R (Pathan) v Secretary of State for the Home Department [2020] UKSC 41 (23 October 2020)
This case turned on the issue whether notice to an applicant of revocation of a sponsor’s licence in respect of his Tier 2 (General) Migrant application was required as a matter of procedural fairness? The Supreme Court unanimously held that the SSHD breached her procedural duty to act fairly by failing promptly to notify Mr Pathan of the revocation of his sponsor’s licence. The majority (Lady Black and Lords Kerr and Briggs) held that the SSHD was not under a further duty to provide a period of time following notification to enable Mr Pathan to react to the revocation of his sponsor’s licence. Lord Wilson and Lady Arden thought that the law did impose this further duty on the SSHD. Lord Briggs preferred to dismiss the appeal despite the SSHD’s breach of the duty to notify promptly. Notably, while Mr Pathan’s application was in the process of being considered, the Home Office revoked his employer Submania Ltd’s sponsor licence. Consequently, he was not able to satisfy the requirements of paragraph 245HD(f) of the Immigration Rules – i.e. a valid Certificate of Sponsorship – and so his application for leave to remain was refused. The principal issue was whether the decision-maker’s failure to communicate the revocation to Mr Pathan was reviewable in public law on the grounds that it amounted to a violation of the rules of natural justice – procedural unfairness – which entail an opportunity to be heard on any material information which the decision-maker acquires and which was unknown to the applicant.
Mr Pathan sought an administrative review of refusal of his Tier 2 (General) application. However, the decision was maintained and he then sought judicial review of that decision in the Upper Tribunal. UTJ Allen decided against him. Subsequently, the Court of Appeal further dismissed his appeal. The Court of Appeal judged that Mr Pathan’s appeal raised a question of substantive fairness which was not a free-standing ground for judicial review, Mr Pathan would have to show irrationality. He could not succeed on that ground because the rules for the PBS had been drafted for rational policy reasons. Mr Pathan his wife and son were Indian nationals. Mr Pathan entered the UK as a Tier 4 (General), his leave was extended. Later he was granted further leave to remain as Submania’s employee (business development manager) under Tier 2 (General) and when that leave expired he made an in-time application for leave to remain supported by a Certificate of Sponsorship provided by Submania and section 3C of the Immigration Act 1971 operated to extend his expiring leave pending his further application and any administrative review or appeal in relation to the decision on that application. The SSHD revoked Submania’s sponsorship licence while his application was pending. When he sought administrative review of the refusal, Mr Pathan sought a 60-day period to be able to provide a fresh Certificate of Sponsorship and repeated this request when he issued judicial review proceedings.
Court of Appeal
Sir Andrew McFarlane P, Singh and Coulson LJJ judged that Mr Pathan’s appeal raised a question of substantive fairness. Since substantive fairness was not a free-standing ground for judicial review, Mr Pathan would have to show irrationality. He could not succeed on that ground because the rules for the Points Based System (PBS) were drafted for rational policy reasons. The Court of Appeal was doubtful whether Patel (Revocation of Sponsor Licence – Fairness) India [2011] UKUT 211 (IAC) was correctly decided. In Patel the Upper Tribunal dealt with the extension of leave to a student under Tier 4 if his college’s licence is revoked. The Court of Appeal did not overrule Patel, where the Upper Tribunal principally held that, where the college with which a student with Tier 4 leave is enrolled has its licence revoked and the student has acted in good faith, the common law duty of fairness required that the student should generally be given a 60-day extension to find a fresh sponsorship letter to enable them to apply to vary their existing leave to include study at another college which was licenced. As a result of that decision, the practice of the SSHD granted all students in that position an extension of 60 days unless the student has not been a bona fide student or has participated in the acts that may have contributed to the sponsor’s licence being withdrawn. In those cases, the student’s leave is limited to any existing permission to stay that he has. The SSHD did not invite the Supreme Court to overrule Patel but submitted that the basis of the decision was unsound.
