R (TJ Trading Express Limited) v Secretary of State for the Home Department [2025] EWHC 1274 (Admin)

[2025] EWHC 1274 (Admin)Case No AC-2024-LDS-000131
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue SITTING IN LEEDS, Leeds Combined Court Centre
The Courthouse
1 Oxford Row
Venue LeedsDate 22/05/2025
LS1 3BG
Before
MRS JUSTICE HILL DBE
Between
R (TJ TRADING EXPRESS LIMITED)ClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Zane Malik KC and Arif Rehman (instructed by Lawfare Solicitors) for ClaimantMichael Biggs (instructed by Government Legal Department) for Secretary of StateHearing Hearing date: 8 May 2025
JUDGMENTApproved JudgmentThis judgment was handed down remotely at 10.30am on 22 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MRS JUSTICE HILL

Introduction

[1]The Claimant is a company which operates a petrol station and a convenience store. By this claim it seeks judicial review of the decision of the Defendant Secretary of State dated 6 March 2024 to revoke its licence as a sponsor to employ skilled migrants for its business. The Secretary of State had revoked the licence because the Claimant’s director had assigned a Certificate of Sponsorship (“CoS”) to his brother-in-law in respect of a vacancy at the petrol station which the Secretary of State suspected was not genuine.[2]On 11 September 2024 permission was granted by His Honour Judge Saffman, sitting as a Judge of the High Court.[3]The Claimant initially advanced four grounds of judicial review, but only pursued Grounds 1 and 3 at the substantive hearing. Accordingly, the issues are:(1) Whether in revoking the Claimant’s sponsor licence without giving it an opportunity to make representations, the Secretary of State acted in a procedurally unfair manner by reference to common law principles and the relevant guidance (Ground 1);(2) Whether the Secretary of State erred in her approach to the issue of whether there was a genuine vacancy for the role in question, including by reaching an inadequately reasoned conclusion or irrational conclusion on this issue (Ground 3); and(3) Whether, even if proven, any errors were immaterial to the outcome and/or whether it would be appropriate to withhold relief under section 31(2A) of the Senior Courts Act 1981 (materiality / section 31(2A)).[4]I have been greatly assisted by the excellent written and oral submissions from all counsel.

The sponsor licence scheme and the relevant guidance

[5]The Secretary of State is responsible for operating and enforcing the system of immigration control, including awarding licences to employers who may then grant Certificates of Sponsorship to workers as permitted by the licence.[6]The provisions governing the sponsorship scheme are set out in non-statutory guidance, the legal basis for which was described in R (New London College Ltd) v Secretary of State for the Home Department [2013] UKSC 51, [2013] 1 WLR 2358 at [28]-[29]. At the time of the decision the relevant guidance was Workers and Temporary Workers: Guidance for Sponsors, version 03/23, published on 31 March 2023 (“the Guidance”). The Guidance is in three parts. Part 1 addresses applications for a sponsor licence. Part 2 provides general information as to how to sponsor a migrant, and as to what is expected of a sponsor. Part 3 concerns “sponsor duties and compliance”. It sets out the duties that a sponsor must observe and specifies the consequences where those duties are breached. The current version of Part 3, version 10/24, is materially similar to version 03/23.[7]Insofar as is relevant to this claim, the Guidance contains(i) obligations to comply with immigration laws, including not assigning a CoS where there is no “genuine vacancy” and disclosing (by adding a sponsor note) if a CoS is assigned to a family member (paragraph C1.38);(ii) provisions addressing what are considered to be genuine vacancies (paragraphs C1.44 and C.146);(iii) guidance as to when and how a licence will be suspended (section C9) or revoked (section C10), both of which sections include a power to suspend the licence pending further investigation or to revoke the licence immediately (paragraphs C9.7 and C10.4);(iv) a timetable for representations to be made if the licence is suspended (paragraph C9.11et seq); and(v) a table of grounds on which the Defendant “will” revoke the licence (Annex C1), as well as tables of grounds on which the Defendant “will normally” or “may” revoke the licence (Annex C2 and C3 respectively). The grounds in Annex C1 are referred to as “mandatory” grounds. They include that a CoS has been assigned to a “close relative” (the definition of which includes a brother-in-law), unless one of certain exceptions applies (ground (o)); and that there are reasonable grounds to believe that the role for which the CoS has been assigned is not genuine (ground (z)). These provisions are set out in full in Appendix 1 to this judgment.

The factual background

[8]The Claimant is a limited company incorporated on 25 June 2019. Its registered address is in Brough near Hull. On 21 July 2022 it applied for a skilled worker sponsor licence, which was granted on 27 September 2022. The Claimant’s director is Jayaganth Ragunathan. For the purposes of the licence, Mr Ragunathan was the “level 1 user” of the Secretary of State’s Sponsor Management System (“SMS”), permitted to issue a worker with a CoS. As at the date of revocation, the company had sponsored three workers.[9]On 15 November 2023 Mr Ragunathan issued a CoS to Sukirthujan Sivalingam identifying the job to be carried out as a Petrol Station Manager. The Secretary of State’s checks revealed that Mr Sivalingam is Mr Ragunathan’s brother-in-law.[10]On 6 March 2024 the Secretary of State revoked the Claimant’s sponsor licence with immediate effect, without notice. The letter communicating the decision to the Claimant was sent from a Senior Caseworker within the Secretary of State’s “Sponsor Compliance Team - Work Routes”. It stated that the Secretary of State had decided to revoke the Claimant’s sponsor licence “with immediate effect, as our enquiries strongly indicate that you are failing to comply with your sponsor duties”.[11]The letter continued: “3. On 15 November 2023, you assigned a Certificate of Sponsorship (CoS) to Sukirthujan Sivalingam (C2G2H28354W), to work as a ‘Petrol Station Manager’ under Standard Occupational Classification (SOC) code 1190, Managers and directors in retail and wholesale. 4. Our investigations reveal, you, as the Level 1 user named on the licence assigned this CoS to a close relative. By ‘close relative’ we mean:• a spouse or civil partner• an unmarried partner• a parent or step-parent• a son or step-son• a daughter or step-daughter• a brother, step-brother or half-brother• a sister, step-sister or half-sister• a nephew, niece, cousin• an aunt or uncle• a father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law or daughter-in-law 5. Review of our records confirm that your wife, Siyalini Jeyaganth’s brother is Mr Sivalingam as they share the same parents, as those stated on his visa application. You have therefore assigned the above CoS to your brother-in-law. 6. The Sponsor Guidance makes it abundantly clear that you must disclose, by adding a sponsor note on the CoS, if you assign a CoS to a close relative. Our records show that you failed to disclose the above information on Mr Sivalingam’s CoS. 7. In view of the above, we believe that the role of ‘Petrol Station Manager’ was created solely to facilitate Mr Sivalingam’s entry to or stay in the UK. As a result, we believe you are in breach of your sponsor duties”.

