Operation Holdings Ltd (t/a Goldcare Homes), R (On the Application Of) v The Secretary of State for the Home Department

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This is a claim for Judicial Review, brought by Operations Holdings Limited trading as Goldcare Homes (“Goldcare”), of a decision made by the Secretary of

Goldcare was established in 1999 and offers residential nursing, frail, elderly and dementia care. It runs 21 care homes, acquiring approximately 1,500 new patients each year, with about 1,200 discharges per year. The evidence of the Claimant was that it has a turnover of some £37 million a year. The Director is Mr Ravinder Singh Gidar who has for a number of years held a Tier 2 Sponsor licence which has allowed him to employ non-EEA migrants in his business. At the present time, amongst the approximately 1,000 employees are 3 migrants subject to the Licence scheme. Mr Tiwari, about whom this case has arisen, is one of them, and has been employed in this way since at least 2014.

An unannounced compliance visit took place on behalf of the SSHD at the

At an interim relief hearing on 21 December 2018, Michael Fordham QC, sitting as a Deputy Judge ordered that the Sponsor Licence be returned to Suspended status and gave Directions. Permission for judicial review was granted by him on 11 January 2019 and the interim relief extended. The sponsored migrants were thus, under the Home Office policy, not affected whilst the claim was heard.

The letter of 6^th September suspending Goldcare’s Licence provided materially as follows:

“General sponsor duties 1

…

2.

You assigned a Certificate of Sponsorship (COS) to Aditya Tiwari (C2G8O46039B) in the role of Business Analyst under Standard Occupational Classification (SOC) Code 2423 Management Consultants and Business Analysts. You stated that the duties of the role would be:

•

Assess the functions, objectives and requirements of the organisation or financial projection;

•

Development of underlying and ad-hoc fees pricing policy

However, during our visit our officer asked you about this role and you stated the duties as:

You provided our officer with emails as evidence of Mr Tiwari’s work, which included a balance summary, cash flow analysis and list of PAYE payment record. These documents contained data only and did not show evidence of detailed analytics or consideration within the scope of a larger financial performance report, as per the duties stated on Mr Tiwari’s COS. In addition, they did not provide any evidence that Mr Tiwari had been involved in developing pricing policy or had attended seminars of similar development events in line with the duties stated on his COS. Given these issues, we are not satisfied that the rolof [sic] Business Analyst represents a genuine vacancy in line with Mr Tiwari’s assigned COS.”

The letter, which was addressed to Mr Gidar, the Director of Goldcare, who had given those answers to the Secretary of State’s officer, then cited provisions of the SSHD’s Sponsor Guidance. It continued as follows.

“General Sponsor Duties 2

9.

You confirmed that Mr Tiwari’s role was positioned between the roles of Financial Assistant and Financial Manager in terms of level and provided an organisational hierarchy which confirmed you also employ Vivek Hamukhbhai Goradia (C2G4Y45615L) as a Senior Business Analyst within the same department. Given this, and the job description you provided, we believe that Mr Tiwari’s role is actually that of a Finance Officer as covered under SOC Code 4121 Finance Officers. Duties under this SOC code are considered lower-skilled and so are below the level required for sponsorship under Tier 2 (General). In addition, by allowing him to perform a role which does not need the Tier 2 skills criteria, you are permitting Mr Tiwari to work in breach of his Visa conditions.

This was followed by further sections of the Guidance. The letter continued:

“General Sponsor Duties 3

16.

As you have failed to demonstrate that the role of Business Analyst, for which you employ Mr Tiwari, represents a genuine vacancy at the required skill level, we believe you provided false information when assigning a COS to him for this role.”

The passages from the Guidance then cited emphasised that significant trust was reposed in sponsors, and explained the consequences of knowingly providing false statements or false information.

The letter offered an opportunity to explain the issues within 20 days and required, if representations were to be made, documents concerning all managers and staff, and evidence of the work completed by Aditya Tiwari. The letter also asked for certain other materials such as P60 documents and payslips; no issue arises on this employment documentation.

A response to the SSHD’s 6^th September 2018 letter came from Goldcare’s solicitors on 16 September 2018. They made a number of observations about the reputation of the Goldcare Homes Group, observing it had been established for more than 18 years, had won numerous awards and ran 21 care homes. It pointed to the general need for care homes explaining that Mr Gidar maintained vehemently that he had not abused the Sponsor Licence, nor done anything “untoward or misleading”. The letter pointed to the reputation and background of the Goldcare Group as militating against any deliberate manipulation of the sponsor scheme and made a number of allegations concerning the fairness of the interviews that took place with the migrants, and enclosed a series of documents said to evidence the claim that Mr Tiwari did indeed carry out the role for which he had been sponsored.

Their case was that the interview with Mr Tiwari was unfairly brief. They said it gave him no time to “find his stride” and to properly explain his role. The Claimant submitted Mr Tiwari was a genuine Business Analyst in a genuine vacancy. Together with the letter were six appendices comprising spreadsheets of figures, under various headings and several emails. Each of the sets of data were said to evidence individual aspects of Mr Tiwari’s role named under the relevant job code including his involvement in meetings. For example, Appendix 1 was a snapshot of the forecast cash flow which it was said was “monitored, updated and analysed” by Mr Tiwari. It was said the Regional Operations Team collected the data and provided it to Mr Tiwari, who examined and dissected it with “the appropriate methodology and analysis”. Similarly,

The last appendix sent to the SSHD consisted of an email with further spreadsheets. The email post-dated the inspection in June 2018 and attached a

“price comparison analysis” from Mr Tiwari, sent to others in the office. The appended spreadsheet showed numerous items, listed with a price differential and a potential saving set out across the page. It should be said that none of the pages contain any identifying feature that tied them to Mr Tiwari, or indeed, to anyone else.

