Tier 2 (General) and ‘genuine vacancy’: Court of Appeal holds that irrational PBS refusal should be quashed 

R (Suny) v The Secretary of State for the Home Department [2019] EWCA Civ 1019 (19 June 2019)

Irwin and Underhill LJJ recently held that the refusal of leave to remain under Tier 2 (General) to a Bangladeshi migrant could not be defended because such refusal was irrational. In particular, no rational basis existed for the decision-maker to conclude the role was not genuine because the applicant was inexperienced and the job description mirrored the wording of the Code of Practice for Skilled Workers Version 04/15 (“the Code”). The Court of Appeal held that such traits might be cause for some suspicion but on their own they cannot constitute a sufficient basis for an adverse conclusion. The effect of the court’s reasoning was that the decision had to be quashed. Mr Rahman Suny entered the UK as a student in December 2007. His leave as a student was extended in April 2011 and April 2013 and was curtailed. He applied on family and private life grounds but his application was refused in July 2015. On 12 August 2015, he made an application for further leave to remain as a  Tier 2 (General) migrant under the Points-Based System (“PBS”) of the Immigration Rules. The application was supported by a degree certificate in respect of Mr Suny’s Master of Arts in Marketing and Innovation from Anglia Ruskin University, a curriculum vitae and a reference from a short period of previous employment in Bangladesh. His employer was Zamir Telecom Ltd, an approved sponsor. 

Mr Suny paid a fee for a Tier 2 Priority Service Application, whereby subject to “reasons beyond our control”, the application would lead to a decision within 10 working days by the Home Office. However, the decision was sent on 6 February 2017, almost 18 months later, despite repeated prompting from his solicitors. The Tier 2 (General) application had been based on a certificate of sponsorship (“CoS”) from an approved sponsor who had offered him a job as a “sales accounts and business development manager” and this was a role which fell within a standard occupational classification (“SOC”) for the purposes of the Code. No dispute arose as to the fact that he was qualified for the role but that he lacked experience and would need to be trained by the sponsor. The decision-maker, after an 18-month delay, relied on Appendix A paragraph 77H(a) to refuse the application on the basis that the job vacancy was not genuine. The reason was that Mr Suny did not possess the relevant experience for the role, and the sponsor had also failed to explain why he was the most suitable candidate or why a resident worker could not have been trained to do the job. 

Background

Pursuant to under paragraph 245HD, a relevant applicant for leave to remain as a Tier 2 (General) migrant needs to score a minimum of 50 points under paragraphs 76–79D of Appendix A. The award of points is partially governed by paragraph 77H of Appendix A of the Immigration Rules. 

Furthermore, paragraph 6 (interpretation) of the Immigration Rules defines a genuine vacancy as one which exists in practice requires the jobholder to undertake the specific duties and responsibilities and does not include dissimilar and/or unequally skilled duties such that the SOC code used by the sponsor as stated in the CoS relating to the applicant is inappropriate.

The administrative reviewer took the view that the text of the summary of job description was so close to the text set down in the Code, applicable at the time the application was made, that it was suspicious and lent support to the refusal of Mr Suny’s application. Thereafter, the Upper Tribunal refused permission to apply for judicial review, holding that the Home Office had unarguably been rational in arriving at the conclusion that the vacancy was not a genuine one.

UTJ Kopieczek refused permission to apply for judicial review because of his view that the grounds were “a simple disagreement with the Respondent’s decision” and none of the legal arguments “had any arguable merit”. It was the clear view of the decision-maker that the vacancy on the CoS was not “a genuine vacancy”. The Home Office was entitled to seek further information from the sponsor and the response received was insufficient to allay its concerns as to the genuineness of the vacancy. In addition to concerns about the genuineness of Mr Suny’s candidature, the sponsor had failed to clarify his suitability for the role and apart from the interview Zamir Telecom failed to explain adequately the process of Mr Suny’s recruitment. 

Ground of appeal 

The single ground of appeal stated that the Upper Tribunal “erred in concluding that the respondent was unarguably rational in concluding that the vacancy was not a genuine vacancy for reasons given in the respondent’s decision.”

