“Whether an immigration applicant who has applied … for leave to remain under the Tier 2 (General) Migrant Category of the Immigration Rules and has submitted a Certificate of Sponsorship from their sponsoring employer which is valid at the time the application is made is entitled to challenge the respondent’s decision not to provide [him] with a period of 60 days in which to secure an alternative sponsor, in circumstances where the sponsor’s Tier 2 Licence was revoked …”
“… In my view, for both policy and operational reasons, the Respondent’s decision not to extend the 60 day grace period on Tier 4 cases to Tier 2 cases is a rational one. I accept that there are material distinctions which the Respondent is justified in drawing between Tier 4 and Tier 2. In particular the relationship between the Applicant and the sponsor and the purposes of granting leave are significantly different in each case. I do not read Patel as requiring in effect that its ratio in the context of Tier 4 is directly applicable to Tier 2 cases. It is clear from that and other decisions that fairness is essentially context driven, and I am persuaded that the different context identified by the Respondent for Tier 2 cases is such as to justify not extending the 60 day policy to these cases. There are clearly different policy objectives. The Tier 4 objective is to provide persons who wish to study in the United Kingdom access to appropriate educational institutions and to regulate demand from prospective students; whereas the purpose behind Tier 2 is to meet demand from prospective employers in areas of skills shortage with applicants who can fill in particular skilled vacancies where no resident worker can be found. There is materiality in the distinction drawn by the Respondent between the applicant in a Tier 4 case who is a service consumer and the applicant in a Tier 2 case who is the service supplier. The Tier 4 applicant may or may not have completed a level of study when a further application is made. In some instances therefore I accept they may be in the same position as a Tier 2 applicant who has been able to do the job for which they obtained the visa. There may in some cases therefore be an equivalence of inability to do a new course or take on a new job but that in my mind is not a material distinction such as to indicate irrationality in the Respondent’s decision. Inevitably there are going to be points of coincidence between the two systems but equally I consider there are proper and clear matters of material difference between the two which I have set out above. … I also attach some weight to what is said about the logistical problems, identified at paragraph 17 of Ms Buzzeo’s statement, that would arise if a 60 day grace period were to be implemented for Tier 2 applicants. Clearly there would be significant operational difficulties, including the need to establish new processes involving significant storage, management and review elements. A reasonable expectation of the Tier 2 applicant when granted leave is limited to working in a specific role for a specific employer whereas a student may although as I have said above accept not necessarily, wish to do further studies and their investment in the time they have been studying may well be adversely affected if they are unable to take advantage of a 60 day period in which to find another college.”
“I conclude therefore that the Respondent’s decision in these cases is a rational one, and that it was not unlawful for her not to afford a 60 day period to the Applicants in order to seek to obtain further Tier 2 employment. As a consequence the applications are refused.”
“These routes enable UK employers to recruit workers from outside the EEA [European Economic Area] to fill a particular vacancy that cannot be filled by a British or EEA worker.”
“If applying as a Tier 2 (General) migrant, the applicant must have a minimum of 50 points under paragraphs 76 to 79D of Appendix A.”
“This route is for migrants aged 16 or over who wish to study in the UK at an institution that is not an Academy or a school maintained by a local authority.”
“reduce the length of the worker authorisation, or permission to stay in the UK of any other migrants (those who were not actively involved) to 60 calendar days. If the migrant has fewer than 60 calendar days their leave or worker authorisation remaining, we won’t reduce it.”
“A Certificate of Sponsorship can be withdrawn or cancelled at any time by either the Home Office or your Sponsor. Where your application relies on a Certificate of Sponsorship that has been either withdrawn or cancelled, your application will be refused.”
“We accept the author’s proposition that the law has advanced from imposing a public law requirement of fairness in particular situations, to the general proposition that wherever a public function is being performed there is an inference that the function is required to be performed fairly, in the absence of an express indication to the contrary.”
