Talpada, R (On the Application Of) v The Secretary of State for the Home Department

The appellant applied to remain as a Tier 2 (General) Migrant under the Points Based System (“the PBS”). The Secretary of State refused the application on 24 June 2015. The appellant made a second application for leave to remain as a Tier 2 (General) Migrant. The Secretary of State refused that application on 6 August 2015 and refused to change her decision following an administrative review on 7 September 2015. The original decision, the administrative review decision and the Respondent’s refusal to change her decision in response to a pre-action protocol were the subject of a claim for Judicial Review. Judge Blum considered the matter on the papers and refused permission to apply for Judicial Review. On oral renewal, on 12 July 2016, Judge Kamara also refused permission to apply for Judicial Review and refused permission to appeal to this Court.

Permission to appeal to this Court was refused on paper but granted by Lady Justice Arden on two grounds. Unusually, she also directed that a further statement should be filed from Mrs Farhat Yar, the owner of F and Y Gifts Limited, the Appellant’s sponsor. Lord Justice Hickinbottom gave the Respondent leave to lodge witness statements in response from two other witnesses Ewen McKenzie and Jill Warsop. In his skeleton argument Mr Mitchell for the Respondent raised the issue of questioning Mrs Yar during the hearing before us. Rightly, he did not pursue the application. Had he done so we would have refused it. The time for deploying all relevant material was before the Upper Tribunal Judge. In judicial review proceedings it is rarely necessary for there to be live evidence, because the nature of the issues is usually such that there should be no relevant dispute of fact. If there is a dispute of fact, and it is relevant to the legal issues which arise in a claim for judicial review, the court usually proceeds on written evidence. Since the burden of proof is usually on the person who asserts a fact to be true, if that burden is not discharged, the court will proceed on the basis that the fact has not been proved. It would be an exceptional case in which oral evidence was needed by the Administrative Court – or the Upper Tribunal when exercising its judicial review jurisdiction – and even more exceptional in this court. This is not an exceptional case. We also declined to receive yet another statement from Mrs Yar in which she attempted to argue the Appellant’s case, as opposed to answering the witness statements of Ms Warsop and Mr McKenzie.

The Appellant is an Indian citizen who arrived in the United Kingdom on 14 July 2009, with entry clearance as a Tier 4 (General) Student. His leave was subsequently extended until April 2015. Shortly before his leave expired and whilst still in time, on 9 April 2015, he made an application for further leave to remain as a Tier 2 (General) Migrant working as a Business Development Manager at F and Y Gifts, a licensed Tier 2 Sponsor. The application was supported by a Certificate of Sponsorship (“CoS”) from Mrs Yar. It bore the reference number C2G3K55212A issued by FY Gifts.

A CoS is an electronic document. Mr McKenzie, a Compliance Operations Manager employed by the Home Office, has explained that the sponsor must complete the form and save it online. Once it has been submitted and assigned to a case worker the mandatory fields are frozen. A sponsor may add a Sponsorship Note before the application is assigned to a case worker to allow for minor amendments, for example the misspelling of a name or to include information not included elsewhere. When a case worker considers a Tier 2 application the caseworker is instructed to mark the CoS as used. This ends the life cycle of the CoS. A CoS reference number can only be used once. This is explained in the Rules and in the Guidance.

The Secretary of State refused the first application because Mrs Yar gave the Occupation Code on the Certificate of Sponsorship as 7220. This code was not on the list of the required NQF Level 6 Occupations and the Appellant accordingly failed to gain sufficient points for sponsorship under the PBS. For the purpose of the second application, with which we are concerned on this appeal, there needed to be a CoS with the correct occupation code. Mrs Yar contacted the Secretary of State’s Sponsorship and Employers Helpline.

The Upper Tribunal had before it a witness statement from Mrs Yar in which she claimed that when she provided the first CoS she was unable to give the correct code because of technical problems on the Respondent’s site. When she tried to assign the CoS number for the second application she was unable to do so. She emailed the Secretary of State's department and spoke on the telephone to Mrs Jill Warsop. She was advised to add a sponsorship note to the “live CoS” and was sent a user manual for adding a sponsorship note to a certificate. She duly added a note, referring to the correct occupation code, to the CoS, i.e. ref. no. C2G3K55212A, which had been used in support of the previous application. The appellant submitted the second application using the same CoS reference number C2G3K55212A. Mrs Yar claimed she had been given erroneous advice by Home Office staff.

