Alex Papasotiriou, Barrister at Richmond Chambers
R (Pathan) v Secretary of State for the Home Department [2020] UKSC 41- The Secretary of State has a duty to promptly inform a Tier 2 applicant of the revocation of their existing sponsor’s licence whilst their application is pending, but not to provide them with a period of time to enable further action prior to refusing their application
Facts of the case
The Appellant, Mr Pathan, his wife and son are Indian nationals. Following a grant of leave to enter in September 2009 and a series of periods of leave to remain thereafter, Mr Pathan was granted leave to remain as a Tier 2 (General) Migrant from 23 March 2013 to 15 October 2015 in order to work as a business development manager for Submania Ltd, a licenced sponsor. On 2 September 2015, prior to the expiry of his leave, Mr Pathan made an application for further leave to remain on the same basis, in order to continue to work for the same sponsor and in the same role. His wife and child applied as his dependants.
Mr Pathan relied for his application on a valid certificate of sponsorship (‘CoS’) that had been issued by Submania. Mr Pathan’s application was put on hold whilst Submania was investigated by a Sponsor Compliance Team of the Home Office, as a result of whose investigations, Submania’s sponsor licence was suspended on 4 February 2016 and subsequently revoked on 7 March 2016. Mr Pathan’s CoS was invalidated automatically by virtue of the licence’s revocation. In the absence of a valid CoS and without previously informing Mr Pathan of the revocation of the sponsor’s licence, the Secretary of State refused his application for further leave on 7 June 2016.
Mr Pathan applied for administrative review of the decision to refuse his application on 14 June 2016 and sought a period of 60 days to provide a further CoS. The Secretary of State maintained the refusal, stating that a 60-day period would only have been appropriate if Mr Pathan had 60 days’ leave remaining; as his leave to remain had expired (other than being extended by virtue of s.3C of the Immigration Act 1971), the Secretary of State concluded that no period beyond the 14 days allowed for removal was appropriate. Mr Pathan issued judicial review proceedings. The Upper Tribunal (‘UT’) dismissed his application for judicial review and an appeal against that refusal was dismissed by the Court of Appeal.
As identified by Lord Kerr and Lady Black, albeit framed differently by the UT on one hand, and the Court of Appeal on the other, Mr Pathan’s case was two-fold: first, he argued that he was entitled to notice of the fact that the sponsor’s licence had been revoked and, second, that he should have had a reasonable period between the notice and consideration of his application to enable him to take further action. Lord Wilson succinctly characterised them as “prompt notification” and “prior notification”, respectively.
In dismissing his appeal, the Court of Appeal, with Singh LJ giving a full judgment and the other members of the Court agreeing, held that Mr Pathan’s appeal raised a question of substantive, not procedural, fairness. As substantive fairness is not a free-standing ground for judicial review, Mr Pathan would have to show that either the decision to refuse his application, or the underlying rule on which it was taken, was irrational. It was found he could not succeed on that ground.
Held
The appeal was heard before a panel of five Supreme Court Justices, of whom, three gave individual judgments (Lady Arden, Lord Wilson and Lord Briggs), and two gave a joint judgment (Lord Kerr and Lady Black), in a manner reminiscent of a time when the Appellate Committee of the House of Lords was the supreme court of appeal.
In light of this, Lord Kerr and Lady Black included in their judgement a one-paragraph postscript, in which they identified the decision reached by the Court as a majority: 1) that the appeal must be allowed (agreed by Lord Kerr, Lady Black, Lord Wilson and Lady Arden); 2) that procedural fairness imposed a duty on the Secretary of State to promptly notify Mr Pathan of the revocation of his sponsor’s licence (stated to have been agreed by at least four members of the Court; it seems Lord Briggs’ position on this matter was unclear even amongst the Justices), and 3) that there is no positive obligation on the Secretary of State to provide a period of time following notification (agreed by Lord Kerr, Lady Black and Lord Briggs).
