J's Supermarket Ltd, R (on the application of) v Secretary of State for the Home Department

1. The Claimant, a limited company operating a supermarket in Tooting, seeks to challenge by way of judicial review the decision of the Defendant, the Secretary of State for the Home Department (‘SSHD’), dated 12 November 2024, confirming an earlier decision of 10 October 2024, to remove the Claimant from the register of licensed providers, maintained pursuant to the Immigration Rules. The effect of this revocation was to remove the Claimant’s ability to continue sponsoring migrant workers under the Workers and Temporary Workers Scheme.

2. The SSHD explained her decision on 12 November 2024 to revoke the Claimant’s licence on a number of grounds. The primary ground was that she had concluded that the roles of two employees to whom Certificates of Sponsorship had been assigned, Naveen Chandrasekaran (‘NC’) and Manoj Chandrasekar (‘MC’), did not represent genuine vacancies, for the purposes of the Workers and Temporary Workers: Guidance for Sponsors Part 3: Sponsor duties and compliance, Version 03/23 (‘The Guidance’). In addition, she had concluded that there had been a number of failures by the Claimant to comply with their duties as a Sponsor under the Scheme, and failures to provide evidence to the SSHD’s investigation.

3. In summary, the Claimant alleges that this decision was irrational, unfair and inadequately reasoned in a number of critical respects. The Claimant originally pleaded eight grounds of judicial review. Hugo Keith KC, sitting as a Deputy Judge of the High Court, has granted permission to apply for judicial review on 6 of those grounds. The Claimant then filed a notice seeking oral renewal of the application for permission to apply for judicial review in respect of the remaining grounds. The Claimant’s position has developed more recently, so that they seek to argue the case by reference to six issues which reflect a number of the grounds on which permission was granted, one ground for which the application for permission is renewed and an additional ground which the Claimant seeks permission to add.

4. In summary, the Claimant seeks to redraw their grounds by reference to the following issues: (a) Whether the Secretary of State’s conclusion that the roles of NC as Retail Manager and MC as Shopkeeper do not constitute genuine vacancies is unfair, inadequately reasoned or irrational (reflecting grounds 1 and 3). (b) Whether the Secretary of State, in revoking the licence on the basis that the Claimant failed to report a third employee, Arun Jayebharathi (‘AJ’) through SMS, acted irrationally (ground 4). (c) Whether the Secretary of State, in revoking the licence on the basis that the Claimant failed to provide job descriptions, acted irrationally since she had not required the Claimant to do so (ground 5). (d) Whether the Secretary of State, in revoking the licence on the basis that the Claimant failed to provide evidence that its sponsored workers had opted out of pension schemes, acted irrationally and ignored material evidence (ground 6). (e) Whether the Secretary of State made a material mistake of fact in holding that the Claimant’s representations as to record keeping and recruitment contained contradictory statements (ground 7). (f) Whether the alleged errors are material, or whether it would be appropriate to withhold relief under section 31 (2A) of the Senior Courts Act 1981 (“ the 1981 Act ”), which is an issue raised by the defendant. The Legal Framework and Guidance

5. Under powers vested in the SSHD by s.3(2) of the Immigration Act 1971 , the Immigration Rules provide that foreign nationals may enter the United Kingdom as workers if sponsored by an employer. The SSHD is responsible for awarding licences to employers who may then grant certificates of sponsorship to workers as permitted by the licence. As was observed in The King (on the application of Prestwick Care Limited, Malhotra Care Homes Limited, Malhotra Care Homes and (Sunderland) Limited, Trading as Prestwick Care) v Secretary of State for the Home Department [2025] EWCA Civ 184 , (hereafter ‘ Prestwick ’) at paragraph 4: “ The scheme provides a way of addressing skill shortages in the labour market and a fast track for entry into the country for those individuals who are sponsored. .. The scheme is heavily dependent on trust and there is plainly the potential for abuse. The SSHD has to ensure and enforce compliance with the scheme as part of her overall management of immigration.”

6. In Prestwick , at paragraph 24, the Court approved the two fundamental principles identified by Allison Foster QC, then sitting as a Deputy High Court Judge, in R (Operation Holdings T/A Goldcare Homes) v SSHD [2019] EWHC 3884 (Admin) (at paragraphs 21-22): “ (i) Those who benefit most directly from migration, that is to say employers, education providers or other bodies who bring in migrants, must play their part in ensuring that the system is not abused; and (ii) The Home Office needs to be sure that those applying to come to the UK to undertake work or to study are indeed eligible to do so and if a reputable employer or education provider genuinely wishes to take them on. This provides the context for the application of the scheme, and reflects, as was said by McGowan J [at first instance] in London St. Andrew's College v SSHD [2014] EWHC 4328 (Admin) at [13] , that the obligation of a sponsor is to carry out its responsibilities " with all the rigour and vigilance of the immigration control authorities ". This approach is found throughout the case law”.

7. The Guidance both assists Sponsors as to their duties, sets out how the scheme is to operate, and addresses the circumstances in which and the criteria for the revocation of a licence. A new version of the Guidance was issued on 24 October 2024, and thus between the original and reconsidered revocation decisions here, but for all material purposes the Guidance remained the same. As it is the final revocation decision of 12 November 2024 that is in primary issue, I shall focus on this latest version of the Guidance hereafter.

8. The Guidance consists of four parts. The relevant part for present purposes is Part 3 “Sponsor duties and compliance", which provides guidance for employers and organisations who held a sponsor licence “… on your duties and expected behaviours as a sponsor of workers on the Worker and Temporary Worker immigration routes and the action we may take against you if you breach these duties or behave in a way that is not compatible with being licensed by us ”. The worker routes included "skilled worker".

9. The guiding principles are set out in Part 3 at paragraphs C1.3-5, as follows: C.1.3. Sponsorship is a privilege not a right. The sponsorship system reflects that those who benefit directly from migration (employers, education providers or other organisations who bring in overseas nationals) should play their part in ensuring the immigration system is not abused. Significant trust is placed in sponsors and they must ensure they comply with immigration law and wider UK law, and not behave in a manner that is not conducive to the wider public good. C1.4. To achieve these aims, all licensed sponsors must fulfil certain duties. Some of these duties apply to all sponsors, whilst others are specific to those licensed under certain routes. C1.5. The objectives of these duties include, but are not limited to: • preventing abuse of immigration laws and sponsorship arrangements • capturing early any patterns of behaviour that may cause concern • addressing possible weaknesses in process which can cause those patterns • monitoring compliance with the Immigration Rules, all parts of the Worker and Temporary Worker sponsor guidance, and wider UK law (such as employment law) • ensuring sponsors do not behave in a way that is detrimental to the wider public good

10. An employer or organisation to whom a licence is granted is entitled to assign a certificate of sponsorship to a worker from overseas. Before a worker could make a successful immigration application, the sponsor had to assign them a valid certificate of sponsorship ("CoS"). At paragraph C.1.9, it is made clear that the sponsor’s duties include reporting and record keeping duties, and the duty to comply with immigration law. Each of these duties is explained in detail. For example, it is made clear at paragraph C1.11 that the reporting duty encompasses reporting changes of circumstances for a sponsored worker, including reporting if they do not start to work in the sponsored role (paragraph C1.13). Similarly, the record keeping duty (at paragraph C1.33) includes the maintenance of certain documents, which are listed in Appendix D to the Guidance. Although I was not provided with this Annex, I was told during oral argument that it included such documents as job descriptions.

11. In R (Liral Veget Training and Recruitment Ltd) v SSHD [2018] EWHC 2941 (Admin) , Andrew Thomas QC, sitting as a Deputy High Court Judge, observed (at paragraph 46): “ As a holder of a Sponsor Licence, the Claimant was required to be scrupulously accurate in the information to be provided in the COS submissions. There was no room for artistic licence whether in the attribution of job titles or otherwise. It is no answer for the Claimant to point to individual pieces of higher-level work when the COS submissions had failed to give an accurate impression overall of the role.”

12. Under the heading "Complying with our immigration laws", paragraph C1.38 stated, " You must comply with our immigration laws and all parts of the Worker and Temporary Worker sponsor guidance ." A list of specific obligations included the following: " you must … not assign a CoS where there is no genuine vacancy or for a role which does not meet the specific eligibility criteria for the route – if you do, we reserve the right to suspend your licence, pending further investigation, which may result in your licence being revoked ."

13. Under the heading "Genuine vacancy: definition", paragraph C1.44 provided: " A genuine vacancy is one which: • requires the jobholder to perform the specific duties and responsibilities for the job and meets all of the requirements of the relevant route • does not include dissimilar and/or predominantly lower-skilled duties • is appropriate to the business in light of its business model, business plan and scale."

