“Our records and your representations show over 40% of your sponsored workers are no longer sponsored by your business; a significant number...never began their role. This clearly demonstrates a failure of your recruitment practices. You have regularly identified and sponsored candidates who have been unsuitable for the role, or who had no intention of taking up their position. We believe that a more robust recruitment process, aligned with what is expected of all sponsors and as stated in the guidance for sponsors, would have resulted in a significantly improved worker retention rate.” ii. Secondly, the Minded to Find letter noted four workers had visa applications refused (though it later transpired it was only one, Mr F). It suggested this breached the Sponsor Guidance (Part 2) S2.3 that a CoS was confirmation from the sponsor (amongst other things) that the sponsor was satisfied that a sponsored worker ‘can meet the relevant immigration requirements’, but: “It is evident that the four sponsored worker…did not meet the relevant immigration requirements and were therefore refused visas. We consider this to be a failure of your recruitment practices.” iii. Thirdly, of Ms K, the UKVI letter stated: “You stopped sponsoring [Ms K] because they were unable to drive. For any role critical requirements, it is your duty as a sponsor to request and assess evidence from the candidate that they are suitable for the role. Failure to do so constitutes a failure to comply with your sponsor duties.”
“[A]s you benefit directly from migration in relation to the workers you sponsor [you] therefore must do all you can to minimise the risk to immigration control. This includes following published guidance and any good practice. What is evident from the issues we have identified is that you have directly contributed to the risk to immigration control by failing to ensure that individuals you have sponsored are suitable for their role. We believe that the issues describe above constitute a failure to comply with your sponsor duties. From the date of this letter, you have 20 working days.. to explain the above issues. If you fail appropriately to do so, we will revoke your sponsor licence. If you fail to alleviate our concerns, we will revoke your sponsor licence.”
“[W]e take note of the fact that the Secretary of State has come up with entirely new allegations after our client successfully rebutted all of the allegations that were raised in the previous letter. We are concerned this appears to create the impression that there is determination to revoke our Sponsor’s Licence at all costs – regardless of the merits…..We submit in the particular circumstances of this case, unless we are shown compelling evidence suggesting otherwise, there is presently no lawful basis for the current intervention. In fact, at present there are grounds for concluding that the intervention is disproportionate and tantamount to an abuse of power…” i. That the concern about the Claimant’s 40% turnover was ‘highly inaccurate, objectively misleading and presented a superficial understanding and misreading of the available objective evidence’. It relied on the House of Commons report average turnover rate of 28.3% adding: ‘Its estimate of nearly 30% is close to the 40% cited in the letter’. However, as discussed, in fact 40% is itself 40% higher than the 28.3% average. ii. Of the four workers named as refused visa applicants, two were not. Though no explanation was given for the other two (until pre-action letters when the Defendant withdrew criticism of one), including Mr F: “[O]ur client does not have any information pertaining to why his visa application was unsuccessful. Likewise, he underwent their rigorous recruitment processes and had all the necessary documentation. Proper recruitment policies and procedures were followed…and [you have] not provided any compelling evidence to prove otherwise.” iii. Most remarkable was the response about Ms K, whose job application (annexed to the Response Letter itself) twice answered ‘no’ to ‘Do you hold a current Driving Licence ?’ Yet the Response Letter said: “[With Ms K] we find the position taken by the decision-maker to be perverse and grossly irrational. This is because, the decision maker has not indicated how, beyond asking for a driving licence and references – all of which have been done – it is being asserted that our client would have been able to identify that an employee recruited internationally with a valid Driving Licence was actually unable to drive in the UK when called upon...in execution of duties.”
“Your response letter contests our citing of over 40% of your sponsored workers no longer being sponsored by your business. You referred to a House of Commons report from 2022/23 which cites an average staff retention turnover for the industry as 28.3% that year. The performance of other care providers does not change your responsibilities as a sponsor licence holder. In addition to this, we had used figures from our own records which may not have been fully updated by you through SMS. Considering your [staff list], over 60% of your total sponsored workers no longer work for you. Your staff list was broken down as follows, we have not included rejected candidates in the staff turnover calculations: • 48 current staff (shows 49 but one is duplicated) • 41 former international staff • 10 dismissed staff • 27 switched before commencing employment • 13 candidates rejected • 48 current staff (shows 49 but one is duplicated) • 41 former international staff • 10 dismissed staff • 27 switched before commencing employment • 13 candidates rejected This high level of staff leaving raises concerns over the Claimant’s recruitment practices, which we consider to be a threat to immigration control.” (with reference to para C7.1-3 Sponsor Guidance cited below). Therefore, on the Claimant’s own records, the 40% staff turnover had become 60%. ii. On the failed visa applicants, the Decision accepted at paras.4-5 that two of the four had actually been successful. But at para.6, given no explanation had been proffered in the Response Letter for the other two workers (other than asserted robust recruitment processes), the Defendant did not withdraw its criticism about them. (It did later in its Pre-Action response for one – not Mr F - after the Claimant finally explained she had a valid English test and English degree, which it had not said earlier). The Decision said at para.6: “As your response letter accepts, [Mr F and the other worker] both had their visa applications refused and therefore never worked for your company. Each of these applications were refused on grounds of eligibility. Failing to meet the eligibility criteria to apply for a Health and Care visa or a failure to meet the language requirements shows a failure of your recruitment practices.” iii. In relation to Ms K, at paras.9-11, the Decision quoted back the ‘own goal’ argument from the Claimant’s Final Submissions letter quoted above that it had no way of knowing she could not drive, but also pointed out she had twice in her job application form made clear she could not drive, observing: “It is evident that during the recruitment process, [Ms K] made it clear that she could not drive. Despite this, you proceeded to sponsor her with a start date of9th June 2023 . Subsequently, you reported on31st October 2023 that you were no longer sponsoring her, stating she: ‘is unable to drive and therefore employer has no work for non-drivers due to the nature of the shifts being in rural remote areas’. Given that you had no work for non-drivers, [Ms K] was recruited for a role she was unable to carry out.”