Procedural unfairness
The primary question the Court had to consider, given the lower court’s decision, was whether the challenge was about procedural or substantive fairness. All Justices were in agreement that substantive fairness is not a self-standing head of judicial review and that cases raising this must be considered by reference to the principles of irrationality and legitimate expectation. There was no question that the Secretary of State’s decision to refuse Mr Pathan’s application on the grounds that there was no valid CoS at the time of the decision was rational, as was the underlying rule on the basis of which the decision was taken.
Barring Lord Briggs, who considered the question to be one of substance, all other Justices held that, whilst it included an element of substantive unfairness, this did not preclude the issue in Mr Pathan’s case from being one of procedural unfairness. Lady Arden considered that the substantive element was a consequence of the argument there was procedural unfairness, rather than vice-versa. She identified a subset of procedural fairness which requires an otherwise unaware applicant to be informed on a point when a significant event occurs by the actions of the executive and which has grave impact on the applicant, even when the relevant rule does not provide for that expressly. Lady Arden concluded that this subset will inevitably engage the substantive rule as well, but once through the procedural gateway, the question of the rationality of the rule becomes irrelevant and the decision has to be set aside. The line between procedure and substance ought not be rigid.
Lord Kerr and Lady Black reached the same conclusion on this matter. They started from the general audi alteram partem principle that the rules of natural justice may require a party to be afforded time to amend his case in a way that cures an otherwise fatal defect of which he had, without fault on his part, previously been unaware. However, contrary to Lord Briggs’ conclusion, they did not consider the fact that his Tier 2 application itself could not have been cured, even with prompt notice of the revocation, fatal to Mr Pathan’s case. Had he been notified promptly, he would have had a number of alternative options open to him (to seek a new sponsor and vary his application on that basis, vary it to a human rights application or make arrangements to leave the UK prior to overstaying), which could have made a difference.
Prompt but not prior notification
Nonetheless, Lord Kerr and Lady Black characterised procedural fairness solely as a duty not to deprive, rather than a positive obligation, which they considered can only be a matter of substance. They held there was nothing incompatible with the Immigration Rules (‘Rules’) in question in allowing the affected person to be notified promptly so as to make use of their remaining time. Conversely, they held that the requirement to provide an additional extension of leave beyond that expressly set out in the Rules would impose a positive duty and, thus, confer a substantive benefit. On that basis, they accepted the argument that procedural fairness required prompt notification, but rejected the argument that it required prior notification.
Lord Wilson partly dissented. He considered that procedural fairness can impose positive obligations; it can provide additions to a rule which is intra vires, as long as it does not displace it. Lord Wilson held that a duty of prior notification would not be inconsistent with the legislation or the Rules. The duty of prior notification would not require extending an applicant’s leave following the refusal of the application or subsequent review and, as such, beyond the operation of section 3C of the 1971 Act. It would simply provide a reasonable time between notification of the revocation and the consideration of the application, during which section 3C of the 1971 Act would continue to operate to extend the applicant’s leave statutorily.
Both Lady Arden and Lord Wilson considered that Mr Pathan’s right to prompt notification would be of no value if he was not afforded a reasonable period following notification and before his application was considered, in which he could act. Whilst in Mr Pathan’s particular case the revocation and the refusal of his application occurred three months apart, Lord Kerr and Lady Black’s reasoning would generally allow the Secretary of State to decide to revoke a sponsor’s licence, notify an applicant of this and refuse their application all at the same time, without breaching her procedural duties. Both Lady Arden and Lord Wilson concluded that fairness demands prior notification, in order to give an applicant a meaningful opportunity to take averting action in line with Lord Mustill’s fifth point in Doody.
Dissenting judgment
Lord Briggs, in his dissenting judgment, concluded that he would have dismissed Mr Pathan’s appeal. He distinguished Mr Pathan’s case from those involving a breach of audi alteram partem on the basis that this principle provides a means of challenging a decision involving a procedural defect, when said decision could have a different outcome. In agreement with the Secretary of State’s argument, he focused on the unchallenged fact that the outcome of Mr Pathan’s application following the revocation of his sponsor’s licence would have always been its refusal, given the invalidity of the CoS relied upon, notwithstanding the procedure adopted. As set out above, Lord Kerr and Lady Black disagreed (as did Lady Arden and Lord Wilson) with this narrow approach to examining the issue “pointlessness” and focused on Mr Pathan’s ability to have taken wider averting steps, had he been notified, as well as on the objectives of the audi alteram partem rule: not simply to improve the chances of reaching a right decision, but to avoid a sense of injustice.
