The Court of Appeal has dismissed an appeal where it was argued that there had been procedural unfairness in a refusal of further leave to remain because the appellant had not been expressly told that his employer’s sponsor licence had been revoked. The appeal actually stemmed from refusal of a human rights application in 2021, however the appellant raised as an appeal ground that he had been subject to historic injustice in a decision dated 8 February 2018 to refuse his application for leave to remain as a Tier 2 (General) migrant.
The appellant said that the decision to refuse his Tier 2 application was procedurally unfair as the Home Secretary had not notified him that his sponsoring employer’s licence (Ratna Marble and Granites) had been revoked in December 2017. The case is Tammina & Anor v Secretary of State for the Home Department [2025] EWCA Civ 24. In rejecting the appeal, the Court of Appeal distinguished this case from that of R (Pathan) v Secretary of State for the Home Department [2020] UKSC 41 (our write up is here).
Background
The appellant applied to extend his Tier 2 leave on 1 March 2017, with a certificate of sponsorship provided by Ratna. On 22 June 2017 compliance officers carried out a compliance check by visiting Ratna. They interviewed the appellant who signed the handwritten notes of the interview. The notes included a statement by the appellant that had joined Ratna in 2013 as a junior salesman while holding leave as Tier 1 post-study migrant. He told the officer that when he applied for leave as a Tier 2 (General) migrant he had taken on a new role as sales accounts and business development manager.
On 20 July 2017 his application was refused, the decision letter stating:
A recent compliance visit on 22 June 2017 determined that your position of Account Manager (Sales) is not a genuine one. In the interview with the Compliance Officer, you stated you had previously worked for the sponsor as a Junior Sales Assistant and that your role had not changed. The duties described to the officer were of a junior level and not what were described on your COS, which incidentally were copied word for word from the SOC wording.
The appellant applied for administrative review of the decision, disputing the account contained in the refusal letter of him saying that his role had not changed. In support of this, he pointed out that the comment was not in the handwritten notes but turned up in a later typed version.
The administrative review was refused on 30 August 2017. The decision maker seemingly did not address the issue of the disparity in interview records but did agree with the refusal decision on the point that the work being done by the appellant did not match that described in SOC 3545.
The appellant sought to challenge the refusal of 20 July 2017 by judicial review. On 20 October 2017 Ratna’s sponsor licence was suspended and Ratna was told by the Home Office that revocation was being considered because of concerns that employees, including the appellant, were not working in roles corresponding to the job descriptions in their certificate of sponsorship, meaning that Ratna had breached its duties as a sponsor.
The appellant was aware of the suspension of the sponsor licence, having discussed it with Ratna. The appellant’s judicial review was settled by consent on 6 December 2017 with the Home Secretary agreeing to withdraw and remake the decision within three months of Ratna’s sponsor licence issues being resolved.
Shortly after that, on 22 December 2017 the Home Secretary revoked Ratna’s sponsor licence on the grounds that they had provided false information about the roles of the appellant and another employee. The appellant was not notified by the Home Secretary of this decision and he found out about this on 8 February 2018 when his application for further leave was refused again. The refusal letter stated that he had not provided a valid certificate of sponsorship reference number because the one provided by Ratna had been cancelled. An administrative review of the decision upheld the refusal.
The appellant later made an application to remain on human rights grounds. That was refused in 2021 and the appeal to the First-tier Tribunal was unsuccessful.
The appeals
The Upper Tribunal set aside the First-tier Tribunal’s decision on 7 July 2023 because it had not considered an argument made by the appellant based on the “historical injustice” of the failure to notify him of the revocation of the sponsor licence before refusing his application in 2018. The Upper Tribunal remade the decision itself and dismissed the appeal on 11 September 2023.
The appellant relied on the Supreme Court’s decision in R (Pathan) v Secretary of State for the Home Department [2020] UKSC 41 where it was held that the Home Secretary had made a procedurally unfair decision by failing to promptly tell a person who had applied for further leave that his sponsor’s licence had been revoked three months earlier. His position was that his case was indistinguishable from Pathan.
The Upper Tribunal did not agree and identified three differences. The first was that the appellant, unlike Mr Pathan, was aware of the difficulties with his sponsor’s licence. The second was that, in Pathan, the failure to notify Mr Pathan of the revocation of the sponsor licence was procedurally unfair because it deprived him of the ability to mitigate or avoid the consequences of revocation. That was not the situation for the appellant here as he could have asked his former employer what had happened with the sponsor licence following its suspension and would then have had time to take action before his application was decided.
The third way the Upper Tribunal said that this case could be distinguished from Pathan was the fact that the situation of the appellant was part of the reason the sponsor licence was revoked. Specifically, the tribunal described him as being “complicit” in the reasons for revocation, presumably echoing the language at paragraph 66 of Pathan:
66. There will be other cases where fairness does not require the applicant to be informed: obvious examples are where he already knows that there are grounds for revocation and where he is complicit in them. In those circumstances, he already knows that the success of his application is in jeopardy…
The Court of Appeal rejected the third of the Upper Tribunal’s reasons for distinguishing this case from Pathan. The court said that “complicity” cannot be alleged without it being clear what is being said and if the allegation is that conscious wrongdoing took place then that must be explicitly stated and the applicant given a fair opportunity to respond. In the appellant’s case, this was not done nor was there any finding of fact that he was knowingly party to any attempt to mislead the Home Secretary about the nature of his role at Ratna.
However, the court agreed with the Upper Tribunal on the first two points and so the appeal was dismissed.
Conclusion
In Pathan itself examples were given of cases where fairness would not require an applicant to be informed of revocation (see e.g. paragraphs 66, 67, 82 and 84). This case reiterates that there is no general principle in Pathan that failure to give notice of revocation of a sponsor licence to affected employees will automatically render a refusal of leave procedurally unfair, but rather that a fact specific consideration will always need to take place.
