Manzay Ltd (t/a Mirch Masala Restauant), R (on the application of) v Secretary of State for the Home Department [2016] EWHC 2582 (Admin)

Case No CO/463/2015

[2016] EWHC 2582 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 17 October 2016

Before

HIS HON JUDGE DIGHT

Between

THE QUEENClaimant

SECRETARY OF STATE FORDefendant

THE HOME DEPARTMENTDefendant

Ms Amanda Jones (instructed by Simman Solicitors) for claimant

Ms Julia Smyth (instructed by Government Legal Department) for defendant

Hearing Hearing dates: 20 October 2015

Judgment

His Hon Judge Dight:

Introduction

[1]The claimant is a company which, until the making of the decision which is challenged in these proceedings, had been an A-rated sponsor holding a Tier 2 (General) Sponsor Licence under the defendant’s Points Based System, which enabled the claimant to employ migrants from outside the European Economic Area (“the EEA”). The claimant says that it could not hire staff with the relevant experience from within the EEA and that without such a licence its business would be at risk.

[2]By these proceedings for judicial review the claimant challenges the Secretary of State’s decision dated 31 October 2014 to revoke the claimant’s Tier 2 Licence with immediate effect (upheld on narrower grounds in a letter of 27 January 2015 following a review under the pre-action protocol) pursuant to permission granted on the papers by Hon Mr Justice Morgan. There is no system for appealing such decisions and the claimant has no appropriate alternative means of challenging the decision.

[3]By its amended grounds the claimant submits that the decision was 1) marred by procedural irregularities, 2) took into account irrelevant information, 3) failed to take account of relevant information and 4) was Wednesbury irrational. The claimant asks the court to declare that the decision is unlawful and irrational, to quash it and to make an award of damages in the claimant’s favour.

[4]Since the hearing and after first drafting my decision the Court of Appeal has given judgment in the case of R (Raj and Knoll Ltd) v Secretary of State for the Home Department

[2016] EWCA Civ 770

which is the first decision of the Court of Appeal in relation to Tier 2 licences as opposed to Tier 4 licences (which concern educational institutions). I am extremely grateful to both parties before me who have provided succinct but comprehensive additional written submissions in respect of that decision, and its potential application in the instant case. The consequence is that I have substantially redrafted this judgment to take account of those submissions and the guidance given by the Court of Appeal in Raj and Knoll and the clarity which that decision has brought to the relevant principles applicable in this case.

The scheme

[5]What is called the Points Based System was introduced in 2008 to regulate the admission to the UK of non-EEA nationals. The scheme consists of various Tiers, for example Tier 1 was designed to allow highly skilled migrants, entrepreneurs and investors to enter or remain in the UK whereas Tier 2, which is the relevant Tier in this case, was designed to allow skilled workers with a job offer to fill gaps in the UK labour force. Tier 4 relates to non-EEA students who wish to study in the UK. Tier 2 tier is aimed at enabling specifically licensed UK employers (referred to as sponsors in the scheme) to recruit individuals from outside the EEA to fill a particular job that cannot be filled by a British or EEA worker. The role played by sponsoring employers is central to the scheme in that the would-be employer may sponsor a migrant worker for the duration of their employment in the UK without reference to the UKBA for prior permission. The sponsor has significant duties, set out in greater detail below, which are key to the effective operation of the scheme. The duties are conferred on sponsors because the scheme places considerable autonomy and responsibility on them. There are regular inspections (announced and unannounced) by the defendant’s compliance officers to ensure that the duties are being complied with.

[6]A sponsor must, unless a relevant exemption applies, satisfy the Resident Labour Market Test (“RLMT”) for each migrant worker before sponsorship can properly be offered to that migrant worker. In other words, the sponsor must be able to show by appropriate advertising that there is no UK or EEA worker with appropriate skills able to undertake the work of the particular vacancy which the sponsor is seeking to fill. However, it is only when employers have a sponsorship licence that they will be able to sponsor skilled migrants from outside the EEA to work in the UK (in respect of Tier 2 (General)). The defendant maintains a register of sponsors known as the Home Office Register of Licensed Sponsors. Subject to compliance with the appropriate criteria the employer/sponsor may assign a Certificate of Sponsorship (“CoS”), a virtual document, to a migrant worker which records, among other information, the tasks which the worker will fulfil in the UK, the salary and their place of work and confirms that the worker has been offered employment within an eligible category by reference to what is called the Standard Occupational Classification (SOC) Code. A sponsor is issued with a limited number of CoS dependent chiefly on the nature and size of its business.

[7]Sponsorship carries with it significant duties. One of the principal policies behind the sponsorship scheme is that the sponsors must themselves assist in maintaining the integrity of the scheme. It is key to the operation of the system that the Secretary of State can trust the sponsors to comply with their duties and operate the system appropriately. The detail of the scheme and the role of sponsors in contained in guidance published by the defendant and updated from time to time. The guidance in force at the date of the decision challenged before me was the “Tier 2 and 5 of the Points Based System-Policy Guidance for Sponsors” version 09/14 (“the Guidance”). Paragraph 1.1 sets out the policy of the scheme:

“Sponsorship is based on two principles: Those who benefit most directly from migration (employers, education providers or other bodies who are bringing in migrants) should play their part in ensuring that the system is not abused. We need to make sure that those applying to come to the UK for work or study are eligible and that a reputable employer or education provider genuinely wishes to take them on.”

[8]Certain general duties are set out in section C of the Guidance from paragraph 14 onwards. Paragraph 15 headed “Duties that apply to sponsors in all tiers”, sets out some of the specific duties, including what are described as “Record keeping duties” (para15.1 to 15.5) and “Reporting duties” (para 15.6 to 15.11). Paragraph 15.1 specifies the documents and details which must be kept by a sponsor. Paragraph

15.2 provides that the sponsor must to give the defendant, when asked: “any documents relating to your sponsored migrants that [the Home Office] consider to be relevant. We might, for example, ask for details of your recruitment practices so that we can make sure that a resident labour market test was conducted correctly”.

[9]The following specific Reporting Duties, relied on by the defendant in this case, are contained in paragraph 15.7:

“15.7 You must report the following within 10 working days: (a) If a sponsored migrant does not turn up for their first day of work… … (b) If you stop sponsoring a migrant for any other reason: For example, if: They move into an immigration route which does not need a sponsor…”

They move into an immigration route which does not need a sponsor…”

[10]Paragraph 16 and Annex D of the Guidance requires a sponsor to retain documents from all recruitment exercises including:

“Notes from the final interviews conducted and for each EEA national who was rejected, showing reasons why they have not been employed.”