The right to be heard
In Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180, the public board found that a landowner had failed to notify it of his intention to build a house as he was required to do by statute. It proceeded to exercise its statutory power to demolish his house without giving the landowner any opportunity to explain. Nonetheless, the owner was held to have a right to be heard in case he could give information that might have caused the board not to demolish his house but to take some other step. It was no answer that the challenge also involved a challenge to a substantive provision of the relevant statute. It was not the law that a procedural challenge can be made only if a substantive provision is not challenged. In Cooper, Byles J cited the dictum of Fortescue J in Dr Bentley’s Case (R v Chancellor of Cambridge, Ex p Bentley (1748) 2 Ld Raym 1334):
The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. “Adam” (says God), “where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?” And the same question was put to Eve also.
Adam and Eve’s expulsion from the Garden of Eden was a substantive decision. Yet the grant of an opportunity to provide an explanation for their acts was a procedural decision. The key takeaway is that Adam was allowed a hearing notwithstanding that God, being omniscient, did not require to hear him in order to improve the quality of His decision-making.
In Mr Pathan’s case, if the decision-maker had given him notice that his sponsor’s licence had been revoked, he would have been in a position to take steps for an alternative basis for leave and applied to vary his application. He would have had the chance, equivalent to that of Mr Cooper in the Wandsworth case of persuading the board not to demolish his house, of persuading the SSHD not to reject his application. There was agreement that the rules of natural justice apply to decision-makers in public law irrespective whether or not they are acting judicially. In Wandsworth it was argued that the board, as successors to the commissioners for sewers, who were a judicial body, also acted judicially. Mr Pathan said that the Court of Appeal was wrong to treat his claim as one of substantive unfairness. He did not dispute the lawfulness of the licence revocation but contended that he should have been informed of it. He submitted that this case engages common law unfairness, that is (among other matters) the legal principle that a person should know important information that might significantly impact the decision and have the chance to provide more information which would enable him to satisfy the decision-maker. He complained that the actions of the SSHD were unfair because the refusal of his application radically impacted his and his family’s rights and interests.
The licence revocation prevented him from working and the decision put him at risk of criminal liability and other restrictions as an overstayer. His article 8 rights and those of his family were engaged. Notice of the licence revocation could have made a difference to the outcome of his application. Indeed, such knowledge could have enabled him to vary his application to one relying upon a new Certificate of Sponsorship – or he could have made a fresh application. The SSHD’s practice on timing was unclear. In the present case there was an interval of three months between the revocation of the sponsor’s licence and refusal of leave. Because section 3C of the 1971 Act applies to any application for leave, Tier 2 (General) applications are capable of being varied so that the applicant can rely on a different basis for leave, whether a different sponsor or a completely different basis and even though the SSHD has the policy objective that an application for Tier 2 leave should only match a particular employer (the sponsor) and that employer alone, she cannot resist a variation application made during the pendency of a Tier 2 (General) application.
The SSHD’s evidence was that Mr Pathan’s application was put on hold whilst officials visited Submania to investigate whether the vacancy was genuine. Following an initial suspension giving Submania a chance to make representations, which it did not take, the SSHD revoked Submania’s sponsor’s licence. The key effect of this was to invalidate the Certificate of Sponsorship provided by Mr Pathan in his application for LTR. The SSHD then, without previously informing Mr Pathan of the revocation, refused his application because his Certificate of Sponsorship was invalid.
The Supreme Court
The court first addressed whether the SSHD’s failure promptly to notify Mr Pathan of the revocation of his sponsor’s licence breach the duty of procedural fairness? Secondly, the court examined question whether the SSHD was under a duty to provide a period of time following notification to enable him to react to the revocation of his sponsor’s licence?