“Considering each of the issues detailed in paras 4 to 11, we conclude that at least some of the vacancies you have filled are non-genuine. A genuine vacancy is one which requires the jobholder to perform the specific duties and responsibilities for the job in question. Assigning CoS to sponsored workers who are unable or unwilling to perform the specific duties and responsibilities demonstrates either a severe failure in your recruitment practices or that the vacancies for which they are hired are non-genuine.”
“Taking the decision as a whole, the approach taken to the turnover figures was the lens through which the Defendant viewed the circumstances of the two individual cases. To that extent the first three grounds have overlapping considerations.”
“The Claimant invites the Court to read para. C1.46 and the requirement for a genuine vacancy to require an element of dishonesty, deception, malice, or dishonourable conduct….[T]he examples given in C1.46 of the Guidance do not suggest it applies to instances of poor decision-making, unforeseeable events, or the like. The Defendant has made a sweeping statement in respect of non-genuine vacancies but then failed to back it with any specific instances or evidence. This cannot be right.”
“[Para.12 of the Decision concluded] that ‘Assigning CoS to sponsored workers who are unable to unwilling to perform the specific duties and responsibilities demonstrates either a severe failure in your recruitment practices or that the vacancies for which they are hired are non-genuine’ (emphasis added). The effect of the underlined words means that even if the Court is not satisfied the SSHD had a rational basis for revoking the sponsor licence on grounds of non-genuine vacancies, the Court should go on to consider whether the other...alternative..conclusion is rationally sustainable on the aggregation of elements of the decision making – namely, that it was rationally sustainable that the high turnover, the refused visa application and the errors with respect to Ms K.. demonstrated a failure in recruitment practices which posed a threat to immigration control.”
“4. Under the Immigration Rules, made under powers vested in the SSHD bys.3(2) of the Immigration Act 1971 , foreign nationals may enter the UK as workers if sponsored by an employer. The SSHD is responsible for awarding licences to employers who may then grant certificates of sponsorship to workers as permitted by the licence. 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. It plays an important role in the national economy…. there are currently over 115,000 sponsors in the UK including just under 9,000 in the social care sector alone. 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. 5. The provisions governing the sponsorship scheme are set out in non-statutory guidance, the legal basis for which was described by Lord Sumption in R (New London College) v SSHD[2013] 1 WLR 2358 (SC) at paragraphs 28-29 in these terms: “28. …. the statutory power of the Secretary of State to administer the system of immigration control must necessarily extend to a range of ancillary and incidental administrative powers not expressly spelt out in the Act, including the vetting of sponsors. 29. The Immigration Act does not prescribe the method of immigration control to be adopted. It leaves the Secretary of State to do that, subject to her laying before Parliament any rules that she prescribes as to the practice to be followed for regulating entry into and stay in the UK. Different methods of immigration control may call for more or less elaborate administrative infrastructure…. It cannot have been Parliament’s intention that the Secretary of State should be limited to those methods of immigration control which required no other administrative measures apart from the regulation of entry into or stay in the United Kingdom. If the Secretary of State is entitled (as she plainly is) to prescribe and lay before Parliament rules for the grant of leave to enter or remain in the United Kingdom which depend upon the migrant having a suitable sponsor, then she must be also be entitled to take administrative measures for identifying sponsors who are and remain suitable, even if these measures do not themselves fall withinsection 3(2) of the Act .” 6. The ‘Workers and Temporary Workers: guidance for sponsors’ Guidance in force at the relevant time consisted of four parts – ‘Part 1: Apply for a licence’ provided information for employers and other organisations on how to apply for authorisation (‘a licence’) to sponsor an overseas national on the Worker and Temporary Worker immigration routes. ‘Part 2: Sponsor a worker: general information’ provided information for licensed sponsors on how to sponsor a person on those routes. ‘Part 3: Sponsor duties and compliance’ provided guidance for employers and organisations who held a sponsor licence under the routes. This part ‘tells you how to meet your sponsor duties and the action we will take if you breach, or are suspected of breaching, these duties’. The worker routes included ‘skilled worker’. Part 4, headed ‘Sponsor a skilled worker’, was not relevant…All parts of the Guidance included a sentence substantially in these terms: ‘You should read all parts of the guidance to ensure that you understand your duties and responsibilities as a licensed sponsor”. 7. The guiding principles were set out in Part 1 at paragraphs L2.1 to L2.3. Paragraph L2.1 provided, in terms reiterated at other points in the guidance: “Sponsorship is based on two main principles: • sponsorship is a privilege, not a right – this means that those who benefit most directly from employing migrant workers must: o play their part in ensuring the immigration system is not abused o comply with wider UK law o not behave in a manner that is not conducive to the public good • overseas nationals who apply for permission to enter or stay in the UK to work are eligible, and a trustworthy and licensed employer genuinely wishes to employ and sponsor them”. 8. Paragraph L2.3. provided: “We have a duty to ensure all sponsors discharge these responsibilities, and we will take compliance action when it is considered that a sponsor has failed to do so, or otherwise poses a risk to immigration control. Part 3: Sponsor duties and compliance contains detailed guidance on your duties as a licensed sponsor and the compliance action we can take if you fail to meet those duties.” 9. An employer or organisation to whom a licence was granted was entitled to assign a certificate of sponsorship to a worker from overseas. Before a worker could make a successful immigration application, the sponsor had to assign them a valid certificate of sponsorship (‘CoS’). Para S3.5 in Part 2 set out the information the sponsor had to include on the CoS, including details of the worker’s job and the appropriate 4-digit ‘occupation code…”