[11]Given the reason for the existence of Tier 2 sponsorship licences and the policy and principles referred to above it is self-evident why the notes of interviews and reasons for not employing EEA nationals are required to be kept. Paragraphs 15.12(c), 15.16, 28.1 and 29.1 specifically provide:

“15.12(c) [You must] Not assign a CoS where there is no genuine vacancy or role… … 15.16 When you assign a CoS under Tier 2 (General) you guarantee one of the following a) You conducted a genuine resident labour market test in accordance with the rules in force at the time.” “28.1 The resident labour market test is there to protect the settled workforce and means that you must advertise the job you want to recruit for to give settled workers a chance to apply. You can only recruit a migrant if: you have completed a resident labour market test and can show that no suitable settled worker is available to fill the job…” “29.1 When you assign a Tier 2(General) CoS, you are confirming that: you have conducted a resident labour market test as set out in this guidance and have been unable to identify a suitable settled worker to fill the post…” a) You conducted a genuine resident labour market test in accordance with the rules in force at the time.”

[12]The reporting duties set out in paragraph 15.7 of the Guidance include the duty to report within 10 working days: “(a) If a sponsored migrant does not turn up for their first day of work. You must include any reason given for their non-attendance (for example a missed flight). (b) If a sponsored migrant’s contract of, or for employment, or services or registration is terminated earlier than shown on their certificate of sponsorship… (c) If you stop sponsoring a migrant for any other reason. For example if; they move into an immigration route that does not need a sponsor … (d) If there any significant changes in the sponsored migrant’s circumstances, for example: … a change of salary from the level stated on the CoS, other than changes due to annual increments or bonuses…”

they move into an immigration route that does not need a sponsor

[13]Subparagraph 26.10 specifies the information to be disclosed when a CoS is first assigned to a migrant worker:

“When you assign a CoS to a migrant, you must give three pieces of information about the salary package: First you must give the gross salary figure which must represent the total amount to be paid to the worker, gross of any tax paid (whether paid in the UK or overseas) and must include any permitted allowances and guaranteed bonuses. Second, you must give a separate figure for the total of all allowances and guaranteed bonuses. Finally, you must give a detailed breakdown of each allowance and each guaranteed bonus showing their value.”

This is expanded upon in subparagraphs 26.13 and 26.14 which provide that:

“26.13 The salary package on the CoS may include, in addition to basic pay any: a) guaranteed bonuses b) allowances such as London weighting or accommodation allowances which would also be paid to a settled worker 26.14 The salary package on the CoS must not include: a) overtime, bonus or incentive pay which is not guaranteed … d) allowances (whether monetary or in-kind) for which the migrant must reimburse the sponsor”

[14]The Guidance also sets out the defendant’s power to downgrade or revoke a licence and the process which will be followed when downgrading or revocation are under consideration. Paragraphs 17 to 19 of the Guidance refer to the specific power to revoke licences. There are two categories of grounds for revocation, mandatory grounds, which are contained in Annex 5 to the Guidance, and discretionary grounds, which are contained in Annex 6. Paragraph 19.4 stipulates that if a mandatory ground arises the licence will be revoked straight away. If a discretionary ground arises paragraph 19.6 provides:

“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…serious and will look for evidence that you have robust processes and procedures and have taken all reasonable steps to verify information that you are required to obtain and hold in connection with your duties under this guidance as well as any information that you send to us.”

In other words when one of the discretionary grounds exists the starting point is an assumption that the licence will be revoked unless there are exceptional circumstances.

[15]The mandatory grounds for revocation include, in Annex 5, the following:

“t) You assign a restricted Tier 2 (General) CoS to a migrant and on the application for that CoS you stated that you had conducted a resident labour market test and either: the test you conducted did not meet the requirements set out in this guidance; or you had not conducted a test. … ad) You assign a CoS for a vacancy that was not genuine…”

The discretionary grounds for revocation, set out in Annex 6, include:

“g) You fail to comply with any or all of your sponsor duties. … j) As a result of information available to our compliance officers, we are not satisfied that you are using the processes or procedures necessary to fully comply with your sponsor duties. … o) The role undertaken by a migrant you have sponsored does not meet: the job description in the codes of practice containing the SOC code stated on the CoS you assigned to them… the job description on the CoS that you assigned to them.” you had not conducted a test. ad) You assign a CoS for a vacancy that was not genuine…” the job description on the CoS that you assigned to them.”

[16]That the Guidance itself is lawful was put beyond doubt in R (New London College Ltd) v Secretary of State for the Home Department

[2013] UKSC 51

in which the Supreme Court rejected a challenge to the lawfulness of the Guidance based on the way in which the Guidance had come into being. The applicant in that case had been a Tier 4 sponsor (an educational institution) whose licence was suspended (and subsequently revoked) by the Secretary of State on the ground that the applicant was in breach of its duties as a sponsor. In the course of his judgment Lord Sumption made the point (para 29) that the scheme “is not coercive. There are substantial advantages for sponsors in participating, 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.”

[17]It is apparent from the judgments relating to Tier 4 cases to which I have been referred by counsel that the terms of the Guidance relating to Tier 4 sponsors are not identical to those relating to Tier 2 sponsors but the underlying principles are similar and it seems to me that the reasoning of the Supreme Court in the New College London case, and of the other courts in the cases to which I make reference below where Tier 4 licences are in issue, are useful guidance when the Tier 2 sponsors and their duties are under consideration by the court. I note that paragraph 29 of the New College London case was cited and applied by the Court of Appeal in the recent Raj and Knoll decision describing a Tier 2 sponsor as enjoying “a right contingent upon adherence to the rules”.