In the witness statement prepared for this court, dated April 2017, Mrs Yar went further. She first repeated her allegation that it was a technical fault (for which the Respondent was responsible) that prevented her giving the correct code on the first occasion. As regards the second occasion, she insisted that she had four “unused CoS” in her system but her company system showed no unused CoS available. She contacted the department and was wrongly advised to “use the unused live CoS” as opposed to a new one.

Mrs Yar undoubtedly contacted the Respondent’s department. She emailed the Respondent on 28 June 2015 and explained that she had assigned a CoS to her prospective employee (the Appellant) and he made an application for ‘Tier 2 General’ that was refused. She described the assigned CoS as “not utilised”. She claimed that she could not select the correct code for his future employment because it was not on the list provided and she was therefore forced to use the wrong code. She added:

“I have logged into my sms [sponsor management system] system again and realised that the relevant Code 3545 is now appearing and I now want to assign the same CoS to Mr. Talpada after rectifying the technical fault which existed in the system on 09 April 2015 when I assigned the CoS at first instance but unfortunately I am unable to do so since 0 CoS is appearing in the SMS system.”

We also know that she telephoned the Respondent’s Sponsorship and Employers Helpline and spoke to Ms Warsop who was then employed by the Respondent as a Customer Services Adviser. We have what appear to be incomplete transcripts of two telephone calls Mrs Yar made to Ms Warsop. On 29 June 2015 Mrs Yar began by saying her enquiry was about “the CoS codes”. Having made an application that was refused she understood they had fourteen days to apply again. In fact, there was a time limit of fourteen days for applying for an administrative review. The rest of the conversation, if any, is missing. She rang Ms Warsop again on 3 July. She gave her details and said her call was about the CoS codes. She wanted to change an occupation code. Ms Warsop told her she could not do so but could add a sponsorship note. Mrs Yar wanted to know more and Ms Warsop informed her she could only send a guide and Mrs Yar would have to select the right code.

At no point in the transcripts we have did Mrs Yar refer to the refusal of 24 June 2015 or to the CoS used on that occasion; nor did Mrs Yar mention the availability of any unused CoS.

Ms Warsop emailed Mrs Yar on 3 July 2015 in which she recorded that the latter telephoned “regarding adding a sponsor note.” Ms Warsop explained, “As promised I have attached the User Manual Help Guide which will assist you in adding a Sponsor Note to a Certificate of Sponsorship. I hope this will be helpful.” There was no reference on the email to link it with the Appellant’s application. The User Manual provides guidance on adding a note before a certificate of sponsorship is “used”. It relates only to a “live” certificate of sponsorship in the “assigned state” namely “unused”. If a CoS had been “used” the sponsor was advised to consult other guidance.

Mr McKenzie has explained that there were no technical faults on the system at the time the first application was made and that Mrs Yar’s company did not have four “unused” CoS available to her, as she asserted. F Y Gifts has only ever had one CoS. It was assigned and used in the appellant’s first application. However, he has discovered that the caseworker who refused the first application failed to mark the CoS as used. Had the CoS been marked as used, the sponsor would not have been able to add a sponsorship note. He maintained that the error had no significance because the sponsor cannot change the employment code by way of a sponsorship note and the CoS reference could not be used again according to the Immigration Rules. The sponsor could have applied for another CoS and made a fresh application with a new number.

The Appellant made a second application for leave to remain as a Tier 2 (General) Migrant on 6 July 2015 but it was supported by the same CoS reference number, C2G3K55212A. It gave the Occupation Code as 3545. The Secretary of State refused that application on 6 August 2015 in these terms:

“…As you have provided the same Certificate of Sponsorship reference number C2G3K55212A for your Tier 2 (General) leave to remain application on 06 July 2015 you have been awarded 0 points”.

The Appellant then made an application for administrative review based on the assertions that technical difficulties with the Respondent’s system prevented the sponsor from entering the correct occupation code, that the sponsor had contacted the “sponsorship section” to request them to “release the unused CoS letter so that a new CoS could be issued in favour of a fresh application” and that the sponsor was “advised” to add a sponsorship note on the CoS which she did. A fresh application was then submitted. The decision to refuse was described as ‘silent’ as to the Appellant’s case, including the technical difficulties, the email sent by the Respondent advising the sponsor, and the sponsorship note. The Appellant claimed he should have been notified of the problem before the refusal.

The administrative review decision letter reminded the Appellant that the application was refused because he had not provided a valid CoS; the one he provided was used. The official also noted they had not received a copy of the email advising the sponsor to add a sponsor note.