14. Paragraph C1.46 provided (so far as relevant): "Examples of vacancies that are not considered to be genuine include, but are not limited to: • a role that does not actually exist • one which contains an exaggerated or incorrect job description to deliberately make it appear to meet the requirements of the route when it does not, or is otherwise a sham • a job or role that was created primarily to enable an overseas national to come to, or stay in, the UK …."

15. Paragraph C1.48 addresses the duty to comply with wider UK law, which encompasses compliance with UK employment law, for example relating to National Insurance and, where required, enrolment on a pension scheme.

16. The Scheme is operated, and communication from sponsors effected through the Sponsorship Management System (‘SMS’).

17. Section C9 of the Guidance addresses the suspension of a sponsor licence. This may occur, as is explained in paragraph C9.1, “ if we believe that you are breaching your sponsor duties and/or pose a threat to immigration control, or are engaging in behaviours or actions that are not conducive to the public good…”. The approach as to how the decision to suspend a licence is reached depends on the circumstances that apply. This is addressed at paragraphs C9.7 and C9.8, as follows: “ C9.7: If any of the circumstances listed in Annex C1 arise, we will either revoke your licence immediately or suspend your licence pending further investigation or consideration. C9.8. If any of the circumstances listed in Annex C2 or Annex C3 arise, we will first consider downgrading your licence. However, we may decide to suspend your licence without first downgrading it. This could be where there has been sustained non-compliance over a period of time, or where there have been a number of breaches which are minor in themselves but, taken together, indicate a more serious or systematic failing.

18. Before turning to the relevant provisions of those Annexes, it is right to note three further provisions of Part C9 of the Guidance, which address next steps after a decision has been taken to suspend. “C9.11. You have 20 working days from the date of the written notification to respond to our letter. This is your opportunity to seek a review of our decision and to set out any mitigating arguments you believe exist. Your response to us must be in writing and set out, with any relevant supporting evidence, which grounds you believe to be incorrect and why. We may give you more time to respond if we are satisfied there are exceptional circumstances. C9.14. If we do not receive a response within the time allowed, we will go ahead with whatever action we believe is appropriate and tell you of our decision in writing. C9.15. Appropriate action may include one or more the following – we may: • re-instate your licence with an A-rating • re-instate your licence with a B-rating (and issue you with an action plan) • prevent you from assigning any new CoS • prevent the use of any assigned, but unused, CoS • revoke your licence”

19. It was argued for the Claimant that the list at paragraph C9.15 demonstrates that revocation is an option of last resort, where none of the other options there listed is considered sufficient. On my reading, this specific list addresses the consequences that may follow a failure to respond to a suspension letter. On my reading of the Guidance more generally, it is clear that revocation may be either the response following investigation, or the immediate response, where the circumstances are adjudged to warrant it.

20. In this regard, Section C10 of the Guidance addresses “ the circumstances in which we will, or may, revoke your sponsor licence ”. These circumstances, in overview (paragraph C10.1), include “ where…there is a serious or systematic breach of your sponsor duties ”. The Guidance addresses “ How we decide whether to revoke your licence ” at paragraphs C10.4-6 as follows: C10.4. Annex C1 of this document sets out the circumstances in which we will revoke your licence – these are known as ‘mandatory’ grounds of revocation. If any of these circumstances arise, we may revoke your licence immediately and without warning. If we do not revoke your licence immediately, we will suspend your licence pending further investigation. C10.5. Annex C2 of this document sets out the circumstances in which we will normally revoke your licence, unless there are exceptional circumstances. C10.6. We cannot define in which exceptional circumstances we may not revoke your sponsor licence but, when one of the circumstances listed in Annex C2 of this guidance applies, we view this as a serious matter. We will look for evidence you have adequate processes and procedures in place and have taken all reasonable steps to verify information you are required to obtain and hold in connection with your duties under this guidance, as well as any information that you send to us.

21. Paragraph C10.16 states that once a licence has been revoked, no further application for sponsorship can be made for 12 months, which is known as the “cooling off” period.

22. Annex C1, lists the circumstances in which “we will revoke your licence”. It includes two circumstances where revocation is mandated that are relevant or potentially relevant here: (a) at Annex C1(s): “ The role undertaken by a worker you have sponsored does not match … the job description on the CoS you assigned to them” (b) at Annex C1(z): “ We have reasonable grounds to believe the role for which you have assigned a CoS is not genuine – for example, because it: • does not exist • is a sham (including but not limited to where the CoS contains an exaggerated or incorrect job description to deliberately make it appear to meet the requirements of the route you assigned it under when it does not); or • has been created mainly so the worker can apply for entry clearance or permission to stay ”.

23. Annex C2 addresses circumstances in which “we will normally revoke your licence”. The Guidance adds “we may downgrade or suspend your licence first while we consider the matter, but we reserve the right to revoke your licence immediately without downgrading or suspending it”. Again, there are a list of applicable circumstances which begins with: “C2(a): You fail to comply with any of your sponsor duties set out in section C1 of this document. C2(b): As a result of information available to us, we are not satisfied you are using a process or procedure necessary to fully comply with your sponsor duties.”

24. Assistance as to the difference between the wording of Annex C1, “will revoke”, and Annex C2, “will normally revoke” is afforded from the analysis of comparable wording in the Immigration Rules by the Court of Appeal in R (Balajigari) v SSHD [2019] EWCA Civ 673 . Underhill LJ (at paragraphs 25-26) described wording comparable to Annex C1 as “ mandatory grounds of refusal ”, and wording comparable to Annex C2 as “ not a mandatory ground for refusal but that it does create a presumption of refusal ”. In the latter case (at paragraph 33) it was necessary “ to decide as a matter of discretion whether leave should be refused on the basis of it ”. It is also of note that in R (New Hope Care Home Ltd) v SSHD [2024] EWHC 1270 (Admin) (at paragraph 112) it was accepted on behalf of the SSHD that “ even a policy stating that certain conduct “will” lead to revocation carried with it the residual possibility of an exception being made”. The facts

25. The Claimant, a limited company, the director of which is Mr Jalatheepan Ramachandran (‘JR’), runs a medium sized supermarket in Tooting specialising in South Asian foods and employing about 10 people. The store is stated to open for long hours. Between September 2019 and November 2023, the company employed three people in JS Supermarket Limited as skilled workers, namely: (a) Naveen Chandrasekaran (‘NC’) (b) Manoj Chandrasekar (‘MC’) and (c) Arun Ram Harsha Ramalingam Jayabharathi (‘AJ’)

26. The SSHD issued a sponsor licence to the Claimant on 16 January 2023 to employ skilled migrants for its business. CoS were issued to NC in January 2023 and MC on 17 July 2023, and they were subsequently granted leave to remain as skilled workers. On 14 November 2023 the company assigned a CoS to AJ. JR in his statement of 23 October 2024 stated that he understood that AJ’s application was deemed invalid because he had arrived as a student and not completed his studies, and he was therefore ineligible for a skilled worker visa. It, therefore, appears that AJ was not granted a skilled worker visa.

27. The SSHD conducted a compliance visit on 2 May 2024, during which NC and MC were both spoken to. I have seen the notes of those interviews, together with the accounts they have provided in witness statements, each dated 23 October 2024. Thereafter, the SSHD suspended that licence on 22 August 2024. She identified a number of concerns, including discrepancies between the job description on the CoS for the 2 employees who had been spoken to (NC and MC) and the employees’ own descriptions of their duties when they were spoken to.

28. In particular in this letter, in relation to NC, the letter stated (from paragraph 3): “ The job description on the CoS assigned to Mr Chandrasekaran states his duties as: • Organize store operations and allocate responsibilities to personnel. • Supervise and guide staff towards maximum performance. • Monitor stock levels and purchases and ensure they stay within budget. • Deal with complaints from customers to maintain the stores reputation. • Inspect the areas in the store and resolve any issues that might arise. • Plan and oversee in-store promotional events or displays. • Ensure the store fulfils all legal health and safety guidelines. During his interview Mr Chandrasekaran stated his duties and responsibilities as: • Clean & check quality of the vegetables ready to display before the shop opens. • Works on the till serving customers. • Checks stock level before placing order with the Rep. • Check all deliveries against orders deals with promotions but will check with KC before displaying the promotion. There are several discrepancies between the job description as provided on Mr Chandrasekaran’s CoS and the description of his duties as provided by Mr Chandrasekaran. During our visit our officer noticed that no job description was provided although requested. It is clear from the above that Mr Chandrasekaran is undertaking low skilled duties and not duties for which the CoS was assigned.”

29. The letter then stated (at paragraph 8) “ We therefore believe that the role of Retail Manager does not constitute a genuine vacancy within your business, and that the role has been created in order to facilitate Mr Chandrasekaran’s leave to remain in the UK.”