(i) Prompt notification of sponsor’s licence revocation
As to whether the SSHD’s failure promptly to notify Mr Pathan of the revocation of his sponsor’s licence breached the duty of procedural fairness, the court unanimously held that “yes” it did. Delivering a joint judgment, Lord Kerr and Lady Black explained that it was a “self-evident” aspect of duty of procedural fairness for the SSHD to ensure that Mr Pathan had timely notice that – for a wholly unanticipated reason – his application was bound to fail carried potentially devastating consequences. The notion that an applicant such as him should be afforded as much opportunity as reasonably possible to be able to accommodate and deal with such a decision underpinned the duty of procedural fairness. As they held:
107. One only has to envisage how Mr Pathan must have reacted to the news that his Tier 2 application had been rejected because of the revocation of Submania’s licence, to understand the fundamental justice in giving him the chance to do something about it. He had every reason to believe that his application would succeed. The reason that it did not had nothing whatever to do with him. But, failure in the application represented a calamitous upheaval for him and his family. To ensure in those circumstances that he had timely notice that, for wholly unanticipated reason his application was bound to fail, so that he could seek to avoid its consequencesseems to us to be a self-evident aspect of the duty to act fairly.
They were of the view that in appropriate cases, the rules of natural justice may require an applicant to be time to amend his case in a manner that cures an otherwise fatal defect of which he had, without fault on his part, previously been unaware. Whether this is required is, they thought in agreement with Lord Briggs, “heavily context-specific, but the question quite obviously arises for consideration where the circumstances are as they were in the present case.”
Lord Kerr and Lady Black considered that the duty was procedural rather than substantive in character because was is a negative duty, an obligation not to deprive the Mr Pathan of the chance to avoid, or mitigate the effects of, the SSHD’s refusal of his visa application. There was nothing incompatible with the legislation or the rules in allowing the affected person to promptly know of the circumstances which imperil his/her application, so that they may make use of whatever time remains to them under those provisions. Doing that did not confer a substantive benefit and it “may be properly characterised as a procedural duty to act fairly. It is not a duty to bestow. It is an obligation not to deprive.” Mr Pathan would ultimately have to be notified that his sponsor’s licence had been revoked, and so the duty promptly to notify did not create any novel positive obligations. Informing him of the revocation of the licence did not involve the imposition of a positive duty and the correlative conferral of a substantive benefit. The information should have been provided and it was plain that “a decision that it should have been communicated at the time that revocation occurred involves no more than the assertion of a fair procedure.” They said:
109. … the duty to act procedurally fairly comprehends an obligation to tell somebody such as Mr Pathan immediately about circumstances which doomed his current application so that he could avail of the full period which would then have become available to allow him to do something about it.
Indeed, timeous knowledge of revocation would have enabled him to apply for a new Tier 2 (General) migrant visa with a new Certificate of Sponsorship from a new employer and he could have appealed if it was refused and he would enjoy section 3C leave or he could use the extra time available to him to organise his affairs so as to make an orderly return for himself and his family to India, thus benefitting from avoiding the deleterious effect of overstaying which is accompanied by potentially serious adverse consequences. To deny him the greater opportunity to avoid those consequences was unfair. The failure to inform him promptly of the revocation constituted procedural unfairness. Notably, Lord Kerr and Lady Black said this:
131. We are of the view that the duty to give notice of a decision to someone who will be adversely affected by it cannot be defined solely by the consideration that it is pointless for that person to make representations with a view to reversing or avoiding the effect of the decision. The duty to give notice is an accepted element of the duty to act fairly. Three months elapsed between Submania’s sponsor’s licence being revoked and the refusal of Mr Pathan’s application. It cannot be suggested that informing him promptly of the revocation of the licence when it had been cancelled would not have made a difference.
Overall, three months extra in which to explore his options that prompt notification would have afforded him would have made a difference to him. That finding did not rest on any estimate of his likely success in pursuing any of the chances that opened up for him. Nor did it depend on a view as to whether he would have sought to follow up on any of them. The cornerstone was procedural fairness. Asking the question, “what was the fair thing to do, procedurally?”, Lord Kerr and Lady Black held that “it was to tell Mr Pathan as soon as reasonably possible after the cancellation of Submania’s licence that this had happened. He would then have known that his application in its current form was bound to fail.”
Failing to timeously inform Mr Pathan that Submania’s licence was cancelled accelerated his entry into the danger zone status of overstayer and all the adverse consequences which that entailed. To have denied him the greater opportunity to avoid such consequences was in itself unfair. That conclusion did not depend on any judgment as to whether he would have sought to avoid that outcome. Whether he would or not, to deprive him of the chance was unfair.