The competing arguments 

Mr Suny identified four propositions in the refusal (i) he did not have sufficient experience for the role entailed, (ii) the employer would have to train him which “makes little sense” given that the role itself entailed training junior staff; (iii) the potential employer failed to provide sufficient information as to why he was the most suitable candidate; and (iv) the employer also failed properly to explain the process of recruitment followed. Overall, his central argument was that even if those conclusions were rational on the basis of the evidence, it was still irrational to conclude as a consequence that the vacancy was not genuine. He argued that none of the points relied on elaborated upon the definition of a genuine vacancy. His role did not require particular experience and it was illogical to conclude the vacancy was not genuine on the grounds of lack of experience, or the need for training. The belief that he required extensive training, and lacked significant experience, overlooked his Masters degree in marketing and innovation and neglected the details in his resume about his knowledge and experience in IT, marketing and accountancy. 

The Home Office did not dispute the four factual propositions. It said that taken together they supported the conclusion that the vacancy was not genuine and it was unnecessary, in the PBS, to specify which parts of the relevant criteria were not fulfilled.

The lack of information provided by the sponsor regarding issues such as suitability and the recruitment process was unhelpful and it was rational to be concerned as to the genuineness of the vacancy where the description of the job closely matched the language of the Code. While the role in question was not subject to the Resident Labour Market Test (“RMLT”) that did not mean that the fact a resident worker could do the job was irrelevant to the decision in this case. The Home Office argued that the challenge that Mr Suny was trying to make was out of the reach of judicial review proceedings unless it satisfied the uphill irrationality threshold which Lord Bingham characterised as “notoriously high” in Maxwell [1997] 1 WLR 104. Thus, the Upper Tribunal was right to refuse permission to apply for judicial review. 

The Court of Appeal 

Allowing the appeal, the court opined that none of the concerns of the decision-maker stemmed directly from the definition of a “genuine vacancy” within the meaning of rule 6 of the Immigration Rules. Individually, none of the concerns could have founded a rational conclusion that the vacancy was not genuine and each of the concerns was highly problematic and could easily have been explored to achieve clarity. Irwin LJ gave the main judgment and Underhill LJ agreed with his reasoning and offered some points in his own words. 

(i) Rationality and genuineness of vacancy

Irwin LJ’s preliminary observation was that a job offer to an individual who is manifestly unqualified for the role may justify an inference that the job vacancy is not genuine as well as founding a decision that the person is unqualified for the post under paragraph 77H(b). It was however his Lordship’s view that:

34. … inference could properly be drawn, at least as the sole basis for an adverse conclusion under 77H(a), only where the facts were much more stark: where the job applicant lacked an essential qualification, or essential experience, or was otherwise evidently unsuitable.

The Home Office conceded that in the present case a finding against the applicant under paragraph 77H(b) might be problematic since there are few stark lines in Mr Suny’s particular type of job vacancy. For Irwin LJ, it was a “persuasive point” by Mr Suny’s counsel that the relevant Code of Practice for “3545 Sales Accounts and Business Development Managers” explicitly anticipates “new entrants”, since a lower salary rate is indicated expressly for that category.

Zamir Telecom had always very clear that Mr Suny had qualifications, including his recent degree, but “no relevant experience” and thus needed training. This was misunderstood as being indicative that the vacancy was not genuine. The court said it was unclear why this was so. It also expressed difficulty with seeing any rational basis for the conclusion by the decision-maker that “you do not hold the relevant experience to undertake this role”. No one had ever claimed there was relevant direct experience and Irwin LJ judged that:

36. … Common sense, as well as the content of the Code, suggests that an inexperienced but otherwise suitable applicant may be cheaper.