30. In relation to MC, the letter said (from paragraph 13): The job description on the CoS assigned to Mr Chandrasekar states his duties as: • Keeping a record of sales and restocking the store accordingly. • Managing and training store staff. • Planning promotional campaigns for new products or specials. • Ensuring that the store is kept clean and organized. • Mediating any confrontations between staff and clients, and de-escalating the situation. During his interview Mr Chandrasekar stated his duties and responsibilities as: • Clean & check quality of the vegetables ready to display before the shop opens, throwing the bad ones away. • Refill vegetables & shelves throughout the day. • Tell the manager which stock is low. There are several discrepancies between the job description as provided on Mr Chandrasekar’s CoS and the description of his duties as provided by Mr Chandrasekar. During our visit our officer noted that you had no evidence of work to demonstrate most of the tasks mentioned on the CoS. It is clear from the above that Mr Chandrasekar is undertaking low skilled duties and not duties for which the CoS was assigned.”

31. The letter then stated (at paragraph 18): “We therefore believe that the role of Shopkeeper does not constitute a genuine vacancy within your business, and that the role has been created in order to facilitate Mr Chandrasekar’s leave to remain in the UK.”

32. The SSHD also identified a number of other areas of concern which are relevant to the grounds now relied on by the Claimant. a. Paragraph 20: In relation to AJ, the SSHD noted that the fact that AJ did not take up employment in accordance with the CoS prepared for him had not been reported by the Claimant through the Sponsorship Management System (SMS) as required by paragraph C1.11 and C1.13 of the Guidance. b. Paragraph 24: The SSHD further asserted that her Compliance Officer had requested Job descriptions for NC and MC and to the date of the letter, these had not been supplied. c. Paragraph 27: The SSHD further observed that no satisfactory documentary evidence had been provided of either NC and MC opting out of their pension entitlement which the Claimant, who had an obligation under the sponsorship scheme to comply with all employer obligations under the general law, had been required. d. Paragraph 31: The SSHD noted that the Claimant could also not provide evidence that up-to-date contact details of the employees had been maintained and retained. e. Paragraph 36: The SSHD further noted that the Claimant had not produced documentary evidence of a formal recruitment process for NC or MC.

33. The Claimant was given 20 days to make representations. For reasons that are not relevant to the present application, this did not occur. As a result, on 10 October 2024 the Defendant considered the matter further in the absence of any representations from the Claimant. This is the first decision that is now the subject of challenge. The Defendant decided to remove the Claimant from the register of licensed providers under the scheme. The grounds of the cancellation of the licence were that the Defendant was not satisfied that the ‘skilled worker’ roles were genuine, and that those employed appeared to be carrying out largely unskilled work and that the skilled worker contracts had been designed to help the employees obtain leave to remain in the UK. The Claimant was generally found to have not complied with the requirements of the Guidance.

34. In particular in this 10 October letter, the SSHD quoted that which had been set out in her earlier suspension letter of 22 August, in relation to NC and MC (quoted at paragraphs 28-31 above), added a specific reference to her reliance on paragraph Annex C1(z) in her decision to revoke. In relation to her other concerns, she repeated what had been set out in the suspension letter (addressed at paragraph 32 above), adding specific reference to her reliance on Annex C2(a) and (b).

35. The Claimant served a pre-action protocol letter on 26 October 2024. It is clear from that letter that it was understood that, in relation to NC and MC, the SSHD had relied on Annex C1 paragraph C1(z). The letter annexed statements from NC, MC and JR, and set out relevant parts of those statements in detail within the letter itself. It is relevant to note that in their respective statements NC and MC accepted that the descriptions of their roles attributed to them by the investigator to whom they spoke on 2 May were accurately recorded. They sought, however, to explain in each case that this description was in addition to, rather than instead of, the list of duties set out in the CoS for each of them.

36. The SSHD agreed to reconsider the matter on 11 November 2024. The SSHD conducted the agreed reconsideration and, on 12 November 2024, issued a further decision maintaining the original revocation decision. This is the decision subject to primary challenge in the present proceedings. 12 November 2024 letter

37. This letter made clear, at paragraph 4: “ Following receipt of the Pre-Action Protocol (PAP) letter, submitted on 29 October, we have considered the representations received with the PAP letter and have taken the decision to maintain the revocation of their sponsor licence.” In this letter, as in the earlier 10 October revocation letter, the SSHD then set out the matters that had been raised in the original 22 August suspension letter. However, in relation to each area of concern, she summarised the representations that had been made by the Claimant and her response to those matters, under the heading of “reconsideration”.

38. The grounds for the confirmed decision dated 12 November 2024 were, in summary: a. There were “several discrepancies” between the job descriptions supporting the relevant CoS and what NC and MC respectively described themselves as doing. No job description had been provided nor evidence to demonstrate that NC or MC were performing the majority of the tasks mentioned in their respective CoS. Rather, it was clear that NC and MC were undertaking low skilled duties and not the duties for which each CoS was assigned in breach of paragraphs C1.38 and C1.44 of the Guidance. Annex C1(z) was also specified. b. By reference to that which had been asserted in the pre-action protocol letter, which was quoted and reflected the content of NC’s witness statement, the SSHD noted in relation to NC that it was said that at the time of the 2 May compliance visit he had been covering the duties of an absent member of staff and was being flexible. This led the Defendant to question how often NC was required to cover such a role, observing: “ If he is covering these roles regularly raises concerns as to whether his job as retail manager is genuine ” . The SSHD considered that the WhatsApp messages and photographs of the shop that had been provided by the Claimant with his PAP letter did not add anything in regard to the true nature of NC’s role. She added “ You have failed to provide any further evidence of the work in which he undertakes daily.” The SSHD did not refer in terms to NC’s witness statement. c. In relation to MC, the SSHD noted that it was represented that MC did not list every single duty he performed during his interview on 2 May, and that it was not reasonable to expect staff to memorise their duties verbatim as per the CoS. In this regard she quoted the representations made, which reflected the terms of MC’s witness statement. The SSHD again stated that she considered that the WhatsApp messages and photographs of the shop that had been provided did not add anything in regard to the true nature of MC’s role. She added “ You have failed to provide any further evidence of the work in which he undertakes daily.” The SSHD did not refer in terms to MC’s witness statement. d. In relation to AJ, the SSHD noted that the fact that AJ did not take up employment in accordance with the CoS prepared for him was not reported by the Claimant through the Sponsorship Management System (SMS) as required by paragraph C1.11 and C1.13 of the Guidance. The SSHD noted the Claimant’s position, as set out in both JR’s witness statement and the PAP letter, was that as the Home Office had informed the Claimant that AJ could not validly apply, the Claimant believed there was nothing further for it to do. The SSHD’s response was that such changes were not automatically notified, and the Claimant was obliged by the sponsorship terms to report the change in status of AJ. AnnexC2(a) was specifically referred to. JR’s statement was not. e. The SSHD further asserted that her Compliance Officer had requested Job descriptions for NC and MC and to the date of the letter, these had not been supplied. Whilst the Claimant had said that these job descriptions had not been requested, the SSHD stated that these were requested by email of 13 May 2024. AnnexC2(a) was again specifically referred to. f. The SSHD further observed that no satisfactory documentary evidence had been provided of either NC and MC opting out of their pension entitlement which the Claimant, who had an obligation under the sponsorship scheme to comply with all employer obligations under the general law, had been required to address. The SSHD considered that the lack of formal documentary evidence to this effect was not overcome by the Claimant’s pre-action protocol response, based on JR’s witness statement, that NC and MC had only recently opted out. AnnexC2(a) was specifically referred to. g. The SSHD also noted that the Claimant could not provide evidence that up-to-date contact details of the employees had been maintained and retained. The Claimant’s pre-action protocol response was to the effect that a folder with these details had been produced to the Defendant and employees had been told to update the employer. However, the SSHD considered that there was no evidence that these details were retained or kept updated. Paragraphs (a) and (b) of Annex C2 were both referred to. h. The SSHD also relied on the ground that the Claimant had not produced proper evidence of a formal and full recruitment process of the employees in question. In this regard she quoted in detail the account provided by the Claimant of the recruitment process. This reflected the witness statements of NC. MC and JR in this regard.

39. It is accepted that in relation to this last aspect of the reconsideration letter the SSHD did fall into error. She quoted the following section of the PAP letter: “ Both of my employees, Mr. Naveen and Mr. Manoj, were recruited after conducting proper in-person interviews. I do not have evidence of these interviews, as they were not conducted via video calls. Had the interviews been virtual, I would have retained screenshots, as I did for the two candidates recruited from outside the UK to work in my shop. However, since these were in-person interviews, I only have the signed employment contracts, which were provided to the officers on 9 May 2024, as requested.” It is clear that the Claimant was here stating that NC and MC had undergone face-to-face interviews.