Lord Briggs agreed that the SSHD’s failure to notify was procedurally unfair. But he did not consider that the breach justified setting aside the SSHD’s decision. He stated that Mr Pathan’s lost opportunity to improve his position arose out of the SSHD’s voluntary (and probably unconscious) three-month delay in dealing with the application and Lord Briggs said that because the delay was a mere “happenstance” and the SSHD was not obliged to give him any such “breathing space”, the breach should not render the decision unlawful.
(ii) Time to react to the revocation decision
As to whether the SSHD was under a duty to provide a period of time after notification to enable Mr Pathan to react to the revocation of his sponsor’s licence, the majority decided that “no” she was not. Lord Kerr and Lady Black considered that the duty to act fairly in the circumstances involved a “duty not to deprive, not an obligation to create”. Therefore, to require the SSHD to grant a grace period following notification would be to impose a positive duty and an extra extension of leave beyond that set out in the legislation or in the Immigration Rules. This would be a substantive duty, falling outside of the bounds of procedural fairness.
Lord Briggs agreed that a duty to provide a grace period following notification would be a substantive duty going beyond that set out in the Immigration Rules. Lord Briggs said that even if she was under a “fairness duty” to give prompt notice of the revocation, the SSHD could still lawfully have notified him of the revocation on the day it happened and refuse his Tier 2 application on the same or the following day. For Lord Briggs, the fact that the SSHD provided 60 days relief to Tier 4 students in a similar situation did not enable a Tier 2 migrant to complain by way of judicial review about being treated differently, since the two classes of permitted immigration exist for different political and economic reasons. He noted that in fact Mr Pathan did make a second Tier 2 application after finding a new sponsoring employer and that he made two applications based on human rights grounds all of which failed.
Lord Briggs reasoned that, if time is sought to change or improve the underlying facts to make them more favourable, the issue is probably substantive. He thought that a grant of time to find new sponsored employment in order to qualify for Tier 2 leave to remain was therefore substantive. Similarly the same was also true of a grant of time to prepare for an orderly departure from the UK. Furthermore, the ultimate result of the SSHD’s failure to grant a grace period – that Mr Pathan became an overstayer – was also itself a matter of substance. He thought that the duty to provide a grace period would be “perhaps a rare example of pointlessness” and that the principles that underlie procedural fairness have no application to a situation where the decision is inevitable, such as was the outcome of Mr Pathan’s original application. The “collateral advantage” of being able to take alternative steps as a lawful migrant while being protected from being an overstayer is not one which procedural fairness is designed to protect. Consequently, the SSHD’s failure to provide a grace period was not challengeable under that, nor any other head of judicial review.
In their separate judgments, Lady Arden and Lord Wilson disagreed with the majority. Lady Arden explained that the duty falls under procedural fairness because establishing a procedural impropriety is a necessary first step. The substantive element in the challenge was a consequence of the procedural fairness argument rather than vice versa and this was supported both by the fact that the SSHD’s substantive decision was unchallenged and by the fact that the rule in play was unaffected by the determination of procedural unfairness. She also judged that this is not a case of pointlessness because if granted a grace period, Mr Pathan would have a chance (which may only be small) that he may find a new basis for applying for leave to remain. Instead, it was pointless to impose a duty on the SSHD to notify Mr Pathan promptly if that duty is not accompanied by a grace period giving him a meaningful opportunity to take steps in light of that notification. She also explained that the chance to take any such steps ought not to depend “serendipitously” on the time that happens to pass between notification and rejection. She agreed with Lord Wilson.