The SSHD’s response in the final revocation letter dated 30^th November 2018 followed closely the format and repeated the content of, the Suspension letter of 6 September. It repeated the section under the heading “General Sponsor Duties 1”, and also what was said during the inspection visit. It repeated verbatim, the criticism that had been levelled in September. The letter then continued:

“9.

In your representations you state that Mr Tiwari’s answers were brief and synoptic as he was interviewed spontaneously for approximately ten minutes, therefore the interview was brief and did not involve a hands-on scrutinising exercise, as in the case of Mr Vivek Goradia, whereby substantial time was spent interviewing him.

10.

You submit that Mr Tiwari is a genuine Business Analyst in a genuine vacancy. As evidence of the work undertaken by Mr Tiwari, you have provided [the materials in the accompanying appendices].

11.

You state that the actual and forecast cash flow spreadsheet is monitored, updated and analysed by Mr Tiwari, however the spreadsheet cannot be attributed to Mr Tiwari and no evidence of him monitoring, updating or analysing the spreadsheet has been provided.

12.

You stated that there are approximately 125 new clients every month and 100 discharges that Mr Tiwari must contend with. You also stated that the Regional Operations Team collects the relevant data that is then given to Mr Tiwari to examine and dissect with the appropriate methodology and analysis. No evidence has been provided to support this claim.

13.

You state Mr Tiwari then translates this analysis into forecast cash flow for the current month and months going forward to the end of the financial year. You state following his analysis he will meet with the directors who will then invariably implement his recommendations. No evidence has been provided to support this claim.

14.

You state that Mr Tiwari works closely with the Billing Team and helps them to identify pricing policy for public and private clients; however, no evidence has been provided of this.

15.

You state that Mr Tiwari analyses the direct expenses and assists the Payroll Manager to interpret information gained from payroll and time checking software, however no evidence has been provided of this.

16.

The email dated 26^th October 2017 only confirms that Mr Tiwari requested certain employees to attend a workshop / training course that had been organised for them. It does not confirm Mr Tiwari conducted the workshop or training course.

17.

The email dated 28^th November 2017 merely confirms Mr Tiwari’s attendance at an administrative day, it does not confirm what work he undertook as part of this day.

18.

You state that following detailed analysis of key metrics data from various suppliers, Mr Tiwari develops efficiencies in the procurement process. No evidence has been provided to support this claim.

19.

The email exchange confirms that Sumit Arora requested Mr Tiwari looks at the attached revised office depot pricing and advises. Mr Tiwari simply returns the spreadsheet with the potential savings worked out in the final column. No advice was offered and there is no evidence of any further action was taken [sic] as a result of this analysis. There is also no evidence that Mr Tiwari developed any process.

20.

There is no evidence that Mr Tiwari was responsible for the creation of the following documents: [and there are listed the appendices materials containing documents said to be analysis of target private funder etc. and fees for various institutions submitted to the SSHD in September 2018].

21.

These documents contain data only and did not show evidence of detailed analytics or consideration within the scope of the larger Financial Performance Report, as per the duties stated on Mr Tiwari’s COS.

22.

You have failed to provide any evidence that Mr Tiwari has undertaken the following roles as stated on his COS:

•

Assesses the functions, objectives and requirements of the organisational financial projection;

•

Development of underlying and ad hoc fees pricing policy for public / private clients;

•

Determines the appropriate method of data collection and research methodology, analyses and interprets information gained and formulates and implements recommendations and solutions;

•

Attending seminars and workshops to identify process improvements and develop process efficiency;

•

Providing detailed analytics on key metrics and understanding how these impact cash flow and management accounts;

•

Integrating the finance module in the MIS and assisting senior management providing Financial Performance Reports.

23.

Considering Mr Tiwari has worked for your client’s organisation for over 12 months, we would expect your client to have an abundance of evidence at their disposal to demonstrate the duties and responsibilities undertaken by him as described on his COS.

24.

Having taken into consideration the representations and evidence provided above, we believe that the role undertaken by Mr Tiwari does not match the job as described on his COS or as is stated in Appendix J of the Immigration Rules.

25.

We therefore assert that a genuine vacancy at the correct skill level does not exist and the post has been created in order to facilitate Mr Tiwari’s continued Leave to Remain in the UK. This matter is not addressed.

26.

Annex 5(ee) of the Tier 2 and 5 Sponsor Guidance states:

‘We will revoke your licence if…’

[The relevant parts of Annex 5 are cited - as to which see further below.]

The letter continues in the same vein as the Suspension Letter. It repeated the material under “General Sponsor Duties 2”, and added:

“32.

In your representations, you state that your client’s business does indeed require two Business Analysts and the presence of Mr Goradia does not undermine the need for a second Business Analyst.

33.

You also confirm that Mr Tiwari’s role is below that of Mr Goradia in the analytic chain and that Mr Goradia’s work is more complex in nature and this reflects his seniority in the role.

34.

Having taken into consideration the representations you have made and the evidence provided, we do not believe that the role that Mr Tiwari is currently undertaking meets the Tier 2 General Skills criteria and we believe the work Mr Tiwari undertakes is more akin to that of a Finance Officer, as covered under SOC Code 4124 Finance Officers. This matter is not addressed.”

Under the heading ‘General Sponsor Duties 3’, again the SSHD set out what had been set out in the Suspension Letter. He then continued:

“42.

In your representations, you state that your client issued a COS for a genuine vacancy and has not been dishonest in any way.