The Respondent then received a pre-action protocol letter and declined to change her mind. In the claim for Judicial Review that followed, the grounds were similar to the grounds for an administrative review.

Para 77C of the Immigration Rules (where relevant) provides that a CoS reference number will only be considered valid if:

“(e)

The migrant must not previously have applied for entry clearance, leave to enter or leave to remain using the same Certificate of Sponsorship reference number, if that application was either approved or refused (not rejected as an invalid application, declared void or withdrawn).”

The Respondent has issued Guidance to sponsors and its own officials. In the sponsors Guidance entitled, “Tier 2 and 5 of the Points Based System, Guidance for Sponsors” version 04/15 sponsors are advised

“when a CoS you have assigned has been used to support an application, it will show in your SMS account as ‘used’ and it can’t then be used again. If the migrant’s application is refused and they wish to re-apply, you must assign a new CoS to them to quote on their new application.”

Similar Guidance is provided to staff:

“A valid CoS must not have been used for a previous application, if that application was approved or refused (but not rejected or withdrawn).”

Paragraph 245AA of the Immigration Rules, in force on 6 July 2015, under the heading“Documents not submitted with applications” begins:

“(a)

Where Part 6A or any appendices referred to in Part 6A state that specified documents must be provided, the Entry Clearance Officer, Immigration Officer or the Secretary of State will only consider documents that have been submitted with the application, and will only consider documents submitted after the application where they are submitted in accordance with subparagraph (b).

Sub-paragraph (b) provides that where there are defects of various specifically identified kinds in a specified document which has been submitted the Secretary of State may ask for the correct documents to be supplied. The two kinds of defects relied on by Mr Saini are (ii) – where the document “is in the wrong format”; and (d) – where it “does not contain all of the specified information”.”

The Secretary of State was obliged, either under Paragraph 245AA of the Immigration Rules and the associated evidential flexibility policy or under her common law duty to act fairly, to put the Appellant on notice about the deficiency in the Certificate of Sponsorship before refusing his application for leave to remain as a Tier 2 (General) Migrant. The Secretary of State’s failure to do so was arguably unlawful. The Upper Tribunal erred in law failing to proper engage with this submission and/or rejecting it as unarguable.

The Upper Tribunal should have accepted the ‘unchallenged’ evidence given by the Appellant’s prospective employer in her witness statement of 23 October 2015. The Upper Tribunal erred in law in stating that there was “no evidence to support the claim that the Respondent advised the re-use of COS”.

Before us the two grounds have been expanded into several components. Before turning to address those grounds, I deprecate Mr Saini’s attempts to expand the grounds significantly beyond those upon which permission was granted. It is not open to an advocate in this Court to advance whatever grounds occur to them without identifying them fully, giving proper notice and without the permission of the Court.

I turn to the first ground on which the Appellant has permission, namely that the Secretary of State did not set up and operate a fair system to enable the decision to be made properly. It is said that the common law duty to act fairly required the Secretary of State to put the Appellant or Mrs Yar on notice that the COS reference number C2G3K55212A was invalid before refusing the application. The Appellant should have been given the opportunity to make representations on his own behalf either before the decision was taken or after. The failure to do so was unlawful.

Mr Saini also suggested that the Respondent’s refusal to consider properly the Appellant’s submissions and material upon which reliance was placed during the administrative review was unlawful. In the decision letter the Secretary of State’s official referred to their not having received an email from the department to the sponsor advising her to amend an existing CoS by adding a sponsorship note. Mr Saini insists this email should have been in their possession and the review was “factually flawed”.

The failure to give notice and or take proper account of representations made was described as a violation of the fifth principle enunciated in R v Secretary of State for the Home Department, exp. Doody [1994] 1 AC 5 that:

“fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both”.

Mr Saini described the rationale behind the policy and the rules as being to enable errors and omissions to be rectified to reduce the number of applications which are needlessly unsuccessful. The sole reason for refusal of the second application was the re-use of the used CoS reference number. Mr Saini maintains that the application could have been rectified had the error been brought to the applicant’s attention. The benefit of any doubt should have been given to the Appellant. This was a case where there was "missing evidence" or "evidence detailed on a ... certificate of sponsorship (CoS) is missing", the error was a “minor error” or a “minor error on a specified document” or it was evidence that is “not in an acceptable format” within the meaning of Paragraph 245AA. The document contains all the substantive information required by the Rules but is not laid out in the way described by the Rules. It cannot be said that CoS was "the wrong document". It was the correct document but the old reference number made it invalid. This was, accordingly, a case where 245AA applies.