[18]One of the central themes of the reported decisions is that trust plays a very big part in the proper functioning of the sponsorship scheme. The defendant has to trust that a sponsor will adhere to the rules. As Silber J. held, in R (Westech College) v Secretary of State for the Home Department

[2011] EWHC 1484

, another Tier 4 case, although in my judgment nothing turns on that difference for present purposes: “a fundamental principle of the sponsorship system requires the UKBA to trust the sponsor to a very substantial extent…In essence, the Secretary of State and UKBA entrust to sponsors such as the claimant the vital function of monitoring compliance of its students with immigration law.” [para 14] 19. In the context of educational institutions granting permission to students to enter the UK the learned judge commented on the need for the Secretary of State to be able to trust the sponsor: “A significant reason why the trust imposed on the sponsor is considerable is the wish and determination of many students to act in breach of their leave conditions by seeking work or using the permit granted by the sponsor as a ruse to enter this country and then to disappear as is shown by the Report which I quoted in paragraph 12 above. In return for this trust imposed in the sponsor, UKBA has to monitor the performance of the sponsor with great care as any failures by the sponsor could lead to interference with immigration control if, for example, the sponsored student disappeared or started to work illegally. Indeed in this connection and bearing in mind the risk of migrants seeking to avoid immigration control, it is only right that first UKBA should have stringent powers to suspend a sponsor or prevent it from taking more students or terminating their sponsorship if it became concerned that a sponsor was not complying with its obligations and second that UKBA has to be sensitive to any factors which might suggest the possibility of any breaches of immigration control having occurred or being about to occur because of lapses or omissions committed by a sponsor.” [para 16] While the details of the Tier 2 and Tier 4 schemes are not entirely the same it seems to me, by parity of reasoning, that because the defendant places considerable trust in Tier 2 sponsors she has to be able to monitor the performance of the sponsor with great care, because any failures by the sponsor could lead to interference with immigration control and the defendant should have what Silber J describes as stringent powers if she became concerned that a sponsor was not complying with its obligations.

[19]It is also to be noted, as the defendant submits, that the courts have held that there does not need to have been an actual breach of immigration control for the defendant to suspend or revoke a licence. It is sufficient that she has reasonable grounds for suspecting that a breach might occur, provided that she complies with her public law duties (a point emphasised by the Court of Appeal in the Raj and Knoll case). As Silber J said in Westech College at paragraphs 17-19:

“17. In my view, 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, provided of course that UKBA complies with its public law duties. 18. There is therefore a clear need in some circumstances for UKBA to invoke its powers where there is a risk that the sponsor might not be complying with its duties provided of course that UKBA complies with its public law duties. The expertise and experience of the UKBA in being able to detect the possibility that a sponsor might not be or be at risk of not complying with its duties is something that the courts must and does respect because, unlike UKBA, courts do not have this critically important experience or expertise. 19. An entity which holds, as the claimant did before the events which led to this application being brought, the power to grant visa letters and CASs has substantial duties to ensure that the rules relating to immigration control are adhered to strictly and properly. Indeed the importance of the role performed by sponsors means that if UKBA were concerned that a sponsor is not complying with those duties, it would entitle, if not oblige, UKBA to prevent that sponsor from either granting more CASs or revoking its licence. My approach is similar to that recently expressed in (R (The London Reading College Ltd) v Secretary of State for the Home Department[2010] EWHC 2561 (Admin)) by Mr Neil Garnham QC sitting as a Deputy High Court Judge… [cited below]”

[20]More recently Mrs Justice McGowan, in St Andrews College v Secretary of State for the Home Department

[2014] EWHC 4328 (Admin)

, yet another case where a Tier 4 licence had been revoked, described the highly trusted status of sponsoring educational institutions as a“fragile gift” and “constant vigilance about compliance is a minimum standard required of such colleges. The burden of playing an active role in the support of immigration control is a heavy one. The SSHD is entitled to review purported compliance with a cynical level of supervision.”

[21]In R (Raj and Knoll Ltd) v Secretary of State for the Home Department

[2016] EWCA Civ 770

the Court of Appeal dismissed an appeal from a decision of Mr Justice Haddon-Cave rejecting the challenge to a decision of the Secretary of State to revoke the claimants’ Tier 2 licence pursuant to which they had assigned a number of CoS to migrant workers at their three nursing homes in Deal, Kent. The leading judgment was given by Tomlinson LJ, with whom Moore-Bick and Kitchin LJJ agreed. In their recent written submissions the claimant says that Raj and Knoll turns on its own facts, is completely different to the facts of the instant case and adds nothing to the jurisprudence relevant to the matters which I have to decide. The defendant’s submissions are entirely to the contrary and argue that the Court of Appeal’s decision “puts beyond doubt that this claim should be dismissed”.

[22]It seems to me, having carefully considered the judgment of Tomlinson LJ and the written submissions of counsel, that the reasoning of the Court of Appeal in Raj and Knoll provides valuable binding guidance in respect of challenges to Tier 2 applications. It has to be noted that it is the first appellate decision on Tier 2 sponsors and licences and, while recognizing that differences exist between the various Tiers, the decision makes plain that certain of the underlying principles are the same. The Court emphasised the importance of the sponsor maintaining the trust which the scheme placed in it. One of the grounds of revocation in Raj and Knoll was that the claimant had failed to retain the required evidence to confirm that a Resident Labour Market Test had been carried out in accordance with the Guidance. In paragraph 20 of his judgment Haddon-Cave J at first instance had said, in respect of Tiers 2 and 4, that “the watchword for both is trust”. He then identified a number of principles which he said could be derived from recent case law (paragraph 21). In paragraph 34 he turned to the failure of the claimants to retain evidence of the Resident Labour Market Test and held that the Secretary of State was entitled to revoke the claimants’ licence on that ground alone. Jackson LJ granted permission to appeal principally so that the Court of Appeal “might examine the legal principles said by the judge to be relevant to the standard of review which the court should adopt in case of challenge to decisions taken by the SSHD in administering the scheme and monitoring compliance therewith.” (para 4).

[23]The Court of Appeal decided not to address the challenge relating to the standard of review adopted by the judge below because of its view that the challenge to the decision of the Secretary of State was bound to fail in any event (paragraphs 5, 26, 28, 32) and because the evidence did not demonstrate that the Secretary of State had made use of a “light trigger” (paragraphs 27 to 29) and in light of the various breaches of their duties committed by the Appellants revocation of their licence was “obvious and axiomatic” (paragraph 32).

[24]The Court cited with approval (paragraph 28) the principles which Haddon-Cave J had derived from recent case law and set out in paragraph 21 of his judgment as follows:

“(1) The essence of the system is that the Secretary of State imposes "a high degree of trust" in sponsors granted ('Tier 2' or 'Tier 4') licences in implementing and policing immigration policy in respect of migrants to whom it grants Certificate of Sponsorship ("CoS") or Confirmation of Acceptance ("CAS") (per McGowan J in London St Andrews 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 Andrews 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 Andrews College v Secretary of State for the Home Department (supra) per McGowan J 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]).”

