“The scheme provides a way of addressing skill shortages in the labour market and a fast track for entry into the country for those individuals who are sponsored. .. The scheme is heavily dependent on trust and there is plainly the potential for abuse. The SSHD has to ensure and enforce compliance with the scheme as part of her overall management of immigration.”
“As a holder of a Sponsor Licence, the Claimant was required to be scrupulously accurate in the information to be provided in the COS submissions. There was no room for artistic licence whether in the attribution of job titles or otherwise. It is no answer for the Claimant to point to individual pieces of higher-level work when the COS submissions had failed to give an accurate impression overall of the role.”
"you must … not assign a CoS where there is no genuine vacancy or for a role which does not meet the specific eligibility criteria for the route – if you do, we reserve the right to suspend your licence, pending further investigation, which may result in your licence being revoked."
"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 • 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."
"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 …."
“C2(a): You fail to comply with any of your sponsor duties set out in section C1 of this document. C2(b): As a result of information available to us, we are not satisfied you are using a process or procedure necessary to fully comply with your sponsor duties.”
“We therefore believe that the role of Shopkeeper does not constitute a genuine vacancy within your business, and that the role has been created in order to facilitate Mr Chandrasekar’s leave to remain in the UK.”
“Following receipt of the Pre-Action Protocol (PAP) letter, submitted on 29 October, we have considered the representations received with the PAP letter and have taken the decision to maintain the revocation of their sponsor licence.”
“If he is covering these roles regularly raises concerns as to whether his job as retail manager is genuine”
“Both of my employees, Mr. Naveen and Mr. Manoj, were recruited after conducting proper in-person interviews. I do not have evidence of these interviews, as they were not conducted via video calls. Had the interviews been virtual, I would have retained screenshots, as I did for the two candidates recruited from outside the UK to work in my shop. However, since these were in-person interviews, I only have the signed employment contracts, which were provided to the officers on9 May 2024 , as requested.”
" …A discrepancy between the earnings declared to HMRC and to the Home Office may justifiably give rise to a suspicion that it is the result of dishonesty but it does not by itself justify a conclusion to that effect. What it does is to call for an explanation. If an explanation once sought is not forthcoming, or is unconvincing, it may at that point be legitimate for the Secretary of State to infer dishonesty; but even in that case the position is not that there is a legal burden on the applicant to disprove dishonesty. The Secretary of State must simply decide, considering the discrepancy in the light of the explanation (or lack of it), whether he is satisfied that the applicant has been dishonest. ….we consider … that the concept of standard of proof is not inappropriate in the present context. This is because what is being asserted by the Secretary of State is that an applicant for ILR has been dishonest. That is a serious allegation, carrying with it serious consequences. Accordingly, … the Secretary of State must be satisfied that dishonesty has occurred, the standard of proof being the balance of probabilities but bearing in mind the serious nature of the allegation and the serious consequences which follow from such a finding of dishonesty."
"we have come to the conclusion 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."
“Adapting the principles in paragraphs 42-43 and 55 of Balajigari to the compliance investigation process, a discrepancy between the job description on a worker’s CoS and the role she is actually performing may justifiably give rise to a suspicion that the sponsor has deliberately (i.e. dishonestly) exaggerated her role in order to facilitate her stay in this country, but it does not by itself justify a conclusion to that effect. It may call for an explanation and, if not satisfied by that explanation, it may be legitimate for the SSHD to infer dishonesty and revoke the licence on that basis.”
"This leads to the proposition that, unless the circumstances of a particular case make this impracticable, the ability to make representations only after a decision has been taken will usually be insufficient to satisfy the demands of common law procedural fairness. The rationale for this proposition lies in the underlying reasons for having procedural fairness in the first place. It is conducive to better decision-making because it ensures that the decision-maker is fully informed at a point when a decision is still at a formative stage. It also shows respect for the individual whose interests are affected, who will know that they have had the opportunity to influence a decision before it is made. Another rationale is no doubt that, if a decision has already been made, human nature being what it is, the decision-maker may unconsciously and in good faith tend to be defensive over the decision to which he or she has previously come."
“First, as this Court stated in Balajigari , dishonesty “is a serious allegation carrying with it serious consequences”
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
“(3) The sponsor must maintain its own records with assiduity…. …(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 he should act. (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.”
“As a holder of a Sponsor Licence, the Claimant was required to be scrupulously accurate in the information to be provided in the COS submissions. There was no room for artistic licence whether in the attribution of job titles or otherwise. It is no answer for the Claimant to point to individual pieces of higher-level work when the COS submissions had failed to give an accurate impression overall of the role.”
“…in the context of the overall scheme established in the Guidance, with which all licence holders were expected to be fully familiar, it should have been plain to the company that the request for representations was their opportunity to put forward all relevant arguments against the revocation of the licence.”
