Procedural fairness fails skilled migrant in Court of Appeal

R (Topadar) v Secretary of State for the Home Department [2020] EWCA Civ 1525

The uncertain outcome in the Supreme Court in R (Pathan) v SSHD [2020] UKSC 41, discussed here, was swiftly put to the test in the case of Mr Topadar. The Court of Appeal decided 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 held that the application of the Supreme Court’s judgment was fact specific and it was not at all intending to lay down an absolute or universal requirement that the SSHD must give the appellant prior notice of an event 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 of the Supreme Court found, 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 overall situation in Mr Topadar’s case was different from Mr Pathan’s case and his appeal was dismissed. Mr Topadar entered the UK as a Tier 4 (General) student and he then applied to switch Tier 2 (General). His application was refused. The refusal was upheld by the administrative reviewer. Mr Topadar argued that the application was not finally determined until the administrative review was complete. He said that he was entitled to vary his immigration application at any time until it was finally determined and had done so by making a human rights claim.

Mr Topadar argued that he continued to have leave to remain by virtue of section 3C  of the Immigration Act 1971 and until the application (as varied to include the human rights claim) was decided. He had applied using form FLR(O) to vary his existing leave and he then applied for leave to remain under Tier 2 (General). He then submitted a letter to the SSHD varying his FLR(O) application to an application seeking further leave to remain as a Tier 2 (General) applicant. Significantly, he required 50 points for attributes and he was required to submit a certificate of sponsorship showing that he had been offered a skilled job which met certain criteria and paid a certain level of salary. Mr Topadar relied on his proposed employment with Orchid Money Transfer Ltd and the certificate of sponsorship provided by Orchid that the job was as an accounts manager with a salary of £21,000 a year. Orchid gave a letter indicating that it wanted to sponsor Mr Topadar conditionally upon him being granted a successful extension of his leave to remain. Orchid confirmed that it had a certificate of sponsorship for the Mr Topadar and gave a further document with a summary of the role and the skills required. But the decision-maker subsequently corresponded with Orchid by email indicating that she had received applications from Mr Topadar and a second person for Tier 2 (General) leave to remain in the UK in order to work for Orchid, the sponsor, as an accounts manager and sales manager respectively.

Background

Mr Topadar remained was not notified. The correspondence requested Orchid to provide information about the jobs including full job descriptions which listed the duties of the proposed employees and an explanation regarding why the sponsor required an accounts manager and a sales manager. The SSHD also requested information as regards Orchid’s business bank account statements for last year, a full staff list, the latest accounts, HMRC reference numbers, a chart of all employees, CVs for Mr Topadar and the other applicant and marketing material and website details. The SSHD requested the sponsor to answer various questions. It stated that the information was required within a deadline (i.e. 25 business days) and that “failure to send in the information by the required date may result in the refusal of all the applications.” The SSHD did not notify Mr Topadar that she had sought further information from the sponsor, nor that failure to provide the information might lead to his application being refused. Orchid did not provide the information within the deadline: it did not seek an extension of time for doing so and it made no reply to the e-mail request.

The decision-maker refused the application as there were reasonable grounds to believe that the job described on the certificate of sponsorship was not a genuine vacancy. In his administrative review, Mr Topadar challenged the refusal as unfair as – if the SSHD had contacted him – “he could have definitely pursued his employer to get the issues being sorted”. Two days after the administrative review was submitted, Orchid’s director wrote to the SSHD saying that “I would like to confirm you that the job offered to Mr Topadar is completely genuine and we will send all the relevant document request by your office as soon as they are available as support of this claim.” A week later, Mr Topadar’s solicitors corresponded with the SSHD asserting a human rights claim pursuant to section 113 of the Nationality, Immigration and Asylum Act 2002, and stated that there was no need to make the claim by way of a fee paid application and said that Mr Topadar had established a private life in the UK and that leave to remain should be granted under article 8 of the ECHR. Two weeks later the administrative review was refused and Mr Topadar launched judicial review proceedings seeking an order quashing the refusal and the administrative review and a declaration that he had leave to remain under section 3C of the 1971 Act.