43.

You have failed to provide evidence which demonstrates Mr Tiwari has carried out the duties as stated on his COS or at the appropriate level for Sponsorship. You have also failed to demonstrate that the role Mr Tiwari undertakes matches the job description as stated in Appendix J of the Immigration Rules.

44.

This compounds our belief that your client has failed to meet their obligations as a licenced sponsor, by providing false information when assigning Mr Tiwari his COS. In the absence of any evidence to the contrary, we conclude that your client has provided false information in order for them to meet the requirements for Sponsorship under Tier of the Points Based System. This matter is not addressed.

…

‘Decision’

46.

We have considered the possibility of downgrading your client’s licence and issuing them with an Action Plan. However, we will only downgrade a licence and issue an Action Plan where there is scope to rectify shortcomings or omissions in systems or retained documents.

47.

As already stated, your client has acted in contravention of

Annex 5(k), 5(r), 5(t), 5(ee) and 5(gg) and Annex 6(j) of the Tier 2 and 5 Sponsor Guidance. Downgrading your client’s licence is not appropriate due to the seriousness of their non-compliance with their sponsor duties.

48.

We believe the issues described above constitute a failure by your client to comply with their sponsor duties.

49.

As a result, your client’s Sponsor Licence has been revoked. There is no right of appeal against this.”

The gist of the Claimant’s challenge is that SSHD has misdirected himself when revoking the Tier 2 Licence by maintaining a decision that was tainted by an unsustainable finding of dishonesty; further he has failed to recognise and exercise his discretion in the matter, has reached a perverse overall conclusion, and acted in a procedurally unfair manner. Some submissions were also addressed to me, although they were not strongly urged, concerning the applicability of Article 8 ECHR and Article 1 Protocol 1 to the Convention in this case. I shall turn to the submissions after setting out the context in which consideration of the issues must take place.

There was no dispute between the parties, either at the time of correspondence or in Court as to the structure or the general scope of the relevant scheme.

I take with gratitude from the Witness Statement of John Windle, a Grade 7 Civil Servant at the Home Office, the following outline of the Sponsor

The current system of sponsorship was introduced in 2008, after the Work Permits System ceased. The fundamental difference between sponsorship and the earlier system is that the Home Office transferred a greater level of responsibility to employers, that is to say sponsors, for protecting the UK border. This is explained by Mr Windle as allowing employers more freedom from up-front checks in exchange for the employer’s guarantee that they would act appropriately, honestly and in full and complete compliance with the rules set out from time to time in guidance provided by the Home Office.

The introduction of the Points Based System was a major change. It consolidated approximately 80 other routes of entry into the UK and in November 2008 Tier 2 for Skilled Workers came into operation. The scheme allows those with a Sponsor Licence to issue a “Certificate of Sponsorship” (“COS”) for its own employees. There is no dispute but that the grant of a licence imposes significant and onerous responsibilities. In effect, the individual employers become a part of Border Control with a positive obligation to familiarise themselves with the obligations arising under the scheme, and to ensure strict compliance with it.

It is clear that sponsorship is based on two fundamental principles:

This provides the context for the application of the scheme, and reflects, as was said by McGowan J in London St. Andrew’s College v SSHD [2014] EWHC 4328 (Admin) at [13], that the obligation of a sponsor is to carry out its responsibilities “with all the rigour and vigilance of the immigration control authorities”. This approach is found throughout the case law (as to which, see further below) and applies equally to the Tier 2 Skilled Workers scheme.

The Guidance contains warnings that compliance action will be taken where a licenced sponsor is considered to have failed to meet its duties and responsibilities.

It is emphasised within the SSHD’s description of the scheme that the Home Office seeks to recruit highly skilled workers. The Regulation Qualifications

The relevant guidance (and see further below) provides in this regard:

“25.

When you assign a Certificate of Sponsorship (COS) you must choose the Standard Occupational Classification (SOC) code which contains the job description that best matches the role you want to recruit for. The ‘Codes of Practice’ contain information about each SOC code and sample job titles and duties that fit within each code. You should be able to find the correct SOC code by searching the Codes of Practice for job titles or key words.

25.1

You may find that if you search for job titles, the SOC code containing that job title does not match the duties that the migrant will perform. This is because different employers use the same job title to describe different jobs or use generic job titles that cover several different jobs. If this happens, you should search further, for example using key words for a job description that matches the migrant’s duties.”

It is emphasised on behalf of the SSHD that it is a common misunderstanding amongst sponsors and workers that because the workers are qualified to the required level and the job description is at the required level, this means that they are necessarily working at the required level. The consequences of not actually working at the required level are serious: the worker will be in breach of his or her terms of their grant of leave and the sponsor will not be adhering to their sponsor duties. The SSHD describes it as a “known problem” that sponsors over-state or mis-state the level of a job.

The relevant Guidance for the purposes of the decision in issue was version

Annex 4, concerning circumstances in which the SSHD may downgrade a licence to a B-rating include a failure to comply with any of the sponsor duties.

Annex 5, entitled “Circumstances in which we will revoke your licence” sets out the circumstances where the SSHD will revoke (relevantly for the purpose of this case) as follows [emphasis added]:

“(k)

You have knowingly provided a false statement or false information, or not provided information that you held when required to, to us, the former Immigration and Nationality Directorate… etc.

…

(r)

You employ a migrant in a job that does not meet the skill level requirements as set out in this Guidance.

…

(t)

You use a Tier 2… COS to fill a vacancy other than the one specified on the COS you assigned for that role.

