Tammina & Anor v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant originally entered the UK in October 2008 and held various forms of leave to remain, including as a Tier 2 (General) migrant sponsored by Company A. The Appellant's sponsoring employer, Company A, issued a Certificate of Sponsorship (COS) describing the Appellant's role as a Sales Accounts and Business Development Manager. The Appellant's spouse, the Second Appellant, was granted leave as a dependent.

In March 2017, the Appellant applied for further leave to remain based on a COS from Company A. While this application was pending, compliance officers from the Respondent (SSHD) visited Company A and interviewed the Appellant, leading to concerns that the job described in the COS was not a genuine vacancy. Consequently, the SSHD refused the Appellant's application in July 2017.

The Appellant sought an administrative review, disputing the SSHD's findings, but the review upheld the refusal. The Appellant ceased working for Company A at the end of August 2017 following legal advice based on the review outcome.

The Appellant initiated judicial review proceedings challenging the refusal decision. During these proceedings, the SSHD suspended Company A's sponsor licence in October 2017 due to concerns about the genuineness of sponsored roles. The Appellant acknowledged awareness of this suspension and had discussed it with Company A.

In December 2017, the parties agreed a Consent Order whereby the SSHD withdrew the refusal decisions and agreed to reconsider the Appellant's application within three months after the sponsor licence status was resolved. Two weeks later, the SSHD revoked Company A's sponsor licence due to false information provided about the Appellant's role. The Appellant was not notified of this revocation at the time and was unaware of subsequent correspondence between Company A and the SSHD.

The Appellant only learned of the revocation when the SSHD refused his application again in February 2018, citing the cancelled COS reference. The Appellant's request for an administrative review of this refusal was denied. Subsequent applications for leave to remain on other grounds were also refused, and appeals were unsuccessful.

The Upper Tribunal (UT) initially dismissed most of the Appellant's grounds but set aside a First Tier Tribunal (FTT) decision due to an unconsidered argument of "historical injustice" relating to the failure to notify the revocation of Company A's licence. After rehearing, the UT dismissed the "historical injustice" claim and the appeals. The Appellant was granted permission to appeal that decision.

Legal Issues Presented

1. Whether the SSHD's failure to notify the Appellant of the revocation of his sponsoring employer's licence before refusing his application amounted to procedural unfairness.
2. Whether the decision in R (Pathan) v SSHD [2020] UKSC 41, which found procedural unfairness in a similar context, applies to the facts of this case.
3. The appropriate standard of appellate review for determinations of procedural fairness by specialist tribunals.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the SSHD acted with procedural unfairness by failing to notify him promptly of the revocation of Company A's sponsor licence, drawing a direct analogy with the Supreme Court decision in Pathan.
• He argued that the failure deprived him of the opportunity to take steps to mitigate the consequences of the revocation on his immigration status.
• The Appellant also submitted that he was forced to cease employment with Company A in August 2017 and thus could not have maintained contact to learn about the revocation.
• He challenged the UT's finding that he was "complicit" in the reasons for the licence revocation and disputed the timeline allowing a meaningful opportunity to act between revocation and refusal decision.

Respondent's Arguments (SSHD)

• The SSHD argued that the factual circumstances distinguish this case from Pathan because the Appellant had prior knowledge of the difficulties with his sponsoring employer's licence.
• They submitted that the Appellant had an opportunity to keep in touch with Company A and take steps to address his situation before the final decision.
• The SSHD contended that the Appellant's complicity in the grounds for revocation negated any duty to notify him promptly.
• Regarding appellate review of procedural fairness, the SSHD submitted that such assessments are context-dependent and require deference to the specialist tribunal's evaluative judgment unless irrational.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Pathan) v SSHD [2020] UKSC 41	Procedural fairness requires prompt notification of sponsor licence revocation to applicants, enabling them to take mitigating steps.	The court distinguished this precedent on facts, holding the Appellant had prior knowledge and opportunity to act, so no procedural unfairness arose.
R v SSHD, ex parte Doody [1994] 1 AC 531	Principles of procedural fairness depend on context and statutory framework; fairness standards may evolve.	The court applied these principles to affirm that procedural fairness is a legal question subject to appellate review, not mere discretion.

Court's Reasoning and Analysis

The court began by identifying the narrow issue of whether the SSHD's failure to notify the Appellant of the revocation of his sponsor's licence constituted procedural unfairness. It considered the Supreme Court's decision in Pathan, where failure to notify was held unfair because the applicant was unaware of the licence revocation and thus deprived of the opportunity to mitigate consequences.

In contrast, the court found three distinguishing factors in the instant case: (1) The Appellant had prior knowledge of difficulties with Company A's licence, including its suspension, and had discussed these issues with the employer; (2) This knowledge gave the Appellant the opportunity to maintain contact and take steps to address his position before the final refusal; (3) The Appellant's case was connected to the reasons for the licence revocation, and although the court rejected the finding that he was "complicit" in wrongdoing, the relationship between his application and the revocation was clear.

The court rejected the Appellant's submission that he was unable to act due to cessation of employment, noting that the Consent Order withdrew prior refusals and allowed time to keep in touch with Company A or seek alternative sponsorship. The court further held that the period between revocation and refusal decision, though including holidays, was sufficient for the Appellant to have taken action had he been informed.

The court emphasized that procedural fairness is context-specific and a question of law, warranting appellate review on whether the tribunal's decision was right or wrong rather than deference to discretion.

Ultimately, the court agreed with the UT's conclusion that the SSHD had no duty to notify the Appellant promptly of the revocation and that no procedural unfairness occurred.

Holding and Implications

The appeals are dismissed.

The court's decision confirms that the duty of prompt notification of sponsor licence revocation, as established in Pathan, is fact-sensitive and does not arise where the applicant has prior knowledge of licence difficulties and opportunity to act. The ruling directly affects the parties by upholding the refusal decision and dismissing the procedural unfairness claim. No new precedent beyond the application and distinction of Pathan was established.