Thus it seems to me the Court of Appeal confirmed authoritatively, in case there were doubt about it, that the main principles to be derived from the cases to which I have made mention but which concern Tier 4 sponsors apply equally to Tier 2 sponsors and that for breach of duty, where a discretionary Annex 6 ground is made out, revocation is to be expected unless there are exceptional circumstances (para 39).

[25]The Court also expressed the view that record keeping was important and compliance with the duty was not onerous:

“28. I would also note that the importance of proper record-keeping and the ability on request to produce documentary evidence of compliance with the relevant procedures is not just obvious but is in any event clearly spelled out in the Guidance. It has been repeatedly reiterated in the jurisprudence summarised by the judge at sub-paragraphs (1) to (4) of paragraph 21 of his judgment, recording principles with which Mr Biggs has not taken issue. The obligation thus cast upon sponsors is not onerous and compliance is not difficult.”

[26]In her written submissions Ms Smyth also correctly points to a number of other principles established or clarified by the Court of Appeal in respect of Tier 2 sponsor, as she says in paragraph 3(iv) to (vii) of her submissions:

“iv. The Secretary of State cannot be expected to “piece together information as if she were completing a crossword puzzle” (para 35). v. Failures to comply with the Guidance are not lightly to be dismissed as errors of form. Thus, for example, a requirement to keep a record of the location at which employees are working is of critical importance to ensure that the system is not being abused (para 36). vi. Where a sponsor has failed to provide information required by the Guidance to be be provided, it is no answer that the information is held by a different part of the Home Office: para 37. vii. Nor is it open to the sponsor to question why particular aspects of the Guidance are necessary (para 41).”

The role of the court

[27]I remind myself that this is not an appeal against the decision of the defendant but a review on ordinary public law grounds and that the role of the court is supervisory only. Mr Neil Garnham QC, as he then was, considered the scheme, in the context of educational institutions in the case of R (London Reading College Ltd) v SSHD

[2010] EWHC 2561

and the respective roles of the Secretary of State and the Administrative Court where there has been a suspected breach of the terms of the scheme by a sponsor. “60. It has to be remembered that the primary judgment about the response to breaches of a College’s duty is the Defendant’s and the Court’s role is simply supervisory. It has also to be remembered that the underlying principle behind this scheme is that the UKBA entrusts to Colleges the power to grant visa letters on the understanding, and with their agreement, that they will act in a manner that maintains proper immigration control. The capacity for damage to the national interest in the maintenance of proper immigration control is substantial if Colleges are not assiduous in meeting their responsibilities. In these circumstances, it seems to me that the Defendants are entitled to maintain a fairly high index of suspicion as they go about overseeing colleges and a light trigger in deciding when and with what level of firmness they should act. 61. My view would have been that any failure, after an initial warning, to maintain the records necessary to guarantee that the arrangements are not being abused might well justify revocation.”

[28]In Westech College Silber J, having cited Mr Garnham’s comments with approval, pulled together the principles which he had deduced and set out his view as to the respective roles of the defendant and the Administrative Court in the following terms: “…, I must bring my points together, which are that:-(a) Both before and after the Tier 4 regime came into force, a substantial number of those immigrants who are in this country illegally came in first on student visas and then started working illegally either during the period covered by their student visa or when it had expired;

(b) A fundamental principle of the sponsorship system requires the UKBA to trust a sponsor to a very substantial extent because sponsors play a crucial role in ensuring that those granted student visas comply with their obligations and in particular they should ensure that unless students obtain permission, they do not work during or after the period covered by their visa and that leave when their visa has expired;

(c) UKBA has the difficult and crucial task of carrying out inquiries to ensure not only that the sponsors have complied with their obligations but also that they will comply with them in the future. The importance of their policing role cannot be overstated;

(d) The courts should respect the experience and expertise of UKBA (which the courts do not have) when it reached conclusions relating to the issue of whether any acts or omissions of sponsor might suggest that it has not complied with its obligations or that it might not comply with its obligations set out in the Guidance, which is vitally necessary to ensure that there is effective immigration control;

(e) The function of the courts is as Richards J explained in the passage set out in paragraph 28 above in the Bradley case "not to take the primary decision but to ensure that the primary decision-maker has operated 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";

(f) As explained in paragraph 27 above, the basic rule is that where there is a dispute on evidence in a judicial review application, then in the absence of cross-examination, the facts in the defendants' evidence must be assumed to be correct. An exception to this rule arises where the documents show that the defendant's evidence cannot be correct. The proper course for a claimant who wishes to challenge the correctness of an important aspect of the defendant's evidence relating to a factual matter on which the judge will have to make a critical factual finding is to apply to cross-examine the maker of the witness statement on which the defendant relies; and that

(g) "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 when 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 in the use of language which a lawyer might be expected to adopt." per Lord Browne-Wilkinson (with emphasis added) giving the only reasoned speech in Reg. v. Bishop Challoner School, Ex p. Choudhury

[1992] 2 AC, 182

,197E.” [para 29]

[29]In Raj and Knoll although the Court of Appeal did not decide the issue of the standard of review to be adopted by the court, because of the nature of the breaches of the Guidance by the Appellant, it nevertheless made its views on the issue plain in paragraph 32 of the judgment where Tomlinson LJ said:

“I was not however immediately impressed by the submission that the supervision of this scheme by the SSHD attracts an enhanced standard of judicial scrutiny. The mere fact that the decision-making in this area may have serious commercial consequences for licensed sponsors is not of itself a reason to impose heightened scrutiny. The circumstance that the SSHD has special expertise in and experience of decision-making in this field, and that the court possesses no particular institutional competence and can claim no special constitutional legitimacy militates against that submission – see per Lightman J in R (Cellcom) v DG of Telecoms [1999] ECC 314 at paragraph 26 and per Laws LJ in R (Law Society) v London Criminal Courts Solicitors' Association [2015] EWHC 295 (Admin) at paragraphs 32 and 33. It is also clear that the exercise in which the SSHD is engaged involves no fundamental right of the Appellant but on the contrary a right contingent upon adherence to the rules: cf per Lord Sumption, R (New London College Ltd) v Secretary of State for the Home Department, in the passage cited at paragraph 2 above.”

[30]Before leaving the law I should finally refer to the decision of the Court of Appeal in R(FDA and others) v Secretary of State for Work and Pensions [2012] EWCA Civ in the light of which I will consider the defendant’s argument that even if it has erred in some respects nevertheless it would have come to the same decision and that decision is nevertheless lawful. One of the issues before the Court of Appeal in FDA was the impact on the validity of a decision of the decision-maker having taken into account a legally irrelevant matter. Lord Neuberger MR held that the normal principle was that the decision was liable to be held to be invalid unless the factor played no significant part in the decision-making exercise but that even where it played a significant or substantial part in the decision-maker’s thinking the decision may exceptionally be upheld if the court is satisfied that without the irrelevant factor the decision-maker would have reached the same conclusion (paras 67 and 68).