The court also expressed concern about the decision-maker’s approach to the resident labour issue. The vacancy was not subject to the RLMT and no obvious reason existed for Zamir Telecom to provide an explanation regarding why they were seeking to recruit a non-resident. Moreover, the decision-maker had not bothered to ask for an explanation or further information on this point. Nothing of substance arose on the facts of the case and the court agreed with Mr Suny “that there is a concern that the relevant official took an irrelevant matter into account.” Turning to the question of the job description, there was no doubt that the person drafting the job description had the text in the Code to hand and the Home Office accepted that despite its suspicion about the genuineness of the job vacancy it would be difficult to defend this as a sole basis for a rational adverse conclusion. Irwin LJ was unimpressed that the first that the argument was made was by the administrative reviewer and not by the first instance decision-maker and he held that:

40. I accept that most employers will have job descriptions for their employees and vacancies which are drafted for jobs without reference to the Codes of Practice. The task will then be to check such a job description against that laid down. I accept that drafting in the way the matter was done here may rationally give rise to some concern. However, it also seems to me that Mr Karim is correct as to the likely pressures on sponsors, who are not lawyers, and will not usually employ lawyers for purposes such as this, and who are anxious to ensure that the proper processes are followed. Without more, this degree of “mirroring” of text from the Code of Practice cannot, in my view, properly found a conclusion that the vacancy is not genuine.

The fact that the sponsor had not provided details whether Mr Suny’s previous “roles were full or part time” in Bangladesh did not make any difference and was not “relevant to this vacancy in any direct sense.” Taken together the features of the case were such that not one of the points relied on by the Home Office could found a rational conclusion that this vacancy was not a genuine one. It was clear to the court that judicial review in the present context represented a rationality challenge. 

The outcome in Alvi [2012] UKSC 33 was a classic statement at apex court level that predictability of outcome rather than flexibility was the axiom underpinning the PBS. The tension is unusually stark but Lord Walker and Lord Hope opined in Alvi that the very high price paid in the PBS in terms of rigidity and complexity is offset by the clear advantages presented by predictability which their Lordships held was a “tendency that is to be commended”. Predictability, clarity and consistency in outcome are the hallmarks of the PBS and apply equally to both applicants and the Home Office. Irwin LJ held that in Mr Suny’s case the protracted and complex process of the Home Office constituted a departure from the simple, brief and predictable approach called for by the PBS. Overall, the Home Office engaged in a long process of consideration but it had failed to take simple steps of requesting information before reaching a conclusion.

Notably, none of the concerns were directly connected to the matters contained in the definition of a “genuine vacancy” in rule 6. The officials who conducted a protracted investigation and decision-making process (labelled “particularly complex” by them) never alerted the sponsor or the employee to their concerns, but at the same time permitted the process to extend. Therefore, the decision to refuse was “reached on a concatenation of points” and the situation was highly problematic. Accordingly, Irwin LJ held that: 

47. In my judgment this decision cannot be defended. I would therefore remit the matter to the Upper Tribunal, so that judicial review proceedings may proceed, in the expectation that the decision will be quashed. 

(ii) Underhill LJ’s concurring judgment

Underhill LJ said that the decision gave the clear impression that the decision-maker had not focused on the correct test and had mixed up various potential grounds for refusal without any proper analysis. His Lordship further explained that the nature of the court’s review function was limited and the Home Office’s decision had to be afforded respect. But in the present context, the reasons put forward by the decision-maker were incapable of justifying his conclusion. 

For Underhill LJ, it was clear that the objections raised as to the genuineness of the vacancy and the suitability of employing Mr Suny were half-baked and his Lordship regarded the situation as “an ex post facto rationalisation of a decision that was not properly thought through at the time.” The decision created the impression that the decision-maker failed to focus on what test he was applying and confused various potential grounds for refusal without any proper analysis. Particularly telling in that regard was the reference to the sponsor not having tried to recruit a resident worker. Similarly, concerns about lack of experience were also confused because the decision-maker “while purporting to apply one test was, at least to some extent, applying another.” It was surely possible for other sponsors to exaggerate the requirements of the post offered. While this was a concern decision-makers needed to remain alive to, Underhill LJ took the view that Irwin LJ was correct to hold that the decision-maker’s confused ideas rendered the decision liable to being quashed. 

