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Tier 2 sponsor licence – revocation – courts take a restrictive view

As many readers will know, the Tier 2 immigration scheme is the scheme for non-EEA skilled workers – the sort of people who, in the old days, used to be known as “work permit holders”. As they may also know, employers who employ Tier 2 skilled migrants need to hold a Tier 2 sponsor licence. This is a licence issued – under very particular conditions – by the Home Office.

The sponsor licence is a mandatory requirement: no Tier 2 sponsor licence, no Tier 2 skilled workers. And, going a step beyond: Home Office take away Tier 2 sponsor licence, Home Office also take away Tier 2 skilled workers.

This harsh scenario has been all too true for quite a lot of employers and organisations who have successfully acquired a sponsor licence (quite a difficult exercise) but have subsequently had it revoked by the Home Office. The Home Office is typically very ruthless in this area. They evidently see it as their mission to guard the sacred grail of Tier 2 from abuse, and anyone who violates it – or who they think has violated it – faces this dire penalty.

The Tier 2 scheme has lots of rules: rules about recruitment, about job skill levels, about job descriptions, about salary levels, about record-keeping, about HR systems, and a few other things. An employing organisation has to be pretty well organised to keep their corporate eye on everything, and it is easy to fall foul, as many have discovered.

If the Home Office revokes or intends to revoke your sponsor licence you have the opportunity to make representations to them and explain why they should not do so. But if the Home Office is not convinced and revokes it nonetheless you might want to fight in the courts.

Sponsor licence revocation – like a lot of other immigration matters these days – attracts no right of appeal. But there is the right to Judicial Review. Judicial Review (or “JR” as we fondly know it) is a process in which a court assesses an action (or possibly inaction) by a State body and decides whether it was arguably unfair, unlawful or otherwise incorrect. If it is deemed to be so then the court may direct a remedy: eg take the decision again please but this time properly (a “quashing order”).

But those affected by sponsor licence revocations have not always fared very well in JR. In two recent cases – “Pathan” in the Court of Appeal and “Liral Veget Training & Recruitment” in the High Court – the claimants were unsuccessful in their fight with the Home Office.

In “Pathan” the claimants were Tier 2 migrants who complained that, because their respective employers had lost their sponsor licences they had lost their entitlement to Tier 2 visas, and they had been given no decent opportunity to sort out their affairs and possibly find another job. Alas the court was not persuaded. There was, they said, no unfairness within the appropriate legal meaning.

The court explained that although this could “on one view be regarded as being harsh” on the other hand the migrants in question could leave the UK and apply for a new Tier 2 visa with another job with another employer. So, really, no problem.

In the “Liral Veget” case the situation was rather different: it was primarily the company which claimed that they had been treated unfairly by the Home Office. The Home Office had revoked their sponsor licence, on the grounds that they had breached various conditions and rules. It was deemed, most particularly, that their Tier 2 employees were not really doing jobs at an appropriately high skill level.

The implication – and this is an accusation frequently made by the Home Office in cases of this kind – was that the company had dishonestly allowed their employees to acquire their Tier 2 visas which, of course, are for skilled workers, not any old workers.

Some of the court’s judgement made what some might consider grim reading:

“The Secretary of State [ie the Home Office] is entitled to maintain a fairly high index of suspicion and a ‘light trigger’ in deciding when and with what level of firmness he should act.”

“The courts should respect the experience and expertise of UKBA [ie the Home Office] when reaching conclusions as to a sponsor’s compliance … which is vitally necessary to ensure that there is effective immigration control.”

There are at least two lessons from this story for employers: (1) If you have lost your sponsor licence it may be hard to get it back and (2) it is best to keep your Tier 2 affairs in good order in the first place, and you might want to engage professional legal help in this regard.

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