The Upper Tribunal (UTJ Allen, [2019] UKAITUR JR078872018) held that Mr Topadar could only apply to vary an application before it was determined, and his application had already been determined prior to the variation to the human rights claim. The UT further held that there was no procedural unfairness in the way the SSHD handled Mr Topadar’s application. The UT concluded that the primary onus was on Mr Topadar to provide all the necessary information. It said that there was no obligation on the SSHD to inform the him that information had been sought from the sponsor or to remind the sponsor of what was clearly set out in the email that the result of a failure to provide the information might be the refusal of the application. 

The Court of Appeal 

Two issues arose before the court (i) may an application falling within section 3C(1) be varied at any time up to the conclusion of an administrative review of the refusal of an application and, if so, did the letter entailing Mr Topadar’s human rights claim amount to a valid variation of his application (ii) did the SSHD act in a way which was procedurally unfair by not informing Mr Topadar that she had requested further information from the sponsor and that the application might be refused if that information was not provided. The court dismissed the appeal. 

(i) Determination of application 

Among other things, Mr Topadar submitted that it was open to him to vary an application by including a human rights claim without complying with any particular formality and that it was not necessary for such a variation to be made by using any prescribed form or to require payment of a fee or the provision of mandatory information. He submitted that the submission was consistent with paragraph 99 of Underhill LJ’s judgment in Balajigari v SSHD [2019] EWCA Civ 673, discussed here. The SSHD submitted that variations of an application could only be made before the application was determined. The process of administrative review was a review of the refusal decision. It was not an extension of the decision-making process. Moreover, the letter purporting to be a human rights claim did not amount to a valid variation in any event. A distinction needed to be drawn between an application for leave to remain on the basis that a refusal would be incompatible with the rights under article 8 of the ECHR and a decision to remove a person who did not have leave to remain. As regards the application, it is required to be made on a prescribed form, with payment of a fee, and the provision of relevant information as required by paragraph 34E of the Immigration Rules. As for the latter, the SSHD would be unable to remove a person without leave where he or she claimed that to do so would be incompatible with his or her ECHR rights and such a claim could be made without any prescribed formality.

In addition to Balajigari reliance was also placed in the approach of the UT’s refusal of permission to apply for judicial review in R (Sukhwinder Singh) v SSHD JR/1361/2015 where Ockelton VP considered that the process of administrative review was different in character from the informal process of reconsideration of decisions taken previously and so the final decision was the decision reached on the administrative review.

Lewis LJ decided that a variation to an application for leave to remain as a Tier 2 migrant could only be made before the application was determined. In so holding, he rejected the submission that the application is only finally determined when the administrative review process is completed. Furthermore, section 3C of the 1971 Act remained Lewis LJ’s point of departure. Four key points were observable. First of all, as a matter of interpretation of the provisions concerned with administrative review, it is clear that the review is separate from, not part of, the process of deciding an application. Administrative review is defined in AR2.1 as “the review” of an eligible decision and the purpose is to decide whether “the decision is wrong due to a case-working error”. Clearly the process envisages a difference between “the decision” refusing the application and the administrative review which then checks whether that decision was wrong. The provisions at AR2.2, which setting out the possible outcome of the administrative review, reflected that and the decision to refuse the application is either withdrawn or “remains in force” either for the same/different reasons. The same distinction between the decision to refuse the application and an administrative review of that decision, is reflected throughout the provisions governing an administrative review.

Second, Lewis LJ said that section 3(2) of the 1971 Act confers power to provide for this system of administrative review and it provides power to make rules “as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom.” Lewis LJ said that the rules providing for an administrative review to determine whether decisions refusing applications to vary existing leave to remain should be withdrawn or remain in force are rules in relation to the practice to be followed in the administration the 1971 Act for regulating stay in the UK. 