“C1.3 Sponsorship is a privilege not a right. The sponsorship system reflects that those who benefit directly from migration (employers, education providers or other organisations who bring in overseas nationals) should play their part in ensuring the immigration system is not abused. Significant trust is placed in sponsors and they must ensure they comply with immigration law and wider UK law, and not behave in a manner that is not conducive to the wider public good. C1.4. To achieve these aims, all licensed sponsors must fulfil certain duties. Some of these duties apply to all sponsors, whilst others are specific to those licensed under certain routes. C1.5. The objectives of these duties include, but are not limited to: • preventing abuse of immigration laws and sponsorship arrangements • capturing early any patterns of behaviour that may cause concern • addressing possible weaknesses in process which can cause those patterns • monitoring compliance with the Immigration Rules, all parts of the …guidance, and wider UK law (such as employment law) • ensuring sponsors do not behave in a way that is detrimental to the wider public good…. C7.2. The majority of those who employ overseas workers are honest and willing to comply with their duties. However, because sponsorship transfers a significant amount of responsibility and trust to sponsors, we have a duty to ensure that we deal appropriately with the minority who do not comply with their duties. We place great weight on the importance of trust in the operation of the sponsorship system and the need to ensure that sponsors take their duties seriously. C7.3. We will continually monitor sponsors’ compliance and take action against those who: • pose, or may pose, a threat to immigration control • breach their sponsorship duties, or otherwise fail to comply with the Immigration Rules or Worker and Temporary Worker sponsor guidance… • are convicted of criminal offences or issued with certain civil penalties (such as those for employing illegal workers) • have engaged or are engaging in behaviour or actions that are not conducive to the public good…”
“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… • 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…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 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 • only assign a CoS to a worker if you are satisfied they intend to, and are able to, fill the role…”
“Genuine vacancy: definition 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 • 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 C1.45. We may request additional information and/or evidence from you or the worker to establish this requirement has been met and may refuse the worker’s application if this is not provided within our deadline. C1.46. 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. C1.47. When you assign a CoS, the duration stated on the CoS must be an accurate reflection of the expected duration of the role. You must not assign a long-term CoS for a short-term role to enable…longer…permission.”
“C7.26. Where there is a more serious breach indicating: • a significant or systematic failing • you no longer meet the eligibility or suitability requirements for holding a licence • you pose a serious threat to immigration control • you are engaging, or have engaged, in behaviour or actions that are not conducive to the public good We may decide either to: • suspend your licence, with a view to revocation, while we investigate further, or • revoke your licence without prior suspension…. C10.4. Annex C1….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. C10.5. Annex C2…sets out the circumstances in which we will normally revoke your licence unless there are exceptional circumstances C10.6. We cannot define in which exceptional circumstances we may not revoke your sponsor licence, but when one of the circumstances listed in Annex C2 of this guidance applies, we view this as a serious matter. We will look for evidence you have adequate processes and procedures in place and have taken all reasonable steps to verify information 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. C10.7. Annex C3 of this document sets out the circumstances in which we may revoke your licence. Generally, we will not revoke your licence if only one of these circumstances arises, but we reserve the right to do so, depending on the gravity of the issue. The more of these circumstances that are present, the more likely it is that we will revoke your licence. C10.8. If any circumstances in Annex C2 or Annex C3 arise and we believe the evidence… shows you are breaching your duties and/or pose a threat to immigration control, we will… suspend your licence while we investigate... C10.9. If any circumstances in Annex C2 or Annex C3 arise and we do not believe it is necessary to suspend your licence, we may first downgrade it..”
“q. You use a CoS to fill a vacancy other than the one specified on the CoS you assign for that role, unless the change is permitted by the Immigration Rules, or this guidance and you have notified us of the change…. r. You give false information in any application for, or request to assign, a CoS, or a request to renew your annual allocation of CoS. s. The role undertaken by a worker you have sponsored does not match one or both of the following: • the occupation code stated on the CoS you assigned to them • the job description on the CoS you assigned to them…. 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.”