40. However, the SSHD went onto say “ Within the representations there is a contradicting statement, that your client conducted proper in-person interviews, however, then goes on to state that interviews were conducted via video call. It states that your client does not have interview records but would have retained screenshots. These screenshots have not been provided. It also states that they have only retained employment contacts for Mr. Naveen and Mr. Manoj which is not evidence of their recruitment practices. You have failed to provide any written evidence regarding recruitment for both sponsored workers and have failed to provide any evidence of their suitability for the roles. You have failed to provide any evidence of adverts for the roles in which your client’s sponsored workers are employed in. No additional documentation has been provided within the representations relating to the recruitment of your client’s sponsored worker. Therefore, this issue has not been addressed and we maintain the decision to revoke your sponsor licence.” The Claimant’s grounds and the position at the time of the hearing

41. The Claimant sought initially to challenge this decision of the SSHD of 12 November on 8 grounds. Permission to apply for judicial review was granted by Hugo Keith KC, sitting as a Deputy High Court Judge, in relation to 6 of those grounds. The Claimant in their skeleton argument seeks now to advance 5 of those grounds, and seeks permission to apply to pursue one of the grounds for which permission had earlier been refused. Finally, the Claimant seeks to add and advance an additional ground. In response, on behalf of the Defendant, I am invited to consider the detailed written response to the Claimant’s original 8 grounds, in addition to her skeleton argument. I have also had the considerable advantage of written and oral submissions from both Zane Malik KC on behalf of the Claimant and Matthew Howarth on behalf of the Defendant.

42. In summary, both parties agree that the critical issue to be determined is issue 1, reflecting grounds 1 and 3, namely whether the SSHD’s decision that the roles of NC and/or MC were not genuine vacancies, within the meaning in the Guidance, was irrational, inadequately reasoned or unfair. The Claimant accepts that if I reject their grounds in this regard, this will dispose of their challenge to the SSHD’s reconsideration letter in its entirety. This, as I understand it, is subject to their new additional ground, namely whether errors made by the SSHD in other respects were material so as to render her decision flawed or irrational. The Defendant submits that if I accept the Claimant’s grounds in relation to either issue 1 or this new ground, she relies on section 31 (2A), Senior Courts Act 1981 , to justify the withholding of relief.

43. Whilst issue 1 is agreed to be central, I have read and heard detailed and cogent submissions in relation to those other grounds, and it is only right that I address them, not only because they have a direct potential relevance to the application of section 31 (2A) of the 1981 Act , but because their cumulative effect may be to render the SSHD’s decision irrational, unfair or inadequately reasoned even if I reject the Claimant’s primary position as to issue 1 by reference to the Claimant’s new additional ground. The law as to procedural fairness

44. In Bank Mellat v HM Treasury (No.2) [2013] UKSC 39 , at paragraph 179, Lord Neuberger of Abbotsbury PSC said “ In my view, the rule is that, before a statutory power is exercised, any person who foreseeably would be significantly detrimentally affected by the exercise should be given the opportunity to make representations in advance, unless (i) the statutory provisions concerned expressly or impliedly provide otherwise or (ii) the circumstances in which the power is to be exercised would render it impossible, impractical or pointless to afford such an opportunity ."

45. These principles were applied to immigration cases in Balajigari . At paragraphs 42-43, the Court of Appeal addressed the question of how the SSHD should proceed in a case involving an apparent dishonest discrepancy: " …A discrepancy between the earnings declared to HMRC and to the Home Office may justifiably give rise to a suspicion that it is the result of dishonesty but it does not by itself justify a conclusion to that effect. What it does is to call for an explanation. If an explanation once sought is not forthcoming, or is unconvincing, it may at that point be legitimate for the Secretary of State to infer dishonesty; but even in that case the position is not that there is a legal burden on the applicant to disprove dishonesty. The Secretary of State must simply decide, considering the discrepancy in the light of the explanation (or lack of it), whether he is satisfied that the applicant has been dishonest. ….we consider … that the concept of standard of proof is not inappropriate in the present context. This is because what is being asserted by the Secretary of State is that an applicant for ILR has been dishonest. That is a serious allegation, carrying with it serious consequences. Accordingly, … the Secretary of State must be satisfied that dishonesty has occurred, the standard of proof being the balance of probabilities but bearing in mind the serious nature of the allegation and the serious consequences which follow from such a finding of dishonesty. "

46. At paragraph 55, this Court stated: " we have come to the conclusion that where the Secretary of State is minded to refuse ILR on the basis of paragraph 322(5) on the basis of the applicant's dishonesty, or other reprehensible conduct, he is required as a matter of procedural fairness to indicate clearly to the applicant that he has that suspicion; to give the applicant an opportunity to respond, both as regards the conduct itself and as regards any other reasons relied on as regards "undesirability" and the exercise of the second-stage assessment; and then to take that response into account before drawing the conclusion that there has been such conduct."

47. That approach was followed by the Court of Appeal in relation to the Guidance now in issue in Prestwick (at paragraph 132): “ Adapting the principles in paragraphs 42-43 and 55 of Balajigari to the compliance investigation process, a discrepancy between the job description on a worker’s CoS and the role she is actually performing may justifiably give rise to a suspicion that the sponsor has deliberately (i.e. dishonestly) exaggerated her role in order to facilitate her stay in this country, but it does not by itself justify a conclusion to that effect. It may call for an explanation and, if not satisfied by that explanation, it may be legitimate for the SSHD to infer dishonesty and revoke the licence on that basis.”

48. In Balajigari , having cited the passage from Bank Mellat quoted above, the Court continued (at paragraph 60): " This leads to the proposition that, unless the circumstances of a particular case make this impracticable, the ability to make representations only after a decision has been taken will usually be insufficient to satisfy the demands of common law procedural fairness. The rationale for this proposition lies in the underlying reasons for having procedural fairness in the first place. It is conducive to better decision-making because it ensures that the decision-maker is fully informed at a point when a decision is still at a formative stage. It also shows respect for the individual whose interests are affected, who will know that they have had the opportunity to influence a decision before it is made. Another rationale is no doubt that, if a decision has already been made, human nature being what it is, the decision-maker may unconsciously and in good faith tend to be defensive over the decision to which he or she has previously come. "

49. Again, applying that approach, in Prestwick , the Court of Appeal said that “four particular requirements” were placed on an investigator where dishonesty was alleged. These were (at paragraphs 133-136): “First, as this Court stated in Balajigari , dishonesty “is a serious allegation carrying with it serious consequences”. It is for the SSHD to establish, on a balance of probabilities, that the sponsor acted dishonestly. There is no burden on the sponsor to prove that it did not. Secondly, where the SSHD has a suspicion that a sponsor has acted dishonestly, she must indicate clearly to the sponsor that she has that suspicion so that the sponsor has a fair opportunity to respond. Thirdly, having received the sponsor’s representations in response, the SSHD must consider all the circumstances before drawing the inference that the explanation for the discrepancy between the job description in the CoS and role actually being performed by the worker is that the sponsor has deliberately exaggerated her role in order to facilitate her stay in this country. If the SSHD has clearly indicated her suspicions in the suspension letter, the sponsor may put forward alternative explanations which the SSHD must consider with other relevant matters. Fourth, if the SSHD draws the inference of dishonesty, she must set out her reasons in the revocation letter. There is no need for the reasons to be lengthy or legalistic. But a sponsor whose licence is being revoked because the SSHD has concluded it has acted dishonestly is entitled to know the reasons for that decision, notwithstanding that the decision is taken on her behalf by relatively junior staff.

50. As was made clear, therefore, what is required to secure procedural fairness in the present context are the following: (a) It should be made clear to the sponsor if the SSHD believes their conduct to be dishonest or to involve deliberate wrongdoing; (b) The Sponsor should be afforded the opportunity to respond, and to address that belief; (c) The SSHD must consider that response before coming to a decision; (d) The SSHD should be satisfied on the balance of probabilities that there has been dishonesty or deliberate wrongdoing before reaching a decision to that effect. The law as to adequacy of reasons for a decision

51. In South Bucks District Council v Porter (No.2) [2004] UKHL 33 , Lord Brown of Eaton-under-Heywood, having reviewed the relevant case law, summarised the law as follows (at paragraph 36): “ The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.” Issue 1: Genuine Vacancy (a) The Claimant’s submissions

52. As advanced in the Claimant’s skeleton argument, and in oral submissions on the Claimant’s behalf, it is asserted that paragraph C1(z) of Annex C1 necessarily involves an allegation of dishonesty or deliberate misconduct. That being the case, before the SSHD could reach any conclusion to that effect, fairness required that she identify that suspicion clearly so that the Claimant had the opportunity to respond to it. Her failure to do so undermines her ultimate decision to that effect, rendering it procedurally unfair. The Claimant further submits that the reasons that she provided for that conclusion were inadequate.