“(1) The essence of the system is that the Secretary of State imposes a high degree of trust in sponsors in implementing and policing immigration policy in respect of migrants to whom it grants a Certificate of Sponsorship. (2) The authority to grant a Certificate is a privilege which carries great responsibility: the sponsor is expected to carry out its responsibilities with the same the rigour and vigilance as the immigration control authorities.”
“You must give us, when asked, any documents relating to your sponsored workers or the running of your organisation that we consider relevant to assessing your compliance with your duties as a sponsor. We might, for example, ask for details of your recruitment practices so that we can make sure that a resident labour market test, where this is a requirement, was carried out correctly. If you fail to provide the documents when asked or within the timeframe we specify, we will take action against you.”
“if you have job descriptions for the roles, please can you send them as well”
“Both of my employees, Mr. Naveen and Mr. Manoj, were recruited after conducting proper in-person interviews. I do not have evidence of these interviews, as they were not conducted via video calls. Had the interviews been virtual, I would have retained screenshots, as I did for the two candidates recruited from outside the UK to work in my shop. However, since these were in-person interviews, I only have the signed employment contracts, which were provided to the officers on9 May 2024 , as requested.” (d) In response to this, the SSHD held: “Within the representations there is a contradicting statement, that your client conducted proper in-person interviews, however, then goes on to state that interviews were conducted via video call. It states that your client does not have interview records but would have retained screenshots. These screenshots have not been provided.”
“The High Court— (a) must refuse to grant relief on an application for judicial review, and (b) may not make an award under subsection (4) on such an application, 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.”
“In relation to section 31(2A), the court is concerned with evaluating the significance of the error on the decision-making process. It is considering the decision that the public body has reached, and assessing the impact of the error on that decision in order to ascertain if it is highly likely that the outcome (the decision) would not have been substantially different even if the decision-maker had not made that error. It is not for the court to try and predict what the public authority might have done if it had not made the error. If the court cannot tell how the decision-maker would have approached matters, or what decision it would have reached, if it had not made the error in question, the requirements of section 31(2A) are unlikely to be satisfied.”
“First, the starting point is necessarily that I have concluded that there was a fundamental departure from the standards required by the common law, and clear (and unjustified) departures from the Defendant's own commitments as to what a fair and appropriate process would look like, in a case such as this one. Secondly , 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: see e.g. R (Cava Bien) v Milton Keynes Council [2021] EWHC (Admin) per Kate Grange KC, sitting as a Deputy Judge, at §52(x); and R (ASLEF) v Secretary of State for Business[2023] ICR 1405 per Linden J at §§194-5. That 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: c.f. Cava Bien at §52(ii) and R (Plan B Earth) v Transport Secretary[2020] EWCA Civ 214 [2020] PTSR at §267 (both referring to the older case of Simplex GE (Holdings) Ltd v Secretary of State for the Environment (Court of Appeal,6 May 1988 )[2017] PTSR 1041 , per Purchas LJ at p.1060E-F. Thirdly , in this case, one of the matters that could have been addressed by the Claimant, had the Defendant acted consistently with its own policy, was specifically about " mitigating arguments… [which the licence holder believes] exist ": see Guidance at C9.11. That illuminates that whether or not the Claimant was guilty of breaching the guidance, 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. Mr Irwin accepts Mr Malik KC's contention (rightly in my view) that even a policy stating that certain conduct " will " lead to revocation carries with it the residual possibility of an exception being made. Fourthly , I agree with the Defendant's submissions that the concerns raised by the Defendant were numerous, wide-ranging, and serious; and I accept that on the present state of the evidence, revocation is a serious possibility . But that is a long way from being satisfied that revocation is " highly likely " which is a "high hurdle" (see Cava Bien , cited above, at §52(ii)). (b) In R (TJ Trading Express Ltd) v SSHD[2025] EWHC 1274 (Admit) , Hill J approved the New Hope approach from paragraphs 90-95. Mr Malik KC points to the fact that Hill J observed (at paragraph 94) that in considering whether the SSHD would have been entitled to revoke under another paragraph of Annex C1, the fact that this was a “serious possibility” was “a long way from being satisfied that revocation is “Highly likely” which is a “high hurdle”, and (paragraph 95) there was no evidence from the SSHD as to how she might have exercised her discretion in that regard. (c) In Prestwick, a similar approach was adopted by the Court of Appeal (at paragraph 139): “I conclude that the process by which the SSHD decided that the mandatory ground for revocation in paragraph C1.46 and Annex c1(z) was established was flawed and unfair. It is correct that the SSHD also concluded that SCL was in breach of the further mandatory ground in paragraph C1.44 and annex C1(s). But the unfair procedure leading to the decision as to dishonesty vitiated the overall revocation decision. Although the SSHD raised s.31(2A) of the Senior Courts Act in its grounds of appeal, it was not suggested in argument before the judge that relief should be declined under that provision.”
“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.”