“19. The legal principles governing the system of sponsorship and its review by the Courts are established in a series of cases, some of which relate to the Tier 2 scheme (sponsorship of skilled workers) and others to the similar sponsor scheme under Tier 4 (for colleges who sponsor students). It is well established that the same principles apply to both Tiers: R(St Andrew’s College) v SSHD[2018] EWCA Civ 2496 [at 29]. 20. The sponsorship scheme is entirely voluntary. A care home can, if it chooses, engage only staff who already have leave to remain in this country. A sponsorship licence gives a care provider a business advantage through access to a wider labour market. But to enjoy that advantage the provider must comply with the rules of the scheme. In R (New London College) Lord Sumption JSC said at [29]: “There are substantial advantages for sponsors in participating [in the Tier 4 Scheme] 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.” 21. In St Andrew’s College at [29] Haddon-Cave LJ reiterated his summary of the principles in R (Raj and Knoll) v SSHD[2015] EWHC 1329 (Admin) at [21], approved by this Court at[2016] EWCA Civ 770 : “(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…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 SSHD[2012] 1 WLR 2208 at [42]). (5) The [CAS or CoS] is very significant… possession by a migrant ...provides strong, but not conclusive, evidence of some of the matters ...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 …. (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 ….” 22. In the following paragraph [30] in St Andrew’s College, Haddon-Cave LJ endorsed the following four further principles which he derived from the judgment of Silber J in R(Westech College) v SSHD[2011] EWHC 1484 : “(1) The SSHD has stringent powers to suspend or revoke a sponsor’s licence if [it] 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 its… powers where there is a risk the sponsor might not be complying with its duties provided of course UKBA complies with its public law duties…. (3) The expertise and experience of the SSHD in being able to detect the possibility a sponsor might not 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” “There are substantial advantages for sponsors in participating [in the Tier 4 Scheme] 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.” “(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…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 SSHD[2012] 1 WLR 2208 at [42]). (5) The [CAS or CoS] is very significant… possession by a migrant ...provides strong, but not conclusive, evidence of some of the matters ...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 …. (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 ….” “(1) The SSHD has stringent powers to suspend or revoke a sponsor’s licence if [it] 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 its… powers where there is a risk the sponsor might not be complying with its duties provided of course UKBA complies with its public law duties…. (3) The expertise and experience of the SSHD in being able to detect the possibility a sponsor might not 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” 23. In Raj and Knoll in the Court of Appeal, Tomlinson LJ said (at [32]): “I was not … 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 …. 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:….” 24. These principles have since been applied in a number of first instance cases, including R(Goldcare Homes) v SSHD[2019] EWHC 3884 (Admin) …[where] the deputy judge, Alison Foster QC (as she then was), observed: “21. It is clear sponsorship is based on two fundamental principles: (i) Those who benefit most directly from migration, that is to say employers [or] education providers..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 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…As said by McGowan J [at first instance] in St. Andrew's College at [13], 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 ….”
“You assign a COS for a vacancy that was not genuine. For example, where: it contains an exaggerated or incorrect job description to deliberately make it appear to meet the requirements of the tier and category you assigned to it under when it does not [or] it is for a job or role that does not exist in order to enable a migrant to come to or stay in the UK.”
“A genuine vacancy is one which: • requires the job holder to perform the specific duties and responsibilities for the job and meets all of the requirements of the tier and category – if you have already assigned a COS, the vacancy must be for the period of employment stated on the COS; • does not include dissimilar and / or lower-skilled duties.”
‘is appropriate to the business in light of its business model, business plan and scale’
“12. It would place too high a burden on [SSHD] if deliberate dishonesty had to be established. While no doubt often there will be at least an inference of dishonourable conduct, in my view revocation is not only available, but mandated, so long as the decision-maker is satisfied as to an annex 5 ground. For example, if a sponsored worker is allocated a job which is not a genuine vacancy, there has been a breach of the guarantee undertaken by the licence holder. The [SSHD] does not have to show this was caused by deliberate dishonesty, as opposed to carelessness, incompetence, or some other reason. 13. This is consistent with [Raj Knoll] The licence holder is trusted to and undertakes to comply with the guidance, including that sponsored workers are only allocated to genuine vacancies. The guarantee is not limited to an absence of dishonesty or bad faith. The ‘light trigger’…reflects the right to take action once [SSHD] is satisfied the [sponsor’s] responsibilities are not ..carried out with necessary rigour and vigilance. [It is] the decision-maker. 14..[T]urning to the guidance…a genuine vacancy is one where the duties and responsibilities for the job meet the requirements of the tier and category and do not include dissimilar and/or lower skilled duties….[R]evocation will follow if the role undertaken by the migrant does not match the job description in the…assigned CoS. None of this affords a licence holder a defence if the SSHD does not make a specific finding of dishonesty. In a sense it is ‘an offence’ of strict liability. The licence holder has guaranteed certain things and it ‘must’ fulfil them in order that immigration law is met. It is true that examples are given in the guidance which clearly involve an element of deliberate deception, but these are not exhaustive, nor do they expressly or impliedly circumscribe the [SSHD’s] powers.”
