It’s hard to imagine a time when immigration lawyers will stop banging the fairness drum. Far from being responsible for an appeals “merry-go-round”, we find ourselves day in and day out trying to resolve unfair issues and cases in a highly politicised area of law.
Unfairness takes many forms. It can relate to “procedural fairness” — in the context of invalid applications, sponsor licences being suspended/revoked or accusations of dishonesty — but also historic injustices. Whether an unfair situation transposes into a finding that the government has behaved unlawfully is always the question. The latest instalment in the fairness jurisprudence is R (Khan) v Secretary of State for the Home Department  EWCA Civ 1655.
Background: sponsor’s licence revoked
Ms Khan had applied for permission to stay in the UK as a sponsored worker in August 2015. In May 2016, while this application was still pending, the sponsoring company’s licence was suspended and in June 2016 it was revoked. A few days later, the Home Office refused Ms Khan’s extension application, as the certificate of sponsorship had been cancelled as a result of the licence issues. Ms Khan pursued a judicial review against this decision at the time, but lost in the Upper Tribunal, and an onward appeal to the Court of Appeal was refused permission.
Then came the Supreme Court decision in R (Pathan) v Secretary of State for the Home Department  UKSC 41. See here for a very good write-up of a complicated judgment, but for present purposes, what matters is that Ms Khan argued that the findings in Pathan were relevant to her situation. Her barrister argued that “the Supreme Court in Pathan had held that it was procedurally unfair for the [Home Office] to revoke a sponsor’s licence without notifying an applicant whose application for leave to remain was dependent on a certificate of sponsorship issued by that sponsor”. Here, the issue was suspension of the licence rather than revocation, but the situations were “legally analogous”.
Reopening a finalised immigration appeal
In an unusual set of events procedurally, Ms Khan applied to the Court of Appeal under Civil Procedure Rule 52.30 to reopen a concluded appeal. The court has the power to do so in very specific circumstances: only if “it is necessary to do so in order to avoid real injustice, the circumstances are exceptional and make it appropriate to reopen the appeal, and there is no alternative effective remedy”.
An “appeal” in this context includes a decision to refuse permission to appeal. This is what Ms Khan was seeking to reopen.
Paragraphs 18-20 of the judgment have a useful summary of the guiding principles and case law on the exercise of the power conferred by CPR 52.30, which was new to me. Effectively, this procedure can only be invoked where it is demonstrated that the integrity of the earlier litigation process has been critically undermined. For an appeal to be reopened, the injustice that would be perpetrated (if the appeal is not reopened) “must be so grave as to overbear the pressing claim of finality in litigation”. A wrong result, fresh evidence, or the issue being very important to one of the parties or in general – none of this is in itself sufficient to displace the need for finality.
With that in mind, it may not come as a surprise that Ms Khan was not successful.
New legal developments not enough to reopen final appeal
What is important on the Court of Appeal’s reasoning is that, at the time of the relevant extension application, Ms Khan did not hold valid/extant leave to enter or remain. In other words, she had become an overstayer.
This, the court decided, distinguished her case from that of Pathan, where the appellant held extant leave at the time that the employer had had their licence revoked. Mr Pathan could have done something about it: he would have had time (whilst being lawfully in the United Kingdom) to address the consequences of the revocation on his immigration situation.
Largely because of this, the Court in Khan decided that the integrity of the litigation process (in the Upper Tribunal and then on permission to appeal in the Court of Appeal at the time) was not critically undermined.
In addition, the Supreme Court in Pathan did not suggest that procedural fairness might require notification of the suspension rather than notification of a sponsor’s licence (or at any rate, the Supreme Court did not deal with that issue).
For those reasons, the court in Khan found that Pathan was not directly applicable. Even if there were analogies to be drawn, it was not sufficient for the purposes of CPR 52.30 that the earlier decision might be differently decided in the light of developments in analogous areas. The latter would not satisfy the criteria for reopening a final decision (see paragraph 34).
What strikes me is that the court effectively says: there is no real injustice because even if Ms Khan had been notified of the decision to suspend her prospective employer’s licence in May 2015, a month or so before the refusal of her application, she would not have had enough time to find another employer in order to vary her application; nor would she likely have had any other basis upon which to vary her application.
But remember what sponsored migrants are dealing with here: an immigration system that is partly regulated through employers (or educational bodies, in the student context). Why shouldn’t they be notified of the decision to suspend as a matter of course? Why should the principle of fairness be premised on whether they could have done something about it? A licence suspension decision is likely to have significant consequences for them either way.
If the government decides to enlist employers and others into the administration of the immigration system, shouldn’t the government share responsibility when things go wrong? Too often, individuals are caught in the middle. Whether that meets the strict legal test of “real injustice” is one thing; whether it is fair on a human level is another.