Mr Pathan applied to extend his permission to stay so that he could continue working for his employer. While that application was outstanding, the Home Office revoked the employer’s licence to sponsor migrant workers and, three months later, refused the application without having told him. The Supreme Court held that fairness required prompt notice of the revocation, but, by a majority, that the Home Office did not have to give him a further period afterwards in which to find another sponsor or rearrange his affairs.
Under the Tier 2 scheme then in force, the applicant needed a certificate issued by a licensed sponsor. Revocation of the sponsor’s licence invalidated the certificate and undermined an outstanding application.
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Mr Pathan applied before his existing permission expired, relying on a certificate from his employer. He had no reason to know that the Home Office was about to revoke his employer’s licence.
The Home Office put the application on hold and investigated Submania. It suspended the licence on 4 February 2016. Submania was given an opportunity to make representations and did not take it. On 7 March 2016 the licence was revoked. That invalidated Mr Pathan’s certificate, so the application as it stood was bound to fail. He was not told. On 7 June 2016 the application was refused. His original leave would have ended on 15 October 2015, but section 3C of the Immigration Act 1971 extended it while the application, and then any administrative review, remained pending. He asked for a review and for 60 days in which to provide a fresh certificate. The refusal was maintained. The Home Office’s position was that a 60-day period was available where a migrant still had leave remaining, not where leave had already expired and continuance depended on section 3C.
The earlier decisions
Mr Pathan sought judicial review. He said that it was procedurally unfair to refuse the application without notice of the revocation and a chance to respond, including by finding another sponsor or rearranging his affairs. The Upper Tribunal and the Court of Appeal dismissed the claim. Singh LJ, with whom the other members of the Court of Appeal agreed, held that the complaint was really one of substantive fairness. That is not a free-standing ground of judicial review, so Mr Pathan had to show that the rules were irrational. The Court of Appeal held that he could not: they had been adopted for rational policy reasons, including matching a migrant to a particular vacancy.
The Court of Appeal doubted, but did not overrule, the Upper Tribunal’s decision in Patel. That case concerned Tier 4 students. It held that, where a college’s licence was revoked and the student had acted in good faith, fairness generally required 60 days to find another college. The Secretary of State’s practice is now to give such students 60 days unless they were not genuine or were involved in the conduct leading to withdrawal. The Secretary of State did not ask the Supreme Court to overrule Patel, but argued that its reasoning was unsound.
Prompt notice, but no extra period
Procedural fairness concerns the process by which a decision is made. A person should ordinarily know of important information held by the decision-maker which he does not know, and have an opportunity to respond. A challenge to the merits of the rule itself is a different matter. The Supreme Court divided on where that line fell.
Lord Kerr and Lady Black held that fairness required the Home Office to tell Mr Pathan promptly that the licence had been revoked. Three months passed between revocation and refusal. Had he known, he could have used time already provided by the legislation. Section 3C(5) permits a pending application to be varied, for example by relying on a new certificate or a human rights claim, and a successful variation is treated as success in the original application. He might also have arranged his family’s departure and reduced the risk of becoming an overstayer. The judges described serious consequences of overstaying, including criminal liability, restrictions on work and daily life, and, in some circumstances, a ban on return.
They characterised the duty as a duty not to withhold information and so cut down time already available. It was not a duty to create further leave, or to allot a particular number of days after notice. An extension beyond the legislation and the Rules would be substantive. They also held that the duty did not depend on whether representations could reverse the inevitable refusal of the original application. The value of notice was the chance to take other steps before that decision. Later unsuccessful applications did not make the earlier withholding of information fair: fairness had to be judged when notice could first have been given.
Lady Arden and Lord Wilson agreed that prompt notice was required, but held that notice alone was not enough. Fairness, in their view, also required the Home Office to wait a reasonable period before determining the application, so that Mr Pathan could vary it or otherwise respond while section 3C leave continued. They did not regard this as inconsistent with the Act or the Rules, which set no deadline for the decision and do not require refusal to be communicated at the same moment as notice of revocation. Lady Arden thought a period of about 60 days might be reasonable, but that its length was for the Secretary of State, subject to review. Lord Wilson considered that, without this further duty, prompt notice could be followed by refusal the same day and might leave the applicant worse off.
Lord Briggs would have dismissed the appeal. He was inclined to accept that the delay in giving notice was procedurally unfair, but held that the real complaint was the absence of extra time after notice. That, he held, was substance rather than procedure. Nothing Mr Pathan could have said would have saved the original application. The Secretary of State could lawfully have given notice and refused the application on the same or the next day; the three-month gap was happenstance, not a right. He would not have set the refusal aside. He also considered Patel, and the related case of Thakur, wrongly decided. Lady Arden and Lord Wilson did not.
Verdict: The Court allowed Mr Pathan’s appeal. Procedural fairness required prompt notification of the revocation. A majority rejected a further duty to give him a reasonable period after notification before deciding his application. Lord Briggs would have refused relief.
Source: R (on the application of Pathan) v Secretary of State for the Home Department [2020] UKSC 41
