Supreme Court finds treatment of skilled worker unfair

The Supreme Court held today in R (on the application of Pathan) v Secretary of State for the Home Department [2020] UKSC 41 that the Home Office’s treatment of a Tier 2 skilled worker, Mr Pathan, was unfair. Mr Pathan had applied for an extension of his visa as a sponsored worker in good time, but his application was refused several months later after the Home Office had, without telling him, revoked his employer’s sponsorship licence. This revocation meant that Mr Pathan’s application was, ultimately, doomed to fail.

Mr Pathan was left unlawfully resident in the UK with no warning and, after reforms by Theresa May during her time as Home Secretary, no right of appeal. The Supreme Court has now, by a majority, quashed the decision to refuse Mr Pathan’s extension request.

Notably, this is the second major case we have seen on access to justice in immigration cases in as many days.

Outcome of the case

The judgment is complicated by the fact the judges disagreed with one another. Not only that, but the judgments handed down are weighty. All agreed that the treatment of Mr Pathan was procedurally unfair. Four out of five agreed that the appeal should therefore be allowed. Two out of five — a minority — held that the Home Office was obliged to grant Mr Pathan a short period of leave in order to give him the chance to remedy his situation.

The outcome of this mess is that the appeal is allowed but nothing more; while it is unlawful for the Home Office to fail to inform a person who has validly applied to extend their stay on their basis of sponsored employment that their sponsor’s licence has been revoked, and their application is therefore going to be refused, there is no obligation on the Home Office to grant a period of leave to enable that person to find a new employer, say their goodbyes or similar. What good is that, then, you might well ask?

The formal outcome of the case was that Mr Pathan’s appeal was allowed. The Home Office decision to refuse his extension application was therefore unlawful and is quashed. In law, that decision has not formally yet been made, although Mr Pathan and the rest of us now know what the outcome is going to be. Mr Pathan’s residence since that non-decision was served on him on 7 June 2016 had seemed to be unlawful. It turns out that it was in fact lawful residence all along, as leave was extended automatically by operation of law by section 3C of the Immigration Act 1971 while his valid and in-time application remains pending.

No doubt the Home Office will shortly issue a new refusal. However, Mr Pathan might well now be eligible for settlement under the ten-year rule given he first arrived in 2009, and it turns out now that he has been lawfully resident ever since. 

Duty of fairness

Mr Pathan lost his case earlier in the Court of Appeal because his claim was interpreted as being based on his being treated substantively unfairly. Judges really don’t like that. The case had been interpreted in that way because Mr Pathan wanted 60 days of extended leave to enable him to put his affairs in order, and he therefore needed to argue that it was unfair if this was not granted. However, the Supreme Court unanimously find that in reality there was procedural unfairness in the failure to give him notice of the revocation of his employer’s sponsor licence. The claim of substantive unfairness was contingent on and a consequence of this procedural unfairness.

Future cases

It is clear that the decision not to inform Mr Pathan of the revocation of his employer’s sponsorship licence was unlawful. Given that the Supreme Court was split 2-2-1 on what should happen as a consequence, though, it is less immediately clear what this means for future cases.

Posted on Oct 22, 2020.

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