…

(ee) You assign a COS for a vacancy that was not genuine. For example, where:

•

it contains an exaggerated or incorrect job description to deliberately make it appear to meet the requirements of the tier and category you assigned to it under when it does not [sic]

•

it is for a job or role that does not exist in order to enable a migrant to come to or stay in the UK.

(gg) The role undertaken by a migrant you have sponsored does not match one or both of the following:

•

the job description in Appendix J of the Immigration Rules containing the SOC Code stated on the COS you assigned to them;

•

the job description on the COS that you assigned to them.”

“Annex C: Circumstances in which we may revoke your licence” also indicates that SSHD may revoke the Sponsor Licence where:

“(f)

you failed to comply with any of your sponsor duties.”

The principles applicable to the Sponsor Licence Regime are now well established. They have been drawn, in particular from a first instance decision of Mr Justice Haddon-Cave, (as he then was), in R (Raj & Knoll Limited) v SSHD [2015] EWHC 1329, at paragraphs 13 to 19 as supplemented by the Court of Appeal in that case ([2016] EWCA Civ 770). Those principles have been applied in a number of cases, and I take with gratitude the encapsulation of them in R (Liral Veget) v SSHD [2018] EWHC 2941 (Admin) at paragraph 39:

“(1)

The essence of the system is that the Secretary of State imposes a higher degree of trust in sponsors in implementing and policing immigration policy in respect of migrants to whom it grants a Certificate of Sponsorship.

(2)

The authority to grant a Certificate is a privilege which carries great responsibility: the Sponsor is expected to carry out its responsibilities with the same rigour and vigilance as the Immigration Control Authorities.

(3)

The Sponsor must maintain its own records with assiduity.

(4)

The Points Based System has created a system of immigration control in which the emphasis is on certainty in place of discretion, on detail rather than broad guidance.

(5)

The Certificate (COS or CAS) is very significant: the possession by a migrant of a requisite Certificate provides strong, but not conclusive, evidence of some of the matters which are relevant upon the migrant’s application for Leave to Enter or Remain.

(6)

There is no need for UKBA to wait until there has been a breach of immigration control caused by the acts or omission of a Sponsor before suspending or revoking the sponsorship, but it can, and indeed should, take such steps if it has reasonable grounds for suspecting that a breach of immigration control might occur.

(7)

The primary judgement about the appropriate response to breaches by Licence Holders is that of the Secretary of State. The role of the Court is simply supervisory. The Secretary of State 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.

(8)

The Courts should respect the experience and expertise of UKBA when reaching conclusions as to a Sponsor’s compliance with Guidance, which is vitally necessary to ensure that there is effective immigration.”

It is worth emphasising one aspect of the jurisprudence that derives from the Judgment of Neil Garnham QC (as he then was) in R (London Reading College) v SSHD [2010] EWHC 2561 (Admin) at paragraph 60:

“It has to be remembered that the primary judgement about the response to breaches of a College’s duty is the Defendants, and the Court’s role is simply supervisory. It also has to be remembered that the underlying principle behind this scheme is that the UKBA entrusts to Colleges the power to grant Visa letters on the understanding and with their agreement that they were acting in a manner that maintains proper immigration control.

The capacity for damage to the national interest in the maintenance of proper immigration control is substantial if Colleges are not assiduous in meeting their responsibilities”.

In those circumstances, it seems to me that the Defendants are entitled to maintain a fairly high index of suspicion as they go about overseeing Colleges and a like trigger in deciding when and with what level of firmness they should act.”

That case was decided in the context of a Tier 4 Licence, but it is not in dispute that the principles apply in the present case.

Further principles of relevance may be derived from the Judgment of Tomlinson LJ in Raj & Knoll, at paragraph [32]:

“The mere fact that the decision making in this area may have serious commercial consequences for licenced sponsors is not of itself a reason to impose heightened scrutiny. The circumstance that the SSHD has special expertise in and experience of decisionmaking in this field, and that the Court possesses no particular institutional competence and can claim no special constitutional legitimacy, militates against that submission – see per Lightman J in R (Cellcom) v DJ of Telecoms [1999] ECC 314 at paragraph 26, and per Laws LJ in R (Law Society) v London Criminal Court Solicitors’ Association [2015] EWHC 295 (Admin) at paragraphs 32 and 33. It is also clear that the exercise in which the SSHD is engaged involves no fundamental right of the Appellant, but on the contrary a right contingent upon adherence to the Rules: (cf. per Lord Sumption R (New London College Limited v Secretary of State for the Home Department).

The reference to New London College Limited was to a citation in which Lord Sumption said this at paragraph 29 of R (New London College Limited v Secretary of State for the Home Department [2013] 1 WLR 2358:

“There are substantial advantages for sponsors in participating [in the Tier 4 Scheme] but they are not obliged to do so. The Rules contained in the Tier 4 Guidance for determining whether applicants are suitable to be sponsoring institutions, are in reality conditions of participation, and sponsors seeking the advantages of a licence cannot complain if they are required to adhere to them.”

In light of the submissions that are made in this case, it is worth recalling that public law decisions affecting individual’s rights are subject to common law requirements of procedural fairness. Procedural propriety depends on the subject matter of the decisions, the executive functions of the decision-maker and the particular circumstances in which the decision is made (CCSU v Minister for Civil Service [1985] AC 374) and also that what fairness requires depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates (R (o/a Easyjet) v Civil Aviation Authority and ors [2009] EWCA Civ 1361 and see also Lloyd v McMahon [1987] AC 625; and R v SSHD ex parte Doody [1994] 1 AC 531). These principles were applied in the similar context of a Tier 4 Licence in the London Reading College case.