daughter-in-law

[12]The letter quoted the provisions of paragraphs C1.38, C1.44 and C1.46. It then referred to ground (o) in Annex C1 of the Guidance, saying: “11. This issue alone is sufficient to revoke your sponsor licence”.[13]The letter then quoted ground (z), before again stating: “13. This issue alone is sufficient to revoke your sponsor licence”.[14]The letter concluded as follows:
“Decision 14. We maintain that the issues described above constitute a failure by you to comply with your sponsor duties, and as a result, your sponsor licence has been revoked. There is no right of appeal against this decision. 15. Whilst we acknowledge the potential impact that revocation may have, UKVI has a duty to ensure that all licensed sponsors adhere to the duties and responsibilities outlined in the published Guidance for Sponsors. The Guidance for Sponsors makes it clear that sponsorship is a privilege, not a right and that alternative action such as downgrading a licence is appropriate if circumstances limited to those listed in Annex C2 or Annex C3 arise. Paragraph C10.4 of the Workers and Temporary Workers: Guidance for Sponsors (part 3) states that: Annex C1 of this document sets out the circumstances in which we will revoke your licence – these are known as ‘mandatory’ grounds of revocation. If any of these circumstances arise, we may revoke your licence immediately and without warning. 16. You have acted in contravention of a number of issues contained in the Workers and Temporary Workers: Guidance for Sponsors. We are satisfied that each of the following, individually and cumulatively, are a necessary basis for revocation: General Sponsor Duties (Annex C1 o) and z)). 17. From the date of this letter, you are no longer licensed to issue further CoS”
. Annex C1 of this document sets out the circumstances in which we will revoke your licence – these are known as ‘mandatory’ grounds of revocation. If any of these circumstances arise, we may revoke your licence immediately and without warning.[15]The letter then explained the effect of the decision, namely that after the date of revocation, the Claimant’s existing sponsored workers would be notified that their permission to stay in the UK had been shortened, during which time they could either seek an alternative way to regulate their stay including seeking employment at a different sponsor or leave the UK. The letter reiterated that while the Claimant could no longer recruit sponsored workers under Skilled or Temporary worker routes, it could continue to recruit UK nationals, EEA and non-EEA nationals that have the right to work in the UK.

The procedural history

[16]On 15 March 2025 the Claimant’s solicitors served a letter of claim on the Secretary of State, challenging the decision. The letter enclosed witness statements and other evidence about the process of recruiting Mr Sivalingam. In summary, it was the Claimant’s position that the job at the petrol station was a genuine vacancy which had been advertised, and that Mr Sivalingam had been the successful candidate through a proper process.[17]A statement was provided from Mr Ragunathan dated 8 March 2024. This was to the effect that although he had made an error with respect to the assignment of the CoS, this was unintentional. If he had been given the opportunity to make representations, he would have said that he had tried his best to follow the rules. He also explained that the company had commissioned external training to assist them in improving their systems. He set out the significant detrimental effect revocation would have on the company.[18]A statement was also provided from Sangeetha Deenathayalan dated 8 March 2024 in respect of the process of interviewing Mr Sivalingam.[19]On 28 March 2024 the Secretary of State replied to the letter of claim, maintaining the 6 March 2024 decision.[20]On 23 May 2024 this claim was issued.

