Tier 2 Licences in the Court of Session

On 8 June 2016 the Outer House of the Court of Sessions issued judgement in the case of Vikram Foods Glasgow Limited v Secretary of State for the Home Department [2016] CSOH 77. The petitioner applied for a sponsorship licence to enable the recruitment of a specialist chef under Tier 2 (General) of the Points Based System and a managing director for training purposes under the Tier 2 (Inter-Company Transfer) route. The application was refused.

The refusal letter was “riddled with errors” (see paragraph 56 of judgement) including: reference to recruitment of a full time business development manager, despite no application for such a post having been made; a conclusion that there was no bone fide joint venture due to a typographical error in the date on the Joint Venture Agreement submitted; and application of the incorrect skill level to the role of specialist chef.

The court upheld the petitioner’s challenge and reduced the decision:

“…[t]he mistakes show a very careless approach by the respondent to the application.  They show a complete failure either to examine properly the application or a complete failure to understand the basis upon which the application was made.  They show a failure to understand the legal framework in terms of which the decision was being made.  They show a failure to separate the two parts of the application made by the petitioner and to consider these separate parts in terms of the correct legal framework.” [48]

“I am clearly of the view that the respondent’s position regarding the JVA was one which she was not entitled to reach.  In my view the decision which she reached regarding this was perverse.  I am of the view that this clearly amounts to a material error in law.” [55]

Unfortunately a complete failure to understand the basis upon which applications are made and a complete lack of understanding of the legal framework within which decisions must be made is prevalent among Home Office caseworkers. To be fair to the civil servants who are tasked with making such decisions, the constant changes to: the labyrinth of primary and secondary legislation; the Immigration Rules; the Home Office’s Guidance; and the mandatory application forms, creates an environment rife for misunderstandings and mistakes. This, in a nutshell, is the problem with the UK’s system of immigration control. When the Home Office themselves cannot properly understand the law, and as a result hand down “perverse” decisions, clearly the system is not fit for purpose.

What is so surprising in the present case is that the petitioner was forced to proceed to a full hearing at the Court of Session in order to get the decision reduced. It is perhaps unduly optimistic to expect legally competent decision-making at first instance, however where that is not possible, the least we can expect is that unlawful decisions are promptly withdrawn following intimation of a Pre-Action Protocol letter threatening Judicial Review proceedings or the lodging of the petition.

Iain Halliday of McGill & Co.