The factual context

[31]The claimant company runs an Indian restaurant in Southall, London under the name Mirch Masala Restaurant, having started trading in April 2004. Mr Salman Iqbal is the claimant’s director and has at all material times been the main contact for the licence, referred to under the scheme as the “Authorising Officer” and the “Key Contact”. The claimant has always employed between 15 and 20 staff and at the time of the decision four of those staff were Tier 2 sponsored migrants. The total number of staff employed by the claimant from time to time varied according to the seasonal workload. On 24 March 2009 the claimant applied for a Tier 2 Sponsor licence which was approved on 14 July 2009, with a B rating, a transitional stage which gives limited rights to the sponsor and is intended to be a temporary rating until an A rating is achieved which confers full sponsorship rights. The reason given in the defendant’s letter of 14 July 2009 for not according an A rating to the claimant initially was that the claimants Human Resources systems were not of the standard required by the UKBA. An action plan was agreed and later that year, on 18 November, the licence was upgraded to an A rating. The letter containing that decision reminded the claimant, in bold type, of the need to comply with a sponsor’s duties. The claimant was authorized to issue five Tier 2 General CoS at that stage. On 13 August 2013 the licence was renewed; the renewal letter contained the same reminder as to a sponsor’s duties. Following a compliance visit on 4 September 2013 the A rating was maintained.

[32]On 9 October 2014 an unannounced compliance visit took place in the course of which the compliance officers interviewed three sponsored migrants. Ms Chopra, of the defendant Department, interviewed Mr Amer Bin Ibrahim and Mr Tahir Iqbal. Ms Christina Zaki, also of the defendant Department, partially interviewed Mr Orangzeb Warrich but had difficulties understanding him and therefore her interview of Mr Warrish was aborted. I have read copies of the interview records which were taken at the time on what appear to be standard form documents entitled “Migrant Interview Record. For use with Tier 2 and 5 Visits. Version 2.1”. Those records, once completed, were signed by the interviewees beneath a declaration which reads:

“I have been informed that the purpose of the interview was to verify that the information provided by the Sponsor to the Home Office/UKVI 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.”

The purpose of the various declarations in the records of interview is to enable the decision-maker to be satisfied that the information recorded is what was provided by the various interviewees.

[33]In his interview notes Mr Ibrahim is said to have described his job as that of an assistant purchasing director. An answer to a question on the penultimate page of the interview record indicates that he said to Ms Chopra that he had no previous work experience; although he challenges having said that Ms Chopra is of the view that her record of his answer is accurate. Ms Chopra had noted that he wore the same uniform as a waiter and that he was seen taking orders from a customer. In Mr Tahir Iqbal’s interview he described himself as a curry chef but also explained that he undertook management responsibilities every day, as well as working as a waiter and looking after customers once he had finished preparing the curry.

[34]Ms Zaki did partially complete an interview record for Mr Warrich but because of the difficulties in communicating the interview was not completed, although I note that Mr Warrich signed the declaration on the final page of the document as his colleagues had done on theirs.

[35]Mr Salman Iqbal, the claimant’s director, had not been at the restaurant at the time of the visit and so, by arrangement, Ms Chopra returned the following day, namely 10 October 2014, to interview him as well: I have also seen a copy of his interview record, called a “Sponsor Interview Record”, which is signed by him. The declaration under which Mr Salman Iqbal’s signature appears is more extensive than the declaration made by the employees at the end of their interview records but essentially confirmed that he understood the purpose of the interview and the questions asked, he had been given the chance properly to answer the questions and that his answers were true. The form is much more substantial than those completed in respect of the employees.

[36]Ms Chopra was accompanied by Mr Sanjiv Gupta of the defendant Department on this occasion: while Ms Chopra interviewed Mr Iqbal, Mr Gupta checked several of the claimant’s files relating to the migrant workers. During the course of the visit, which lasted more than 5 hours, the compliance officers asked to see records relating to the recruitment of Mr Noor Muhammad but they were not then available: some documents were later sent by email on 15 October to Ms Chopra. The claimant says that the documents had been with the solicitors who had been dealing with Mr Muhammad’s immigration status. The defendant accepts that the email of 15 October was sent to Ms Chopra but that it was not forwarded by her to the Sponsor Compliance team.

[37]Thereafter Ms Chopra prepared an internal document known as a Compliance Visit Report, which was countersigned by Ms Zaki, and dated 23 October 2014 in which she analysed the interviews and recommended that the claimant’s sponsorship licence be suspended or revoked.

[38]By a letter dated 31 October 2014 from the Sponsor Compliance Team Mr Iqbal was informed that the defendant had revoked the claimant’s sponsor licence and removed the claimant from the Register of Licensed Sponsors. In essence the defendant revoked the licence because in the view of her officials grounds for revocation had been made out in that:(1) Mr Amer Bin Ibrahim, Mr Tahir Iqbal and Mr Irfan Ahmed Mohammed were not doing the jobs and performing the roles for which they had permission under their Certificates of Sponsorship, namely purchasing director, curry chef and marketing director respectively. The defendant concluded that Mr Amer Bin Ibrahim was dressed and acting as a waiter and was undertaking tasks suited to a more junior member of staff, Mr Tahir Iqbal spent two hours a day making curry and the majority of his time undertaking management and administrative tasks and although Mr Irfan Ahmed Mohammed had not been present, when Mr Salman Iqbal was interviewed about him he was unable to provide details of Mr Mohammed’s role or of what he had achieved as marketing director;

(2) the claimant had failed to comply with its record keeping duties by:

a. not recording that Mr Iqbal and Mr Ibrahim were living above the restaurant and therefore receiving a benefit in kind as part of their salary packages;

b. not keeping interview notes relating to its recruitment processes to show why they had not employed EEA nationals (the Resident Labour Market Test),

c. not keeping accurate salary information in that there was a discrepancy in the information relating to the salary of Mr Iqbal;

(3) by not keeping track of the migrant workers’ whereabouts or of their immigration status in that a. there was no system to record absences; Mr Shafiq Ambreen was on leave, but this was not recorded; b. there had been no report of the fact that Mr Ibrahim and Mr Mohammed had missed their first day of work; c. there had been no report of the fact that Mr Imran Shahid and Mr Orangzeb Warrich had moved into a different immigration route, and therefore no longer needed a sponsor. The letter referred to specific mandatory grounds contained in Annex 5 of the Guidance, namely 5t) and 5ad), and the discretionary grounds contained in Annex 6, namely 6g), j) and o), as entitling the defendant to revoke the claimants’ sponsor licence.