Lord Wilson concurred with Lady Arden and he held that the duty of fairness at common law can impose positive obligations and that a duty to provide a grace period would not be inconsistent either with the statute or the Immigration Rules. In R (Talpada) v SSHD [2018] EWCA Civ 841, Singh LJ explained that “unless kept within clearly defined and predictable boundaries, the doctrine of substantive unfairness risks … inviting the court to intrude impermissibly on the province of the executive” and Lord Wilson and Lady Arden shared his overriding concern. However, the common law by nature is a system where the “boundaries cannot always be clearly defined in advance or predictable.” So Lord Wilson questioned the situation as regards how “without departure from ordinary meaning”, the complaint made by Mr Pathan could be described as not being procedural. Furthermore, Lord Wilson found that a duty of prompt notification would be “to give nothing of value” to Mr Pathan unless accompanied by a duty to provide a grace period and that “the law should not impose a duty nor confer a right if they are of no value”. For his Lordship, the SSHD would have been likely to refuse Mr Pathan’s visa application immediately after notification if it were only subject to a duty of prompt notification. Thus, he judged that only both duties – taken together – would give Mr Pathan a reasonable time within which, while not suffering the serious consequences of being an overstayer, he could seek to vary his leave to remain application or seek leave to remain outside the Immigration Rules and thus Lord Wilson concluded that procedural fairness requires both duties to be imposed.
Comment
The Court of Appeal’s reasoning was anchored in the case of Talpada, which according to Singh LJ, had to be read in light of Gallaher Group v CMA [2018] UKSC 25 where the Supreme Court held that, while the principle of equal treatment could be regarded as an aspect of rational behaviour, it was not itself a freestanding ground for judicial review. Lord Carnwath explained in Gallaher that substantive unfairness “is not a distinct legal criterion” and cannot be converted into one by emphasising an “abuse of power” because such terminology “adds nothing to the ordinary principles of judicial review, notably in the present context irrationality and legitimate expectation.” The other Justices agreed.
In the present case, Lady Arden and Lord Wilson were careful to point out that the court was not departing from the consensus in Gallaher that substantive unfairness is not a self-standing head of judicial review. The SSHD’s evidence was that she did consider making available to Tier 2 applicants the 60-day curtailment period granted in the light of Patel to Tier 4 migrants. However she concluded that there were differences between the two cases which made it inappropriate to give Tier 2 applicants a similar 60-day period. In general it was the case that migrants entitled to leave to remain at the time when a sponsor’s licence was withdrawn have the benefit of a similar 60-day period unless they had been complicit in the conduct which led to the revocation of the licence. The curtailment period was not extended to applicants because of a number of reasons including the protection provided to them by section 3C leave and evidence of manipulation as a result of the Patel decision where extra time was given. Moreover, Tier 2 is also different from Tier 4 as it concerns filling a particular labour market gap experienced by the sponsor and leave is given to fill a particular vacancy. The worker will not lose wages as a consequence of the revocation of a licence whereas the foreign student will study a generic, course and the higher fees which they pay subsidise and ensure the availability of courses for UK students.
Lady Arden did not think that the decision in Patel was unsound. Lord Wilson concluded that Patel was correctly decided and had been regarded as good law for more than nine years. Lord Briggs took the view that Patel was wrongly decided along with the case of Thakur (PBS decision – common law fairness) Bangladesh [2011] UKUT 151 (IAC).
Given that the court was split in its views as to the time to react to the revocation decision and the question divided the court and led to conflicting judgments, it remains to be seen how much time the SSHD will give to migrants in Mr Pathan’s position so that they may find alternatives to solve their problem. The uncertain outcome in the Supreme Court was immediately put to the test in R (Topadar) v SSHD [2020] EWCA Civ 1525 where it was held by the Court of Appeal that the SSHD’s failure to notify the individual that she had requested further information from his sponsor when deciding the application had not been procedurally unfair. Lewis LJ explained that the application of the Supreme Court’s judgment was fact specific and it was not intending to lay down an absolute or universal requirement that the SSHD must give the appellant prior notice of something that might affect the consideration of an application with a view to the applicant being able to take steps to address that matter. On the contrary, as the majority recognised, the requirements of procedural fairness are not monolithic and are flexible and are necessarily influenced by the context and the facts. Males and Floyd LJJ agreed with Lewis LJ that the situation in Mr Topadar’s case was different from Mr Pathan’s case and his appeal was dismissed.
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