53. The Claimant submits that the wording of the Guidance is clear, that a decision to revoke pursuant to annex C1(z) involves a determination of dishonesty or deliberate wrongdoing because it refers to a vacancy being “not genuine ”, “ a sham ”, to there being deliberate exaggeration, and to the role having been “created mainly so the worker can apply for entry clearance or permission to stay.” Mr Malik KC also points to the fact that another basis for revocation, at C1(s), addresses a mismatch between the CoS and the role performed, and submits that it must be dishonesty that differentiates paragraphs (s) and (z) of the Annex. He also relies on the fact that in Prestwick (at paragraph 137), the Court of Appeal treated reliance on paragraph C1(z) as an allegation of dishonesty.

54. Against that background, Mr Malik KC submits that the SSHD failed to make that allegation clearly and expressly. He points to the fact that in none of the letters sent to the Claimant is it stated in terms that the SSHD believed the mismatch of the CoS description to the actual roles of NC and MC to be deliberate and dishonest. He points to the failure of the SSHD to replicate the wording of the Guidance when she asserts that “ the role has been created in order to facilitate Mr Chandrasekaran’s leave to remain in the UK ”, rather than asserting that it had “ mainly ” been done for this reason, as paragraph C1(z) says.

55. Mr Malik KC analysed the reconsideration letter, which he submitted was difficult to follow, and did not engage with the evidence that had been provided with the PAP letter on the Claimant’s behalf. Indeed, he submits by reference to paragraph 21 of the reconsideration letter, which said “ We therefore remain dissatisfied that your client has demonstrated that Mr Chandrasekaran is performing the duties specified on his respective CoS” , the SSHD was not just ignoring the evidence that had been provided, but was reversing the burden of proof, requiring the Claimant to prove these were genuine vacancies, rather than articulating cogent reasons for a conclusion to the contrary .

56. He developed the submissions in the Claimant’s Summary of Grounds, in relation to grounds 1 and 3 as follows: (a) In relation to NC, he had it had ben explained by JR’s statement that the SMS portal had a limited word count for specifying job duties which prevented the Claimant from specifying all the duties applicable to NC. (b) The assertion that the answers given by NC as to his duties did not align with the CoS relating to him was perverse. The employee could not be expected to have rehearsed their CoS duties in response to enquiries and insufficient regard was given to NC’s later statement in which he listed his duties in more detail. In this regard, it was asserted that the Defendant failed to accept that a supervisor might carry out more menial tasks as necessary. (c) The SSHD said (at paragraph 18 of the reconsideration letter) “ Mr Chandrasekaran should only be undertaking duties as outlined on his CoS, by working in someone else’s role leads us to question how often he is required to cover for other staff in lower skilled roles, rather than other shop floor staff covering the role. If he is covering these roles regularly raises concerns as to whether his job as retail manager is genuine”. It was perverse, and betrayed a proper understanding of how small business operated, to suggest that employees could never operate outside or around their written duties. (d) The wording of C1.44 defines a genuine vacancy as one which does not include ‘ dissimilar and / or predominately lower skilled duties’ . This suggested that a job may encompass some lower skilled duties within the scheme. Moreover, in this regard, the concerns expressed in the letter of 12 November 2024, questioning how often NC was required to cover for other staff, were ‘ speculative and unfounded’ and based on the observation at only one visit. (e) In the same way, there was no real discrepancy between the CoS duties and what MC described on the compliance visit. It was permissible for there to be some lower skilled aspects to a skilled worker’s role, especially when covering for others. (f) The Defendant had failed to have regard to the fact that the interview was undertaken on a busy day and the Defendant has failed to give sufficient weight to MC’s later statement detailing his role. (b) The Defendant’s submissions

57. On behalf of the Defendant, Mr Howarth submits that the reconsideration letter of 12 November cannot be viewed in isolation. It followed the suspension letter in August and the revocation letter in October. All three letters did not just point to the mismatch of the role described in the CoS and performed by the worker in question, but set out the belief that the role had been exaggerated to facilitate that worker’s entry to the UK. In contrast to cases such as Prestwick (for example at paragraph 137), it followed that an allegation of dishonesty or deliberate wrongdoing had not been averred for the first time after the decision had been taken, or that the sponsor had not been given the opportunity to respond to it. Mr Howarth pointed to the fact that it was the failure to afford a proper opportunity to respond to an allegation of dishonesty before the decision was reached that had been the Court’s concern in Balajigari (at paragraph 126), and New Hope Care Home (at paragraph 12). That is not the case here.

58. It was clear from the combination of the repeated references to paragraph C1(z) of the Annex, and the belief that the role had been exaggerated to facilitate entry, that the SSHD believed there to be dishonesty or deliberate wrongdoing, and the response in the PAP letter showed this to have been understood by the Claimant. The terms of the reconsideration letter, which included a “reconsideration” section in relation to each area in which representations had been made, demonstrated that the SSHD had considered all that had been provided by the Claimant before reconfirming the decision to revoke. Whilst there was no specific reference to the witness statements, the SSHD quoted representations made on behalf of the Claimant which were themselves founded on those statements, and she made clear at the outset of her letter that she had considered those representations.

59. In Mr Howarth’s skeleton argument, he developed the Defendant’s submission that these grounds are not made out for the following further reasons: (a) The SSHD’s decision had been rational, fair and evidentially based. There was a clear divergence between the “high-level managerial duties” set out in the CoS descriptions and what NC and MC accepted in their statements they had told the investigator on 2 May 2024 as to their roles. (b) The Claimant’s explanations for the discrepancy between the CoS and NC’s account did not withstand scrutiny. If there was a word limit on the system, as was contended, the most prominent responsibilities should have been set out. (c) The additional evidence provided by the Claimant was unpersuasive. In his witness statement NC did not refer to the WhatsApp messages relied on by the Claimant as coming from these two employees demonstrating a greater level of responsibility in their work. It was not Defendant’s position that an employee could never operate outside their contract, but NC should have been able to provide evidence of his undertaking of the main duties set out in the CoS. (d) There were, similarly, substantial differences between the listed details in the CoS and the list of duties stated by MC at the compliance visit. The fact that the visit took place on a busy day and that the Claimant was a small business was irrelevant. The duties referred to in MC’s witness statement appeared to have been cut and pasted from the CoS. No real evidence to the effect that MC performed the duties as listed in the CoS had been provided by the Claimant. (e) Moreover, Mr Howarth relies on the observations of Andrew Thomas QC, sitting as a Deputy High Court Judge in Liral Veget Trading (at paragraph 56) that “ it was not unlawful for the Defendant to require a licensed sponsor to produce evidence to demonstrate that it had complied with its duties. That is not unfairly reversing the burden of proof. It is simply the proper application of the Guidance. The system cannot operate without the diligent cooperation of the sponsors .” (c) Analysis of Issue 1

60. There is no issue as to the relevant law. The Claimant accepts that the Defendant is the primary decision maker as to the true nature of the employees’ roles, and as to whether there was a genuine vacancy for the purposes of the Guidance. This Court’s role is limited to one of review. In this regard, the principles were helpfully restated by Andrew Thomas QC, sitting as a Deputy High Court Judge in Liral Veget Trading , at paragraph 39. Those of particular relevance here are the following: “(3) The sponsor must maintain its own records with assiduity…. …(7) The primary judgment about the appropriate response to breaches by licence holders is that of the Secretary of State. The role of the Court is simply supervisory. The Secretary of State is entitled to maintain a fairly high index of suspicion and a 'light trigger' in deciding when and with what level of firmness he should act. (8) The courts should respect the experience and expertise of UKBA when reaching conclusions as to a sponsor's compliance with the Guidance, which is vitally necessary to ensure that there is effective immigration control.”

61. As a starting point for the assessment of this ground, on the material available to her, it was open to the SSHD to conclude that there was a material mismatch between the roles described by NC and MC, and the descriptions of their roles in the CoS. As her reconsideration letter set out, the job description on the CoS in each case described high-level managerial duties, involving the managing, training and supervision of others. In contrast, neither NC nor MC, in what they accepted in their statements they had said to the investigator, made any reference to any such aspect of their roles. She was entitled to apply “a fairly high index of suspicion” in such circumstances.

62. As was further observed in Liral Veget Trading (at paragraph 46): “ As a holder of a Sponsor Licence, the Claimant was required to be scrupulously accurate in the information to be provided in the COS submissions. There was no room for artistic licence whether in the attribution of job titles or otherwise. It is no answer for the Claimant to point to individual pieces of higher-level work when the COS submissions had failed to give an accurate impression overall of the role.”