If so, and the Respondent had any concerns or queries, rather than refusing, she should have contacted the applicant and sought further or clarification for which provision is made in paragraph 245AA. To allow him the opportunity to make representations would not have placed the whole system in jeopardy. In this respect the Respondent has acted unreasonably and unlawfully. She did not consider or apply paragraph 245AA or the evidential flexibility policy (for which see Mandalia v Secretary of State for the Home Department [2015] UKSC 59).

Ground 2 was never formally amended but has subsequently evolved into first an argument about legitimate expectation and then an argument about substantive fairness. The Secretary of State has now accepted that her caseworker committed an administrative error and the CoS was not marked used, thereby enabling the sponsor to add a sponsorship note. It follows that the sponsor’s account was true and she took ‘legitimate’ action after seeking advice from the Secretary of State’s Sponsorship and Employers Helpline. The option of applying for and issuing a new CoS instead of the old one was not made known to her.

The sponsor’s email and proper consideration of the telephone calls demonstrate that she was under the impression that she could re-use a CoS, no matter what paragraph 77C(e) provides. Ms Warsop should have advised her she could not re-use a used reference number and that using the same CoS would invariably result in a refusal.

Even if a person was aware of paragraph 77C(e), such a person would and should be entitled to conclude that the Secretary of State’s Helpline would not advise a course of action which was illegitimate, or which would result in an automatic refusal.

The effect is that the sponsor (and therefore the Appellant) have been given an assurance that the CoS number could be re-used and the Secretary of State should be bound by that assurance. It would be an abuse of the Respondent’s power and conspicuously unfair to allow her to avoid the consequences of the actions of her officials.

The Appellant relies upon the principle of substantive fairness as expressed in R v Inland Revenue Commissioners, ex parte Unilever Plc [1996] STC 681 and considered in an immigration context by the Upper Tribunal in R (Mohibullah) v Secretary of State for the Home Department [2016] UKUT 561 (IAC) at [65-69].

The Appellant contends that even if the Rules mandated that the Appellant’s CoS was not valid, the Secretary of State has a discretion to disapply them in an appropriate case. She should have exercised that discretion to correct the alleged injustice of refusing the application, given that the Sponsorship Helpline had not advised the sponsor of the consequences of re-using the CoS and had not advised she could submit a new one. Instead Mrs Yar was encouraged to re-use the CoS by informing her of the means to add a sponsorship note.

In any event, the Appellant submits that fairness demands that the Appellant, as a layperson and an innocent in the exchanges between the sponsor and the Respondent, should not be penalised for the sponsor’s stance or the Respondent’s conduct.

As Lord Wilson observed in his judgment in Mandalia v Secretary of State for the Home Department, the PBS is designed to be “a more efficient, transparent and objective application process” than its predecessor system. It can lead to what were described in Mudiyanselage v Secretary of State for the Home Department [2018] EWCA Civ 65 as “harsh outcomes” and “hard edged decisions”,but as Underhill LJ, who gave the lead judgment and conducted a review of all the relevant authorities, observed at paragraph 56:

“The clear message of those authorities, including Mandalia, is that occasional harsh outcomes are a price that has to be paid for the perceived advantages of the PBS process. It is important not to lose sight of the fact that the responsibility is on applicants to ensure that the letter of the requirements of the PBS is observed…”

Sir Brian Leveson PQBD agreed and added at paragraph 145:

“the requirements of the PBS, the Rules and the Guidance are precise. Those who seek to make applications of this nature must take the utmost care to ensure they comply with the requirements to the letter”.

Unfortunately for the Appellant, Mrs Yar did not take the utmost care. She put the wrong occupation code on the first application and she either failed to read or ignored the guidance as to adding a sponsorship note to a live certificate sent to her and the sponsors’ guidance generally available before she submitted the second application. The Rules and the all the guidance are clear. Para 77 C(e) provides that a CoS reference number can be “used” only once. The CoS was “used” to make the first application which had been refused. Mrs Yar should have known that. The CoS could not be “used” again, even if the case worker had wrongly forgotten to record the application as “used”. This was not a minor error on the part of the sponsor. As Mr Saini appeared to concede, it rendered the second application invalid. There was no point in contacting the Appellant to give him the opportunity to make representations. The only solution would have been for him to make yet another application, if his immigration status permitted. In this case, it did not, because by this time he had become an overstayer. To my mind, that it is not the fault of the system and there was no unfairness.