The legal framework

(i) : The statutory context

[21]The legal principles governing the system of sponsorship were considered very recently by the Court of Appeal in R (Prestwick Care Ltd and others) v Secretary of State for the Home Department; R (Supporting Care Ltd) v Secretary of State for the Home Department [2025] EWCA Civ 184. At [19] Baker LJ, with whom Jeremy Baker and Singh LJJ agreed, confirmed that the relevant principles apply to both the Tier 2 and the Tier 4 schemes, which relate, respectively, to the sponsorship of skilled workers and colleges who sponsor students.[22]At [21], Baker LJ cited the key principles, reiterated by Haddon-Cave LJ in the earlier cases of R (Raj and Knoll Limited) v Secretary of State for the Home Department [2015] EWHC 1329 (Admin) and R (on the application of St Andrew’s College) v Secretary of State for the Home Department [2018] EWCA Civ 2496, 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 [under the Tier 4 scheme] Confirmation of Acceptance (“CAS”)... (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”… (3) The Sponsor “must maintain its own records with assiduity”…. (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 paragraph 42). (5) The [certificate] is very significant: the possession by a migrant of a requisite CAS [or CoS] provides strong, but not conclusive, evidence of some of the matters which are relevant upon the migrant’s application for leave to enter or remain… (6) There is no need for UKBA to wait until there has been breach of immigration control caused by the acts or omission of a sponsor before suspending or revoking the sponsorship, but it can, and indeed should, take such steps if it has reasonable grounds for suspecting that a breach of immigration control might occur… (7) The primary judgment about the appropriate response to breaches by licence holders is that of the Secretary of State. The role of the Court is simply supervisory. The Secretary of State is entitled to maintain a fairly high index of suspicion and a ‘light trigger’ in deciding when and with what level of firmness she should act…[and] (8) The courts should respect the experience and expertise of UKBA when reaching conclusions as to a sponsor’s compliance with the Guidance, which is vitally necessary to ensure that there is effective immigration control…”.[23]At [22], Baker LJ reiterated Haddon-Cave LJ’s endorsement of four further principles which he had derived from the judgment of Silber J in R (Westech College) v Secretary of State for the Home Department [2011] EWHC 1484 (Admin), thus: “(1) The SSHD has stringent powers to suspend or revoke a sponsor’s licence if the SSHD becomes concerned that a sponsor is not complying with its obligations and must 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… (2) There is a clear need in some circumstances for the SSHD to invoke the SSHD’s 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… (3) The expertise and experience of the SSHD and 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 court must and does respect because, unlike the SSHD, courts do not have this critically important experience or expertise… (4) An entity which holds a sponsor licence has substantial duties to ensure that the rules relating to immigration control are adhered to strictly and properly, such that if the SSHD 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 [certificates] or revoking its licence…”.[24]At [24], Baker LJ cited several examples of first instance cases in which these principles have been applied, concluding his summary of the relevant legal principles thus:
“[In]…R (Operation Holdings t/a Goldcare Homes) v SSHD [2019] EWHC 3884 (Admin)…the deputy judge, Alison Foster QC (as she then was), observed: “21. It is clear that sponsorship is based on two fundamental principles: i. Those who benefit most directly from migration, that is to say employers, education providers or other bodies who bring in migrants, must play their part in ensuring that the system is not abused; and ii. The Home Office needs to be sure that those applying to come to the UK to undertake work or to study are indeed eligible to do so and if a reputable employer or education provider genuinely wishes to take them on. 22. This provides the context for the application of the scheme, and reflects, as was said by McGowan J [at first instance] in London St. Andrew’s College v SSHD [2014] EWHC 4328 (Admin) at [13], that the obligation of a sponsor is to carry out its responsibilities “with all the rigour and vigilance of the immigration control authorities”
. This approach is found throughout the case law…”. i. Those who benefit most directly from migration, that is to say employers, education providers or other bodies who bring in migrants, must play their part in ensuring that the system is not abused; and ii. The Home Office needs to be sure that those applying to come to the UK to undertake work or to study are indeed eligible to do so and if a reputable employer or education provider genuinely wishes to take them on. (ii): Common law principles of procedural fairness in the sponsorship context[25]In Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2014] AC 700 at [179] Lord Neuberger set out the following principle of common law procedural fairness: “…before a statutory power is exercised, any person who foreseeably would be significantly detrimentally affected by the exercise should be given the opportunity to make representations in advance, unless(i) the statutory provisions concerned expressly or impliedly provide otherwise or(ii) the circumstances in which the power is to be exercised would render it impossible, impractical or pointless to afford such an opportunity”.[26]In Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673, [2019] 1 WLR 4647 at [45]-[61], the Court of Appeal held that this principle applies in the immigration context. Balajigari involved a series of appeals relating to refusals of indefinite leave to remain (“ILR”) on the grounds of a dishonest discrepancy between the applicants’ actual earnings and the earnings declared to the revenue. At [55] the Court concluded that: “…where the Secretary of State is minded to refuse ILR on the basis of paragraph 322(5) on the basis of the applicant’s dishonesty, or other reprehensible conduct, he is required as a matter of procedural fairness to indicate clearly to the applicant that he has that suspicion; to give the applicant an opportunity to respond, both as regards the conduct itself and as regards any other reasons relied on as regards “undesirability” and the exercise of the second-stage assessment; and then to take that response into account before drawing the conclusion that there has been such conduct”.[27]These principles have been applied in the sponsor licence context: in several cases it has been held that the Secretary of State should give a sponsor notice of the concerns that might result in revocation and the chance to address those concerns: see, for example, R (The London Reading College Ltd) v Secretary of State for the Home Department [2010] EWHC 2561 (Admin), [2010] ELR 809 at [28]-[48] and R (New London College) v Secretary of State for the Home Department [2011] EWHC 856 (Admin). In the first of these, Neil Garnham QC, sitting as a Deputy Judge of the High Court (as he then was), held at [37] that: “What matters is whether, before taking their decision, the Claimants had been given fair notice of what was concerning the Secretary of States so that the Claimants could attempt to deal with the points. That was necessary both as a matter of fairness but also to ensure that the Secretary of States were in a position to take a rational decision, a decision based on a proper appreciation of all the facts”.[28]The issue has been the subject of two further cases in the last year, on which the parties placed considerable reliance. It is therefore appropriate to summarise them in a little detail. (iii): R (New Hope Care Ltd) v Secretary of State for the Home Department [2024] EWHC 1270 (Admin), [2024] 1 WLR 4504[29]In New Hope Care the Secretary of State had revoked a sponsor licence on a series of grounds within Annex C1 and C2, having first suspended it and indicated that there would be an opportunity to make representations in accordance with the Guidance, but then failing to do so: [6]-[13].[30]David Pievsky KC, sitting as a Deputy Judge of the High Court, considered the interaction between the common law principles of fairness and the mandatory grounds for revocation in Annex C1 of the Guidance. The Secretary of State had argued that “where a circumstance said to be mandatory (i.e. falling within Annex C1 of the Guidance) is in play, [she could] simply dispense with the need for basic procedural fairness, and give the licence holder no opportunity to respond to an allegation before a final decision is taken”: [98]. The Deputy Judge rejected that submission, by reference to three considerations.[31]First, there were no express provisions within the guidance that justified the Secretary of State’s interpretation; and “[h]ad the intention really been that this opportunity to address the Secretary of State on matters of concern would only be available in those cases falling outside the scope of Annex C1, the Guidance would surely have said so expressly”: [99].[32]Second, there was no principled reason which justified such an interpretation of the Guidance, for two reasons:(a) the need for procedural fairness is not lower - indeed it is at its most pressing - where the most serious concerns are being raised about a person’s conduct; and(b) whether the Secretary of State is entitled on the facts of any given case to suspend or revoke a licence immediately and without notice, rather than after using a slower and fairer procedure, “cannot sensibly be thought to arise from the mere classification of the conduct about which the Secretary of State has a concern (e.g. whether that conduct is set out in a policy that is said to require, rather than merely permit, revocation)”; it “must also depend on factors such as the urgency of the relevant circumstances, along with some evaluation of what the public interest requires”: [100] [emphasis in the original].[33]Third, the Guidance itself had to be interpreted against the background of the common law. A person’s common law right to have a reasonable opportunity of learning what is alleged against him, and putting forward his answer to it, is a “fundamental” one (see, for example O Reilly v Mackman [1983] 2 AC 237 per Lord Diplock at p. 279F-G; and In re Application for Judicial Review by JR 17 [2010] UKSC 27, [2010] HRLR 27 at [50] per Sir John Dyson SCJ); and “the court would be very slow, when construing a policy statement, to conclude that a public authority intends not to act in accordance with that fundamental right”: [101].