[39]On 13 January 2015 the claimant sent a pre-action protocol letter to the defendant answering the allegations made in the defendant’s letter of 31 October and asking for a review of the decision. Further documentation relating to Mr Ibrahim and Mr Mohammed was attached for the defendant’s officials’ consideration. It was said that the reason that the documents relating to Mr Mohammed were not available at the date of the visit was that they had been retained by the solicitors who had recently dealt with the application for his sponsorship.

[40]In the reply dated 27 January the defendant stated that the information provided by Mr Iqbal in his letter of 13 January had been considered but she maintained her decision to revoke the claimant’s sponsor licence. In that letter the defendant stated that she no longer relied on Mr Ibrahim’s job title as a proper ground for revocation but that the other grounds justified her decision. She explained that she had referred a complaint made by Mr Iqbal about the behavior of the compliance officers during the course of their visit to the officers’ line manager for further investigation. The letter wrongly stated that the claimant had not responded to the request to submit further documentation.

[41]That assertion was corrected in a letter dated 10 September 2015 in which the defendant accepted that the claimants’ email had in fact been received, but not been passed on to the appropriate person. However, the defendant’s letter went on to explain that the documents which had been sent under cover of the letter of 15 October did not address the issues which they were intended to deal with and there was nothing in the material which had been provided to the defendant which would have altered the decision to revoke the licence. In particular the claimant had failed to provide any interview notes from its RLMT in respect of Mr Noor Muhammad to show why the claimant had to employ him rather than an EEA national:

“RLMT and Noor Mohammed We note that no interview records were attached to the email of 15 October 2014. Failure to provide interview notes was the reason given for revocation in our decision letter. It is your duty as a sponsor licence holder to ensure that you retain all documentation in relation to the RLMT. The fact that you have failed to provide evidence to support that this was carried out has failed to satisfy the issue which was raised in our decision letter of 31 October.”

[42]I have been taken to and have read the witness statements of Mr Salman Iqbal (of 28 May 2015), Mr Tahir Iqbal (also of 28 May 2015) and Mr Amer Bin Ibrahim (of 9 March 2015) for the claimant and that of Ms Rupinder Chopra (of 14 July 2015), a compliance officer within the defendant’s Sponsor Compliance Unit. Although there are some challenges to the accuracy of Ms Chopra’s evidence there was no application to cross-examine her and no reason why I should not accept her evidence as to the accuracy of the interview process particularly where the notes recording the relevant questions and answers have all been signed by the interviewees. Further, as a matter of law the decision-maker was entitled to form her view and make a decision based on the material before her at the time, namely the signed interview notes and documents subsequently submitted, as opposed to any material which the claimants might now seek to rely on.

The claimant’s submissions

[43]The claimant contends that the decision to remove its Tier 2 Sponsor status was irrational, disproportionate, based on incorrect facts and material misunderstandings and unlawful. The first way in which the claimant puts its case is that the decision took into account irrelevant, ambiguous, unclear or false information. The allegedly incorrect information relied on by the claimants is(i) that Mr Ibrahim had said that he was an Assistant Purchasing Director, whereas his role was supposed to be that of a Purchasing Director – the defendant accepted this inaccuracy in her letter of 27 January 2015,

(ii) it was alleged by the defendant that Mr Ibrahim had said that he had no previous work experience whereas in interview he had given details of his previous employment as an Assistant Purchasing Director with same employer,

(iii) that the claimant had failed to produce interview notes relating to Mr Noor Mohammed whereas there is no evidence that any request to produce them had been made and

(iv) the decision letter referred to Mr Ibrahim having been seen acting as a waiter on several occasions whereas the interview notes only refer to one such occasion.

[44]Secondly, the claimant submits that the decision maker failed to take into account relevant information in the form of the documentation which Mr Iqbal sent on to Ms Chopra after the second visit but which she in turn failed to refer to the decision maker until after the decision to revoke the licence had been taken.

[45]The claimant’s third submission is that the decision maker found fault where there is no obligation to act in that the defendant’s officers criticized the claimants for failing to disclose that two of the sponsored migrants lived above the restaurant rent-free when there was no obligation on the claimant to disclose such information because it was not a change of salary about which the claimant was bound to notify the defendant: free accommodation does not fall within the notification requirements.

[46]Fourthly the claimant says that the decision wrongly blamed the claimant for not notifying the defendant that two workers had not attended on the first day of their employment and two had moved onto a different immigration route when both sets of events had been caused by or were within the knowledge of the defendant’s own officials and she should therefore have been aware of this information in any event.

The defendant’s submissions

[47]The defendant submits that when they visited the claimants’ premises her compliance officers found a number of significant failings, some of which are not challenged, and that even if there is some arguable merit in some of the individual complaints (which the defendant does not accept) that does not render the decision unlawful. Further, I am asked to note that the consequence of revocation of the claimant’s Sponsor Licence is not that the claimant’s business has to close but merely that it cannot employ workers from outside the EEA requiring sponsorship through Tier 2 (General) of the Points Based System.

[48]The defendant says, in essence, that(i) the claimant challenges a number of isolated elements of the decision but, whatever the merits of those arguments, in the light of the wider picture of breaches of duty by the claimant there were good and valid grounds for the defendant’s decision to revoke the licence,

(ii) the defendant’s conclusion that in respect of three of the employees their CoS were not genuine or their actual work did not meet the description given in their CoS were each sufficient grounds of their own to justify the decision to revoke and there was sufficient material from the interview notes on which the decision-maker could properly reach her conclusions,

(iii) the claimants could not produce the documents to satisfy the defendant that in respect of Mr Mohammed the Resident Labour Market Test had been carried out, and

(iv) there was a number of other breaches of record keeping and reporting duties which led to a breakdown in the trust reposed in the claimants.