Third, the provisions of section 3C themselves draw a distinction between a decision on the application and an administrative review of that decision. Lewis LJ added that if Mr Topadar were right and if the process of administrative review were an extension of the process for deciding the application, it would not be necessary to include section 3C(2)(d) in the 1971 Act to allow for leave to continue pending the administrative review. Indeed on Mr Topadar’s view, leave to remain would continue under section 3C(2)(a) because the application is not decided until the process of administrative review is complete. Hence, an application seeking to vary an existing leave is decided within the meaning of section 3C(2)(a) of the 1971 Act when the application is refused and Lewis LJ held that: 

44. … Any further variation of that application must be made before the decision refusing the application is made and notified to the applicant. The system of administrative review operates as a review of that decision. It is not an extension of that decision-making process.

45. I do not, therefore, accept Mr Biggs’ submission that section 3(2) of the 1971 Act does not provide power to make rules providing for administrative review of that nature and that the provisions must therefore be interpreted differently in order to avoid them being ultra vires.

46. Nor do I consider that the position is altered by the decision of the Vice-President of the Upper Tribunal in the Sukwhinder Singh case. The Tribunal Procedure Rules, like the provisions of CPR 54.5, provide a time limit for bringing claims for judicial review. In the case of the Upper Tribunal, the rules provide that a claim must be received by the Upper Tribunal no later than “3 months after the decision, action or omission to which the application relates” (see rule 28 of the Tribunal Procedure (Upper Tribunal) Rules 2008). 

Lewis LJ said CPR 54 requires that a claim for judicial review issued in the Administrative Court must be brought promptly and, in any event, no later than 3 months after the date when the grounds of claim first arose. In addition, judicial review is a remedy of last resort and should not be generally be pursued where there is an adequate alternative remedy available.

Overall, any variation in the present case had to be made before the the decision refusing the application was made. No such variation was made by that date. Indeed, Mr Topadar continued to have leave to remain while the administrative review of the refusal decision was pending by virtue of section 3C(2)(d) of the 1971 Act. Furthermore once the outcome of that review had been notified to him, as defined in AR2.9, Mr Topadar’s leave ceased to continue in force as the administrative review was no longer pending. 

(ii) Procedural fairness

Next the court considered requirements of procedural fairness. Mr Topadar argued that his situation was analogous to that in Pathan where four members of the Supreme Court held that procedural fairness required the SSHD to notify the applicant of an event which was fatal to the application and which was known to the SSHD but not the applicant.

R v SSHD ex parte Doody [1994] AC 531 contained a general statement that procedural fairness depend upon the facts and the context in which a decision is taken including the nature of the legal and administrative system within which the decision is taken. Lewis LJ agreed with the SSHD that the context was the operation of the points-based system for determining applications for leave to remain which intended to enable high volumes of applications to be processed in a fair and efficient manner. Moreover, the requirement to supply a certificate of sponsorship from an employer was intended to demonstrate that the job vacancy was genuine and the SSHD could effectively refuse the application if she had reasonable grounds for believing that it was not a genuine vacancy. Lewis LJ was of the view that: 

55. In that context, there was nothing procedurally unfair in the respondent asking the sponsor for additional information and evidence. That was inherent in the system and specifically provided for in the Immigration Rules. The sponsor was told that failure to provide the additional information and evidence might result in the application being refused. In the event, the sponsor did not provide the additional information or evidence requested and, in those circumstances, the respondent could not be satisfied on the evidence available that the job vacancy was genuine. There was nothing procedurally unfair in the way in which the respondent acted.

56. Further, none of the matters referred to by the appellant demonstrate that any procedural unfairness had occurred. The information sought was information from the sponsor about, for example, why the organisation required an accounts manager and what the duties would be. The additional evidence related to the sponsor’s bank accounts, staff list, company accounts, tax details and the like. Those were matters that the sponsor was in a position to provide not the appellant and there was nothing unfair in asking the sponsor to provide the information.

57. The appellant suggests that if he had known that a request for information had been made, he could have chased the sponsor to provide the information and evidence. But the system operates on the basis that the applicant will obtain a certificate of sponsorship from a sponsor for a genuine job vacancy and the respondent can request further information from either the applicant for leave or the sponsor to assess that. Procedural fairness in this context does not require the respondent to give the appellant the opportunity to chase the sponsor for information. 