For similar reasons I also reject the complaint about the administrative review. As I understand the position, the assertion that the Appellant had not sent a copy of Ms Warsop’s email with his application for a review was accurate. In any event, had the email been considered, Ms Warsop gave no assurances that Mrs Yar could re-use a used CoS and consideration of the email would have made no difference to the decision. The second application was refused because of the fundamental breach of the Rules. The review itself was not “factually flawed”.

I should add that I accept that there may be cases in which the duty of Common Law fairness is breached in such a way that the court feels obliged to intervene, but this is not such a case. There is nothing unfair in the PBS system that requires applicants to comply with the requirements of the Rules and, if there is a fundamental error of the kind here, for the Secretary of State to refuse the application without giving notice, particularly where generally another application in proper form can be made. To the extent that this was a complaint about procedural unfairness in failing to give notice before refusing a PBS application that was defective on its face, I would reject it.

I would also reject the assertion that the Respondent was bound to apply paragraph 245AA or her flexibility policy. In my view, paragraph 245AA has no application to the present case. Sub-paragraph (a) makes it clear that the Rule is concerned with “specified documents” which an applicant is required by Part 6A or its appendices to provide. A CoS is not such a document. There is no provision in Appendix A – whether in one of the paragraphs denominated “SD” (for “specified documents”) or elsewhere – requiring applicants to provide a CoS in documentary form as evidence of a required “attribute”. Rather, the existence of a valid CoS is an attribute in its own right, that attracts points under the appropriate table in Appendix A (in this case table 11A). Consistently with that, what the applicant is required to provide is not a document but “a valid Certificate of Sponsorship reference number” (see paragraph 77A), by which the Home Office can check the detail submitted online by the sponsor. It may be debatable whether a CoS is a “document” at all. The Secretary of State’s Guidance for Sponsors describes it (at para. 23.1) as “a virtual document, like a database record”. However, what matters for present purposes is that it is certainly not a “specified document” and accordingly paragraph 245AA does not apply to it. That means that I need not consider whether the fact that the CoS reference number relied on was invalid because it was pre-used could be described as a case where the document was “in the wrong format” or did “not contain all the specified information”; but a fundamental error of the kind in question would be hard to fit under either label.

It follows that the Evidential Flexibility Policy equally has no application. That may explain why the policy was not pursued before the Upper Tribunal as an issue. The history of the relationship between the Guidance which states the policy and paragraph 245AA was exhaustively considered by this Court in Mudiyanselage (see paragraphs 12 to 35 and 54 to 56 thereof). As there explained, the version of the Guidance in force at the relevant time (version 7) goes no further than paragraph 245AA itself. There is no general policy of allowing the correction of “minor errors”. Even if there were, I do not see that the use of a pre-used reference number could be treated as such an error. It is clear from paragraph 77C (e) of Appendix A that it is an important feature of the scheme that each CoS reference number can only be used once.

I would reject ground 1.

To my mind the claim for Judicial Review and this appeal was in truth founded on the allegation that the Appellant’s sponsor was given an assurance that the sponsor could re-use the CoS number and there was a legitimate expectation that if the CoS number was re-used the application would not be refused on that ground. This is the way the case was presented before the Upper Tribunal.

The principle of legitimate expectation in the context of an application for leave to remain as a Tier 2 Migrant was considered by McCloskey J, President of the UT, in Mehmood (legitimate expectation) 2014 UKUT 00469 (IAC). The President summarised the development of the principle of “Substantive Legitimate Expectation” and at paragraph 15 he observed:

“The two basic ingredients of what the law has come to recognise as a substantive legitimate expectation are satisfied where there is an unambiguous promise or assurance by a public official in which the affected citizen reposes trust.”

I am satisfied there was no unambiguous promise or assurance that the sponsor could re-use a used CoS number and none by a public official in whom the sponsor could repose trust. The evidence from the sponsor did not come close to the criteria for establishing legitimate expectation. As Judge Blum observed in refusing permission to bring Judicial Review, the contact between the sponsor and the department does not suggest any disavowing of the fundamental requirement in paragraph 77C (e) that a new CoS number should be used.