The issue as to whether a heightened level of scrutiny applies has also been considered in Taste of India v SSHD [2018] EWHC 414 (Admin) by Richard Clayton QC, sitting as a Deputy Judge of the High Court. In that case the Claimant contended that a proportionality rather than a Wednesbury approach was appropriate. In referring to Keyu v Secretary of State for Foreign and Commonwealth Affairs [2016] AC 1335, the Learned Deputy Judge said as follows:

“61.

In Keyu, Lord Neuberger, Lord Mance and Lord Hughes held it would not be appropriate for a five judge panel of the Supreme Court to accept or reject the Claimant’s argument that a traditional rationality basis for challenging executive decisions should be replaced by a more structured and principled challenge based on proportionality, which potentially has implications which are profound in constitutional terms and very wide in applicable scope, because it would involve the Court considering the merits of the decision at issue and would require the Court to consider the balance which the decision-maker had struck between the competing interests and the weight according to each interest. In those circumstances, it is not open to me determine the question of whether proportionality has replaced rationality at common law.”

In another case concerning the Sponsor Licence system Datamatics UK Limited v Secretary of State for the Home Department [2016] EWHC 1780 (Admin), Natalie Lieven QC, sitting as a Deputy Judge of the High Court refused to accede to a submission that questions arising out of SSHD Guidance were properly to be regarded as questions of precedent fact. She said, at paragraph 20:

“The questions in issue were not ones of precedent fact. The test is not set down by Parliament as a statutory test, but rather in Guidance; there is no issue of liberty or equivalent impact; there is a high degree of judgement for the decision-maker, i.e. the Secretary of State, in deciding whether an individual is an ‘agency worker’ or the Claimant a ‘recruitment agency’. There is no one factual answer as there would be to whether a person was or was not a child.”

In the Taste of India case, a submission was also made that Article 1, Protocol 1 was engaged in a case involving Tier 2 sponsorship. In rejecting that submission at paragraph 72 of his judgment the Learned Deputy cited from the Court of Appeal in R (o/a New London College Limited) v Secretary of State for the Home Department [2012] EWCA Civ 51. Richards LJ:

“94. In my judgement, Wyn Williams J was plainly correct to find that a Sponsor Licence is not itself a possession within A1P1. The analysis of Kenneth Parker J in Nicholds [R (Nicholds)v Security Industry Authority [2007] 1 WLR 2067, paras. 70 to 76], which met with a strong measure of approval [by the Court of Appeal] in Malik [R (Malik) v Waltham Forest NHS Primary Care Trust [2007] 1 WLR 2092] and [by the House of Lords] in Countryside Alliance [2008] 1 AC 719] strongly supports that conclusion. A Sponsor Licence is not marketable or even transferrable, nor is it obtained at a market price. I reject Mr Gill’s contention that on the sale of a business, having the benefit of a licence there would in substance be a transfer of the licence. The new owner would have to satisfy UKBA that the conditions for grant of a licence were met under the new ownership.

95.

The principal factor leading Wyn Williams J to find that the suspension and withdrawal of a Sponsor Licence nevertheless engaged A1P1 was the apparent parallel with the withdrawal of the liquor licence in Tre Traktӧrer. There is obvious attraction in that line of reasoning, given the undoubted effect on the business in each case. The Judge did not grapple, however, with the question whether the adverse effect in the present case amounts to an effect on goodwill, in the sense used in the authorities, or only to a loss of future income (albeit a loss with serious economic consequences for the business). I agree with [Counsel] that he needed to do so. The distinction is far from clear, but one has to decide which side of the line the case falls, since the relevant possession is the goodwill of the business, and the suspension or withdrawal of a licence will not amount to an interference with the right to peaceful enjoyment of possessions within A1P1 unless it has an adverse effect on that goodwill.

96.

Kenneth Parker J in Nicholds was of the view that ‘goodwill’ in this context means the capitalised value of the business as a going concern. Mr Gill did not seek to challenge the correctness of that view. While there is evidence in this case of the economic disruption caused by the suspension of the College’s licence, and liable to be caused by the withdrawal of the licence, the evidence does not deal with the goodwill of the business in the sense identified in Nicholds. Thus, there is no concrete evidential basis on which to found a conclusion that the goodwill of the business has been or would be adversely affected by suspension or withdrawal of the licence. Nor, as it seems to me, can such an effect be inferred from the information available to us.”

Potential infringements of Article 8 have been considered also. As was further stated by Richard Clayton QC in Taste of India, at [75]:

“I am, therefore, bound to have regard to the approach taken by Nicol J in Birdshill Nursing Home v Secretary of State for the Home Department [2015] EWHC 2241 (Admin) which was a judicial review of the revocation of a sponsorship licence brought by the nursing home for elderly residents. Nicol J considered whether the ability of frail elderly residents to live in the nursing home would engage Article 8. Although he found on the evidence that the revocation of the licence could not mean the home would close, he considered the case further on the basis there was in fact an interference with Article 8. He dealt with proportionality in these terms:

‘43. In my judgement the answer is plain. Any such interference would be proportionate and would be justified in a democratic society.

With regard to the challenge to the SSHD’s approach to dishonesty in the present case it is helpful to note that Taste of India (at paragraph [114]) applied a rationality test to the SSHD’s conclusion of dishonesty.

Furthermore, when addressed concerning a submission based upon Ivey v Genting Casinos (UK) Ltd [2017] 3 WLR 1212 to the effect that the SSHD was obliged to “figure out the state of mind” of the individual employer and employee when reaching a conclusion as to dishonesty, the Richard Clayton QC concluded that this analysis introduced a complication that did not exist in the provisions of the Guidance.