[49]As to the first and second of the claimant’s grounds the defendant submits that the material on which the decision was made concerning the role in the business performed by Mr Ibrahim, and on which she was entitled to rely, pointed overwhelmingly to the conclusion that he was working as a waiter and not as a purchasing director. In relation to the Resident Labour Market Test the defendant submits that the claimant was not under any misapprehension as to the need to produce documents to show that the appropriate test had been carried out and that the employment of Mr Noor Mohammed met the relevant criteria: the emails of 14 and 15 October 2014 evidence the fact that Mr Salman Iqbal understood that the issue was whether the job vacancy had been genuine and the documents which he was to supply were intended to address that concern.

[50]The defendant’s response to the claimant’s third ground is that the proper construction of sub-paragraph 26.10(b) of the Guidance, when set against sub-paragraph 26.14(d), required the claimants to disclose that Mr Tahir Iqbal and Mr Ibrahim live above the restaurant rent-free. In any event the defendant submits that there are further more significant breaches of the Guidance justifying the decision to revoke in any event.

[51]As to the fourth ground, the defendant reminds me that the Guidance (paragraphs 15.7(a) and (c)) requires a sponsor to report if a migrant does not turn up for work or moves into a different immigration route and the fact that another part of the defendant Department granted the two workers indefinite leave to remain is beside the point: the obligation to report is clear and the claimant failed to comply with it, whatever the reason or merits of the obligation in the present case. It is noted that the claimant does not challenge the other breaches of record-keeping and migrant monitoring relied on by the defendant in the decision letter.

Discussion

[52]The grant of a Tier 2 Sponsor Licence confers serious, but not onerous duties, on the licensee requiring a sponsor to play their part in ensuring that the sponsorship system is not abused. A sponsorship licence is of value to the employer and the claimant reminds me that the consequences of revocation of a Tier 2 licence may be significant because it says that it could no longer employ staff who are not otherwise allowed to work in the United Kingdom to meet the needs of the business, a point emphasized by Mr Salman Iqbal in his witness statement. However, as the citations above show,(1) the revocation of a licence only means that an employer cannot grant CoS to migrant workers, it does not stop the employment of any workers who otherwise have a right to work in the UK and does not require cessation of a business, and

(2) there is no fundamental right engaged by the revocation of a licence, the claimant voluntarily entered into a scheme which conferred rights on them which were conditional on compliance with the relevant rules. If the rules were not complied with the claimant could no longer exercise the rights and the defendant was entitled to revoke their licence which permitted them to exercise those rights.

[53]There has been a challenge to a number of aspects of the decision, which I have summarised above, arguing that those aspects of the decision were flawed. I accept the submission of the defendant that, as in Raj and Knoll, the claimant has challenged part of the grounds relied on by the decision maker, but not others but that one must look at the decision as a whole. The defendant accepts that two errors occurred in the process of making the decision but in my judgment those errors do not render the decision unlawful. The original decision letter covered a lot of ground. It identified a number of breaches, some arguably more serious than others, each of which alone could properly have been relied on to justify revocation of the licence. It must also be noted that the claimants do not challenge a number of the conclusions reached by the defendant about breaches of the Guidance, which give rise both to discretionary and mandatory grounds for revocation. Following the numbering which I have used in paragraph 38 above, there has been no pleaded challenge by the claimants to the defendant’s conclusions that (1) Mr Irfan Ahmed Mohammed was not working in the role indicated on the CoS assigned to him, (2)(c) there was a discrepancy in the records relating to the salary of Mr Tahir Iqbal, (3)(a) there was no system to record absences and no record of Mr Shafaq Ambreen being on leave. These on their own gave rise to mandatory and discretionary grounds of revocation under Annex 5 paragraph 5ad) and Annex 6 paragraphs 6g) and 6j) justifying the decision of the defendant and, insofar as there were discretionary grounds for revocation the defendant was entitled to come to the conclusion that there were no exceptional circumstances which should have caused the defendant not to revoke the claimant’s licence. Once the letter is considered as a whole it is plain that the decision of the defendant and the route by which it was reached is unimpeachable. Despite the acceptance by the claimant that the defendant was entitled to employ a light trigger there was no need in this case, as again in Raj and Knoll, given the extent of the breaches which the defendant found and, in my judgment, was entitled to find.

[54]The fact that the letter contains one erroneous ground, namely Mr Ibrahim’s job title, does not invalidate it. The error had been accepted by the time of the review in January 2015 when the defendant looked at the arguments which had been made by the claimants and took them into account. The claimants’ views had been “heard” and there was no breach of natural justice. However, the review maintained the decision on all the other grounds. The situation is slightly different to that which the Court of Appeal had to consider in the FDA case: but it is plain that the defendant would have come to the same decision in any event because of all the other breaches of the Guidance which in her view had been established. The fact of admission of the error and reconsideration of the decision puts the matter beyond doubt in my view: there was no procedural unfairness and the fact of taking the erroneous allegation into account did not vitiate the decision. In the light of all the material before me it would not, in any event, be a proportionate or fair outcome for the decision to be quashed on this ground and remitted for reconsideration on the same material.

[55]Although in written and oral argument the claimants sought to challenge the factual conclusions reached by the compliance officers and the decision maker about the work which Mr Ibrahim and Mr Tahir Iqbal were actually undertaking there is no substance to the challenge. There was criticism in correspondence and at the hearing of the approach taken by the compliance officers to the interview process so far as he was concerned and it was suggested that they had been guilty of exaggeration and of noting inconsistent evidence. The interviews are a key part of the monitoring and investigation process. The introductory sections of the interview record, which the interviewees are asked to read before answering questions, make the purpose of the interview quite plain, namely whether the requirements of the Points Based System continue to be met and whether the Sponsor is complying with its duties. Paragraph 4 of the section of the Sponsor Interview Record headed “Interview Details” reminds interviewees that the information will be used to make an assessment which could result in the licence being suspended or revoked. There could have been no doubt about the importance of the interviews or the possible consequences if the information provided by the interviewees (or indeed the failure to provide information) disclosed a breach of the Guidance. There was no request to cross-examine Ms Chopra and in my judgment the claimants cannot seek to go behind or impugn the accuracy of her notes although they are entitled to point out internal inconsistencies and conflicts with other material. I am entitled, it seems to me, to accept Ms Chopra’s evidence that the interview notes are a genuine record of the information which was provided in the course of the interviews. In so far as the interview notes and other materials contain conflicting information and what appear to be discrepancies it is for the decision maker to find the facts and resolve any alleged inconsistencies and discrepancies, not the court. The interview notes described Mr Ibrahim’s uniform, that he had been seen working as a waiter and gave a description of his work which did not fit with his assigned role. The interview notes contain the details of what Ms Chopra was told by Mr Iqbal about his duties. The accuracy of the notes cannot now be gainsaid. There was sufficient material here to justify the conclusions reached by the defendant in respect of Mr Ibrahim and Mr Iqbal and, in the light of that material, the conclusion cannot be described as irrational or unreasonable even if other fact finders might have come to different conclusions. There was, as I have said, no challenge made to the conclusion reached in respect of Mr Irfan Ahmed Mohammed, which gave rise to a mandatory ground of revocation on its own.