“22. Where the applicant is both innocent of any practice that led to loss of the sponsorship status and ignorant of the facts of such loss of status, it seems to us that common law fairness and the principle of treating applicants equally mean that each should have an equal opportunity to vary their application by affording them a reasonable time within which to find a substitute college on which to base their application for an extension of stay to obtain the relevant qualification. In the curtailment cases, express Home Office policy is to afford sixty days for such application to be made. 23. Although we accept that there is no such policy for refusal cases, fairness requires that such cases be treated in broadly the same way. The applicant must be given an equal opportunity before refusal of application to amend it in the way we have described. This was clearly not done in this case. The Home Office knew that it had suspended the college in January 2011 but no one else did. The applicant could not have known that subsequently the college’s status as an approved sponsor was revoked before his application for an extension of stay was decided. 24. It is obviously unfair for the Secretary of State to revoke the college’s status after the application has been made when it was an approved sponsor and not to inform the applicant of such revocation and not afford him an opportunity to vary the application. 25. None of this applies where the applicant has not been a bona fide student at the college where he is seeking to extend his stay, or where he has participated in the practices that may have led the college to lose its sponsorship status, or where he has had actual knowledge of the cessation that the termination of the college’s status as a sponsor either before the application for an extension of stay was made or shortly thereafter and when he had adequate opportunity to amend the application by seeking to substitute an approved college for an unapproved one.”
“In those circumstances no lawful decision has been made on the application and the application remains to be determined by the Secretary of State or the relevant officer and the leave to remain granted pursuant to s. 3C [of theImmigration Act 1971 ] continues uninterrupted. A direction may be given to that effect where necessary specifying the time needed before the application can be determined to allow a fair opportunity to make representations.”
“… The Secretary of State is not responsible for the general unfairness which the appellant has suffered. That is the result of actions and omissions by [the college]. …”
“The authorities in which the general public law duty of fairness has been found to impose additional obligations on the Secretary of State in the context of the PBS [Points Based System] have been materially different from the present case. It has been held that where the Secretary of State has withdrawn authorisation from a college to issue CAS letters, fairness requires that she should give foreign students enrolled at the college a reasonable opportunity to find a substitute college before removing them: Patel (revocation of sponsor licence – fairness) India[2011] UKUT 211 (IAC) ; Thakur (PBS Decision – Common Law Fairness) Bangladesh[2011] UKUT 151 (IAC) ; and see Alam at para. 44. But that requirement was found to arise where there had been a change of position of which the Secretary of State was aware, and indeed which she had brought about, in circumstances in which the students were not themselves at fault in any way, but had been caught out by action taken by the Secretary of State in relation to which they had had no opportunity to protect themselves. In the present case, by contrast, the Secretary of State had no means of knowing why the Appellant’s CAS letter had been withdrawn and was not responsible for its withdrawal, and the fair balance between the public interest in the due operation of the PBS regime and the individual interest of the Appellant was in favour of simple operation of the regime without further ado.”
“16. … There is an important distinction between the circumstances in Patel and those of the present case. In Patel the applicant’s leave to remain was in force. He was applying for a variation of that leave and, in the particular circumstances of that case, fairness required that in dealing with that application the SOS [Secretary of State] should afford him a further opportunity to vary it. If the SOS declined the application without doing so his status would be transformed from lawful resident to unlawful overstayer. 17. By contrast in the present case the applicant had after14 April 2012 no extant leave to remain. He was not asking to vary a leave which he already had: that leave had expired. He was making a fresh application for a grant of leave to remain. If his application was refused his position would not change from lawful resident applying for a variation to unlawful overstayer making a fresh application for leave to remain. He was already an overstayer. That would remain the position if the appellant was given a 60 day opportunity to find a new sponsor. It does not seem to me that fairness required the Secretary of State to give him a third bite at the cherry.”
“… The Supreme Court confirmed the proposition that the test for whether there has been procedural fairness or not is an objective question for the Court to decide for itself. The Court’s function is ‘not merely to review the reasonableness of the decision-maker’s judgment of what fairness required’: see para. 65 (Lord Reed JSC).”
“… In my respectful view, it would be advisable not to use phrases such as ‘public law fairness’ because that simply begs the question whether what is meant is procedural fairness or substantive fairness.”