The Claimant raises in essence four heads of challenge derived from their Skeleton Argument and elaborated upon orally. There were some subsidiary arguments raised that were not necessarily in these four categories but the gist of and general framework for the Claimant’s submissions was that:

The Claimant’s primary submission on Ground 1 was to the effect that the SSHD was required to determine, as a matter of precedent fact, whether or not there had been dishonesty. In reliance on R v Secretary of State for the Home Department ex parte Khawaja [1984] AC 74, at page 110[e], to the effect that;

“Where the exercise of executive power depends upon the precedent establishment of an objective fact, the Courts will decide whether the requirement has been satisfied. The Claimant asserted in the present case that the Secretary of State was obliged to prove to the Court that dishonesty had been involved in the Claimant’s behaviour.”

It was also argued that the finding as to dishonesty could not be sustained in any event. Further, the Claimant says that the SSHD, in stating that there was no evidence Mr Tiwari was responsible for the creation of the submitted documents, was in fact alleging that the claimed work had been done by somebody else, and it was impossible, the Claimant said, to support a contention that the work was done by somebody else.

It was also said that, necessarily, where deception was the centre of the decision-making, a judicial review process would be unfair in reliance on the case of R(o/a Mohibullah) v Secretary of State for the Home Department (TOEIC-ETS-Judicial Review principles) [2016] UKUT 00561 (IAC).

In respect of the Claimant’s second contention, it was argued not only that the process of decision making was unfair but that the SSHD was generally unfair in that he did not appreciate or exercise properly the discretion he had not to revoke the licence.

Mr Dingley complained that in the context of three previous visits where there had been investigation without adverse outcome, and in a case where there was, it was asserted, little incentive to fabricate a COS for gain, the discretion should have been exercised differently in any event. It was asserted that Human Rights considerations were in play, and that that would make a difference to the nature of the decision making. The conduct of the interviews of both members of staff revealed procedural unfairness the Claimant said, and there was no sufficient explanation as to the discrepancy in the length of the two interviews: that of Mr Tiwari had lasted only, it was said, about ten minutes, whereas that of the Senior Officer, Mr Goradia, had lasted for closer to 50.

The essence of this submission was that, on a proper interpretation of the Guidance, the ‘Genuine Vacancy Test’ could not be breached by anything short of intentional deception on the part of the licence holder and that paragraph 15.13 of the Sponsor Guidance, suggested this. Accordingly, the SSHD, in asserting that a finding of “no genuine vacancy” under the Guidance did not require intentional deception, had fallen into error. In any event on the facts of this case, he submitted that it was impossible lawfully to find that there had been dishonesty here, whether by inference or otherwise.

The Claimant’s fourth ground concerned the engagement of Article 1, Protocol

It was stated that a business in the position of the Claimant, as a large care

The essence of the SSHD’s answer to the Claimant’s claim is founded on the primary submission that there were three separate and independent breaches of Sponsor Duties upon which the SSHD relied when revoking the Tier 2 Sponsor Licence. These were breaches of the Guidance as follows:

Importantly, Mr Holborn points out, each of these reasons for revocation is freestanding. Any one of them, if made out, was sufficient to found revocation. The SSHD stood by each of them as lawfully applied, and asserts each as a reasonable basis for revocation on the facts of this case.

The SSHD’s submissions emphasised that Annex 5 of the Sponsor Guidance indicates the circumstances in which the SSHD will revoke a Sponsor Licence. Annex 6, by contrast, gives examples of where the SSHD may revoke a licence. The relevant provisions relied upon here are those contained in Annexe 5 which include within them a simple proscription on employing a migrant in a job that does not meet the skill levels required for the job by the relevant tier and category.

Mr Holborn relied upon the principles set out earlier in this judgment that derive from the cases of Westech, Raj v Knoll etc. He submitted that absent a failure to comply with public law duties, a decision to revoke a Tier 2 Sponsor Licence may only be reviewed by this Court on Wednesbury grounds, and appropriate weight must be given to the expertise of the SSHD in the matters under consideration.

The SSHD points in particular to the fact that the role of business analyst under

The essence of Mr Holborn’s submissions is that the materials produced after the suspension decision clearly failed to show that Mr Tiwari in fact undertook the roles that were specified in the COS under the appropriate classification.

He characterised the data produced in Appendices 1 to 6 as failing to provide any evidence of assessment of functions, objectives and requirements of organisational financial projection; the ad hoc fees pricing policy at Appendix 3 was simply a table of private funder and public funded fees with guideline fees and had no evidence of work by Mr Tiwari relating to the development of relevant policy. Similarly, the requirement for determining the appropriate method of data collection and research methodology, and analysis and interpretation of information gained to formulate and implement recommendations and solutions, was not evidenced by the provision of mere data. There was no evidence of Mr Tiwari analysing and interpreting, nor of him recommending solutions: “It is just data” was the submission.

Generally speaking, it was the absence of detailed analytics that bore upon the

Further, it was submitted that the emails did not evidence attending seminars and workshops to identify process improvements and to develop process efficiencies, rather there was an attendance at a training session for a new purchasing system that was being introduced.

Mr Holborn defended the lawfulness of the SSHD’s decision by reference to the decisions in Liral Veget (supra) and R(Sri Lalithambika Foods Limited v SSHD [2019] EWHC 761 (Admin) at [81]. The latter case, he submitted, supported his case on the inference of dishonesty. In the circumstances of that case Charles Bourne QC sitting as a Deputy Judge of the High Court had held that, on the facts of that case, the disparity between the actual job done and the sponsored role was sufficient to infer that the sponsor must have known, and had been dishonest in relying on the original job description.

As to the Claimant’s case that the SSHD was irrational and / or failed to exercise a proper process of discretionary decision making, he accepts that the SSHD retains a residual discretion not to revoke, and points to the passage in the revocation letter that expressly considers this. Further, the SSHD remarks in his Skeleton Argument, that in a case such as the present, where the Claimant still maintains the migrant was indeed doing a job that met the requirements of the sponsored role, it has to be said that that Sponsor does not show any acceptance or understanding of the breach of the Sponsor Licence Duties, it is not possible to see how any steps short of revocation could work. He submits it is impossible to see how any action plan to ensure future compliance could possibly be effected.

The SSHD further submits that under the genuine vacancy test, actual dishonesty does not need to be proven for the requirement to be infringed. He asserts that the paragraph 15.13 the definition of Genuine Vacancy means any vacancy that does not include dissimilar and / or lower-skilled duties. Whilst

The SSHD also points to the fact that the purported duties are, word for word, the same as the SOC Code and says they appear to have been simply copied by the sponsor into his job description. . This is prayed in aid as evidence that the job description was drafted with a view to enabling a migrant dishonestly to remain in the UK, rather than with a view to enabling a vacancy to be filled: the sponsor must provide an accurate job description of a job that exists and then apply the code, not attempt to draft a job description to fit the code. In the circumstances, it was not irrational of the SSHD to conclude there was a dishonest intent.

Importantly, however, the SSHD also argues that in any event it was sufficient and he would have revoked the licence on account of the fact that, as a matter of fact, the job being performed was not consistent with the description within the code for which the COS had been granted.

In answer to the argument that the different interview length showed procedural unfairness, the SSHD said that in truth it was the paucity of detail and information forthcoming from Mr Tiwari that dictated a shorter interview. In any event, a short interview does not demonstrate unfairness. The senior officer also interviewed- with whose role the SSHD had no query- had much more to say for himself and had evidence to produce in support.

Mr Dingley lightly sketched an oral argument -not at the forefront of his paper case -to the effect that Article 8 was engaged because this is a care home involving the personal care of the elderly and infirm. Furthermore, migrants’

With respect to the Article 1 Protocol 1 argument, the SSHD says, relatively shortly, whether or not the article is engaged, revocation is a proportionate interference with any right that arises and in any event, no evidence has been provided to corroborate the assertion that there is an impact on the marketable goodwill of the business. It is a matter of agreement that of the current thousand employees, only three are migrant workers. It is fair to say that the ECHR point was not pressed by Mr Dingley.

The Claimant asserts that the decision to revoke the Sponsor’s Licence is Wednesbury unreasonable because it is founded upon a flawed dishonesty finding. In my judgement this submission is erroneous. The decision is not founded solely on a finding of dishonesty, nor has any finding of dishonesty “infected” the reasoning of the revocation decision. The decision of the SSHD is, as submitted by Mr Holborn, plainly founded on three separate pillars, as he describes. The difficulty for the Claimant is that any one of those pillars would support a case for which the Guidance directs revocation.

I shall turn to the dishonesty issue in due course. Dealing first with the allegations concerning precedent fact, in my judgement it is clear that this is not a case to which Khawaja applies. This is not a case that depends upon the exercise of a statutory power dependent on a finding of dishonesty. The law, as set out in the cases of Datamatics UK Limited v Secretary of State for the Home

The decision that there was no evidence that Mr Tiwari was responsible for the creation of the documents is not, without more, a finding of dishonesty. It does not postulate their creation by another; that misunderstands the SSHD’s reasoning. The issue in this case was that having raised the point that neither Mr Tiwari, nor the Sponsor had demonstrated that the scope of the duties carried out was the same as the scope of the sponsored role, this point needed to be shown to the SSHD’s satisfaction. It was up to the Sponsor to prove it to the SSHD when challenged on the fact. The opportunity given to provide materials was the chance to provide acceptable proof that Mr Tiwari did do what the role required under the particular designation. In this case, that was a sophisticated role involving analysis, projection and assessing the functions and objectives of organisational financial projection as described. The inability of the company to provide any material which was, on its face, incontrovertibly connected with Mr Tiwari or was evidence of those higher level duties was the nub of the issue.

It is quite impossible, in my judgement, to characterise the SSHD’s failure to be satisfied that Mr Tiwari carried out the sponsored role, as Wednesbury unreasonable. It is, with respect, plain from the answers given by the sponsor, as well as those by Mr Tiwari, that what he was understood to be doing was of a lower order than substance of the role for which a COS had been obtained. The materials produced did not, for the reasons given by Mr Holborn, dispel that dissatisfaction. Accordingly, it is the case that the SSHD cannot be challenged on his factual conclusion that the provisions of the Guidance contained in Annex 5(r), “You employ a migrant in a job that does not meet the skill level requirements as set out in this Guidance”, was breached.

It is absolutely clear and stated in terms that breach of Annex 5(r) constitutes a circumstance in which the SSHD will revoke a Sponsor Licence absent special circumstances. It was not here suggested that there were special circumstances. The provisions could not be clearer, nor could it be said, on the evidence and in

The SSHD is, in my judgement, correct when he says the Applicant misapprehended the purport of his decision on revocation.

This is also an answer to the suggestion that there was procedural unfairness in the case. In my judgement the Claimant has misunderstood or at least underestimated the scope and rigour of his obligations to satisfy the SSHD that the scheme was being properly applied. The character of the decision-making body and the kind of decision it has to make together in the framework in which it makes it, dictate the contours of fairness. As the extracts for the cases above demonstrate, the Sponsor Scheme is rigorous in its demands and it affords a particular respect to the judgement of the SSHD. In the present context I can detect no unfairness of process. The interviews, even if one was shorter than the other, were sufficient under this scheme to give the Sponsor and the migrant in question a chance to answer.