I accept Mr Mitchell’s description of the Appellant’s case as an alleged failure on the part of the Respondent’s employee (a Customer Services Adviser) to disabuse Mrs Yar of her belief she could re-use a CoS number. Even if Ms Warsop had appreciated that Mrs Yar intended to use a CoS number, the limited advice Ms Warsop gave and a failure to disabuse Mrs Yar would not amount to an unambiguous assurance that the Rules would not be applied. However, it is far from clear that Ms Warsop would have appreciated, from what she was told, that Mrs Yar believed she could re-use a CoS number.

Finally, on this issue, I should add that I share the Respondent’s concerns regarding Mrs Yar’s reliability and accuracy. On the papers, I find Mrs Yar’s present account of an assurance unconvincing for three main reasons. At the heart of the Appellant’s claim throughout have been two of Mrs Yar’s claims: there was a technical fault in the Respondent’s system when she entered the wrong occupation code on the first application and she was advised to re-use an existing CoS by adding a sponsorship note on the second application. First, Mr McKenzie has now confirmed there was no technical fault. Yet, Mrs Yar has never acknowledged her own error and consistently blamed the Respondent’s technical system. Second, she did not have four unused COS available to her, as she claimed. Third, and most importantly, Mrs Yar’s original witness statement dated 23 October 2015 made no mention of any assurance she could re-use a CoS and it was not asserted in the request for an administrative review. This is not surprising given the transcripts show Mrs Yar told Ms Warsop that she wished to change the occupation code on a previously submitted CoS. They do not show any mention of using “the unused live CoS”, as Mrs Yar now claims.

Presumably, had Ms Warsop known that the first application had already been refused she would have advised Mrs Yar to submit a new CoS with a new number. She may have been hindered by the caseworker’s failure to mark the number as used, and by Mrs Yar’s failure to explain herself clearly. I accept that it would have been preferable had Ms Warsop been in a position to advise Mrs Yar in clear terms that she could not re-use a number already used. However, failings of that kind, even if established, are not in my view sufficient to raise a legitimate expectation. Mrs Yar was not induced to use the number for a second time by anything Ms Warsop said – it was her own error. She should have read the Guidance sent to her where the position was clearly set out. To allow the Respondent to rely on her Rules in these circumstances does not amount to what I would describe as an abuse of power or unfairness of the kind necessary to trigger the operation of the doctrine of legitimate expectation or substantive fairness.

Finally, on this ground the Upper Tribunal did not have evidence of an assurance before it (far from it) and the Tribunal was not obliged to accept Mrs Yar’s “unchallenged evidence” of such an assurance. There is therefore nothing to undermine the UT’s findings.

For those reasons, I would dismiss the appeal.

I have not found this case straightforward. There is no doubt that a member of the Home Office staff made an administrative mistake in failing to mark CoS C2G3K55212A as “used” following the rejection of the Appellant’s first application. Had he or she done so, it would not have been possible for Mrs Yar to add a sponsor’s note to it and the Appellant would, presumably, not have tried to rely on it for the purpose of his second application. The Secretary of State thus created the opportunity for the error in that application that led to it also being rejected. It is not difficult to see how it could in those circumstances be described as “unfair” for her to rely on that error. But in the end I feel compelled to agree with Hallett and Singh LJJ that it was not unfair in the relevant sense. The crucial point is that both the rules and the published guidance to sponsors make it clear that a CoS reference number can only be used once, and thus that a number that has been used in support of an unsuccessful application should not be re-used. The fact that Mrs Yar would have been stymied in her attempt to re-use the old CoS but for the failure to mark it as “used” does not alter the fact that it was her own decision, ignoring the explicit terms of the guidance, to set off down the wrong course. In those circumstances I cannot regard the rejection of the second application as substantively unfair. It might be different if Mrs Yar had made it clear to Ms Warsop that she was intending to re-use the number from a previous rejected CoS and had been told in terms that it was alright do so; or even, perhaps, had not been told that it was not. But, as Hallett LJ has demonstrated, the evidence does not establish that that occurred.

I have in the foregoing focused on the responsibility of Mrs Yar, as the sponsor, rather than on anything done by the Appellant, who does not seem, so far as the evidence goes, to have been involved in her decisions. But the issue is not whether the outcome is hard on him but whether the Secretary of State has acted unfairly; and from that point of view it is not appropriate to distinguish between him and his sponsor – cf. EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517.