“83. Whilst plainly the Guidance is not a statute, nor should it be construed as such, the only examples given of its operation concern cases in which an intention to deceive is present…..[The first two points in para 15.13]..are… not definitive in nature but descriptive of certain characteristics of a vacancy that is not genuine. [They]…say nothing about the state of mind required to fall foul of the stricture requiring a genuine vacancy to be in existence for the purposes of this part of the rule. The inclusion of the [second] three example bullet points is however is instructive on exactly this point. 84. The first bullet example is a case where there has been ‘deliberate exaggeration’ to make it look as if a job meets the requirements ‘when it does not’. [T]he second bullet…‘a job or role that does not exist in order to enable a migrant’ to come to or stay in the UK. The last bullet talks of advertisements ‘tailored to exclude resident workers’. This is the language of deliberate deception and of dishonesty. Further, the SSHD himself draws a distinction [in different grounds for revocation] between, on the one hand, a role that does not meet the relevant Tier 2 criteria, and on the other one that …in addition, is properly described as not a ‘genuine vacancy’…..”
‘a role is not genuine for example because it does not exist’ or ‘has been created mainly so the worker can apply for entry clearance or permission to stay’
“Revocation…is required where the Defendant is satisfied there are grounds (for example, if a sponsored worker is allocated a job which is not a genuine vacancy, that may be a breach of the guarantee undertaken by the [sponsor. SSHD] does not have to show deliberate dishonesty, as opposed to carelessness, incompetence, or some other reason (Experience India)…”
“130. The judge held…that a proper construction of the decision letter was that the SSHD decided that Ms Rima’s role did not represent a genuine vacancy, that it had been deliberately exaggerated and that this amounted to a finding of dishonesty. Neither party sought to challenge th[at]. 131. [SSHD is] right to warn against imposing overly legalistic procedure on those tasked with enforcing compliance with the Guidance. They are not lawyers. There are over 115,000 sponsors. There is a lot of work for the SSHD’s staff to do. But the fact..the[y] 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. 132. Adapting the principles in paragraphs 42-43 and 55 of Balajigari to the compliance investigation process, 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. But an allegation of dishonesty in this context imposes four particular requirements on the investigators. 133. First, as this Court stated in Balajigari, dishonesty ‘is a serious allegation carrying with it serious consequences’. It is for the SSHD to establish, on a balance of probabilities, that the sponsor acted dishonestly. There is no burden on the sponsor to prove that it did not. 134. Secondly, where the SSHD has a suspicion that a sponsor has acted dishonestly, she must indicate clearly to the sponsor that she has that suspicion so that the sponsor has a fair opportunity to respond. 135. Thirdly, having received the sponsor’s representations in response, the SSHD must consider all the circumstances before drawing the inference that the explanation for the discrepancy between the job description in the CoS and role actually being performed by the worker is that the sponsor has deliberately exaggerated her role in order to facilitate her stay in this country. If the SSHD has clearly indicated her suspicions in the suspension letter, the sponsor may put forward alternative explanations which the SSHD must consider with other relevant matters. 136. Fourth, if the SSHD draws the inference of dishonesty, she must set out her reasons in the revocation letter. There is no need for the reasons to be lengthy or legalistic. But a sponsor whose licence is being revoked because the SSHD has concluded it has acted dishonestly is entitled to know the reasons for that decision, notwithstanding that the decision is taken on her behalf by relatively junior staff. 137. In SCL’s case, these requirements were not met. Although the suspension letter set out…the concern that Ms Rima’s role was not a genuine vacancy and recited passages of the Guidance… including paragraph C1.46 and Annex C1(z), it failed to set out with any clarity that the SSHD suspected that SCL had deliberately exaggerated Ms Rima’s role in order to facilitate her stay in this country. The first time the SSHD expressly told SCL that she believed the company had exaggerated the role to facilitate her stay here was in…the revocation letter. I accept Mr Malik’s submission that at no stage prior to the revocation decision did the SSHD expressly allege dishonesty or deliberate wrongdoing. Furthermore, there was nothing in the revocation letter to indicate the basis on which the SSHD drew the adverse inference that the reason for the discrepancy between the job description in Ms Rima’s CoS and her actual duties as described in her interview was that her role had been deliberately exaggerated to facilitate her stay in this country. Given the seriousness of a finding of dishonesty…the revocation decision does not sufficiently explain why the fact that the role undertaken by a single worker did not match her job description led to the conclusion that the company had deliberately exaggerated her role in order to facilitate her stay in this country.”
“39… Assuming the Defendant did have reasonable grounds to suspect that [the Claimant did not have enough work to justify the number of certificates it had issued and that 50 of the 124 sponsored workers did not appear on the payroll] then this would strongly suggest that some of the roles for which certificates had been issued did not exist. This could have resulted from negligence on the part of the Claimant, ignorance as to the correct approach or misplaced optimism that there would be sufficient work. In such circumstances certificates would be issued where there was no genuine vacancy, but this would not be due to dishonesty or deliberate exaggeration by the Claimant, [but] ignorance, negligence and/or incompetence. 40. This case can be contrasted with the position in [R(SCL) where the decision found dishonesty]…In this case there was no finding of dishonesty by the Defendant who disavows dishonesty in her response to the claim… 41. It cannot be right that the Defendant must prove deceit or dishonesty before a licence can be revoked on the basis that a sponsor has issued certificates for roles which are not genuine. This would enable sponsors to benefit from incomplete record keeping. It would enable a sponsor to plead negligence, ignorance or incompetence as a defence. Such an approach would be inconsistent with the high degree of trust that is placed in sponsors, the need to keep records with assiduity and the light trigger that the Defendant is entitled to bring to these proceedings.”
