Patel
[2011] UKUT 211 (IAC) distinguished .
APPLICATION FOR JUDICIAL REVIEW
JUDGMENT
1. These two linked cases raise a common issue which makes it appropriate for there to be one decision relating to that issue which is applicable equally to each applicant. Insofar as there are specific points relating to either applicant they will be dealt with separately at the close of the determination under headings applicable to each of them. 2. The central issue in this case is whether an immigration applicant who has applied to the Secretary of State for leave to remain under the Tier 2 (General) Migrant category of the Immigration Rules and has submitted a certificate of sponsorship from their sponsoring employer which is valid at the time the application is made is entitled to challenge the respondent’s decision not to provide them with a period of 60 days in which to secure an alternative sponsor, in circumstances where the sponsor’s Tier 2 licence was revoked for non-compliance with the Immigration Rules. 3. Mr Islam was granted leave to enter the United Kingdom as a Tier 4 (General) Student on 25 September 2009, and that leave was extended from the initial period elapsing on 30 June 2011 to 4 August 2012. On 25 August 2012 he was granted leave to remain as a Tier 1 (Post-Study Work) Migrant until 25 August 2014. On 23 August 2014 he submitted a Tier 1 (Entrepreneur) application which was refused on 8 December 2014 and a subsequent appeal was dismissed. 4. On 1 February 2016 he applied for the role of “Business Development Manager” in an Indian restaurant and relied on a certificate of sponsorship issued by Tamarind (South West) Limited trading as Viceroy. The respondent had concerns as to whether the role of the applicant was genuine and as a consequence of enquiries being made the sponsor licence of Viceroy was revoked on 21 April 2016. The refusal decision in the applicant’s case was 7 June 2016 on the basis that he did not satisfy the requirements of paragraph 245HD(f) of the Immigration Rules since the certificate of sponsorship had been cancelled due to the sponsor having had its Tier 2 licence revoked. 5. Subsequently on 16 June 2016 the applicant submitted a request for administrative review and as a consequence of this the decision was maintained on 6 July 2016. Proceedings were issued following a PAP letter and response, on 13 September 2016. 6. Mr Pathan was granted leave to enter the United Kingdom as a Tier 4 dependent partner on 7 September 2009, with leave to remain until 31 December 2012. That leave was extended subsequently until 30 April 2014. On 30 January 2013 he submitted an application as a Tier 2 (General) Migrant, relying on a certificate of sponsorship issued by Submania Limited and was granted leave to remain until 15 October 2015. On 2 September 2015 he submitted a further Tier 2 application again relying on a certificate of sponsorship issued by Submania. The respondent had concerns as to whether the post on offer was a genuine vacancy, the application was put on hold awaiting the outcome of a sponsor visit and subsequently on 4 February 2016 Submania was informed that its sponsor licence had been suspended and it was invited to submit representations within twenty working days. No representations were made and the licence was revoked on 7 March 2016. On 7 June 2016 the applicant’s application was refused because the CoS had been cancelled on account of Submania having had its Tier 2 licence revoked. An administrative review was sought on 14 June 2016 and refused on 7 July 2016. Thereafter the proceedings were issued. 7. There was some discussion at the outset about the further decisions in each case which had been issued by the respondent. It was agreed that I would address what may conveniently in shorthand be called the 60 days’ issue and hear submissions on that alone since if the appellants were unsuccessful in their challenge to the main decisions then that would render any challenge to the subsequent decisions academic. 8. The essence of the argument put forward on behalf of both applicants is that it is irrational for the Secretary of State not to provide Tier 2 applicants with a 60 day period in which to find an alternative sponsor. Their applications for leave to remain were refused on account of the sponsor losing its Tier 2 licence whilst their applications were under consideration. In particular the argument is based on the decision of the Upper Tribunal in Patel [2011] UKUT 211. In this case a Tier 4 applicant had been refused further leave to remain as his sponsor had been removed from the list of approved sponsors and he therefore had no sponsorship letter capable of earning him points under the points-based system. It was held that what was required to give effect to the principle of fairness was for a direction to be given that the fresh decision was not to be made for a period of 60 days from the date of the reasons decision being transmitted to the parties to enable the appellant to obtain a fresh sponsorship letter that was current and enable his existing application to be varied to include study at the institution set out in the new sponsorship letter. 9. In summary the argument on behalf of the applicants is that an immigration applicant is entitled under the common law to have the Immigration Rules applied to him in a way that adheres to principles of fairness. Reliance is placed on what was said by the Court of Appeal in Q
[2003] EWCA Civ 364, that decision relying also on what had been said by Lord Mustill in