Court of Appeal issues key ruling on sponsor licensing system
The Court of Appeal has given its judgment in the New London College appeal concerning the suspension and revocation of a sponsor licence ( EWCA Civ 51, 02/02/12). It was argued in this case that the system of sponsor licensing is unlawful because it is contained in the UKBA policy guidance, rather than the immigration rules and as a result lacks the necessary authority of Parliament. This argument was subsequently rejected by the court. It held that the judge in the case of English UK, who this firm acted for, had correctly identified the law (as set out in the case of Pankina) that Parliamentary authority is needed for the substantive criteria relating to entry and stay in the UK. The rules for sponsor licensing fall outside the substantive criteria for entry and stay and therefore do not need to be in the immigration rules.
The sponsor also argued that the right to a fair trial under the European Convention on Human Rights, had been breached because there is no independent tribunal to review the merits of the UKBA's decisions to suspend or revoke sponsor licences. The court rejected the argument, holding that judicial review provides an adequate remedy.
The court went on to consider whether the suspension and revocation of the licence had breached the sponsor’s property rights under the Human Rights Convention. The court reviewed the legal authorities touching on the issues and concluded that a key issue was whether the goodwill of the business would be adversely affected by suspension or withdrawal of the licence. As the sponsor had not provided evidence about this, the court upheld the Home Secretary’s case.
The court’s judgment is a resounding endorsement of the English UK case. In relation to the right to property, the lesson of this case is that any arguments run in court (whether about human rights or anything else) must be backed up by the right evidence.
In light of the above, sponsors are reminded of the need to comply with their obligations under the sponsor licence and to ensure that all staff who deal with migrants (whether under tier 2, tier 4 or tier 5) have at all times read the relevant sponsor guidance.
Tier 4 interim limit - Educational Oversight and HTS status
Tier 4 sponsors currently subject to the interim limit will need to demonstrate that they hold HTS status and have Educational Oversight in order for the limit on their CAS allocation to be removed.
The UKBA has confirmed to Penningtons that it is still working towards informing all tier 4 sponsors of their HTS status by April 2012.
The UKBA has also confirmed that for HTS sponsors the limit will only be removed when it has received the full inspection report. This also reflects the position as set out in the current tier 4 sponsor guidance at paragraph 181.