No procedural unfairness in refusing work visa where sponsor doesn’t engage

In the recent case of Topadar v Secretary of State for the Home Department [2020] EWCA Civ 1525 the Court of Appeal considers two questions:

  1. At what point is an immigration application decided by the Home Office?
  2. Is it procedurally unfair for the Home Office to refuse an application due to the applicant’s sponsor (i.e. their employer) failing to provide additional information (without the applicant ever being made aware of the request)? 

The answers:

  1. When a decision is issued – an administrative review of that decision is not an extension of the decision-making process;
  2. No – there is no absolute or universal requirement that the Home Office must give an applicant prior notice of something that might affect the consideration of their application.

Lesson for the future

The Home Office may request information to assist with their assessment of whether the job meets these requirements, and an application can be refused if this information is not provided.

Any company planning to sponsor a migrant worker (which from next year will, of course, include EEA nationals) should be aware of the need to respond to any request for further information from the Home Office. Failure to reply, or to provide satisfactory answers, could lead to the application being refused.

And if this happens, following the decision in Topadar, the applicant will not be able to get the decision overturned on the basis of procedural unfairness.

Posted on Nov 18, 2020.

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