R (Pathan) v Secretary of State for the Home Department [2020] UKSC 41
The Appellant made an application for leave to remain in the UK as a Tier 2 (General) Migrant and had a Certificate of Sponsorship (CoS) from his employer. The SSHD subsequently revoked the employer’s licence, but did not inform the Appellant of this. The appeal to the Supreme Court concerned the following:
- Did the SSHD’s failure promptly to notify the Appellant of the revocation of his sponsor’s licence breach the duty of procedural fairness?
- Was the SSHD under a duty to provide a period of time following notification to enable the Appellant to react to the revocation of his sponsor’s licence?
The Supreme Court held that the Respondent breached her procedural duty to act fairly by failing promptly to notify the Appellant of the revocation of his sponsor’s licence.
However, the majority answered the second issue in the negative. As stated at paragraph 108, ‘The duty to act fairly in these circumstances involves a duty not to deprive, not an obligation to create.’ In separate judgments, Lady Arden and Lord Wilson disagreed with the majority, and considered that there could be a positive obligation on the SSHD to provide a grace period so that the Appellant had an opportunity to secure alternative leave.