Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
JR/2616/2017

Field House,
Breams Buildings
London
EC4A 1WR

4 APRIL 2019

Before

UPPER TRIBUNAL JUDGE GLEESON

Between
ASIF ADNAN
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - -

MR STEPHEN CLARK, Counsel instructed by Thamina Solicitors appeared on behalf of the applicant

MS JENNIFER GRAY, Counsel instructed by the Government Legal Service appeared on behalf of the respondent
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APPROVED JUDGMENT
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JUDGE GLEESON: The applicant has permission to seek judicial review of the respondent's decision on 20 December 2016 to maintain, by way of administrative review, her decision of 9 November 2016, refusing the applicant's application of 9 September 2015, for further leave to remain in the United Kingdom as a Tier 2 (General) Migrant.
2. The November 2016 decision and its December 2016 administrative review were made by way of reconsideration of the respondent's earlier refusal decision of 3 December 2015, which was withdrawn following a consent order. The applicant was legally advised in agreeing to that consent order and it is not now open to him to challenge it out of time.
3. By the time the respondent made her Tier 2 decision, the applicant's sponsor had lost its Tier 2 status. The applicant contends that he should have been given time to find an alternative sponsor, as is done for students when a college loses its Tier 4 licence. I bear in mind that there are four dependants whose applications were refused in line and the outcome of whose applications depends on that of Mr Adnan.
4. The applicant's judicial review was lodged not promptly after the decision on 20 December 2017, but just within the long-stop 3-month time limit. It was received at the Upper Tribunal on 17 March 2017 and was then stayed, pending first the decision of the Upper Tribunal in Islam and Pathan, R (on the application of) v Secretary of State for the Home Department (Tier 2 licence-revocation-consequences) [2017] UKUT 369 (IAC) on 17 August 2017, and then the decision of the Court of Appeal in Pathan & Anor v Secretary of State for the Home Department [2018] EWCA Civ 2103 on 2 October 2018.
5. On 29 October 2018 following the Pathan decision in the Court of Appeal, Mr Jay Gajjar settled amended grounds which were admitted by Upper Tribunal Judge Smith. The amended grounds argue that Pathan is distinguishable on the facts; that it was irrational for the respondent not to grant any kind of discretionary relief following the sponsor losing its licence, which was not the applicant's fault; that the respondent's actions made the applicant an overstayer because of errors in her decision on 3 December 2015; and that Patel fairness is applicable.
6. I have the benefit of skeleton arguments from both parties, but at the hearing today, Mr Clarke for the applicant accepted that the applicant's pleaded grounds and skeleton argument could not succeed. It is accepted that the applicant lost his Tier 2 Migrant status through no fault of his own.
7. Mr Clarke sought leave to amend the grounds for review at the hearing to advance further fairness arguments of which the respondent had not had notice. There were no draft re-amended grounds for the respondent or Tribunal to consider. I refused permission: the applicant had the opportunity to amend his grounds following the Pathan judgment by the Court of Appeal in October 2018 and it was not appropriate to allow last minute amendment in April 2019 at the hearing, by a different Counsel, to advance an entirely different case.
8. The parties' pleaded cases are in the amended grounds for review and the respondent's detailed grounds. Save for his application to vary the grounds for review, Mr Clark relied on the skeleton argument and I did not call on Ms Gray to expand the respondent's skeleton argument.
9. The respondent noted that the applicant had no leave under the Immigration Rules after 14 June 2015 and that his section 3C leave expired at the latest on 1 September 2015. The respondent reminded the tribunal that the Court of Appeal in Pathan held that it was not improper for a different regime to apply to Tier 2 and Tier 4 because Tier 4 relates to student leave to remain, whereas Tier 2 leave relates to the filling of a specific existing vacancy.
10. The applicant had an alternative remedy available to him at all material times. He could return to Pakistan, find a further Tier 2 employer sponsor and make a further application for leave to enter. The applicant had complied with the Immigration Rules until the curtailment of his leave.
11. Mr Clark said that there was nothing he could add to his skeleton argument. I did not hear from Ms Gray, whose arguments are fully set out in her skeleton argument.
12. In Pathan at [71]-[74] in the judgment of Lord Justice Singh, with whom Sir Andrew MacFarlane, President of the Family Division and Lord Justice Coulson agreed, the Court found that the difference between the two regimes is rational, having regard to their respective purposes. In particular, at [71], Singh LJ said this:
"71. First, the purpose of the two regimes, Tier 2 and Tier 4, are very different. This is expressly set out in the Immigration Rules themselves, as I have mentioned earlier. The purpose of Tier 4 is to enable students from overseas to come to this country to pursue their studies. If a particular educational institution's licence is revoked by the Secretary of State, it is understandable why a period of grace should be given to that student to try to see if they can pursue their studies at another institution in this country. There may be no good public interest reason to refuse them that opportunity. In contrast, the whole purpose of the Tier 2 regime for migrant workers is to match up their application for leave with a particular vacancy in this country in circumstances where the local labour market (including for this purpose the EEA) has been shown not to lead to a suitable worker being employable. In those circumstances, it is pre-eminently a political judgment on the part of the Secretary of State whether people should be able to put forward an alternative sponsor if the particular sponsor has had its licence revoked. People may reasonably disagree on whether that would be a good thing or a bad thing. However, as a matter of law, this Court cannot possibly stigmatise the decision which the Secretary of State has taken as being irrational."

13. The respondent was under no obligation to give the applicant an opportunity to find a different employer. The Tier 2 leave was attached to a particular job and it has always been open to the applicant to relocate to Pakistan with his family and seek to re-enter the United Kingdom lawfully to take up a different position with another Tier 2 employer.
14. This application cannot succeed and is dismissed.
15. The applicant will pay the respondent's costs of these proceedings, to be assessed if not agreed.
16. Mr Clarke sought permission to appeal to the Court of Appeal. He did not challenge my decision not to allow a further amendment of the applicant's grounds for review.
17. Mr Clark argued that following the withdrawal of the respondent's 3 December 2015 decision by consent, the respondent's reconsidered decision in November 2016, maintained by administrative review in December 2016, led to substantive unfairness on the facts of the applicant's individual case, such that the respondent should have granted him a 60-day grace period in which to find an alternative Tier 2 sponsor. Mr Clark further contended that the situation in which the applicant found himself was sufficiently compelling to lead to a different outcome from that in Pathan's case.
18. I refuse permission to appeal to the Court of Appeal for three reasons: first, the applicant cannot be heard to complain of the 3 December 2015 decision following his decision to consent to reconsideration by the respondent; second, he has produced no evidence that any other employer would have taken him on, within 60 days or otherwise, and it remains open to him to return to Pakistan and re-apply from there once he has identified a suitable Tier 2 sponsor employer; and third, it is not possible to discern in the judgment in Pathan of Lord Justice Singh (with whom Lord Justice Coulson and Sir Andrew McFarlane agreed), that the innocence or complicity of a Tier 2 employee is operative in the distinction drawn therein between Tier 2 and Tier 4 leave (see in particular [71]-[74] of that judgment).
19. The proposed grounds of appeal are no more in reality than a reiteration of the amended grounds of appeal which Mr Clark accepted at the hearing were unarguable. They cannot therefore constitute a properly arguable error of law in my judgment in this application.
20. I refuse permission to appeal as I am not satisfied that there is any arguable error of law in the judgment I have given.