63. Whilst Mr Malik KC is critical of the SSHD’s letter for not spelling out the discrepancies between the CoS and the duties and responsibilities described by NC or MC, in my view it is clear that the SSHD considered, and on the material before her, it was open to her to consider, that there was no real correlation between that description and the CoS. For example, NC did not recount any role in organising the operation of the shop, or supervising the actions of others. His monitoring of stock was limited to checking stock levels rather than measuring stock against budget as the CoS suggested, and his dealing with customer complaints relating to his work on the till. Similarly, MC did not refer to any role in managing or training staff, or planning promotional campaigns, and his role in restocking the shop was a hands-on one. It was open to the SSHD to consider that only with the application of considerable artistic licence could the job descriptions on the one hand and the descriptions of the jobs on the other be reconciled in any realistic respect.

64. As was explained by Baker LJ in the Prestwick , at paragraph 132, the fact of a mismatch by itself does not necessarily justify a conclusion to the effect that there has been deliberate exaggeration. As the Court went on to make clear at paragraph 137, the SSHD must “ indicate the basis on which the SSHD drew the inference ” that there had been deliberate exaggeration of the role. In the reconsideration letter, under the heading of “reconsideration”, reasons for the conclusion were provided in each case, which I have summarised already. As was recognised in Prestwick at paragraph 136 “ there is no need for the reasons to be lengthy or legalistic”. In contrast to the position in Prestwick (at paragraph 137), the SSHD did here set out her concern not only that there was not a genuine vacancy, but also that the role had been deliberately exaggerated to facilitate the employee’s entry to the country. The mismatch here, in extent and context, was of the kind that the SSHD was entitled to find to be deliberate.

65. In Prestwick , the need for clear reasons was made the more necessary because (as was observed at paragraph 138), the difference in the SCL case, which was one of those conjoined in that appeal, was between the role of skilled care worker and care worker, in circumstances in which each role could form the basis for a CoS. Here, in contrast the difference was between a skilled managerial position and an unskilled shopfloor role which lacked any significant cross-over with a role that could form the basis for a CoS. The degree of detail of reasoning necessary here was therefore not the same as was rightly identified as being necessary in the SCL case.

66. It was open to the SSHD to consider that the material provided on behalf of the Claimant did not provide evidence beyond assertion that replicated the CoS as to the roles of these workers. Neither NC nor MC gave any example of their performance of the higher skilled aspects of their roles. No documentation was provided on behalf of the Claimant to illustrate such examples. The Guidance imposed a clear obligation on the Sponsor to keep documentation relating to their employees, including evidence as to their roles and their performance of those roles. The SSHD was entitled to expect a sponsor to have such material, and to produce it where, as here, the correct identification of the roles of these employees were under examination. This did not involve a reversal of the burden of proof. Rather, it reflected the high degree of trust placed in sponsors by the Guidance, and their important responsibilities thereunder.

67. It was also open to the SSHD to consider that the lack of detail as to the roles either from NC or MC, or through documentation from their employer, was not the result of a lack of time in interview, a lack of space on the SMS, or because their respective roles encompassed skilled and unskilled components. Similarly, the SSHD noted that if NC was covering a shift for another, then " covering these roles regularly raises concerns as to whether his job as retail manager is genuine ". This was a rational assessment. It is, in my judgement, significant that the SSHD did address each of these issues, and the other representation advanced and material provided by the Claimant with the PAP letter. That which was provided, in terms of Whatsapp messages and photographs, was expressly considered by the SSHD, although neither was addressed by NC or MC in their statements. This shows that, as required in Prestwick (at paragraph 135), the SSHD had considered “ all the circumstances ”, and “ alternative explanations ” that had been advanced.

68. In this regard, Mr Malik KC is correct in his submission that the SSHD does not refer in terms to the witness statements of NC MC or JR. This is regrettable, as such express reference would have made immediately clear that she had considered them, especially where she alludes to a lack of evidence of a matter addressed in those statements. However, at the outset of the reconsideration letter, the SSHD did state “ we have considered the representations received with the PAP letter ”, and she went on to quote those representations at a number of points under the heading of “reconsideration”. Those representations in each case replicated the relevant parts of those witness statements, and their purport was then addressed by the SSHD.

69. On a proper reading of the 12 November letter, in my view, it is clear that the SSHD had considered those witness statements, but was seeking substantiation of the points there made, by reference to the records which the Sponsor was required to maintain in compliance with the Guidance. As Mr Howarth correctly submitted, this Court observed in Singhar Beauty Clinic Ltd v Secretary of State for the Home Department [2016] EWHC 2703, (at paragraph 85) witness statements that are " completely unsubstantiated by supporting documents " are insufficient to demonstrate compliance with sponsor duties. The SSHD was entitled, by reference to the duties of a sponsor under the Guidance, to look for more. The SSHD therefore did take account of all relevant matters and addressed these in a reasoned and rational way.

70. Ultimately, in relation to this issue, the question is whether the SSHD acted with procedural fairness by reference to the test set out in Balajigari (at paragraphs 42-43 and 55), and developed in the context of this Guidance in Prestwick (from paragraph 133). In other words, did she make clear to the Claimant that she believed there to have been dishonesty or deliberate wrongdoing, and afford the Claimant the opportunity to address that belief before she reached her ultimate decision in November 2024?

71. In my judgement, she did. As Mr Howarth correctly submitted, there were here successive steps in the chain of causation. In the suspension letter in August 2024, the SSHD said “ We therefore believe that the role of Retail Manager does not constitute a genuine vacancy within your business, and that the role has been created in order to facilitate Mr Chandrasekaran’s leave to remain in the UK.” She repeated the same wording in relation to MC and his role as shopkeeper. She repeated this wording in the revocation letter in October 2024. Moreover, in that letter she said in terms that she was proceeding by reference to paragraph C1(z). Taking those together, it was entirely clear to the Claimant before representations were made with the PAP letter that deliberate wrongdoing was alleged, namely that the role as described in the CoS had been created to facilitate NC and MC’s entry to the country. The omission of the word “mainly” suggested that the SSHD’s conclusion that this was the sole, rather than the main reason.

72. Mr Malik KC submitted that the inclusion of reference to, and the terms of, paragraph C1(z) in the letter was insufficient to meet the requirement in Prestwick (at paragraph 134) that “ she has that suspicion so that the sponsor has a fair opportunity to respond ”. He points to the fact that in one of the cases addressed by the Court of Appeal in that case, SCL, reference to paragraph C1(z) had been made, but that this was considered insufficient (see paragraph 137). However, the real concern in that case, as was made clear at paragraph 137, was that the SSHD had not made clear that she suspected that the sponsor had deliberately exaggerated the role to facilitate entry. Here, the SSHD had done so.

73. In other words, the suspicions of the SSHD were expressed, and the Claimant was afforded the opportunity between the revocation letter of October and the reconsideration letter of November to address those suspicions before a final decision was taken. As the Court of Appeal in Prestwick further observed (at paragraph 114): “… in the context of the overall scheme established in the Guidance, with which all licence holders were expected to be fully familiar, it should have been plain to the company that the request for representations was their opportunity to put forward all relevant arguments against the revocation of the licence.” The reference to paragraph C1(z), in conjunction with the description of the SSHD’s concerns, provided a clear steer to the Claimant as to what was required to meet those concerns.

74. It follows that by reference to the approach set out in Prestwick , the serious allegation being made by the SSHD that these were not genuine vacancies but had been created to facilitate entry of the employees to whom the CoS related was made clear. The Claimant was given, and took, the opportunity to respond. The SSHD did address that response and set out her reasons for upholding her decision to revoke. I am satisfied that this was a reasoned and rational decision reached with procedural fairness. It follows that I reject the Claimant’s grounds 1 and 3, and resolve issue 1 in favour of the Defendant.

75. The parties accept that such a conclusion is sufficient to allow the dismissal of the Claimant’s application. However, it is nevertheless appropriate to consider the other grounds advanced, on which I have heard argument. It is also necessary to consider, if I was wrong in relation to issue 1, whether it would have been appropriate in any event to withhold relief pursuant to section 31 (2A). Issue 2: SMS Reporting (a) The parties’ submissions

76. The Claimant’s second issue (and ground 4) is to the effect that the SSHD had reached an irrational conclusion in relation to the Claimant’s failure to report AJ not taking up the employment under the CoS in relation to him.

77. The Claimant had, in JR’s witness statement, set out why he had not reported this, namely that JR had thought there was no need to do so as the Defendant itself had already advised the Claimant that the application for leave to remain by AJ was invalid. Against that background, given that there was no basis to conclude that the failure was deliberate, it is submitted that to treat the Claimant’s failure to report the change in circumstances of AJ as sufficient to require revocation was perverse.

78. The defendant submits that it was not irrational to maintain the revocation of the licence due to failure to report AJ’s position. Ignorance of the law on the Claimant’s part was no excuse. There was a positive requirement, pursuant to C1.11 of the Guidance, to “… report certain changes that affect your sponsored workers ….”. This is supplemented by C1.13, to which the Claimant had to give effect. It states: "You must report the following changes to a sponsored worker's circumstances by no later than 10 working days after the relevant change or event has occurred... a sponsored worker does not start the role for which you are sponsoring them within 28 days".