Lord Briggs ultimately concluded that the Court should offer no remedy to Mr Pathan, even if the denial of his right to prompt notification was procedurally unfair, on the basis that this would not have resulted in any adverse consequence for him, had it not also been for the Secretary of State’s coincidental three-month delay between the revocation of his sponsor’s licence and dealing with his application.
Comment
It is noteworthy that, whilst Lord Briggs reaches the same negative conclusion as Lord Kerr and Lady Black with regard to whether procedural fairness dictates a duty of prior notification, their reasonings are opposing. Contrary to Lord Briggs’ conclusion as summarised in the paragraph directly above, Lord Kerr and Lady Black in paragraph 132 of their judgment expressly considered the three-month delay as demonstrative of unfairness, in that Mr Pathan would have had ample time to take averting action within that period had he been promptly notified of the revocation. Despite this, they rejected the argument that there is a procedural duty to afford a reasonable time following notification and prior to deciding the application. In my view, this seems at odds with their point in paragraph 134 of their judgment, where, commenting on Lord Briggs’ reasoning, they stated that fairness is not to be judged on an ex post facto basis. Lord Kerr and Lady Black proceeded to specify the time when it was first possible to inform Mr Pathan of the revocation as the time that the fairness of withholding the information fell to be judged. Assuming that logically, given their own finding that the duty of prompt notification was indeed breached in Mr Pathan’s case, they would have considered this point in time to have preceded the point when notification actually occurred (three months after the revocation), the intervening period should have been of no relevance to the question of unfairness.
In my view, however, this does not give more weight to Lord Briggs’ judgment; it rather undermines the entire decision of the majority on whether there is a duty of prior notification, consisting of Lord Briggs, Lord Kerr and Lady Black, who answered in the negative. Lord Wilson, in his judgment, briefly provides his dissenting observations on Lord Kerr and Lady Black’s reasoning and appears to agree (albeit on that limited basis) with Lord Briggs’ view that, had it not been for the coincidental three-month delay, prompt but not prior notification of the revocation would not have put Mr Pathan in a better position; his position would have been materially identical if notification had been prompt, but his application had also been promptly refused at the same time. Contrary to Lord Briggs’ judgment, however, Lord Wilson considers this all the more reason why, since procedural fairness demands a duty of prompt notification (a positions shared by all Justices, including Lord Briggs), this must be accompanied by a duty of prior notification, given that neither, in his judgment, is incompatible with the legislation or the Rules. Otherwise, procedural fairness would confer a “pointless” right, which would be illogical, as held by Lord Wilson and Lady Arden in agreement. Curiously, in view of their lengthy analysis of the issue of “pointlessness” in reference to whether there is procedural unfairness and despite their different conclusions, Lord Briggs, Lord Kerr and Lady Black seem to also agree with that position in principle, at least according to my reading of the judgment.
Whilst this decision, at first glance, appears to offer a reprieve from the rigidity of the PBS rules and the strict dichotomy of procedural and substantive fairness, in practice it is unlikely that, subject to the approach the Secretary of State will choose to adopt, it will make a difference for applicants. Mr Pathan’s appeal was allowed as he only received notification of the revocation of his sponsor’s licence three months later. As Lord Wilson envisages, it would be open to the Secretary of State to notify an applicant promptly, closer to or concurrently with the time of the decision to revoke his sponsor’s licence, and refuse his application on the same day. The ratio of this judgment is that, in such circumstances, there would not be a breach of procedural fairness. Of course, despite not being duty-bound to do so, it would be open to the Secretary of State to adopt a policy of providing applicants with a reasonable time following the notice of revocation. Whether this will be the case seems wildly optimistic in light of the Secretary of State’s stance in Mr Pathan’s appeal.