Underhill LJ pointed out that the court’s task was made more cumbersome by the fact that the full exchanges between the Home Office and the sponsor remained undisclosed in these judicial review proceedings. His Lordship expressed some surprise because that these were not produced or disclosed and said that in the circumstances the court was able to only judge the case in light of the contents of the decision letter. He found it appropriate to add that the PBS operated on the basis of a “tick-box” exercise and, apart from the classic authority of Alvi, it was the case that Mudiyanselage [2018] EWCA Civ 65 had confirmed this approach. The decision-maker’s further inquiries may well have been justified. However, the delay was unpardonable. Underhill LJ concluded that although some of the judgments required by the process required a more sophisticated assessment, he found it difficult to see how a delay of almost 18 months could be justified, given that Mr Suny had paid an enhanced fee for expedition. The priority service required a decision to be made swiftly and a delay of 18 months was not at all acceptable in the circumstances given that an enhanced fee for expedition had been paid. So Underhill LJ was perplexed, indeed even “disappointed”, that the Home Office failed to offer no apology for its irrational behaviour. 

Comment

Despite the three pillars of predictably, clarity and consistency these interesting judicial review proceedings demonstrate the frighteningly entropic manner in which the Home Office operates the PBS even in the most straightforward of cases. The outcome is clear that a simple arguable ground of appeal is a better choice than multifarious arguments which are not focussed on the real problem at hand. The Court of Appeal’s judgment leaves no doubt that the need for predictably, clarity and consistency is a two-way street. 

But of course it took Mr Suny four long years to get relief in his case and he shall no doubt remain in limbo for some time to come because his case has been remitted to the Upper Tribunal and even after the decision is quashed there is no real guarantee that he will be granted his Tier 2 (General) visa. 

These proceedings also expose the rapacious fashion in which the UK Home Office extorts money from migrants in application fees and then fails to deliver a standard of service that accords with the expectations on a very important government department in an advanced democratic country. 

If a priority fee has been paid then a decision should not be withheld for 18 months. It should be made as a matter of priority without needless delay and endless red tape and all the victimisation that accompanies the high-handed tactics used by Home Office officials. Similarly if the UK needs cheaper foreign workers for its economy, then the Home Office should use “common sense” and the department should avoid resorting to the type of behaviour which Lord Dyson characterised as a “chimaera” in Alvi. 

In December 2018, the Home Office revealed some of its post-Brexit immigration plans. Importantly, the White Paper entitled The UK’s future skills-based immigration system shows that the government is keen depict Brexit in a positive light despite the naked truth about the vast economic damage that a no-deal Brexit will inflict upon the UK. 

However, the White Paper tries to portray the UK’s “liberation” from free movement as directly creating space for people wanting to work in the UK who were previously blockaded from entering because of the strict numerical limit on Tier 2 (General).

The monthly allocations of restricted certificates of sponsorship will cease under the new system. Substantial changes will be made to the present system and the Tier 2 monthly panel will be removed to make way for continuous processing of visas throughout the year without the undue delay caused by the cyclical nature of the monthly allocation procedure. The future system will create a single route offering access to highly skilled and skilled workers from all countries. The complex and kaleidoscopic system used for sponsorship at the present time will be relaxed and the cap on the numbers of skilled workers (presently 20,700) will end. 

A reformed new route said to aid a flexible labour market and support businesses will come into existence and employers of skilled migrants will no longer need to carry out a RLMT as a condition of sponsoring a worker. Overall, the Migration Advisory Committee (MAC) found that the RLMT was a cause of delay and it did not serve the intended purpose of stopping downward pressure on wages because protection is provided by payment of the Immigration Skills Charge (ISC) by employers. Since the flexibility and simplicity lost by the end of free movement needs to be compensated somehow, the future system for employing foreign workers will be more streamlined and simpler to operate.

The White Paper explained that the great majority of work visas will be processed in a matter of two to three weeks. It said that labour market flexibility will be supported by permitting nationals of the lowest risk countries to apply for a work visa in the UK and the new skilled route will include workers with intermediate level skills, at RQF 3-5 level (A level or equivalent) as well as graduate and post-graduate. In May 2019, MAC published its Full review of the Shortage Occupation List. 

The minimum annual salary threshold envisaged by the White Paper was £30,000. However, this was seen as controversially high and on 24 June 2019, the government commissioned MAC to carry a detailed analysis of potential future salary thresholds and the range at which they could be set. MAC will report back with its findings by January 2020. 

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Court of Appeal, Economy, Immigration Rules, Judicial Review, PBS, Tier 2, UKSC, Working and tagged , , , , , , . Bookmark the permalink.

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