79. There was nothing irrational or perverse in the Defendant’s conclusions in respect of this breach, which is properly not to be viewed singly, but in conjunction with other failures by the Claimant which collectively satisfied Annex C2, paragraphs (a) and (b). (b) Analysis

80. On the face of the evidence, there was no dispute but that the Claimant was required, pursuant to paragraph C1.13 of the Guidance, to report the change in AJ’s circumstances and did not do so. The only issue is whether it was irrational for the SSHD to consider this a ground for revocation. In this regard, again the helpful summary of the principles restated in Liral Veget Trading , at paragraph 39, assists. Those of particular relevance here are the following: “(1) The essence of the system is that the Secretary of State imposes a high degree of trust in sponsors in implementing and policing immigration policy in respect of migrants to whom it grants a Certificate of Sponsorship. (2) The authority to grant a Certificate is a privilege which carries great responsibility: the sponsor is expected to carry out its responsibilities with the same the rigour and vigilance as the immigration control authorities.”

81. It follows from this that the SSHD is entitled to take failures of compliance with the Guidance seriously. On the face of the Reconsideration letter, she considered the Claimant’s explanation, based on JR’s misunderstanding, and rejected it. This was not an irrational conclusion given that, as was for example recognised in Prestwick (at paragraph 114) “ all licence holders ” are “ expected to be fully familiar ” with “ the overall scheme established in the Guidance ”. This was neither perverse nor irrational.

82. As Mr Malik KC correctly pointed out, this ground for revocation was advanced pursuant to paragraph C2(a), and therefore was one in relation to which there was a greater discretion as to whether it should lead to revocation. Had it been the only ground for revocation, it could properly have been argued that revocation was disproportionate. However, it is not necessary to consider that because I do not read the reconsideration letter as reaching a conclusion to the effect that revocation was required for this ground alone. Rather, it was to be judged in combination with other matters which she also addressed, and to which the Claimant’s further grounds refer. I do not consider this aspect of the SSHD’s decision to be either irrational or disproportionate when viewed in that context. I therefore reject this ground for the Claimant’s application. Issue 3: The provision of documents (a) The parties’ submissions

83. Issue 3, reflecting the Claimant’s Ground 5, asserts that the SSHD had reached an irrational conclusion under paragraph C1.34 of the Guidance in relation to the failure to report work descriptions of MC and NC by 20 May 24. That paragraph of the Guidance states: “You must give us, when asked, any documents relating to your sponsored workers or the running of your organisation that we consider relevant to assessing your compliance with your duties as a sponsor. We might, for example, ask for details of your recruitment practices so that we can make sure that a resident labour market test, where this is a requirement, was carried out correctly. If you fail to provide the documents when asked or within the timeframe we specify, we will take action against you.”

84. It is submitted that the request for the job descriptions, which was made by email of 13 May 2024, was couched in optional terms. The relevant part of the email stated: “ if you have job descriptions for the roles, please can you send them as well ”. Mr Malik KC submits that this email did not give rise to a mandatory obligation to provide job descriptions, and included no identification of consequences for a failure to comply.

85. The Claimant further submits: (a) The Claimant had already provided contracts of employment, and a form of job description when he applied for the sponsor licence in the first place (which was translated into the terms of the CoS); (b) JR in his witness statement made clear that he did not have such job descriptions, and he could not provide what he did not have; (c) The Claimant had co-operated with provision of information throughout, and the Defendant could have exercised her discretion not to revoke in such circumstances.

86. The Defendant accepts that the wording of the email of 13 May was ambiguous. She submits that this was not a material part of the reasoning in the reconsideration letter, given that the discrepancy between the CoS and actual roles of NC and MC was sufficient in itself to justify the conclusion. In his skeleton, Mr Howarth goes further and submits that the failure to have such relevant documents for those being sponsored was a breach of the Guidance, and that it was clear from both a request at the time of the 2 May visit, and from the pre-reconsideration correspondence that there was an obligation to provide the job descriptions. I note that there is an evidential dispute as to what was requested on 2 May, which it is neither practical nor necessary for me to resolve. (b) Analysis

87. In my view, the correct approach to this ground is that originally advanced on behalf of the Defendant in her grounds of defence. This was not a material aspect of the decision to revoke, which could be and was reached on other grounds. Any misconstruction of the correspondence by the SSHD in relation to this request does not undermine other aspects of her decision-making process, or render that wider approach either irrational or unfair. I do not accept this ground as a basis to interfere with that decision. Issue 4: Pension scheme (a) The Parties’ submissions

88. The Claimant’s fourth issue, reflecting their ground 6, is the submission that the SSHD had reached an irrational conclusion in relation to the question of the sponsored employees and the Claimant’s pension scheme. In her reconsideration decision, as in her earlier correspondence, the SSHD relied on the failure of the Claimant to provide evidence that these employees had opted out of the pension scheme as a breach of Annex C2, paragraph (b). The Claimant submits that the conclusion reached by the SSHD that there was no evidence that the employees had opted out of a pension was incorrect as JR, a director of the Claimant, had provided a witness statement in this regard. It was therefore an irrational conclusion.

89. The Defendant submits that JR’s explanation, which is not substantiated by any documentary evidence, does not justify the assertion that the SSHD had acted irrationally in this regard. Moreover, this Court observed in Singhar Beauty Clinic Ltd ( at paragraph 85) witness statements that are " completely unsubstantiated by supporting documents " are insufficient to demonstrate compliance with sponsor duties.

90. This was, the Defendant submits, more than a simple request for paperwork. Under Para.C1.9 of the Guidance, the Sponsor is required to comply with UK law. Compliance, as an aspect of that requirement, with the Pensions Act 2008 requires the sponsor to enrol eligible works in their pension scheme unless they opt out in the requisite fashion. Here, the representation made by the Claimant, supported by JR’s statement, was to the effect “ My sponsored workers were receiving pension and they have only recently chose to opt out of pension (sic)”. It is submitted that it was reasonable for the SSHD to expect a sponsor to have documentary evidence of both the enrolment and the opt out. JR’s statement asserted that he did not have any such documentation called into question his compliance both with UK law and his duty under the Guidance to maintain scrupulous records. The statement did not explain why there was a lack of such obviously necessary documentation. (b) Analysis

91. In my judgement, for reasons she advances, the SSHD is correct in her analysis of the position in this regard, and her decision in this respect was neither irrational nor contrary to evidence. Rather, it proceeded on a reasonable interpretation of the Guidance to the evidence, including that provided by the Claimant. In any event, this ground is part of a wider assessment of the Sponsor’s compliance with their duties under the Guidance, which would normally permit the revocation of a licence, pursuant to Annex C2, paragraphs (a) and/or (b). It is, again, therefore appropriate to consider the cumulative effect of the failures identified, rather than to ask whether one in isolation warranted revocation. Again, I do not accept this ground as a basis to interfere with that decision. Issue 5: Mistake of fact (a) The Claimant’s submissions

92. The Claimant seeks to renew permission to argue their ground 7, which asserts that the SSHD made a material mistake of fact in relation to record keeping by the Claimant relating to recruitment. The underlying facts for this assertion are as follows: (c) The SSHD in her reconsidered decision quoted from the representations made on behalf of the Claimant: “ Both of my employees, Mr. Naveen and Mr. Manoj, were recruited after conducting proper in-person interviews. I do not have evidence of these interviews, as they were not conducted via video calls. Had the interviews been virtual, I would have retained screenshots, as I did for the two candidates recruited from outside the UK to work in my shop. However, since these were in-person interviews, I only have the signed employment contracts, which were provided to the officers on 9 May 2024, as requested .” (d) In response to this, the SSHD held: “ Within the representations there is a contradicting statement, that your client conducted proper in-person interviews, however, then goes on to state that interviews were conducted via video call. It states that your client does not have interview records but would have retained screenshots. These screenshots have not been provided .”

93. Mr Malik KC submits that JR had made it clear that neither NC nor MC had been interviewed by video. It follows that the criticism that screenshots of the video interviews had not been provided was based on a factual error. He further submits that the Claimant had provided information as to the recruitment process in the case of each employee because it was set out in their witness statements. The SSHD did not refer to those statements.

94. It is submitted that this was a material mistake as to fact. Mr Malik KC relies on the observation of Sir Stanley Burton in ML (Nigeria) v SSHD [2013] EWCA Civ 844 (at paragraph 16), “ I consider it clear that a material error of fact in a determination of a tribunal will constitute an error of law. A material error of fact is an error as to a fact which is material to the conclusion. If there is any doubt as to whether or not the incorrect fact in question was material to the conclusion, that doubt is to be resolved in favour of the individual who complains of the error …” Mr Malik KC submits that this was such a material mistake of fact because it both misread and ignored evidence from JR to find a failure of compliance by the Claimant with their duties as a sponsor.

