Raza
[2016] EWCA Civ 36 where it was held that fairness did not require a 60 day grace period to be granted to a Tier 4 applicant whose application had been made out of time. In addition Mr Payne on behalf of the Secretary of State argued that it was relevant to bear in mind when considering Patel that there was no system of administrative review in 2010. He also argued that it was wrong in Patel to say that no fresh application made after a refusal could be considered, as it was the case then and until recently that a person would have 28 days in which to make an application. The period since late last year was fourteen days. It was also wrong to say at the end of paragraph 22 that in curtailment cases express Home Office policy was to afford 60 days had such an application to be made. In fact it was a maximum of 60 days so if a person had 60 days’ outstanding leave they would have that period in which to make a further application but if they only had one day left on their leave then they would only have one day in which to make an application. It was not a matter of an equal opportunity as referred to at paragraph 23 in Patel but in fact a person who was given 60 days under Patel would be better off than a person whose leave had been curtailed where they had less than 60 days’ leave remaining. Also if a person’s leave was curtailed they did not have a right to administrative review. Mr Payne argued that the same mistake was made in paragraph 16 in Raza , in that a person’s status would not be transformed from lawful resident to unlawful overstayer, but they would have the previously 28 days and now fourteen days’ opportunity to make an application. 14. Part of the respondent’s argument was to make comparisons between the objectives underlying Tier 4 and Tier 2, and this was supplemented by witness statements attached to the detailed grounds, from a Mr Jackson, a Senior Executive Officer in the Migration Policy Unit which is part of the Immigration and Border Policy Directorate, and Ms Buzzeo who is an Assistant Director and the Head of the Employment Route Casework and Premium Customer Service Team responsible for the Work Study Sponsorship Routes within UK Visas and Immigration. It is argued by the respondent, based at least in part on these witness statements, that the objective of Tier 4 is to provide those who wish to study in the United Kingdom access to appropriate educational institutions and to regulate demand from prospective students, stating that students are service consumers who wish to attend educational courses for which they pay for the course provided, and the Tier 4 sponsor is the service provider and provides the courses and at times the accommodation in return for a fee. Tier 4 is based on a high volume, over 200,000 prospective students applying for courses each year with around 1,200 sponsors, and the decision to permit a high volume of Tier 4 student applicants reflects the wider social benefits to resident students and to the UK economy. It is noted that Tier 4 students as service consumers will spend funds purchasing a service and are likely to invest significant time and money to study the relevant course, and in the circumstances a student who is refused further leave to remain before having completed his or her course or series of courses risks losing the full benefit of the time and money invested. This will be equally true whether the leave is curtailed mid course or refused in relation to an application made to complete further courses. It is said that this potential prejudice falls to be considered in the wider context of the objectives of Tier 4, namely to facilitate large numbers of genuine students to study at educational institutions in the United Kingdom. It is seen as a risk that Tier 4 applications might be discouraged if there is a pattern of genuine students being prevent from completing courses, and that this is contrary to the Tier 4 objectives of promoting access to educational establishments for genuine students. Reference is made to the ease with which students are able to find alternative sponsors as courses offered by different colleges are often similar when students are often to switch college with relative ease and without losing the benefit of the studies they have undertaken, especially when they are able to transfer any course credits they have already built up. 15. It is said that in contrast the Tier 2 route is led by demand from prospective employers in areas of skills shortage and it is the sponsor who is the service consumer who needs an applicant to fill a particular skilled vacancy where no resident worker can be found. The applicant therefore is the service supplier providing the labour in return for a salary. It is said that the objective of Tier 2 is to provide entry into the United Kingdom which is strictly limited to persons who are genuinely needed to do a particular job which cannot be filled by a resident worker and for this reason the Tier 2 system is designed to operate in a way that promotes the use of resident workers and prevents migrant workers from displacing resident workers from job opportunities. It is said that the criteria in Tier 2 are designed to match a specific worker with a specific vacancy and a specific company, there is an annual cap on the number of Tier 2 applicants, Tier 1 applicants can no longer be granted leave to remain for the purpose of looking for work and the criteria for securing Tier 2 entry and leave to remain are regularly being modified to encourage further employers to use resident workers, thereby reducing the number of Tier 2 applicants. 