The Judge found that the common law principles had been breached:

[34]“The common law right to be heard before important benefits are taken away is, as I have said, fundamental. I think it applies even where, as here, the benefit that has been conferred is “a privilege not a right” (as the Guidance describes sponsorship at C1.3). It applies with full force – and certainly no less force – where, as here, a public authority considers that there has been, in effect, a litany of failures, justifying very firm intervention”: [105].[35]The Judge also observed that there was no evidence before the Court even of any oral notice being given to the Claimant about what the Defendant's substantive concerns were, before the licence revocation letter was ultimately sent: [106]. (iv): R (Prestwick Care Ltd and others) v Secretary of State for the Home Department; R (Supporting Care Ltd) v Secretary of State for the Home Department [2025] EWCA Civ 184[36]In both these cases the Secretary of State had revoked the Claimants’ sponsor licences on mandatory grounds, having first suspended them and given the Claimants the opportunity to make representations: [35]-[38] and [61]-[64].[37]The question common to both appeals was whether, where a mandatory ground for revocation of a licence is established, the Secretary of State was required to assess the potential impact of the revocation on each Claimant’s business, its employees, those who receive care services and the wider care industry: [79]. The Court of Appeal held that there was no such duty, albeit that it was open to the Secretary of State to have regard to the impact of revocation in the exercise of her “residual discretion”. This was the discretion she retained, as a matter of public law, as to “when and with what level of firmness she should act”, notwithstanding the Guidance to the effect that one of the mandatory grounds is satisfied, revocation will follow: [89] and [95]-[105].[38]In Supporting Care, one of the grounds on which the licence had been revoked was ground (z): [61]. The Court of Appeal confirmed that the following requirements apply to allegations of dishonesty in this context:(i) it is for the Secretary of State to establish the allegation on the balance of probabilities;(ii) where the Secretary of State has a suspicion, she must clearly indicate to the sponsor that she has that suspicion, so that the sponsor has a fair opportunity to respond;(iii) having received the sponsor’s representations in response, the Secretary of State must consider all the circumstances before concluding that the sponsor has deliberately exaggerated a role in order to facilitate a person’s stay in this country; and(iv) the Secretary of State must provide adequate reasons: [132]-[136]. The Court held that these requirements had not been met in the Claimant’s case, such that the revocation of the licence was procedurally unfair: in particular, the suspension letter failed to set out the Secretary of State’s suspicion with sufficient clarity, such that the company had not been given a fair opportunity to make representations: [137]-[140].

Ground 1

[39]Mr Malik KC argued that the Claimant would be significantly detrimentally affected by the revocation of the licence and that these consequences were foreseeable. On that basis, the Claimant’s case fell squarely within the common law rule described in Bank Mellat at [179] and Balajigari at [55]. The Claimant should have been given the opportunity to make representations in advance of the decision both as to the alleged conduct in question, and as to mitigation, so as to inform the decision on sanction if the conduct was found proven. The Secretary of State’s failure to do this meant that the decision had been made in breach of the common law principles of procedural fairness.[40]Further, the Secretary of State’s Guidance had to be interpreted against the background of the common law. The Guidance expressly permitted the Secretary of State to suspend a licence and invite representations before making a final decision: see, for example, paragraphs C9.7, C10.4 and the introduction to Annex C1. That course, rather than revocation without notice, would have been consistent with the common law principles of procedural fairness.[41]For these reasons Mr Malik KC argued that Ground 1 should be upheld.[42]Mr Biggs challenged this analysis in the following ways.

