Sponsor Licence Status - a fragile gift

In the case of Experience India Ltd against the SSHD [2016]CSOH 161 , Lord Malcolm upheld a decision to revoke the petitioners Tier 2 licence to employ overseas workers. The revocation was based around 7 separate grounds of complaint ranging from failure to meet the skill level set out in the guidance, failure to hold a genuine vacancy post, failure to pay the level of salary specified in the certificate of sponsorship, sponsor management and duties concluding with an  allegation of general overall dishonesty. 

The parties general submissions can be read in the judgement found here.  In disposing of the action, Lord Malcolm rejected the petitioners assertion that the SSHD would have to prove deliberate dishonesty on the part of the licence holder holding that this is would  place too high a burden on the SSHD to do so - "Whilst no doubt often there will be at least an inference of dishonourable conduct, in my view, revocation is not only available but mandated so long as the decision maker is satisfied as to a ground of refusal...the respondent doesn't have to show deliberate dishonesty as opposed to careless, incompetence or some other reason" [12].

He continued that "the licence holder is trusted to and undertakes to comply with the guidance, including that sponsored workers are only allocated to genuine vacancies. The guarantee is not limited to an absence of dishonesty or bad faith...the light trigger reflects the right to take action once the SSHD is satisfied that the licence holder's responsibilities are not being carried out with the necessary rigour and vigilance"[13].

The reference to the "light trigger" comes from earlier in his judgement [6] where he summarises what he ( and the parties concerned ) considered to be the correct approach as summarised in Re ( Raj and Knoll) V SSHD [2015] EWHC 1329 at 20-22 & 46. "In summary, the essence of the system is that the SSHD places a high degree of trust in those granted licences in implementing and policing immigration policy. The licence holder's authority to grant a certificate is a privilege which carries considerable responsibilities which are to be carried out with rigour and vigilance...the Secretary of State is entitled to maintain a fairly high index of suspicion and a light trigger in deciding when and with what level of firmness she should act. The courts respect the experience and expertise of her officers from the Borders Agency when reaching conclusions as to compliance with the guidance".