[56]Nor, in my judgment, is there any substance in the arguments that in respect of Mr Noor Mohammed not only is the defendant at fault for not taking account of documents supplied between the original decision and the review but the claimant cannot be criticized for failing to provide copies of documents which were not specifically asked for. It seems to me that the assertion that the defendant’s officials may not specifically have requested the claimant to produce interview notes to demonstrate that a proper Resident Labour Market Test had been carried out misses the point. The Resident Labour Market Test is crucial to the operation of the Tier 2 (General) part of the scheme (see paragraph 28.1 of the Guidance). It is only if the test demonstrates that there is no settled worker to fill the relevant vacancy that the sponsor may employ a migrant worker and assign a CoS. The employer is trusted to operate the test correctly. The record keeping requirements relating to the operation of the test are not burdensome: the nature of the documents to be kept is clear, they are specified in Appendix D of the Guidance and include the requirement that the notes show the reasons why the interviewees who are EEA nationals have not been employed. Additionally a sponsor knows that he may have to produce such documents. Equally the defendant is entitled to examine the documents and ask for them to be produced and to expect them to be produced without delay. It is perhaps the only effective way of monitoring the sponsor’s compliance with the requirements relating to the Resident Labour Market Test. In my judgment the defendant does not have to spell out precisely what documents the employer needs to produce. In any event in this case, as the defendant asserts, the claimant well understood (as is plain from the emails of 14 and 15 October 2014) that the genuineness of the vacancy filled by Mr Noor Mohammed was in issue and consequently that the documents evidencing the proper operation of the Resident Labour Market Test were what were to be provided to the defendant. No interview notes were available when Ms Chopra visited the restaurant and no interview notes were attached to the email of 15 October 2014. That the email was not forwarded by Ms Chopra to the decision-maker is therefore irrelevant: it could not have made any difference because it did not attach the interview notes. The email and its attachments were not capable of satisfying the defendant that the claimant had complied with their duty to undertake an appropriate Resident Labour Market Test or with their duty to maintain records of it and it could not have made a difference to the decision which was made. The defendant was therefore entitled, as a matter of law, to rely on these failures as grounds for revoking the licence under paragraphs 5(t) and 6(j) of the two Annexes.

[57]I have also come to the conclusion, as a matter of law, that on the proper construction of sub-paragraph 26.10(b) of the Guidance the defendant was right to find that the failure to report that Mr Iqbal and Mr Ibrahim had been provided with rent-free accommodation was a breach of the claimant’s obligation to give specified information about the migrant workers’ salary packages. Paragraph 26.10 requires the sponsor to provide information about the migrant’s salary package including “a separate figure for the total of all allowances”. Although, as the claimants rightly say, this does not specifically refer to benefits in kind it seems to me that this ignores the other rules and the terms and policy of the Tier 2 scheme, which are part of the context in which the provision has to be construed. To ensure compliance with the Tier 2 sponsorship scheme and fulfilment of the policy behind it, the defendant needs to know what the salary package for a migrant worker is worth and whether it meets the criteria for the role and the salary rate specified for that role in the SOC. Paragraph 26.14 identifies what the sponsor is not to include as part of the salary package when the details of it are provided in accordance with the duty imposed by paragraph 26.10. In paragraph 26.14(d) the Guidance a sponsor is not to include as part of the salary allowances which the employee is liable to reimburse. In that subparagraph the meaning of the word “allowance” is clarified by the words in brackets which immediately follow it, namely “(monetary or in kind)”. Thus benefits in kind which are to be reimbursed by the employee are not to be included as part of the salary package. It therefore follows in my judgment that, first, benefits in kind which are not to be reimbursed are intended to form part of the salary package and need to be declared and, secondly, the word “allowance” in sub-paragraph 26.10(b) is to be construed in the same way as the word when used in sub-paragraph 26.14, or at least there is no good reason for not construing the word in the same way as including benefits in kind. In my judgment the provision of rent free accommodation is a benefit in kind properly so called, because it is a benefit and it does not take the form of a “monetary” payment by the employer to the employee: it is therefore an allowance within the meaning of that word in these sub-paragraphs. Given that the benefit is said to be provided “rent-free” the proper inference is that it is not to be reimbursed, or the value paid, by the employee to the employer. Accordingly the provision of rent-free accommodation is to be declared as part of the salary package either because it falls within the construction of allowance or it is not excluded by sub-paragraph 26.14(d). The failure to provide the information gives rise to a discretionary ground of revocation within paragraph 6(j).

[58]Finally, I do not accept that that it was irrational or unreasonable for the defendant to decide to revoke the claimant’s licence for failing to update their records to show late start dates for Mr Ibrahim and Mr Mohammed and that Mr Shahid and Mr Warrich had moved into a different immigration route, and had then been granted indefinite leave to remain. Those failures may be characterized as technical in one sense, but the scheme requires the information to be provided for very good reason, underpinning the trust placed by the defendant in sponsors and, whether the failure is technical or not, it is still a failure to comply with the obligations, which are the price of being able to exercise the rights under the scheme, and entitles the defendant to rely on discretionary ground of revocation 6(j). That another part of the Home Office might have caused the relevant event giving rise to the new information and/or known about the relevant information is not relevant. There is a plain duty to record it. The sponsor does not have a choice. Moreover, as Tomlinson LJ held in Raj and Knoll, the defendant is not expected to “piece together information as if she were completing a crossword puzzle”.

[59]Revocation of a Tier 2 sponsor’s licence will follow when a mandatory ground is established and, save in exceptional circumstances, is to be expected when a discretionary ground is made out. In this case the defendant found nine different breaches of the Guidance, of which four gave rise to mandatory grounds for revocation (one of those was not challenged). The defendant was entitled to reach the conclusion that she no longer trusted this sponsor and that the licence should be brought to an end. There was ample material on it was open to the defendant to reach the conclusions she did.

Conclusion

[60]In my judgment the decision was lawful, there is no basis on which it could or should be quashed. Nor is there any basis on which the claimant could properly claim damages. I therefore refuse to grant any of the relief sought by the claimant.