(i) : The statutory context

[43]First, he relied on the well-established principle that the requirements of procedural fairness are intensely fact and context sensitive: see, for example, Lloyd v McMahon [1987] AC 625 at 702G-H, where Lord Bridge observed that the requirements are not immutable or “engraved on tablets of stone”, but depend on “the character of the decision making body, the kind of decision it has to make and the statutory or other framework in which it operates.”[44]He argued that the legal principles reflecting the context of the sponsorship system set out at [21]-[24] above indicate that the Secretary of State is entitled, if not obliged, to act robustly and promptly to revoke a sponsor licence to protect the public interest in immigration control. The court should be slow to accept a scenario in which the common law duty to act procedurally fairly would undermine the Secretary of State’s ability to operate the system in such a fashion: EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517 [2014] EWCA Civ 1517, [2015] INLR 287 at [38] and [40]. The power to revoke a licence without notice also reflected the Secretary of State’s authoritative judgment as to how best to police immigration control and serve to encourage sponsors to understand and comply assiduously with their sponsor duties; and has a wide authority to act in this respect.[45]The difficulty with a submission based on the statutory context is that it has not found favour in other cases concerning the sponsorship schemes. For example, in London Reading College at [40], the judge explicitly recognised the Lloyd principle but held that “nonetheless there is an irreducible minimum of information which a license-holder must be told if he is to have a proper chance to respond in these circumstances”. Mr Biggs was right to highlight that London Reading College pre-dated Raj and Knoll and St Andrew’s College, but the underlying principle, derived from Lloyd, is a constant.[46]More recently, an argument of this kind, specifically based on Raj and Knoll and St Andrew’s College, was rejected in New Hope Care. At [96], the judge accepted all the Secretary of State’s arguments about “the importance of trust, the correct approach to institutional responsibility, and the possibility of relatively “light triggers” for taking responsive and protective action within the context of this scheme”, but held that:
“….it does not follow that the Defendant has more latitude in relation to…whether to abide by the standards of basic procedural fairness as developed by the common law. I do not read either Mr Garnham KC (as he then was) in the London Reading College case, or Haddon-Cave LJ in the London St Andrews case, as having intended to suggest otherwise. (Indeed the former was a case in which a decision was quashed for want of procedural fairness: see at §§28-55).”
[47]Mr Biggs sought to distinguish this case from New Hope Care on the basis that the underlying facts were different: there, the Secretary of State had decided to suspend the sponsor’s licence and then failed to follow the post-suspension procedure set out in Part 9 of the Guidance ([5]-12]) whereas here, there had been no suspension. However, the Claimant’s submissions in New Hope Care about the common law principles of fairness did not rely on the fact of the suspension; nor did the Judge’s conclusion on the issue: [96] and [105]-[106].[48]Most significantly, the statutory context did not prevent the Court of Appeal finding procedural unfairness in this context, including on the grounds of a failure to afford an opportunity to make representations, in Supporting Care, holding that “...the fact that the SSHD and her staff are entitled to maintain a high index of suspicion does not dilute the obligation to comply with well-established principles of procedural fairness in cases of suspected dishonesty”: [131].[49]Mr Biggs contended that the Court of Appeal’s findings as to the residual discretion in Prestwick Care supported his analysis under Ground 1: the lack of a duty to consider representations about the potential impact of revocation confirmed in Prestwick Care was, he argued, consistent with a general lack of a duty to give an opportunity to make representations.[50]I cannot accept that submission. Representations about the potential impact of revocation are different in nature from, and narrower in scope than, representations about whether any of the suspected grounds in the Guidance are made out, and as to sanction. Moreover, the Court had specifically accepted the existence of the general duty to give an opportunity to make representations, based on established common law principles, in the joined appeal of Supporting Care. I have also rejected Mr Biggs’ attempts to distinguish this case from Supporting Care on the grounds that it involved an allegation of dishonesty, which this did not, for the reasons given at [57]-[65] below. (ii): The wording of the Guidance[51]Mr Biggs relied on the fact that the Guidance specifically permitted the Secretary of State to revoke a licence without warning. However, again, such arguments have not succeeded in previous cases.[52]For example, in New London College v Secretary of State for the Home Department [2011] EWHC 856 (Admin), Wyn Williams J considered an earlier version of the guidance which appeared to permit UKBA to suspend a sponsor licence without giving notice to the licensee of the allegations said to justify the suspension and affording him an opportunity to make appropriate representations. Wyn Williams J held that the wording of the guidance in this form could not, of itself, mean that it was lawful for UKBA to act in this way: rather, the content of the duty to act fairly in any given case had to be judged against the common law principles, and “policy or guidance published by UKBA cannot by itself resolve what constitutes the duty one way or the other”: [60].[53]The version of the guidance considered in New Hope Care also made clear that the Secretary of State could revoke a licence “immediately”, or “immediately and without warning”: [92]. Again, the fact that the guidance permitted revocation without notice did not prevent the judge from finding that a failure to give notice, and an opportunity to make representations, was unfair.[54]Generally, it is well recognised that the question of whether there has been procedural fairness or not is an objective question for the court to decide for itself: see, for example, Balajigari at [46]. In other words, it cannot be determined by the wording of the Defendant’s guidance.[55]I therefore adopt the analysis in New Hope Care, to the effect that the Guidance has to be interpreted against the background of the common law. The fact that the Guidance permits revocation without notice does not mean that, on certain facts, to take that course would be procedurally unfair at common law.[56]In a related argument, Mr Biggs contended that to interpret the Guidance in the manner contended for by the Claimant would drive a “coach and horses” through it and make it unworkable. He noted that the Claimant had not advanced a general challenge to the Guidance or sought any relief that would declare it unlawful. However, as Mr Malik KC pointed out, his case did not necessarily render the Guidance unlawful: paragraph C10 could still exist in the policy, provided that in cases where the Bank Mellat and Balajigari applied, the opportunity to make representations was afforded.

(o) and “dishonesty”