95. He further submits that this decision of the Court of Appeal was not drawn to the attention of Hugo Keith KC, sitting as a Deputy High Court Judge, when he refused permission, and that had he been referred to it, he would have recognised there to be an arguable case that this ground merited consideration. (b) The Defendant’s submissions

96. Hugo Keith KC, when he refused permission on this ground did so on the basis that “ the mistake, if any, could not of itself have vitiated the overarching decisions ”. It follows that permission was refused not because of a failure to appreciate that a material mistake could not represent an error of law, but on the assessment that this was not a material error. The Defendant adopts the same position. Mr Howarth accepts that the SSHD misinterpreted JR’s statement to the effect that he did not carry out a video interview. However, he submits that this was not material to her conclusion with respect to lack of evidence of a proper recruitment process of the skilled employees as required.

97. In that regard, he relies on the observations of Andrew Thomas KC in Liral Veget Training (at paragraph 50(ii) that a sponsor is required to retain proper recruitment evidence and demonstrate the “true nature of the employees’ work”. (c) Analysis

98. In my view, the submissions advanced by the Defendant, and the appropriate reliance of the Claimant on ML do illustrate that Mr Malik KC is correct to assert that this is a ground that is properly arguable. I therefore grant permission.

99. However, that fuller argument before me equally demonstrate that as to the substance the Defendant’s submissions are correct. This was not a material error of fact that can be elevated to an error of law in the SSHD’s decision making process. It was, rather, another facet of the analysis that was properly open to her of the performance by this sponsor of their duties under the Guidance. The issue in the narrow compass was not whether JR video interviewed NC or MC, but whether JR had proper records of their recruitment. The issue in the wider compass was whether the Claimant had complied with the important duties as to record keeping, proper procedure and employment processes. The Claimant’s own evidence was open to the interpretation that it had not. It follows that this ground is not made out.

100. In relation to the Claimant’s new additional ground that the cumulative effect of the errors they identified in the SSHD’s reasoning render her decision flawed and irrational, for the reasons set out in relation to each of those contended errors above, I do not consider that they separately or together render the decision irrational or erroneous. Section 31 (2A), Senior Courts Act 1981

101. The Defendant submits that in the event that I acceded to the Claimant’s primary submission, issue 1, and concluded that the decision to identify the roles of NC and MC as other than genuine vacancies was flawed, or, alternatively, if I concluded that the SSHD’s decision could not stand by reference to any of the other grounds relied on by the Claimant, then I should withhold relief pursuant to section 31 (2A) of the 1981 Act . In short, the Defendant submits that the SSHD would have been entitled to revoke the sponsor licence, even if Annex C1(z) was not made out, because of the terms of Annex C1(s) and/or C2(a)-(b) of the Guidance.

102. Section 31 (2A) states: “The High Court— (a) must refuse to grant relief on an application for judicial review, and (b) may not make an award under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”

103. It is clear that the Defendant bears the burden of proof to establish that, in the event that the decision reached by the SSHD was flawed, it is nevertheless highly likely that the same outcome would have resulted, as was made clear in TTT v Michaela Community Schools Trust [2024] EWHC 843 (at paragraph 269).

104. The Defendant submits, and the Claimant accepts, that the correct approach to section 31 (2A) was that set out in R (Bradbury) v Brecon Beacons National Park Authority [2025] 4 W.L.R. 58 489 (at paragraph 71 ): “In relation to section 31 (2A), the court is concerned with evaluating the significance of the error on the decision-making process. It is considering the decision that the public body has reached, and assessing the impact of the error on that decision in order to ascertain if it is highly likely that the outcome (the decision) would not have been substantially different even if the decision-maker had not made that error. It is not for the court to try and predict what the public authority might have done if it had not made the error. If the court cannot tell how the decision-maker would have approached matters, or what decision it would have reached, if it had not made the error in question, the requirements of section 31 (2A) are unlikely to be satisfied.”

105. The parties are agreed that section 31 (2A) will not be available to the SSHD if there had here been procedural unfairness. They each rely in the following: (a) In New Hope Care Home , David Pievsky KC, sitting as a Deputy High Court Judge, set out his approach to section 31 (2A) at paragraphs 110-113, and as to why he rejected the SSHDF’s contention that any procedural unfairness did not render the revocation decision unlawful. He said: “First, the starting point is necessarily that I have concluded that there was a fundamental departure from the standards required by the common law, and clear (and unjustified) departures from the Defendant's own commitments as to what a fair and appropriate process would look like, in a case such as this one. Secondly , it has repeatedly been recognised that it is difficult, and often impossible, to uphold a Defendant's s.31 (2A) argument where there has been a decision-making process which is not in accordance with the law: see e.g. R (Cava Bien) v Milton Keynes Council [2021] EWHC (Admin) per Kate Grange KC, sitting as a Deputy Judge, at §52(x); and R (ASLEF) v Secretary of State for Business [2023] ICR 1405 per Linden J at §§194-5. That must be a fortiori the position when considering an immateriality argument at common law, since the acceptance of such an argument requires the Court to be even more confident about what the outcome would (" inevitably " or " necessarily ") have been: c.f. Cava Bien at §52(ii) and R (Plan B Earth) v Transport Secretary [2020] EWCA Civ 214 [2020] PTSR at §267 (both referring to the older case of Simplex GE (Holdings) Ltd v Secretary of State for the Environment (Court of Appeal, 6 May 1988) [2017] PTSR 1041 , per Purchas LJ at p.1060E-F. Thirdly , in this case, one of the matters that could have been addressed by the Claimant, had the Defendant acted consistently with its own policy, was specifically about " mitigating arguments… [which the licence holder believes] exist ": see Guidance at C9.11. That illuminates that whether or not the Claimant was guilty of breaching the guidance, and if so which aspects of it, was only one of two central issues that needed to be determined. The other was, in effect, whether revocation of a licence would be a justified and proportionate sanction for the breach, bearing in mind any relevant mitigation. Mr Irwin accepts Mr Malik KC's contention (rightly in my view) that even a policy stating that certain conduct " will " lead to revocation carries with it the residual possibility of an exception being made. Fourthly , I agree with the Defendant's submissions that the concerns raised by the Defendant were numerous, wide-ranging, and serious; and I accept that on the present state of the evidence, revocation is a serious possibility . But that is a long way from being satisfied that revocation is " highly likely " which is a "high hurdle" (see Cava Bien , cited above, at §52(ii)). (b) In R (TJ Trading Express Ltd) v SSHD [2025] EWHC 1274 (Admit), Hill J approved the New Hope approach from paragraphs 90-95. Mr Malik KC points to the fact that Hill J observed (at paragraph 94) that in considering whether the SSHD would have been entitled to revoke under another paragraph of Annex C1, the fact that this was a “ serious possibility ” was “ a long way from being satisfied that revocation is “Highly likely” which is a “high hurdle ”, and (paragraph 95) there was no evidence from the SSHD as to how she might have exercised her discretion in that regard. (c) In Prestwick , a similar approach was adopted by the Court of Appeal (at paragraph 139): “ I conclude that the process by which the SSHD decided that the mandatory ground for revocation in paragraph C1.46 and Annex c1(z) was established was flawed and unfair. It is correct that the SSHD also concluded that SCL was in breach of the further mandatory ground in paragraph C1.44 and annex C1(s). But the unfair procedure leading to the decision as to dishonesty vitiated the overall revocation decision. Although the SSHD raised s.31 (2A) of the Senior Courts Act in its grounds of appeal, it was not suggested in argument before the judge that relief should be declined under that provision.”

106. The Defendant submits that the difference between this case and those just cited is that here the successive steps through the correspondence put the Claimant on notice that the SSHD believed they had deliberately created the role to facilitate and the SSHD afforded the Claimant the opportunity to address that belief before it was finally acted upon. In this case, as in those cited above, there was a failure by the SSHD explicitly to assert her belief in dishonesty. However, for reasons already addressed, I have concluded that the SSHD did give notice to the Claimant that she believed the roles in issue to have been created to facilitate the entry of NC and MC to the country. It follows that before the reconsideration decision was reached, the Claimed had been afforded the opportunity to make representations as to deliberate misconduct, and they had done so. It follows that when the process is viewed as a whole it was not procedurally unfair in the way that the process was found to have been in those case cited above.

107. Accordingly, I am entitled to consider, even if the SSHD’s approach to Annex C1(z) was flawed in some respects, for example a failure to assert dishonesty in clear terms or to address explicitly the witness statements provided by the Claimant, whether it is highly likely that the outcome would have been the same regardless of those flaws.

108. Mr Malik KC submits that the “outcome” in question here is a finding of dishonesty against the Claimant. I do not agree. