The case of R (Sri Prathinik Consulting Limited) v SSHD  EWHC 3204 (Admin) provides a clear warning to Sponsors that even minor breaches of the Home Office Sponsor’s guidance will not be tolerated.
Prathinik Consulting Limited (“the Company”) obtained its Tier 2 Sponsorship licence in October 2013 and sponsored eight migrant workers out if its nine employees. As part of the application process, the Company would have been required to complete the Residence Labour Market Test (“RLMT”) and assign Certificates of Sponsorship (“CoS”) to each migrant worker.
Over a year later in November 2014, enforcement officers from the Home Office made an unannounced visit to the Company’s premises to conduct checks. The outcome of this visit was that, in March 2015, the Home Office wrote to the Company informing them that they had concerns in relation to four of the sponsored Tier 2 migrants and that they would be suspending the Company’s sponsor licence.
In the case of one of these migrant workers, the Home Office was not satisfied that the Company had provided adequate evidence that it had conducted the required RLMT. This prompted the Company to respond through solicitors in May 2015, providing evidence that the RLMT had been conducted. It provided evidence that the role had indeed been advertised on totaljobs.com and Jobcentre Plus Universal Jobmatch.
Unfortunately, whilst the evidence showed that the role had indeed been advertised in January 2014, it also showed that the CoS had not been assigned to the migrant worker for another 8 months in August 2014. The Home Office responded a few days later confirming that they would be revoking the Company’s sponsor licence and relied on Paragraph 29.2 a) of the Tier 2 Sponsor’s guidance:
‘All CoS, restricted or unrestricted, must be assigned within 6 months of the date the vacancy was advertised’
Interestingly, this issue was not originally raised by the Home Office when they first proposed to revoke the licence, and only became apparent once the Company provided evidence that the RLMT had been conducted.
The Company sought a Judicial Review of the decision in June 2015 and the case was heard by Anthony Elleray QC sitting as a Deputy Judge of the High Court, who found that the Company had indeed breached the requirements of the Sponsor’s guidance and the decision to revoke the licence could not be said to be unlawful or unreasonable.
One of the arguments put forward on behalf of the Company, was that the Home Office had to have been satisfied that the RLMT had been correctly carried out, as they had issued the restricted CoS without any concerns. The Court rejected this argument, noting the evidence of a Home Office Operations and Policy Manager that there are approximately 25,000 Tier 2 sponsor licence holders and that the Home Office cannot check every Sponsor’s compliance. The Home Office monitors compliance and takes action when abuse is found, but ultimately relies on the Sponsors to carry out their duties assiduously.
The Courts are likely to view any breach of the Sponsor’s guidance as sufficient justification for revocation of a licence. There is very little leeway for error and even in circumstances where the decision to revoke is discretionary, it is likely that the Secretary of State will prefer to do so rather than downgrade the licence. Sponsors would be wise to ensure that they have properly complied with the guidance, as revocation will result in the loss of all application fees paid, severe disruption to their business and restrictions on re-applying for a licence.
By Hesham Shoeb
For further advice on the above topics, please call us on 01483 543210 or alternatively email email@example.com