16. In comparing the two tiers therefore, it is argued on behalf of the respondent that in contrast to Tier 4, the presence of Tier 2 workers does not further the wider social and political objectives of promoting the employment of resident workers, and since Tier 2 applicants are service users whereas Tier 4 applicants are service providers, the consequences of refusal of leave are very different in that whereas a Tier 4 applicant risks being denied the service he has acquired the Tier 2 applicant loses the possibility of providing further services. While the impact of refusal of leave on a Tier 2 applicant may on occasions be harsh, the fact remains that they do not lose the earnings for the work they have already carried out and have obtained the primary benefit they could expect to receive by reason of the grant of leave to remain to fill a specific role of a specific employer. There is no reason to consider that another labour market gap exists which cannot be filled by a resident worker and for which the Tier 2 applicant would be suitable, in contrast to the relative ease with which Tier 4 students can find alternative sponsors. It is said to be desirable in terms of the wider objectives for Tier 4 students to be able to complete their education, that the objective of encouraging UK businesses to employ resident workers is not advanced by permitting Tier 2 applicants to remain in the UK looking for other jobs and indeed allowing migrants to stay in the UK to look for jobs is contrary to the Secretary of State’s deliberate decision to remove this route of entry into the United Kingdom. 17. It is also said that a further significant difference between the two types of applicant is that students sign up to general courses whereas the job offer made to a Tier 2 applicant is based around a specific match or a specific job between employer and applicant and hence it is reasonable to consider that the relationship between employer and employee is closer than that between college and student and therefore reasonable to expect employees to have a greater awareness of activities by the sponsor which are likely to lead to a loss of sponsorship status, particularly when they relate to the role being offered to the applicant. 18. On behalf of the applicants it is argued that none of the respondent’s points in relation to the differences between Tier 4 and Tier 2 have any substance. It is argued that even if the underlying assertions are accepted as correct they do not disturb the strong similarity between the position of Tier 4 and Tier 2 applicants for the purposes of fairness. Matters such as the suggestion that students are consumer PBS applicants as opposed to merely ordinary PBS applicants did not form part of the reasoning behind the elaboration of the principle of fairness in Patel nor that they were present in large numbers or able to switch sponsors easily which in any event was argued to be contentious, but it was simply a matter that they had been treated unfairly because their sponsors’ licences had, unbeknown to them, been revoked by the Secretary of State. In particular it was argued that the fact that Tier 4 students are consumers with respect to their education providers is completely incidental to the relationship with the Secretary of State as is the case with Tier 2 applicants. Also it is argued that the number of applicants in fact assists the applicant given the greater number of Tier 4 applicants in relation to whom potentially 60 day grace period letters would have to be written. Also it is argued that the contention there is a significant operational impact of a 60 day grace period is squarely at odds with the dictum of what was said by the Upper Tribunal in Patel to the effect that the potential cost of imposing a duty having to inform an applicant that a college was no longer sponsored did not diminish the duty to act fairly or the way in which the duty was discharged in that case. 19. It is also argued on behalf of the applicants that there is no primary evidence to support the contention that there is a higher personal cost for Tier 4 applicants, bearing in mind that Tier 2 applicants also incur significant personal and financial costs in making applications and that they are likely to be older and with dependent spouses and children. Also with regard to the implication of the argument that there is an inconsistency between a large number of Tier 2 employees and the objective of trying to ensure that local businesses employ resident workers that offering Tier 2 applicants a 60 day grace period would lead to a proliferation of the number of Tier 2 migrants ignored the fact that there was an annual limit of 20,700 on the number of Tier 2 visas. 20. A further point concerned the so-called Patel cycle, in respect of which the respondent argued that there was some evidence of a number of cases where people took advantage of the 60 day Patel period to apply to college after college and when the college lost its certificate had the 60 day period in which to make a further application and again and again. It was argued on behalf of the applicants that this was in effect inviting the Tribunal to conclude that Patel and therefore EK were wrongly decided and that in any event the argument was not based on evidence. 