Court of Appeal decision highlights the importance of sponsor licence holders replying to Home Office requests - Topadar v Secretary of State for the Home Department (2020)

The Court of Appeal recently held that it was not procedurally unfair for the Home Office to refuse a visa application due to the applicant’s sponsor failing to provide additional information. The decision is a useful reminder to employers who sponsor workers to remain contactable and act promptly following requests from the Home Office, which can be made at any time. As this case demonstrated, failure to do so can lead to a refusal which can be expensive and potentially mean the worker has to leave the UK.

Facts

The Appellant applied for a Tier 2 (General) visa in order to work for his employer. To make this application, he was assigned a Certificate of Sponsorship by his employer confirming key details about the sponsored role and that it met the legal requirements of sponsorship.

During their decision-making process, the Home Office wrote to the applicant’s employer requesting further information about the role including, a request for documentation that proved the position was a genuine vacancy. The applicant was unaware that this request had been made.

After the employer failed to respond, the Home Office decided to refuse the visa application. The Appellant applied for administrative review arguing that the Home Office had a procedural duty to inform him that information was being sought directly from his employer before refusing the application. The case proceeded to the Court of Appeal.  

Outcome

The Court of Appeal upheld the decision of the Upper Tribunal that it was not procedurally unfair for the Home Office to refuse an application as a result of an employer failing to respond to requests for information.

The Court highlighted Paragraph 77J of the Immigration Rules (under the old system) which specifically states the power of the Home Office to request additional information and evidence from the applicant or the sponsor and refuse the application if the evidence was not provided.

With regards to whether the Appellant should have been informed of this request, the Court noted that the information requested such as, the job description, bank statements, staff lists, HMRC reference numbers etc, were matters that the sponsor was in a position to provide and it was therefore for them to respond rather than the Appellant. It further highlighted the duty on sponsors: “If the employer intends to employ the appellant, and has provided a certificate of sponsorship, it is incumbent on the employer to provide any additional information sought by the respondent.”

Implications for sponsors 

Under the UK’s new immigration system, the onerous Resident Labour Market Test has been removed. However, the requirement for the sponsored role to be a “genuine vacancy” has remained. This means that whilst employers no longer need to meet specific requirements for advertising and recruiting, they must evidence that there has been a fair recruitment exercise for the role.  

In light of this case, sponsors should ensure they are aware of their duty to provide additional information to avoid the risk of their worker’s application being refused.