[57]For procedural reasons relating to the late service of the Claimant’s skeleton argument, for which he was not responsible, Mr Malik KC limited his submissions of procedural unfairness under Ground 1 to the Secretary of State’s decision-making with respect to the decision under ground (o) rather than ground (z). Had the position been otherwise he would have argued that the same procedural unfairness applied to ground (z).[58]Mr Biggs argued that the conduct inherent in ground (o) was not such as to fall within the rule set out in Balajigari at [55] because it was not an allegation of dishonesty. The position was different in respect of conduct under ground (z), which was characterised as an allegation of dishonesty in Supporting Care: [130].[59]In my judgment an allegation of a breach of ground (o) is capable of being an allegation of dishonesty. The facts of this case illustrate why. The Secretary of State’s case was that the conclusion that the Claimant had assigned a CoS to a close relative under ground (o), taken together with the failure to make a note on the system as required by paragraph C1.38, gave the decision-maker reasonable grounds to believe that the vacancy was not genuine under ground (z). In other words the suspected conduct of the Claimant under (o) was all said to be part of the same dishonest scheme reflected in ground (z).[60]In any event, as Mr Malik KC highlighted, the wording of Balajigari at [55] illustrates that the general principle it sets out extends beyond allegations of dishonesty to cases of “other reprehensible conduct”.[61]This much is also clear from R (Karagul) v Secretary of State for the Home Department [2019] EWHC 3208 (Admin) at [103], where Saini J held that the judgment in Balajigari is an application of well-established general principles and is not to be regarded (as the Secretary of State had submitted in that case) as a decision simply about unfairness in a specific set of circumstances. Further, at [104], he described the general principle as applying in cases where there is a concern that the Claimant “may have been dishonest in their application or has otherwise acted in bad faith (or disreputably) in relation to the application”.[62]An allegation that a level 1 user has assigned a CoS to a close relative and failed to make a note of that on the system, as part of a scheme involving a vacancy that was not genuine, is, in my judgment an allegation of “reprehensible conduct”, “bad faith” or “disreputable conduct” even if it is not, or not also, an allegation of dishonesty. It therefore falls within the rule in Balajigari at [55].[63]There is also force in Mr Malik KC’s submission that the rule ultimately derives from Bank Mellat at [179], such that the test is whether the Claimant would be “significantly affected” by the decision, which applied here.[64]The decision in New Hope Care was based on these wider common law principles, rather than a conclusion that the alleged conduct could be characterised as dishonest or something similar: [100 ii) and [105]. Indeed, it would seem that some if not all of the conduct in issue would not have that character: the grounds were said to have been triggered by conduct such as issuing an excessive number of sponsorship certificates, issuing zero hours contracts and failing to check whether there workers had a right to work: [13]. Accordingly, Mr Malik KC was right to contend that New Hope Care was “not a dishonesty case”.[65]I therefore reject the argument that the nature of the conduct suspected under ground (o) meant that there was no duty to afford the Claimant the opportunity to make representations in advance. (iv): Alleged “pointlessness”[66]Finally, Mr Biggs submitted that the reason why the decision-maker considered it was appropriate to make an immediate revocation decision was that there was strong (indeed, indisputable) evidence that the Claimant’s director had assigned a CoS to his brother-in-law. Accordingly, there was no point in providing the Claimant with the chance to make representations before a revocation decision was made in this case, because the facts clearly showed that a mandatory ground for revocation under ground (o) had been established. Nothing the Claimant could conceivably put forward could justify not revoking its licence.[67]He therefore contended that it would have been “pointless” to permit the Claimant the opportunity to make representations, such that the latter part of exception (ii) to the rule set out in Bank Mellat at [179] was engaged. As noted at [25] above, exception (ii) applies where “the circumstances in which the power is to be exercised would render it impossible, impractical or pointless to afford…an opportunity [to make representations]”.[68]I cannot accept this submission for the following reasons.[69]First, the Supreme Court made clear in Bank Mellat at [179] that “any argument advanced in support of…pointlessness should be very closely examined, as a court will be slow to hold that there is no obligation to give the opportunity [to make representations in advance], when such an obligation is not dispensed with in the relevant statute”.[70]Second, the wording of the exception makes clear that in determining whether it applies, it is necessary to consider “the circumstances in which the power is being exercised”, rather than the underlying facts or evidence. The inclusion of “pointless” alongside “impossible” and “impractical” further suggests a focus on the logistics of a particular process, rather than the facts or evidence. This would appear to be what Underhill LJ meant in Balajigari at [60], where he referred to the Bank Mellat rule applying unless the circumstances of a particular case make it “impracticable”. This interpretation is also consistent with the approach taken in New Hope Care at [100] ii), where the judge concluded that the requirements of procedural fairness depended not merely on the nature of the “conduct” in question, but on factors such as “the urgency of the relevant circumstances, along with some evaluation of what the public interest requires”. On that basis “pointless” in this context appears to mean “pointless, due to urgency” or something of that nature.[71]Third, interpreting “pointless” as meaning “pointless, given the strength of the evidence”, which is the effect of Mr Biggs’ submission, would be inconsistent with the established principles of procedural fairness. As the Court of Appeal reiterated in Prestwick Care at [112] what fairness requires depends on the “character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operate”. It does not depend on a unilateral assessment of the strength of the evidence and on culpability by the decision-maker before considering any representations from the affected person. Similarly, in Taj v Secretary of State for the Home Department [2021] EWCA Civ 19 [2021] 1 WLR 1850, the Court of Appeal discussed the “absence of a pointlessness (materiality/utility) test” in cases involving complaints of procedural unfairness. Referring to earlier case law, at [50], the Court held that: “Because of the broader, public interest, reasons for the principle of procedural fairness, the courts do not undertake any detailed analysis of whether had the breach not occurred, it would have made any difference”.[72]Fourth, adopting such an interpretation would create considerable uncertainty as to whether the right to make representations applied in a particular case. That would undermine the public benefits associated with having a “clear and predictable scheme operating according to objective criteria”: EK (Ivory Coast) at [31].[73]Fifth, even if Mr Biggs’ interpretation is correct, on the facts of this case I do not consider that any representations by the Claimant would be pointless, for the reasons given at [89]-[96] below when considering materiality and section 31(2A).[74]Mr Biggs also advanced this point in slightly different way, relying on the principle that where a decision-maker decides consistently with Wednesbury principles that they have sufficient information to fairly and reasonably decide whether to revoke a licence, they are not required to seek out further information by inviting representations: see the Tameside principles, summarised in Balajigariat [70]. He contended that this reflected the situation here, because the decision-maker had decided that the Claimant was in breach of ground (o) and so was under no duty to seek out further information. Even if one accepts that the common law duty to permit representations and the Tameside duty apply at the same time and/or overlap (and I am not immediately sure that they do), in my judgment this approach is problematic for the same reasons as I have given at [69]-[72] above.

Conclusion on Ground 1

[75]For all these reasons, despite Mr Biggs’ comprehensive submissions, I conclude that Mr Malik KC’s analysis on Ground 1 is to be preferred, such that it succeeds. By revoking the Claimant’s sponsor licence on ground (o) without giving it an opportunity to make representations, the Secretary of State acted in a procedurally unfair manner by reference to common law principles and her Guidance. Had Ground 1 been argued with reference to ground (z), it would have succeeded for the same reasons, and by application of the Court of Appeal authority of Supporting Care.

Ground 3

[76]The decision-letter indicated that the belief that the role of Petrol Station Manager had been created solely to facilitate Mr Sivalingam’s entry to or stay in the UK, so as to engage ground (z), was derived from the matters set out at [5]-[6] of the letter. That much is clear from the words “in view of the above” at the outset of [7], and from the absence of any other reasons in the letter. The matters at [5]-[6] of the letter were, respectively, the fact of the assignment of the CoS to Mr Sivalingam and the failure to make a note on the system to that effect.[77]Mr Malik KC argued that the Secretary of State had effectively concluded that there was insufficient evidence to reassure her that the vacancy was genuine, such that the mandatory ground (z) was not satisfied. She had therefore shifted the burden of proof to the Claimant in breach of the Court of Appeal’s observations in Balajigari at [42]-[43] to the effect that there is “no legal burden on the applicant to disprove dishonesty”, such that “the concept of standard of proof is not inappropriate in the present context”.[78]I do not accept this submission. As Mr Biggs highlighted, there had been no reversal of the burden of proof as such, simply a conclusion as to ground (z) based on the material then available to the decision-maker. The procedural difficulty for the Secretary of State is that the material available to the decision-maker was incomplete: the Claimant should have been permitted to make representations on the ground (z) issues: see [75] above.[79]However, I consider that Mr Malik KC’s further criticisms of the approach taken to ground (z) are merited in two respects.[80]First, there is no evidence that the decision-maker had asked the correct question, namely whether there was any evidence of the sponsor having acted deliberately, or dishonestly, as paragraph C1.46 and ground (z) of the Guidance require. The decision-letter does not suggest that there was any consideration of Mr Ragunathan’s state of mind, as there is no explanation of why it was considered that the vacancy was a sham or was created primarily to facilitate Mr Sivalingam’s stay in the United Kingdom beyond the fact of the two matters in [5]-[6] of the letter. Those matters called for an explanation but did not, in themselves, justify an immediate conclusion of deliberate conduct or dishonesty within ground (z): see, by analogy, Supporting Care at [132].[81]Second, the decision was insufficiently reasoned. The decision-letter gives no reasoning for the belief that the vacancy was not genuine and had been created primarily (or indeed “solely”, as the letter said) to facilitate Mr Sivalingam’s stay in the United Kingdom, beyond reference to the two matters in [5] and [6]. Why the Secretary of State had reached a conclusion of deliberate conduct or dishonesty from those matters was one of the “principal important controversial issues” such that greater reasoning was required, applying the test in South Bucks DC v. Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953 [34] and [36].[82]The scant reasoning here is similar to that in Supporting Care. There, the decision-letter contained nothing to indicate the basis on which the Secretary of State had drawn the adverse inference that the reason for the discrepancy between the worker’s job description and her actual duties was that her role had been deliberately exaggerated in order to facilitate her stay in this country. Given the seriousness of a finding of dishonesty, more reasoning was required to ensure compliance with the requirements of procedural fairness: [137].[83]These errors vitiated the decision in respect of ground (z). Ground 3 therefore succeeds.[84]In light of that conclusion, it is unnecessary for me to determine Mr Malik KC’s final argument under Ground 3 to the effect that the conclusion reached on ground (z) was irrational. I simply observe that whether it was rational or not, it was reached on an incomplete basis for the reasons given at [78] above.