21. The witness statement of Mr Jackson sets out the purposes behind Tier 2. He notes that Tier 2 is designed around the principle of sponsorship and the purpose of filling specific labour market needs under the route being designed to be demand led by employers. The government’s policy is noted as being one of reducing net migration, as a consequence of which Tier 1 (General) and Tier 1 (Post-Study Work) categories were closed and around the same time the limit of 20,700 was imposed on Tier 2 which increased the skills threshold and English language requirement to improve selectivity. 22. Mr Jackson in his statement notes the 60 day provision with regard to curtailment which enables a migrant whose leave is curtailed if they cease working for their sponsor or the sponsor loses its licence to enable him in a 60 day period starting from the date of decision to curtail leave to sort out his affairs and make arrangements to leave the United Kingdom or submit an application for leave to remain either in Tier 2 with another sponsor or in another immigration category. It is said that however seeking another Tier 2 sponsor is not the specific reason for the existence of the 60 day provision. 23. Mr Jackson also notes the decision in Patel and the fact that the Tier 4 policy guidance gives effect to the decision in Patel , but there is no corresponding provision in the published Tier 2 policy guidance. The point is made that in contrast to a person whose leave has been curtailed, an applicant who is making an application for further leave is considered to be in a fundamentally different position. It is said that they have no expectation that their stay will continue and, as such, can reasonably be expected to have taken steps to ensure that their affairs are in order should their application be refused. In contrast to those with existing leave, the possibility that their application will not be granted cannot be said to be unexpected. It is noted that in such a case if the person still has extant leave that leave will continue until its expiry date. If the leave expired while the application was under consideration, the applicant’s status is protected under section 3C of the Immigration Act 1971 until such time as the applicant exhausts their rights to immigration review. The Immigration Rules also allow for a further application to be made up to fourteen days after these rights are exhausted. It is said that given this a further 60 day provision is considered unnecessary. This, it is said, contrasts with the negative actions involved in curtailment involving the taking away of existing leave until there are only 60 days left which is said to be wholly different from giving an applicant an extra 60 days which they would otherwise not have had. 24. With regard to the Patel cycle to which I referred above, it is said in Mr Jackson’s statement that it is not merely a theoretical possibility that a pattern of applicants in precisely that situation has been identified. The respondent has considered extending the application of the Patel principles to Tier 2 but does not consider this to be either necessary or appropriate given the fundamentally different relationship between applicant and sponsor and the purpose of granting leave as between Tier 4 and Tier 2. The Tier 4 route is led by demand from prospective students, the applicant being the service consumer and by contrast under Tier 2 the route is led by demand from prospective employers. These are points which I have set out above earlier in the context of the submissions that were made. It is relevant in this regard also to note what is said in Ms Buzzeo’s statement about the operational impact of implementing a 60 day grace period for Tier 2 applicants which she says would be significant. She set out her reasons why this would be so including writing to each affected applicant setting out why the CoS is no longer valid and specifying a timeframe and associated requirements for securing further leave on the basis of a new CoS from a different sponsor. New processes would need to be established to ensure that these cases were handled correctly and promptly on the expiry of the 60 day grace period. This was a point also emphasised by Mr Payne in his submissions that there would be an extra burden on the system in terms of having to set out new procedures and new systems and that it was not a point that was answered simply by Mr Malik’s argument that because the numbers would be less than in relation to Tier 4, the impact would be less. In my view it is necessary to take seriously what is said by Ms Buzzeo that the potential administrative burden of operating a 60 day grace period is substantial. Having said that I bear in mind what was said in Patel about the importance of fairness in relation to and in contrast to operational difficulties. 25. It is right in my view as was set out in Mr Payne’s skeleton argument, to begin by recalling the legal framework behind the decision. I do not propose to set out the relevant provisions of the Immigration Rules but rather to concentrate on the legal framework. It is important at the outset to recall that this is an application for judicial review based on contended irrationality in the respondent’s decision in these cases. Mr Payne placed weight on such matters as the emphasis in the leading case of