Sponsors will be aware that the current sponsor guidance (paragraph 648 (g) Tier 2 sponsor guidance and paragraph 600 (x) Tier 4 sponsor guidance) gives the Home Office the power to immediately revoke a sponsor licence where ‘you do not hold, or you stop holding, appropriate planning permission or local planning authority consent to operate your type or class of business at your trading address (where this is a local authority requirement)’.

In the recent case of School of Business & Commerce Ltd, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 126 (Admin) (31 January 2013), the High Court upheld the decision made in the earlier case of Westech College, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 1484 (Admin) (13 June 2011) and concluded that although by the time of the hearing the sponsor was operating from premises with planning consent, lawfully, ‘at the material time the claimant was operating without planning consent’.

Sponsors who have been operating from their premises for in excess of ten years may be entitled to apply for a certificate of lawful use. However if at the time of the Home Office checks, a certificate of lawful use has not been issued or the appropriate planning permission has not been obtained, the Home Office may take the view that at the material time the sponsor was not operating its business lawfully.

Therefore if you are acquiring a property, even temporarily to operate a business from, it is vital that its planning history is checked.  Where a property is being used for a particular use without planning permission then the Local Planning Authority can take enforcement action which could potentially require the use to be ended.

If a property has been used for a particular use for over ten years continuously, without interruption and there are no enforcement notices in place to prevent the use then it is likely to be immune from further enforcement action.  If no enforcement action can be taken then the use is effectively lawful under the Town and Country Planning Act 1990.  However the Home Office requires proof that a business is operating lawfully. The Certificate of Lawfulness of Existing Use (CLEUD) is conclusive proof of this from the Local Planning Authority (normally the local planning department). 

Penningtons has recently been successful in overturning a revocation decision where at the time of the UKBA checks the Tier 2 sponsor had not been issued with a certificate of lawful use. This was an exceptional decision and we urgently advise all sponsors to carry out immediate checks to ensure that the necessary permissions are in place.