Materiality / section 31(2A)

[85]The relevant legal principles are as follows.[86]First, a legally flawed decision will not be quashed where the errors are immaterial because the result would inevitably have been the same. However, it is well-established that great caution should be observed in refusing relief on the basis of immateriality, which is reflected by “expressing the relevant threshold in terms of inevitability”. This is emphasised in particular in cases where the person affected by a finding of misconduct has been denied an opportunity to put their case: Balajigari at [134]-[135].[87]Second, the Senior Courts Act 1981, section 31(2A) provides at (a) that the High Court must refuse to grant relief on an application for judicial review if it appears to the court to be “highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. The relevant principles were summarised by Kate Grange KC (sitting as a Deputy Judge of the High Court) in R (Cava Bien) v Milton Keynes Council [2021] EWHC 3003 (Admin) at [52]; and added to in one respect by Linden J in R (TTT) v Michaela Community Schools Trust [2024] EWHC 843 (Admin) at [270].[88]Mr Biggs contended that both of these principles were engaged. This was because the decision-letter made clear that the Claimant’s licence would have been revoked immediately irrespective of any breach of ground (z) because of the irrefutable breach of ground (o). He argued that the breach of ground (o), alone made the outcome of revocation inevitable and/or highly likely.[89]I cannot accept this argument, for reasons similar to those given by the judge in rejecting the materiality/section 31(2A) submission in New Hope Care at [110]-[114].[90]First, like the judge in New Hope Care, I have concluded that there was a “fundamental departure from the standards required by the common law”. There was also a failure to interpret the Secretary of State’s Guidance in accordance with these standards.[91]Second, as the judge observed, “it has repeatedly been recognised that it is difficult, and often impossible, to uphold a Defendant’s s.31(2A) argument where there has been a decision-making process which is not in accordance with the law: and this “must be a fortiori the position when considering an immateriality argument at common law, since the acceptance of such an argument requires the Court to be even more confident about what the outcome would (“inevitably” or “necessarily”) have been”: see, for example, Cava Bien at [52](ii) and (xi).[92]Third, had the Claimant had the opportunity to make representations, “mitigating arguments [which the licence holder believes] exist”: could have been advanced as envisaged by paragraph C9.11 of the Guidance. This indicates that “whether or not the Claimant was guilty of breaching the [G]uidance, and if so which aspects of it, was only one of two central issues that needed to be determined. The other was, in effect, whether revocation of a licence would be a justified and proportionate sanction for the breach, bearing in mind any relevant mitigation”.[93]As noted at [37] above, it has been accepted by the Secretary of State that even a policy stating that certain conduct “will” lead to revocation carries with it the residual possibility of an exception being made. That could have occurred here, and a sanction lesser than revocation imposed. Paragraph C9.15 of the Guidance provides a series of such options, including downgrading the licence to an A or B rating, issuing an action plan, imposing sanctions such as preventing the sponsor from issuing any new CoS or from using any unassigned but unused CoS. The evidence that the Claimant could have provided, if given the chance to do so, could have been accepted; and could have led to the conclusion that any breach of ground (o) was not deliberate and that there had been no breach of ground (z). Such a finding could have led to a different sanction being selected.[94]Fourth, while revocation was still a “serious possibility”, that is a “long way from being satisfied that revocation is “highly likely” which is a “high hurdle”: see Cava Bien at [52](ii)). As Megarry J pointed out in John v Rees [1970] Ch 345 at p.402, “there are many cases in which apparently “open and shut” allegations turn out not only to be answerable but actually wrong, once the person accused is given a chance to respond”.[95]The principles summarised in Cava Bien recognise that the burden of proof is on the Secretary of State. Here, she did not serve any evidence about, for example, how the residual discretion in relation to ground (o) operates in practice, such as might challenge the above analysis.