“12 The proper approach to the interpretation of administrative policies was considered by the Supreme Court in Tesco Stores… at paras 17–18, it said: “[A] decision will be open to challenge if [it] fails to have regards to a policy…. relevant to the application, or fails properly to interpret it. [P]olicy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.” 13 Further, the Supreme Court in Mandalia v SSHD[2015] 1 WLR 4546 held at para 30 that: ‘The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided [it]...is a lawful exercise of the discretion conferred by the statute’ 14 It further noted at para 31 that interpretation of policy documents “is a matter of law which the court must therefore decide for itself”. 15 The Supreme Court also made it clear at [31] that: “previous suggestions that the courts should adopt the Secretary of State’s own interpretation of her immigration policies unless it is unreasonable, made for example in Gangadeen v SSHD [1998] Imm AR 106, 115, are therefore inaccurate.”
“The Guidance Documents are what they say on the tin, namely guidance documents. As such, they have to be read sensibly, purposefully and holistically. They are not statutes or to be construed rigidly and myopically”
“Genuine vacancy: definition 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 • 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 C1.45. We may request additional information and/or evidence from you or the worker to establish this requirement has been met and may refuse the worker’s application if this is not provided within our deadline. C1.46. 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. C1.47. When you assign a CoS, the duration stated on the CoS must be an accurate reflection of the expected duration of the role. You must not assign a long-term CoS for a short-term role to enable…longer…permission…. 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.”
“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.”
“In the case of a statutory definition, the defined term may itself colour the meaning of the definition….[T]his principle…means that when the definition is read as a whole the ordinary meaning of the word or phrase being defined forms part of the material …potentially…used to throw light on the meaning of the definition. Whether and to what extent it does so depends on the circumstances..”
‘claims management services’
‘a genuine Rembrandt’, a ‘genuine Rolex’, or ‘genuine leather’
“(q) You use a CoS to fill a vacancy other than the one specified on the CoS you assign for that role, unless the change is permitted by the Immigration Rules or this guidance and you have notified us of the change… (s) The role undertaken by a worker you have sponsored does not match one or both of the following: • the occupation code stated on the CoS you assigned to them • the job description on the CoS you assigned to them… (w) You employ a worker in a job that does not meet the skill-level requirement for the route as set out in the sponsor guidance.”
“37. [Para C1.44]…indicates that the Defendant must judge whether a job is a genuine vacancy looking at the requirements of the Claimant’s business and not only by the requirements of its clients and customers… 60. I reject the Defendant’s submission that current vacancies cannot be based on expected demand….C1.44…gives the Claimant the flexibility to have a business model which is not simply reactive to demand for care places….It may quite properly recruit prospectively so that it is ready to meet the expected demand or provide a greater level of care in acute cases or even so it can grow the business and expand the number of users it is able to accommodate. Such recruitment is for genuine, current jobs.”
‘a. You fail to comply with any of your sponsor duties set out in section C1’ and ‘b.we are not satisfied you are using a process or procedure necessary to fully comply with your sponsor duties’
“21. It is clear sponsorship is based on two fundamental principles: (i) Those who benefit most directly from migration, that is to say employers [or] education providers..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 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…As said by McGowan J [at first instance] in St. Andrew's College at [13], 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 ….”
“19 In Kennedy v Information Comr[2015] AC 455 (SC), Lord Mance JSC observed at para 51 that: “The common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so-called Wednesbury principle … The nature of judicial review in every case depends on the context. The change in this respect was heralded by Lord Bridge of Harwich in R v Secretary of State for the Home Department, Ex p Bugdaycay[1987] AC 514 where he indicated that, subject to the weight to be given to a primary decision maker’s finding of fact and exercise of discretion ‘the court must … be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines’..[and at para 54]: [B]oth reasonableness review and proportionality involve considerations of … the scrutiny and weight to be given to any primary decision maker’s view depending on the context.” 20 In this context, as emphasised in R (Raj and Knoll Ltd) v Secretary of State for the Home Department[2015] EWHC 1329 (Admin) at [21], the primary judgment about the appropriate response to breaches by licence holders is that of the Secretary of State.”
“…..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 [heightened scrutiny]..… 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.” “The common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so-called Wednesbury principle … The nature of judicial review in every case depends on the context. The change in this respect was heralded by Lord Bridge of Harwich in R v Secretary of State for the Home Department, Ex p Bugdaycay[1987] AC 514 where he indicated that, subject to the weight to be given to a primary decision maker’s finding of fact and exercise of discretion ‘the court must … be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines’..[and at para 54]: [B]oth reasonableness review and proportionality involve considerations of … the scrutiny and weight to be given to any primary decision maker’s view depending on the context.”
“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…The[y] 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.”