Lewis LJ explained that if the employer intends to employ Mr Topadar, and had provided a certificate of sponsorship, it was incumbent on the sponsor (employer) to provide any additional information sought by the SSHD. He further said that requiring the SSHD to notify Mr Topadar so that he was able to chase the sponsor would not be consistent with the operation of the points-based system in general, or the rules in respect of applications for Tier 2 (General) leave in particular. Furthermore, adapting the words of Sales LJ in EK (Ivory Coast) v SSHD [2015] Imm AR 367, Lewis LJ found that procedural fairness does not require the SSHD “to have to distort the ordinary operation of the [PBS] to protect an applicant” against the sponsor’s failure to respond to requests for information. Nor is the purpose of a request for information to give a migrant time to find another employer, or a different basis for seeking leave, in the event that the employer cannot, or fails to provide the information requested. It is to enable the SSHD, as paragraph 77J of the Immigration Rules provides, to assess whether the requirements for grant of leave as a Tier 2 (General) applicant have been satisfied. 

Pathan was different as he was someone who was already employed by the sponsor and applied for leave to remain on the basis of an apparently valid certificate of sponsorship but the SSHD revoked the sponsor’s licence and, as a consequence, the certificate was no longer valid and the application for leave was bound to fail. Mr Pathan was oblivious to all this and three months later his application was refused. Examining the approaches of the apex court’s justices, Lewis LJ held that:

59. The majority of the Supreme Court was not intending, in my judgment, to establish an absolute or universal requirement that the respondent 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. Rather, as the judgments of the majority of the Supreme Court recognise, the requirements of procedural fairness are flexible and are not set in stone. They are necessarily influenced by the context and the facts … In those circumstances, I do not consider that the majority decision of the Supreme Court requires the imposition of a duty to notify an appellant of a request for additional information and evidence sent to a sponsor of an applicant for leave as a Tier 2 (General) Migrant. 

Overall, it was for the sponsor (Orchid) to provide the information requested to enable the SSHD’s assessment of whether the vacancy was genuine. But Orchid did not provide the information and the decision-maker could not therefore be satisfied that the sponsor did require an accounts manager paid £21,000 a year. So there was no allegation or issue that needed in fairness to be put to Mr Topadar for comment before his application for leave was refused and the UT had been right to dismiss the procedural unfairness claim. Indeed, Lewis LJ reiterated that any variations of immigration applications cannot be made after the applicant is notified of the decision and while an administrative review is ongoing and so there was no procedural unfairness in the way Mr Topadar’s application was handled. 

Comment

This appears to have been another excessively ambitious appeal and the divided outcome in Pathan was not sufficient for Mr Topadar to triumph against the SSHD in the Court of Appeal. The overall result is a reminder that belatedly trying to fix a points-based system application is an invidious task and applicants are in a much superior position if they just follow standard procedure when making their applications for leave to remain. Otherwise, if they attempt to be excessively creative they might have problems like the present case. 

Indeed, with the benefit of hindsight, it is clear that a quarrel about Mr Topadar’s sponsor Orchid’s failure to provide the requested information did not make much sense because of course his sponsor could have informed him of the request instead of the SSHD. Since it was his own application, it was equally possible to approach his sponsor for updates from the SSHD about his application. In any event, it is clear that too much creativeness with a points-based system immigration application is pointless as one must aim for bullseye and hit the target and the grant of a visa should then be pretty automatic. Equally, it was open to Mr Topadar to make his human rights claim with his first application rather than trying to raise his article 8 claim in a late letter which made it look like a desperate afterthought which doomed his case. Why not try to get things right the first time? 

Overall, the factual details set out in the present judgment show that sponsors should keep their affairs in order and be equipped to readily provide business bank statements, a full staff list, latest accounts, HMRC reference numbers, a chart of all employees, applicant’s CV and other applicant and marketing material and website details. From 1 January 2021, the new points-based system will be introduced, discussed here, and Tier 2 (General) will be replaced by Appendix Skilled Worker. 

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appendix Skilled Worker, Article 8, Bank Accounts, Court of Appeal, Employment, Immigration Rules, Judicial Review, PBS, Procedural Fairness, Tier 2, UKSC and tagged , , , , , , , . Bookmark the permalink.

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