I note Hallett LJ’s observations about how unusual it is for oral evidence to be necessary in judicial review proceedings. I entirely agree with what she says; but my experience in two recent appeals leads me to add the caveat that a Court or Tribunal should not be shy about hearing oral evidence where, exceptionally, it is genuinely necessary – see R (Patel) v Secretary of State for the Home Department [2015] EWCA Civ 645 (esp per Moore-Bick LJ at para. 11 and myself at para. 64) and Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009 (e.g. in the account of some of the TOEIC cases at para. 31 of my judgment).

I agree with Hallett LJ that this appeal should be dismissed for the reasons that she has given. I would like to add some observations of my own in relation to two matters: first, the concept of fairness in public law; and, secondly, the need for procedural rigour in public law litigation.

Both of the Appellant’s grounds of appeal in this case to some extent turn upon the concept of fairness in public law. However, it is important to keep in mind the distinction between (1) procedural fairness and (2) substantive fairness. The Appellant’s first ground of appeal raises in part an issue about procedural fairness. His second ground of appeal raises an issue about substantive fairness. It is important to keep that distinction in mind, not least because the doctrinal requirements of each concept are different. In my respectful view, it would be advisable not to use phrases such as “public law fairness” because that simply begs the question whether what is meant is procedural fairness or substantive fairness.

Procedural fairness (or, as it is sometimes called, the duty to act fairly) is the modern term for what used to be called the rules of “natural justice”. Those rules have two limbs. The first limb is the rule against bias (either actual or apparent), which used to be given the Latin expression nemo iudex in sua causa. The second limb is audi alteram partem (“hear the other side”). Since public law no longer talks of “judicial” or “quasi-judicial” disputes, even the notion of a “hearing” now seems inapt but the fundamental requirement of the second limb of procedural fairness is to give an opportunity to a person whose legally protected interests may be affected by a public authority’s decision to make representations to that authority before (or at least usually before) the decision is taken: see my concurring judgment in Kebbell Developments Ltd v Leeds City Council [2018] EWCA Civ 450, at para. 69.

In the present case, for the reasons which have been set out more fully by Hallett LJ, the complaint under the first ground of appeal is not in reality about procedural fairness in this sense at all. The reality of the complaint is that, despite what the Immigration Rules require, the Respondent should have been prepared to accept something else, namely a COS number which in fact had already been “used”. That has nothing to do with any duty on the Respondent to “hear” the Appellant before taking her decision. In reality it is concerned with a matter of substance, namely whether the requirements in the Rules should be complied with in full or whether the Respondent should be prepared to dispense with one of those requirements. In my view, it makes no difference to this analysis to say that the requirement in the Rules is itself concerned with a matter of procedure rather than, for example, whether a person should be granted leave to remain or a work permit. The important point is that this is nothing to do with procedural fairness in the sense outlined above. It is to do with whether a substantive requirement of the rules themselves needs to be complied with in making a relevant application. In my view, for the reasons which have been more fully set out by Hallett LJ, there was no breach of the requirements of procedural fairness in the present case.

I therefore turn to the second ground of appeal, which is concerned with substantive fairness. This concept is closely related to the concept of substantive legitimate expectation. It is a concept which is still relatively novel in our system of public law. It is still an evolving concept. It was first recognised by the House of Lords in 1985 although its origins can be traced back to earlier decisions of this Court. As Sir Thomas Bingham MR explained in R v Inland Revenue Commissioners, ex p. Unilever plc:

“… ‘Unfairness’ in public law is not used in a loose general sense (R v Inland Revenue Commissioners, ex p. MFK Underwriting Agents Ltd [1990] 1 WLR 1545 at 1573B, per Judge J). Where substantive unfairness is alleged, it is necessary to show a recognised form of unfairness, such as departure from a ruling on which the taxpayer has relied or inconsistency prejudicial to the taxpayer (see HTV Ltd v Price Commission [1976] ICR 170). The ‘court cannot in the absence of exceptional circumstances decide to be unfair that which the commissioners by taking action against the taxpayer have determined to be fair’ (R v Inland Revenue Commissioners, ex p. Preston [1985] AC 835 at 864E, per Lord Templeman).”

The doctrine of substantive legitimate expectation usually requires there to be (1) a representation made by a public authority which is clear, unambiguous and devoid of relevant qualification; (2) reliance and (3) detriment: see MFK Underwriting Agents, at 1569G-H (Bingham LJ). As Mr Saini submits on behalf the Appellant in the present appeal, decisions like Unilever make it clear that the concept of substantive fairness may be wider than the concept of legitimate expectation. In Unilever, at 690f, Sir Thomas Bingham MR famously observed that: “The categories of unfairness are not closed and precedent should act as a guide not a cage.”

