UK Court Hears First Case on Points-Based Immigration System
Monday, 1st June 2015
Despite a boom in business immigration in recent years, the court has only recently heard the first case concerning ''Tier-2'' of the UK's points-based immigration system in R (on the application of Raj & Knoll Ltd) v Secretary of State for the Home Department (2015).
The claimant owned three care homes and employed a total of 39 migrant workers under Tier 2. Following the claimant's application to renew its Sponsor Licence, Home Office Compliance Officers made a Licence renewal visit to the claimant's registered business address.
On arrival, the compliance officers found that the claimant had moved from this address some months earlier. On investigation, the officers also found that whilst the claimant's (incorrect) registered address was listed on the Certificates of Sponsorship issued to its migrant workers, none of those workers had ever actually worked at that address. The claimant had also failed to keep appropriate records of meeting the resident labour market test, which is a Sponsor requirement under Tier 2.
As a result of those incidents of non-compliance with its Sponsor duties, a letter was sent to the claimant by the Compliance Officers advising that its Sponsor Licence was being suspended and that the Claimant had a 20 day period to "make representations, including submitting evidence, in response to the issues raised". The claimant responded to this letter and a chain of correspondence began, as part of which the claimant made representations. However, the Secretary of State sent a further letter revoking the Licence as the claimant had failed, at any point during the correspondence, to provide evidence to illustrate that it had addressed all of the issues raised in the initial letter. The claimant argued that this decision was irrational, because:
• The Sponsor Management Unit should have been aware that the registered address was no longer in use;
• Attempts to change the registered address had been rejected by the Secretary of State; and
• Any breach of record-keeping requirements were minimal.
The claimant therefore asserted that the Secretary of State should have used her discretion to take action short of revocation; for example, downgrading the Sponsor Licence. Revocation of the Licence meant that the claimant could no longer employ any non-EEA migrant workers.
The court held that there was no substance in any of the claimant's arguments. The claimant had neglected to comply with its record-keeping duties and with the resident labour market test, and had failed to correct those problems and provide evidence of this within the timeframe given by the Secretary of State in its initial letter. A clear warning was provided in the course of correspondence that such a failure would result in the revocation of the Licence; the Secretary of State was therefore justified in doing so.
In giving this judgment the court described the claimant's attitude to the Tier 2 Sponsor Guidance as "sloppy and cavalier" and made clear that, even though there is discretion to impose a sanction other than revocation, revocation would be the normal outcome in cases of non-compliance unless there are exceptional circumstances.
This case, the first to comment on the Tier 2 immigration process, makes abundantly clear than non-compliance with Sponsor Guidance will not be tolerated. Although in this instance the claimant committed a clear and relatively large breach of its obligations, the court's comments that revocation of a Sponsor Licence is to be expected in all but the most exceptional cases of non-compliance indicates that even a minor breach could have a devastating effect on employers using the Tier 2 system.
The court's strong stance on this point may be of concern to employers, particularly given that some of the current guidance on Sponsor duties is less than clear.
If you require further information or assistance with business immigration, please contract Kirsty Cooke of the Ashfords Employment Team.