In the recent case of Topadar v Secretary of State for the Home Department  EWCA Civ 1525, Mr Topadar’s visa application was refused when his employer failed to provide information and documentation requested by the Home Office to evidence that Mr Topadar was filling a genuine vacancy.
Amongst other matters, Mr Topadar sought to argue that it was procedurally unfair for his application to be refused when he was unaware that the Home Office had requested additional information directly from his employer. The Court of Appeal held that it is implicit in the sponsor arrangement that the sponsor must provide information required by the Home Office for the application and therefore found that refusal of his application was not procedurally unfair.
Whilst the Resident Labour Market test will no longer be required for Skilled Worker visas under the new Immigration Rules from 1 December 2020, there is still a requirement that there is a genuine vacancy. The Home Office may refuse an application if the case worker has reasonable grounds to believe that the job in question does not exist, is a sham or has been created mainly so that the applicant can apply for entry clearance or permission to stay. They may request information from the sponsor to assist with their assessment of whether the job meets these requirements and the application can be refused if the information is not provided.
Sponsors need to ensure that their sponsor management system has up to date contact details for all Users, the Key Contact and the Authorising Officer. Those individuals should be warned to look out for potential correspondence from the Home Office to ensure that any queries in respect of a particular visa application are dealt with in a timely manner.
It is also vital that sponsors ensure they maintain a valid sponsor licence. We have recently been instructed in a couple of cases, where sponsors allowed their licence to lapse, thereby placing all their sponsored workers at risk of their visas being curtailed. This happened despite the fact that the Home Office does send out regular reminders before the licence expires.
In the recent case of R (Pathan) v Secretary of State for the Home Department  UKSC 41 the Supreme Court found the Home Office should have told Mr Pathan that his sponsor’s licence had been revoked and so his visa application made using a CoS issued by them was doomed to fail.
Unfortunately the Judges in this case could not agree on exactly what should have happened to Mr Pathan. Four out of the five found it was unfair he had not been informed of the revocation before his application was refused. Two felt that by analogy with cases where students find their sponsor’s licence has been revoked, he should have been given 60 days to either find another sponsor and make a new application, or leave the UK. Meanwhile the other two simply said he should have been given “sufficient notice to do something about it”. Either way, the fact his employer no longer held a licence was a significant problem for Mr Pathan.
We recommend that all sponsors check their licence summary in the sponsor management system and diarise the licence expiry date, together with an earlier reminder to apply for renewal. If you need assistance with your sponsor licence renewal, then please do contact a member of our Immigration Team.
This article is from the November 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For more details regarding any of the matters covered in this update, please contact Janice Leggett in our Immigration Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at November 2020.