“120. It is possible to subdivide the third category of consideration into two types of case. First, a decision-maker may not advert at all to a particular consideration...within that category. In such a case, unless the consideration is obviously material according to the Wednesbury irrationality test, the decision is not affected by any unlawfulness. There is no obligation on a decision-maker to work through every consideration which might conceivably be regarded as potentially relevant to the decision they have to take and positively decide to discount it in the exercise of their discretion. 121. Secondly, a decision-maker may in fact turn their mind to a particular consideration falling within the third category, but decide to give the consideration no weight …. The question again is whether the decision-maker acts rationally in doing so…. [I]n normal circumstances the weight to be given to a particular consideration is a matter for the decision-maker, and this includes that a decision-maker might (subject to the test of rationality) lawfully decide to give a consideration no weight….”
“In reaching that decision, there were other factors which the SSHD should have taken into account. By the…revocation letter, Ms R was the only worker under suspicion amongst the company’s 162 staff. Although she was not performing the two tasks which distinguished a skilled care worker from a care worker, she was performing the majority of tasks under the CoS job description. Both categories of worker are covered by the sponsorship scheme. It is unclear whether the SSHD took those matters into account before reaching the conclusion that the company had acted dishonestly… Reading the revocation letter, the inference seems to have been drawn solely from the discrepancy. As this Court observed in Balajigari, such a discrepancy (in that case, between two statements about a worker’s earnings) may give rise to a suspicion of dishonesty, but does not by itself justify a conclusion to that effect. What it does is call for an explanation. But if the explanation is not called for with sufficient clarity, and as a result is not forthcoming, all that is left is the suspicion.”
“Your response letter contests our citing of over 40% of your sponsored workers no longer being sponsored by your business. You referred to a House of Commons report from 2022/23 which cites an average staff retention turnover for the industry as 28.3% that year. The performance of other care providers does not change your responsibilities as a sponsor licence holder. In addition to this, we had used figures from our own records which may not have been fully updated by you through SMS [Sponsorship Management System]. Considering your [staff list], over 60% of your total sponsored workers no longer work for you. Your staff list was broken down as follows, we have not included rejected candidates in the staff turnover…: • 48 current staff (shows 49 but one is duplicated) • 41 former international staff • 10 dismissed staff • 27 switched before commencing employment • 13 candidates rejected This high level of staff leaving raises concerns over the Claimant’s recruitment practices which we consider…a threat to immigration control.”
‘Its estimate of nearly 30% is close to the 40% cited in the letter’
“As your response letter accepts, [Mr F and the other] both had their visa applications refused and therefore never worked for your company. Each of these applications were refused on grounds of eligibility. Failing to meet the eligibility criteria to apply for a Health and Care visa or a failure to meet the language requirements shows a failure of your recruitment practices.”
“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…[and] 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.”
“It is evident that during the recruitment process, [Ms K] made it clear that she could not drive. Despite this, you proceeded to sponsor her with a start date of9th June 2023 . Subsequently, you reported on31st October 2023 that you were no longer sponsoring her, stating she: ‘is unable to drive and therefore employer has no work for non-drivers due to the nature of the shifts being in rural remote areas’. Given that you had no work for non-drivers, [Ms K] was recruited for a role she was unable to carry out.”
“…A genuine vacancy is one which requires the jobholder to perform the specific duties and responsibilities for the job in question. Assigning CoS to sponsored workers who are unable or unwilling to perform the specific duties and responsibilities demonstrates either a severe failure in your recruitment practices or that the vacancies for which they are hired are non-genuine.”
“The High Court (a) 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.”
“[B]efore 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.”
“Even if the Court is not satisfied SSHD had a rational basis for revoking …on grounds of non-genuine vacancies, the Court should go on to consider whether…it was rationally sustainable that the high turnover, refused visa application and the errors with respect to Ms K. demonstrated a failure in recruitment practices which posed a threat to immigration control.”
“a. You fail to comply with any of your sponsor duties set out in section C1 b. As a result of information available…we are not satisfied you are using a process or procedure necessary to fully comply with your sponsor duties.” 81. The latter plainly does not require breach of actual sponsor duties (c.f. R(St Andrews College at [65]), simply lack of processes necessary to ensure full compliance with them: R(Tendercare) at [113]-[120]. The relevant duties on sponsors are at C1.38: “• only employ workers who are appropriately qualified, registered or experienced to do the job or will be by the time they begin the job… • not employ workers where they do not have the experience, qualifications or immigration permission to do the job in question … • only assign a CoS to workers who you believe will meet the immigration requirements of the route on which you propose to sponsor them…. • only assign a CoS to a worker if you are satisfied they intend to, and are able to, fill the role…”
“C1.3 Sponsorship is a privilege not a right. The sponsorship system reflects that those who benefit directly from migration (employers, education providers or other organisations who bring in overseas nationals) should play their part in ensuring the immigration system is not abused.” 82. As Mr Gajjar placed significant reliance on it, I also repeat C7.26: “C7.26 Where there is a more serious breach indicating: • a significant or systematic failing • you no longer meet the eligibility or suitability requirements…. • you pose a serious threat to immigration control • you are engaging, or have engaged, in behaviour or actions that are not conducive to the public good We may decide either to: • suspend your licence, with a view to revocation, while we investigate further, or • revoke your licence without prior suspension…. • a significant or systematic failing • you no longer meet the eligibility or suitability requirements…. • you pose a serious threat to immigration control • you are engaging, or have engaged, in behaviour or actions that are not conducive to the public good • suspend your licence, with a view to revocation, while we investigate further, or • revoke your licence without prior suspension…. 83. I need not repeat all the principles on revocation summarised in R(Prestwick) at [19]-[24] I quoted at paragraph 25 of this judgment, although obviously I bear it all fully in mind. But this observation by Tomlinson LJ in R(Raj Knoll) at [28] (not cited to me directly but extensively cited in R(Prestwick)) is instructive: “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.…The obligation thus cast upon sponsors is not onerous and compliance is not difficult. Failure to comply on the scale found here combined with exculpatory statements which demonstrate complete lack of understanding of the obvious importance of generating and preserving material evidencing that the scheme is being correctly applied, is bound to lead to the conclusion that the sponsor’s attitude to compliance is cavalier..”
