irrational, the decision letter would still stand.

[14]      Annexe 5(k) states that revocation is mandatory where the petitioner knowingly provided false information.  The Secretary of State points to the fact that there was no evidence that Mr Singh had ever worked as a business development manager.  He had been seen on two occasions in November 2013 and January 2016 working in front of house.  There was evidence of him dealing with large bookings which the Secretary of State considered to be more the duties of a restaurant manager.  Most importantly the evidence which the petitioner had provided to the Secretary of State failed to show that the full range of duties on Mr Singh’s CoS had ever been undertaken by him.  Accordingly the Secretary of State contends that she was entitled to draw the inference that the petitioner had knowingly provided false representation in order to assist Mr Singh in obtaining leave to remain in the United Kingdom.

[15]      In submitting that this decision was irrational Mr Bryce referred me to Burnley Trading Co v The Secretary of State for the Home Department 2011 EWHC 2928 (Admin) an unreported judgment of His Honour Judge Kay QC in the Administrative Court in England and Wales.  At paragraph 39 Judge Kay states that an allegation of dishonesty is a grave and serious charge.  He states that the charge should not be levelled without proper and responsible care and consideration and without at least giving the accused the opportunity to explain the inaccuracy or the charge.

[16]      In this case, the petitioner was given a full opportunity to make representations to the Secretary of State and these representations are recorded within the decision letter.  Accordingly while I accept that the charge that someone made false representations is a serious one and that it should not be made lightly, I cannot conclude that the Secretary of State’s decision is irrational or perverse.

[17]      I reiterate that even if I am wrong on that matter, it has no bearing on the decision of the Secretary of State to revoke the petitioner’s sponsor licence.

[18]      For these reasons I shall refuse to reduce the decision and dismiss the petition.  I was not addressed on expenses and accordingly I shall reserve them.