Pathan, R (on the application of) v Secretary of State for the Home Department [2020] UKSC 41

Mr Pathan, an Indian national working in the UK on a Tier 2 visa, applied for further leave to remain. Unknown to him, his sponsor's licence was revoked three months before his application was refused. The Supreme Court held the Secretary of State's failure to promptly notify him was procedurally unfair.

Facts

Mr Pathan, an Indian national, was granted leave to remain as a Tier 2 (General) Migrant to work as a business development manager for Submania Ltd, a company holding a sponsor’s licence. On 2 September 2015, shortly before his leave expired on 15 October 2015, he applied for further leave to remain, supported by a valid Certificate of Sponsorship (CoS) provided by Submania. His leave was automatically extended under section 3C of the Immigration Act 1971 pending determination.

The Home Office placed the application on hold whilst investigating Submania. On 7 March 2016, following suspension, the Secretary of State revoked Submania’s sponsor’s licence, which automatically invalidated Mr Pathan’s CoS. However, Mr Pathan was not informed. Three months later, on 7 June 2016, the Secretary of State refused his application on the basis that his CoS was invalid. Administrative review was unsuccessful, and the Upper Tribunal and Court of Appeal dismissed his judicial review.

Issues

The principal issue was whether the Secretary of State’s failure to inform Mr Pathan of the revocation of his sponsor’s licence prior to determining his application for leave amounted to procedural unfairness reviewable in public law. A secondary issue was whether, upon notification, the Secretary of State was obliged to provide him with a reasonable period (such as 60 days, as given to Tier 4 students following Patel) to secure an alternative basis for leave before determining his application.

Arguments

Appellant

Mr Biggs argued that the Court of Appeal wrongly characterised the claim as one of substantive unfairness. He submitted the case engaged common law procedural fairness: a person should know important information significantly impacting a decision and have an opportunity to respond. Notice would have enabled Mr Pathan to vary his application, rely on a new CoS, or make a new application. The consequences of becoming an overstayer (criminal liability, restrictions on work, housing, banking, driving and NHS treatment) were severe and engaged article 8 rights.

Respondent

Mr Payne for the Secretary of State submitted that no authority required notice other than to give an opportunity to address the applicable criteria. Mr Pathan sought a substantive benefit (a second chance), not procedural fairness. The differences between Tier 2 and Tier 4 justified different treatment: Tier 2 is concerned with filling a specific vacancy, applicants have no expectation their stay will continue, and section 3C leave already provided some protection.

Judgment

The Supreme Court unanimously allowed the appeal, though with different reasoning among the Justices.

Prompt notification (majority of four)

Lord Kerr, Lady Black, Lord Wilson and Lady Arden held that the Secretary of State owed Mr Pathan a duty of prompt notification of the revocation of his sponsor’s licence, and was in breach of that duty by delaying three months. Lord Kerr and Lady Black reasoned that procedural fairness required informing Mr Pathan as soon as reasonably possible so he could consider his options: varying his application with a new CoS, making a human rights claim, or making orderly arrangements to leave the UK and avoid becoming an overstayer. They emphasised that the duty to give notice is an accepted element of the duty to act fairly, and utility is not the only yardstick.

Further period after notification (majority of three rejected)

Lord Kerr, Lady Black and Lord Briggs held that there was no positive obligation on the Secretary of State to provide a specific period of time following notification to enable an alternative application. They reasoned that such an extension of leave was a matter of substance rather than procedure, implementing immigration policy through the Rules and legislation. As Lord Briggs put it, time for the applicant to put his best case forward on the facts already available may be procedural, but time to change or improve the underlying facts to make them more favourable is substantive.

Dissenting views on scope

Lady Arden and Lord Wilson (partly dissenting) considered that procedural fairness required not only prompt notification but also prior notification — a duty not to determine the application until a reasonable period had elapsed after notification. Lord Wilson observed that a duty of prompt notification without a concomitant duty of prior notification would be valueless and indeed prejudicial, since the Secretary of State could simply notify and refuse on the same day.

Lord Briggs (dissenting on outcome)

Lord Briggs would have dismissed the appeal entirely. He considered Mr Pathan’s real complaint was about being taken by surprise and wanting time to make alternative arrangements, which was substantive rather than procedural. He also considered that the Upper Tribunal decisions in Thakur and Patel were wrongly decided.

Implications

The core holding of the court is threefold: (1) the appeal is allowed; (2) there is a duty on the Secretary of State to notify a Tier 2 applicant promptly of the revocation of the sponsor’s licence, it being procedurally unfair not to do so; and (3) there is no positive obligation to provide a period of time following notification to enable an alternative application or reaction.

The decision confirms that procedural fairness at common law can supplement the points-based system’s prescriptive rules, particularly where the Secretary of State holds information peculiarly within her knowledge that is fatal to an applicant’s pending application. It draws a careful line between procedural duties (to provide information, to maintain fair procedure) and substantive duties (to confer a period of grace or extend leave beyond what the Rules allow).

The decision matters particularly to Tier 2 migrant workers whose sponsors lose their licences through no fault of the migrant, and to their legal advisers. It confirms they are entitled to prompt notification but not to an automatic extension period equivalent to the 60 days now given to Tier 4 students under the Secretary of State’s policy following Patel. The practical significance is somewhat limited: the Secretary of State can comply by notifying the applicant and refusing the application on the same or the following day, meaning the substantive timetable for becoming an overstayer may not change materially. However, where (as in Mr Pathan’s case) the Secretary of State delays determination after revocation, prompt notification will give the applicant a meaningful window to vary the application under section 3C(5) of the 1971 Act.

The court declined to overrule Patel, though Lord Briggs expressed strong doubts about its correctness. The case also affirms, following Gallaher, that substantive unfairness is not a free-standing ground of judicial review distinct from irrationality and legitimate expectation.

Verdict: Appeal allowed. The Supreme Court held by a majority of four to one that the Secretary of State was under a procedural duty to notify Mr Pathan promptly of the revocation of his sponsor’s licence, and breached that duty by delaying three months. By a majority of three to two, the Court held there was no positive obligation on the Secretary of State to provide a further period of time following notification to enable an alternative application.

Source: Pathan, R (on the application of) v Secretary of State for the Home Department [2020] UKSC 41