“31(2A) The High Court (a) must refuse to grant relief..…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. (2B) The court may disregard the requirements in subs (2A)… if it considers that it is appropriate to do so for reasons of exceptional public interest.”
“It is important that a court faced with an application for judicial review does not shirk the obligation imposed by s.31(2A). [It] is designed to ensure that, even if there has been some flaw in the decision-making process which might render the decision unlawful, where the other circumstances mean that quashing the decision would be a waste of time and public money (because, even when adjustment was made for the error, it is highly likely that the same decision would be reached), the decision must not be quashed and the application should instead be rejected. The provision is designed to ensure that the judicial review process remains flexible and realistic.”
“70. [s.31(2A)] provides that a court must refuse to grant a remedy on a claim for judicial review if it appears to the court that (1) it is highly likely (2) that the outcome for the claimant would not be substantially different (3) if the conduct complained of had not occurred. The outcome for the claimant is, usually, the decision or other measure that the public authority has taken. The ‘conduct complained of’… is the legal error or flaw which would justify the grant of a remedy in judicial review (unless a remedy was refused by reason of section 31(2A) or for some other discretionary reason). 71. [With] s.31(2A) the court is concerned with evaluating the significance of the error on the decision-making process. It is considering the decision 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 s.31(2A) are unlikely to be satisfied…. 74 [s.31(2A)] emphatically does not require the court to embark on exercise where the error is left out of account and the court tries to predict what the public body would have done if the error had not been made. Approaching s.31(2A) in that way would run the risk of the court forming a view on the merits and deciding if it thinks that the public body would reach that view if it had not made the error. Rather, the focus should be on the impact of the error on the decision-making process the decision-maker undertook, to ascertain whether it is highly likely that the decision the public body took would not have been substantially different if the error had not occurred.”
“The Claimant submits that this is an invitation for me to second guess the SSHD’s decision, putting myself in place of decision maker. Here, the reconsideration letter does make clear that the SSHD found that the Claimant had failed in their duties as a sponsor in those various respects. However, …at paragraph C10.5 of the Guidance, it is indicated that “Annex C2 … sets put the circumstances in which we will normally revoke your licence, unless there are exceptional circumstances”
“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.”…. It follows that if I were considering the application of s.31(2A) to a decision reached by reference to Annex C2, I would not on balance of probabilities, be able to conclude it to be highly likely that the decision the SSHD took would not have been substantially different if the error had not occurred.”
“You have acted in contravention of a number of issues..in the..Guidance for Sponsors. We are satisfied that each of the following, individually, is a necessary basis for revocation: Non-Genuine Vacancies; (Annex C1 z)) as well as the other issues noted within this letter; (Annex C2 (a)…(b)).”
“C10.4. Annex C1….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. C10.5. Annex C2…sets out the circumstances in which we will normally revoke your licence unless there are exceptional circumstances. C10.6. We cannot define in which exceptional circumstances we may not revoke your sponsor licence, but when one of the circumstances listed in Annex C2 of this guidance applies, we view this as a serious matter. We will look for evidence you have adequate processes and procedures in place and have taken all reasonable steps to verify information 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.”
“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. [This] 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… states..”
“We will look for evidence you have adequate processes and procedures...and have taken all reasonable steps to verify information 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.”
“You have 20 working days from the date of the [suspension] 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.”
“[Y]ou have failed to alleviate our concerns in your response. We maintain that these issues constitute a failure by you to comply with your sponsor duties, and as a result, your sponsor licence has been revoked.”
“[Y]ou have directly contributed to the risk to immigration control by failing to ensure that individuals you have sponsored are suitable for their role. We believe that the issues describe above constitute a failure to comply with your sponsor duties. You have 20 working days.. to explain the above issues. If you fail appropriately to do so [or] fail to alleviate our concerns, we will revoke your sponsor licence.”
“(1) The court has discretion as to (a) whether costs are payable by one party to another; (b) the amount of those costs, and (c) when they are paid. (2) If the court decides to make an order about costs: (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but (b) the court may make a different order… (4) In deciding what cost order…to make, the court will have regard to: (a) the conduct of all the parties; (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful…. (5) The conduct of the parties includes…(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended its case or a particular allegation or issue…”
“[I]n assessing a proportionate costs order, the judge should consider what costs are referable to each issue and what…are common to several issues. It will often be reasonable for the overall winner to recover not only the costs specific to the issues which he has won but also the common costs.”