Nevertheless, it should be emphasised that it is only unfairness which amounts to “an abuse of power” which is justiciable in this context: see the judgments of both Sir Thomas Bingham MR and Simon Brown LJ in Unilever. The facts of Unilever itself were extreme and it was on those cumulative facts that the Court was prepared to find unfairness which amounted to an abuse of power in that case: see the judgment of Sir Thomas Bingham MR at 690f-691g (“These points cumulatively persuade me that on the unique facts of this case the Revenue’s argument should be rejected”); and the judgment of Simon Brown LJ at 695a-b.

Similarly, the point was made as follows in R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546; 2007] INLR 450, at para. 46, by Carnwath LJ:

“… In an extreme case, the court could hold that the unfairness was so obvious, and the remedy so plain, that there was only one way in which the Secretary of State could reasonably exercise his discretion.”

It is important in this context to go back to basics. This is because, unless kept within clearly defined and predictable boundaries, the doctrine of substantive unfairness risks (even if unconsciously) inviting the court to intrude impermissibly on the province of the executive.

Normally public law is not concerned with the substance of public decisions. Judicial review has a very important role to play in the maintenance of the rule of law in this country but the role of the courts, however important, is a limited one. Our role is principally to correct errors of law made by public authorities and ensure that fair procedures have been complied with. This is why the courts will correct, for example, a misdirection of law by a public authority; will ensure that all relevant considerations are taken into account; that irrelevant considerations are not taken into account; and will insist upon procedural fairness where the duty to act fairly applies. This is also why the remedy which will usually be granted when an application for judicial review succeeds is a quashing order or some other remedy which has the result that the matter is remitted to the public authority concerned, so that it can reconsider its decision in accordance with law and after complying with relevant procedural requirements. What the outcome should be on reconsideration is usually not a matter for the court. It is rare for the court to substitute its own view for what the substantive decision should actually be. Usually the only basis on which the court can concern itself with the substance of the decision is irrationality. (For this purpose I put to one side issues which may arise under European Union law or under the Human Rights Act 1998, when the task of the court may be different.)

As I have said, in appropriate cases, the court will and must be able to correct an abuse of power. The doctrine of substantive fairness is an important tool which enables the court to ensure that a public authority acts lawfully and, in particular, does not abuse the powers which have been entrusted to it by Parliament. However, that doctrine does not and should not give the court a wide-ranging discretion to overturn the decision of a public authority where it considers it to be unfair. This is not only because that risks blurring the important dividing line between the function of the court and the function of the executive. It is also because the doctrines according to which a court will interfere with the decisions of the executive need to be set out in reasonably clear and predictable form so that everyone can arrange their affairs accordingly. This (the principle of legal certainty) is as much an important aspect of the rule of law as is the need to correct abuse of power.

Turning to the facts of the present appeal, I have come to the clear conclusion that, for the reasons set out more fully by Hallett LJ, this case comes nowhere near the sort of extreme case where it can be said that there was unfairness amounting to an abuse of power.

I turn finally to the question of procedural rigour in public law litigation. In my view, it cannot be emphasised enough that public law litigation must be conducted with an appropriate degree of procedural rigour. I recognise that public law litigation cannot necessarily be regarded in the same way as ordinary civil litigation between private parties. This is because it is not only the private interests of the parties which are involved. There is clearly an important public interest which must not be overlooked or undermined. In particular procedure must not become the master of substance where, for example, an abuse of power needs to be corrected by the court. However, both fairness and the orderly management of litigation require that there must be an appropriate degree of formality and predictability in the conduct of public law litigation as in other forms of civil litigation.

In the context of an appeal such as this it is important that the grounds of appeal should be clearly and succinctly set out. It is also important that only those grounds of appeal for which permission has been granted by this Court are then pursued at an appeal. The Courts frequently observe, as did appear to happen in the present case, that grounds of challenge have a habit of “evolving” during the course of proceedings, for example when a final skeleton argument comes to be drafted. This will in practice be many months after the formal close of pleadings and after evidence has been filed.

These unfortunate trends must be resisted and should be discouraged by the courts, using whatever powers they have to impose procedural rigour in public law proceedings. Courts should be prepared to take robust decisions and not permit grounds to be advanced if they have not been properly pleaded or where permission has not been granted to raise them. Otherwise there is a risk that there will be unfairness, not only to the other party to the case, but potentially to the wider public interest, which is an important facet of public law litigation.