The Applicant has further, also with a light touch, relied upon the decision in R(oao)Mohibullah v SSHD (TOEIC – ETS – judicial review principles)[2016} UKUT 00561 (IAC) to suggest that it would always be unfair for a judicial review to be the sole recourse in a case where deception founded the revocation.

Not only is deception not the only ground of revocation in this case, but Mohibullah is a wholly other case.

In that matter, the challenge was to the SSHD having chosen one available procedural route over another available procedural route in order to determine a case. This choice compelled the Applicant to use only judicial review for a challenge, rather than affording him a right of appeal. It was the fairness and rationality of that decision that was in issue. In the present case, the SSHD has evolved a single system of decision -making concerning Sponsor Licences which is subject to the policy and the approach as set out above. There is no room for the contention made by the Claimant in this case.

The SSHD has a complete answer to the challenge to revocation. The SSHD was entitled to revoke the Sponsor’s Licence on the grounds that the Sponsor had “employed a migrant in a job that does not meet the skill level requirements set out in [the] Guidance” as set out in under Annexe 5(r), for which breach the Guidance makes clear, the SSHD will revoke a licence. That cannot be characterised a perverse or otherwise tainted. It does not involve an allegation of dishonesty.

There is nothing in the allegations of procedural unfairness. In my judgement the SSHD gave the Sponsor and his employee every opportunity to put forward persuasive material either orally, or on paper, or by other means to demonstrate that the job being performed did match the sponsored role.

Likewise there is nothing in the point that the SSHD unfairly did not consider the exercise of his discretion not to revoke. As was pointed out by Mr Holborn, the decision letter expressly referred to the fact that this case was not suitable for a different outcome because the Sponsor did not agree with the SSHD analysis that Mr Tiwari’s job did not comply. That conclusion cannot be challenged as perverse.

I am unpersuaded that there is anything in the points raised regarding the ECHR. The submissions were, perhaps understandably in the light of the authorities, not developed, and they were unsupported by evidence.

Turning more fully for a moment to the allegations of dishonesty. Whilst, given the findings above, it is not strictly necessary to reach a conclusion for the purpose of this judgment, I find that the SSHD is wrong to assert that the notion

Whilst plainly the Guidance is not a statute, nor should it be construed as such, the only examples given of its operation concern cases in which an intention to deceive is present. What is referred to by Mr Holborn as “the definitions” are in my judgement not definitive in nature but are descriptive of certain of the characteristics of a vacancy that is not genuine. The first two bullet points under para 15.13 of the Guidance say nothing about the state of mind required to fall foul of the stricture requiring a genuine vacancy to be in existence for the purposes of this part of the rule. The inclusion of the three example bullet points is however is instructive on exactly this point.

The first bullet example is a case where there has been “deliberate exaggeration” to make it look as if a job meets the requirements “when it does not”, according to the second bullet, for “a job or role that does not exist in order to enable a migrant” to come to or stay in the UK. The last bullet talks of advertisements “tailored to exclude resident workers”. This is the language of deliberate deception and of dishonesty. Further, the SSHD himself draws a distinction between, on the one hand, a role that does not meet the relevant Tier 2 criteria, and, on the other, a role that (obviously does not meet those criteria either) but in addition, is properly described as not a “genuine vacancy”. This distinction appears from the wording of Annexe 5(r); 5(ee) and 5(gg).

Further, I do not accept that the SSHD was lawfully entitled in this case to infer dishonesty from the facts as he found them. The relevant part of the decision letter, set out also above, read as follows:

“43You have failed to provide evidence which demonstrates Mr Tiwari has carried out the duties as stated on his COS or at the appropriate level for Sponsorship. You have also failed to demonstrate that the role Mr Tiwari undertakes matches the job description as stated in Appendix J of the Immigration Rules.

44.

This compounds our belief that your client has failed to meet their obligations as a licenced sponsor, by providing false information when assigning Mr Tiwari his COS. In the absence of any evidence to the contrary, we conclude that your client has provided false information in order for them to meet the requirements for Sponsorship under Tier of the Points Based System.”

In my judgement the inference of dishonesty was, in the circumstances, irrational and not open to the SSHD. I agree, it is a matter for the SSHD’s judgement in the first instance, but any decision must be rationally reached. This was a Sponsor with, ostensibly a large, very successful business. Mr Gidar had an unblemished reputation, indeed a significant profile in his industry. Further, of his cohort of 1000 workers, only three were reliant upon a role under the Tier 2 Sponsorship Scheme. These factors in my judgement point away from an inference that a dishonest attempt to manipulate the system was being made. During the process Mr Gidar had himself described the role that was carried out, saying he had clearly understood it to come within the appropriate scale. On more than one occasion over recent years inspections had passed without adverse comment on the role, which had not changed, performed by Mr Tiwari under the Scheme. Whilst of course not binding as to any future finding on inspection, that factor does not point towards a deliberate fraud.

I accept that in certain cases it will be possible to draw an inference of a deliberate and dishonest attempt to circumvent the system from the mere fact of the differences between the job carried out and the sponsored role. That was not this case, given the circumstances described, or the scale of the differences.

Accordingly, whilst I have found that the decision to revoke is unimpeachable and so Mr Gidar has lost his judicial review challenge, he comes out of the case with the finding of dishonesty against him quashed.