“Procedural fairness (or, as it is sometimes called, the duty to act fairly) is the modern term for what used to be called the rules of ‘natural justice’. Those rules have two limbs. The first limb is the rule against bias (either actual or apparent), which used to be given the Latin expression nemo iudex in sua causa. The second limb is audi alteram partem (‘hear the other side’). Since public law no longer talks of ‘judicial’ or ‘quasi-judicial’ disputes, even the notion of a ‘hearing’ now seems inapt but the fundamental requirement of the second limb of procedural fairness is to give an opportunity to a person whose legally protected interests may be affected by a public authority's decision to make representations to that authority before (or at least usually before) the decision is taken …”
“The points based system for determining whether to grant leave to enter or remain in the United Kingdom, which applies to students as well as a number of other categories of applicant, is designed to achieve predictability, administrative simplicity and certainty. It does so at the expense of discretion, that is to say it is prescriptive. The consequence is that failure to comply with all its detailed requirements will usually lead to a failure to earn the points in question and thus refusal …”
“… The reality of the complaint is that, despite what the Immigration Rules require, the Respondent should have been prepared to accept something else, namely a COS number which in fact had already been ‘used’. That has nothing to do with any duty on the Respondent to ‘hear’ the Appellant before taking her decision. In reality it is concerned with a matter of substance, namely whether the requirements in the Rules should be complied with in full or whether the Respondent should be prepared to dispense with one of those requirements. In my view, it makes no difference to this analysis to say that the requirement in the Rules is itself concerned with a matter of procedure rather than, for example, whether a person should be granted leave to remain or a work permit. The important point is that this is nothing to do with procedural fairness in the sense outlined above. It is to do with whether a substantive requirement of the rules themselves needs to be complied with in making a relevant application. …”
“Normally public law is not concerned with the substance of public decisions. Judicial review has a very important role to play in the maintenance of the rule of law in this country but the role of the courts, however important, is a limited one. Our role is principally to correct errors of law made by public authorities and ensure that fair procedures have been complied with. This is why the courts will correct, for example, a misdirection of law by a public authority; will ensure that all relevant considerations are taken into account; that irrelevant considerations are not taken into account; and will insist upon procedural fairness where the duty to act fairly applies. This is also why the remedy which will usually be granted when an application for judicial review succeeds is a quashing order or some other remedy which has the result that the matter is remitted to the public authority concerned, so that it can reconsider its decision in accordance with law and after complying with relevant procedural requirements. What the outcome should be on reconsideration is usually not a matter for the court. It is rare for the court to substitute its own view for what the substantive decision should actually be. Usually the only basis on which the court can concern itself with the substance of the decision is irrationality. (For this purpose I put to one side issues which may arise under European Union law or under theHuman Rights Act 1998 , when the task of the court may be different.)”
“As I have said, in appropriate cases, the court will and must be able to correct an abuse of power. The doctrine of substantive fairness is an important tool which enables the court to ensure that a public authority acts lawfully and, in particular, does not abuse the powers which have been entrusted to it by Parliament. However, that doctrine does not and should not give the court a wide-ranging discretion to overturn the decision of a public authority where it considers it to be unfair. This is not only because that risks blurring the important dividing line between the function of the court and the function of the executive. It is also because the doctrines according to which a court will interfere with the decisions of the executive need to be set out in reasonably clear and predictable form so that everyone can arrange their affairs accordingly. This (the principle of legal certainty) is as much an important aspect of the rule of law as is the need to correct abuse of power.”
“In summary, procedural unfairness is well-established and well-understood. Substantive unfairness on the other hand – or, in Lord Dyson MR’s words … ‘whether there has been unfairness on the part of the authority having regard to all the circumstances’ – is not a distinct legal criterion. Nor is it made so by the addition of terms such as ‘conspicuous’ or ‘abuse of power’. Such language adds nothing to the ordinary principles of judicial review, notably in the present context irrationality and legitimate expectation. It is by reference to those principles that cases such as the present must be judged.”
“… to say that the result of the decision must be substantively fair, or at least not ‘conspicuously’ unfair, begs the question by what legal standard the fairness of the decision is to be assessed. Absent a legitimate expectation of a different result arising from the decision-maker’s statements or conduct, a decision which is rationally based on relevant considerations is most unlikely to be unfair in any legally cognisable sense. …”