Indian restaurant operator fails in legal challenge after losing licence over foreign workers

A judge in the Court of Session ruled that there was “no error” in the decision that the “genuine vacancy test” was not met.

The petitioner Experience India Limited, which operates a group of restaurants under the name “Cook and Indi’s World Buffet”, lodged an application for judicial review of a decision made on behalf of the Secretary of State for the Home Department to revoke the petitioner’s tier 2 licence to employ overseas workers.

Lord Malcolm heard that since November 2008, under Home Office guidance any employer wanting to employ non-EEA nationals in the UK has had to obtain a sponsorship licence, replacing the previous system of work permits.

A sponsor is entitled to allocate Certificates of Sponsorship (CoS) to sponsored overseas workers according to job descriptions specified in a standard occupation code (SOC), such as quality control manager, duty manager, IT consultant, etc.

Officers on behalf of the Secretary of State undertook unannounced compliance inspections of three of the petitioner’s restaurants in August 2015 and questioned local managers, following which officers arranged a meeting with the petitioner’s authorising officer to take place on 25 August 2015.

In advance of the meeting he was advised that the officers wished to interview eight sponsored workers, but the day before the meeting the officers were informed that seven of them were being made redundant with immediate effect, meaning they were unavailable for interview.

In October 2015 an officer on behalf of the Secretary of State wrote to the petitioner suspending its licence and setting out the reasons for doing so, giving the petitioner 20 working days in which to respond.

Representations were made and a number of affidavits were forwarded by the petitioner, but on 8 February 2016 an officer issued a decision letter revoking the licence – a decision based on seven separate grounds.

In relation to one sponsored worker it was concluded that he did not meet the skill level requirements set out in the guidance; he had been assigned a CoS for a vacancy which was not genuine; and the role undertaken by him did not match the job description in the CoS.

In relation to another employee, the letter stated that ‘the job descriptions had been “inflated in order to make it appear that they meet the requirements of the tier and category when they do not”, and furthermore that the petitioner had “made false representations in the issuance of the CoS for these roles’”, while mention was made of the provision of “false information in order to circumvent the immigration rules”.

However, the petitioner challenged the conclusion that a number of the sponsored workers had not been allocated to genuine vacancies, in the sense of vacancies which could not be filled by a British or EEA worker.

The submission was that, on a proper interpretation of the relevant guidance, the genuine vacancy test cannot be breached by anything short of intentional deception by the licence holder – and there was no evidence of such in the present case.

The petitioner had retained and exhibited all the documentation which the guidance required and it was “irrational and unreasonable” to fail the petitioner under the genuine vacancy test on the basis of a failure to produce evidence which the petitioner was neither required nor reasonably expected to possess.

But the respondent submitted that the petitioner was wrong in asserting that dishonesty was a requirement for revocation, as there were a number of grounds of mandatory revocation, including a sponsored worker allocated a position which did not meet the genuine vacancy test. That was a question of fact and the court should be “slow to interfere” with such decisions, it was argued.

Refusing the petition, the judge said he preferred the Home Secretary’s submissions.

In a written opinion, Lord Malcolm said: “It would place too high a burden on her if deliberate dishonesty had to be established. While 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…

“For example, if a sponsored worker is allocated a job which is not a genuine vacancy, there has been a breach of the guarantee undertaken by the licence holder. The respondent does not have to show that this was caused by deliberate dishonesty, as opposed to carelessness, incompetence, or some other reason.

“The reasons for the revocation of the petitioner’s licence were fully set out in the decision letter of 8 February 2016.”

The judge noted that a comparison of the job description in the CoS of one worker with the evidence submitted as to his work duties resulted in the conclusion that the role undertaken by him was “not a genuine vacancy”.

“It was not necessary for there to be a further deliberation as to the reasons for this, and in particular whether it was or was not the result of deliberate dishonesty on the part of the petitioner,” Lord Malcolm added.

He therefore held that there was “no error” on the part of the Home Secretary, adding: “It follows that I do not uphold the submission as to an alleged flaw regarding the Secretary of State’s overall approach.”