If you are an employer who relies on skilled migrant workers to meet the demands of your growing business, having your Tier 2 Sponsorship licence refused, downgraded, suspended or revoked could be damaging for business, to say the least.
The Secretary of State for the Home Department has stated that refusal by the Home Office to grant a Sponsorship licence is not subject to any right of appeal to the First-tier Tribunal (immigration and Asylum Chamber), or administrative review procedure. This also applies to Sponsorship Licences that have been refused, downgraded, suspended or revoked.
Operating a sponsor licensing system without a right of appeal to an independent tribunal has been held to be compliant with Article 6 of the European Convention on human rights 1950 (right to a fair trial). The Court of Appeal in R (New London College Ltd) v SSHD confirmed that judicial review was an appropriate and sufficient remedy in these circumstances.
However, although judicial review may be deemed a suitable remedy in theory, in practice, it is often an expensive, time-consuming, complicated procedure, and a satisfactory result is often difficult to obtain.
judicial review – The Basics
judicial review is a process by which a judge reviews the lawfulness of a public body’s decision or action. Rather than evaluate the merits of the decision itself, judicial review looks into the ways the conclusion was reached.
A claim for judicial review must be made within three months of the grounds for the claim arising.
Even when a judicial review claim could be pursued, it will not automatically be in the sponsor’s best interests to do so. The prospects of success may be low or the cost/benefit ratio unfavourable.
For example, a sponsor may feel that the Home Office has acted unreasonably (irrationally) by revoking a Sponsor Licence. However, they should note the high legal threshold of unreasonableness, ie they would have to demonstrate to the court that the decision is one that no reasonable body could have come to. It will be necessary to consider each sponsor’s circumstances in detail to make the appropriate assessment of reasonableness.
Therefore, a business must carefully consider, with the help of an experienced legal advisor, as to whether judicial review both could and should be pursued if a Sponsorship licence is refused or revoked.
If re-application does not resolve the matter, judicial review may be appropriate. For example, in R (Burnley Trading Company Limited) v SSHD the Administrative Court quashed a refusal to grant a Sponsor Licence to a college on the grounds of dishonesty. The decision was held to be procedurally flawed and unfair.
However, businesses must be aware of the general unwillingness of the UK courts to interfere with decisions made by the Home Office pertaining to Sponsorship Licences under Tier 2, Tier 5 and Tier 4; the courts take the view that conclusion are reached in pursuance of the Government’s policy to control immigration.
Let’s Talk – The Benefits of Discussion and Negotiation
Many sectors of the UK economy rely on migrant workers to fill positions where skills are in short supply in the UK. A decision to downgrade, suspend or revoke a Sponsorship licence is more likely to give rise to a judicial review claim because the impact of such a decision can be devastating to business. For example, a company whose licence has been revoked may have to terminate the employment of all their current migrant workers and be unable to take on new recruits.
As we have mentioned in previous posts, although the Government is driving through harsh policies aimed at making entry into the UK difficult for non-EEA nationals, their focus is mainly on family members of visa holders or settled individuals, not businesses.
There has been widespread talk of an economic downturn occurring in 2016, and although the UK economy remains in relatively good shape, the Conservatives will be loath to hinder economic growth without good reason. Therefore, your opportunities to reason and negotiate with the Home Office are solid, and should be explored.
The Investigation Phase
If your Sponsorship licence has been downgraded, suspended or revoked, you and your solicitor should carry out a careful investigation as to why it has happened. Only then can you evaluate whether it is worth challenging the decision.
You will need to:
- review carefully the allegations in the decision letter and confirm that the actions or omissions giving rise to the decision contravene the version of the Sponsorship Guidance (SG) as at the date of the decision
- obtain and check versions of the SG at the time of any actions or omissions which form part of the allegations, as well as at the date of the decision
- carry out extensive investigations to ascertain the correctness of the allegations (and any mitigating factors) and take any relevant remedial actions as soon as possible
- obtain as much evidence as possible to rebut the allegations or confirm the mitigating circumstances
- draw up detailed evidence of loss that has, and will continue to arise as a result of the decision—this might include contracts, invoices and letters from relevant third parties
- review whether the SG in force at the time of application was followed
Steps to Take when Discussing Your Case with the Home Office
Once you have gathered all the evidence to challenge the Home Office’s decision to downgrade, suspend or revoke you Sponsorship licence, it is imperative that you take the following steps when beginning your negotiations:
- Take note of the name of the person you speak to at the Home Office. You should also document the date, time and content of each conversation.
- Get an email address so you can follow up the conversation and confirm the main points in writing.
- Emphasise any mitigating circumstances or remedial action your organisation has taken to remedy the breach in question.
- Let the Home Office know the impact their decision to downgrade, suspend or revoke your Sponsorship licence will have on your business.
Many issues surrounding Sponsorship Licences are resolved via negotiation. The Home Office may withdraw their decision or ask you to resubmit another application. If this is not the case then it may be appropriate to step proceedings up a notch and send a Letter Before Action.
Letter Before Action
Before making a claim in judicial review, you need to send a Letter Before Action. The letter should contain the date and details of the decision (the refusal letter), act or omission being challenged and a clear summary of the facts on which the judicial review claim is based.
It should also be accompanied by key documents that are available at this stage to assist in identification of the issues and possible early resolution.
It is good practice to send a copy of the letter before action to the relevant Home Office team as well as the judicial review Management Unit.
The Letter Before Action should be replied to within 14 days; however, it is not uncommon for the Home Office to miss this deadline.
If, after the proposed reply date, either a response is not received or the response (and any further correspondence) does not resolve the issue, the sponsor may proceed to submit a permission application for judicial review.
The receipt of the permission application often has the effect of jolting the Home Office into action, and many matters are resolved before the hearing date arrives.
Although judicial review may be required to reinstate an employer Sponsorship licence, it should not be the first port of call when deciding the best course of action to take. Negotiation and Letters Before Actions can invoke a speedy resolution, without having to go to great expense.
OTS Solicitors is one of the most respected employment and immigration law firms in London. By making an appointment with one of our immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK.
If you wish to discuss any of the points raised in this blog, please phone our London office on 0207 936 9960.
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Posted on: Wednesday, 24 February, 2016