Conclusion

[96]Accordingly, for all these reasons, the Claimant’s claim succeeds on Grounds 1 and 3; and I dismiss the Secretary of State’s arguments with respect to materiality and section 31(2A). The Defendant’s decision of 6 March 2024 to revoke the Claimant’s sponsor licence is therefore quashed. Appendix 1: Extracts from Workers and Temporary Workers: Guidance for Sponsors (version 03/23)

Appendix 1: Extracts from Workers and Temporary Workers:

[1]Paragraph C1.38 of the Guidance provides:
“Complying with our immigration laws C1.38. You must comply with our immigration laws and all parts of the Worker and Temporary Worker sponsor guidance. To do this, you must: • only employ workers who are appropriately qualified, registered or experienced to do the job or will be by the time they begin the job – for example, if the worker will be sponsored as a doctor, you must make sure they have the correct registration that allows them to practise legally in the UK • keep a copy of any registration document, certificate or reference that confirms they meet the requirements of the specific job, and give this to us on request – we may request further information or evidence from you or the worker to confirm this requirement is met • not employ workers where they do not have the experience, qualifications or immigration permission to do the job in question, and stop employing any workers who, for any reason, are no longer entitled to do the job • not assign a CoS where there is no genuine vacancy or role which meets the Worker or Temporary Worker criteria – if you assign a CoS and we do not consider it is for a genuine vacancy, we reserve the right to suspend your licence, pending further investigation which may result in your licence being revoked • only allow the worker to undertake the roles permitted by the conditions of their stay – see the ‘Conditions of stay’ section of Part 2: Sponsor a worker for further information • only assign a CoS to workers who you believe will meet the immigration requirements of the route on which you propose to sponsor them, and are likely to comply with the conditions of their permission – see Part 2: Sponsor a worker and the relevant route-specific guidance • disclose (by adding a sponsor note) if you assign a CoS to a family member of anyone within the sponsor organisation if it is classed as a small or medium-sized business, or if you are aware you are assigning a CoS to a family member of anyone else within a sponsor organisation classed as a large business • only assign a CoS to a worker if you are satisfied they intend to, and are able to, fill the role • where relevant, understand and fulfil your responsibilities in relation to the Academic Technology Approval Scheme (ATAS) requirement”
[emphasis added].[2]The Guidance addresses “genuine vacancies” as follows: “C1.44 A genuine vacancy is one which:• requires the jobholder to perform the specific duties and responsibilities for the job and meets all of the requirements of the relevant route V2.2• does not include dissimilar and/or predominantly lower-skilled duties• is appropriate to the business in light of its business model, business plan and scale... C.146 Examples of vacancies that are not considered to be genuine include, but are not limited to:• a role that does not actually exist• one which contains an exaggerated or incorrect job description to deliberately make it appear to meet the requirements of the route when it does not, or is otherwise a sham• a job or role that was created primarily to enable an overseas national to come to, or stay in, the UK• advertisements with requirements that are inappropriate for the job on offer (for example, language skills which are not relevant to the job) or incompatible with the business offering the employment, and have been tailored to exclude settled workers from being recruited”.[3]Section C9 of the Guidance is entitled “Suspending your licence”. It contains the following provisions:
“Overview C9.1. If we believe that you are breaching your sponsor duties and/or pose a threat to immigration control, or are engaging in behaviours or actions that are not conducive to the public good, we may suspend your licence while we make further enquiries… How we decide whether to suspend your licence C9.7. If any of the circumstances listed in Annex C1 arise, we will either revoke your licence immediately or suspend your licence pending further investigation or consideration”
.

How we decide whether to suspend your licence

[4]The process after suspension is set out thus:
“C9.11 You have 20 working days from the date of the written notification to respond to our letter. This is your opportunity to seek a review of our decision and to set out any mitigating arguments you believe exist. Your response to us must be in writing and set out, with any relevant supporting evidence, which grounds you believe to be incorrect and why. We may give you more time to respond if we are satisfied there are exceptional circumstances. We will not hold an oral hearing… C9.13. When we receive a response from you, we will consider this and may ask a compliance officer, other law enforcement agency, government department, agency, local authority, the police, foreign government or other body, for information… C9.15 Appropriate action may include one or more of the following - we may: • reinstate your licence with an A-rating • reinstate your licence with a B-rating (and issue you with an action plan) • prevent you from assigning any new CoS • prevent the use of any assigned, but unused, CoS • revoke your licence”
.

C9.15 Appropriate action may include one or more of the following - we may:

[5]Section C10 of the Guidance is entitled “Revoking your licence”. It contains the following provisions: “Overview C10.1 Certain circumstances can lead to your sponsor licence being revoked. These include, but are not limited to, where: you cease to have (or never had) a trading presence you cease to meet the requirements of the route, or routes, in which you are licensed there is a serious or systematic breach of your sponsor duties you pose a threat to immigration control you have been convicted of a relevant criminal offence… or issued with a specified civil penalty you are engaging or have engaged in behaviour or actions that are not conducive to the public good… How we decide whether to revoke your licence C10.4. Annex C1 of this document sets out the circumstances in which we will revoke your licence – these are known as ‘mandatory’ grounds of revocation. If any of these circumstances arise, we may revoke your licence immediately and without warning. If we do not revoke your licence immediately, we will suspend your licence pending further investigation”. you cease to have (or never had) a trading presence there is a serious or systematic breach of your sponsor duties you pose a threat to immigration control

How we decide whether to revoke your licence

[6]The Guidance has three annexes. Annex C1 is entitled “circumstances in which we will revoke your licence”. Annexes C2 and C3 deal, respectively, with circumstances in which the Secretary of State “will normally” or “may” the licence. Annex C1 provides as follows:
“Annex C1: circumstances in which we will revoke your licence This annex sets out the circumstances in which we will revoke your sponsor licence. We may suspend your licence first while we consider the matter, but we reserve the right to revoke your licence immediately without suspending it. For further information, see sections C9 and C10 of this document.”
[7]There is then a table setting out a series of grounds.

(o) provides as follows:

“o. Subject to the exception below, a sponsorship management system (SMS) user you have appointed assigns their own Certificate of Sponsorship (CoS) or assigns a CoS to a close relative or partner. By ‘close relative or partner’, we mean: • a spouse or civil partner • an unmarried partner • a parent or step-parent • a son or step-son • a daughter or step-daughter • a brother, step-brother or half-brother • a sister, step-sister or half-sister • a nephew, niece, cousin • an aunt or uncle • a father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in law or daughter-in-law The only exception to this is where you are licensed on the UK Expansion Worker route and have a Provisional rating, in which case the Authorising Officer (who must also be the Level 1 User) can assign their own CoS”
[emphasis added].

or daughter-in-law

[8]Ground (z) provides: “z. We have reasonable grounds to believe the role for which you have assigned a CoS is not genuine – for example, because it:• does not exist• is a sham (including but not limited to where the CoS contains an exaggerated or incorrect job description to deliberately make it appear to meet the requirements of the route you assigned it under when it does not); or• has been created mainly so the worker can apply for entry clearance or permission to stay”.

Cited in 4 later judgments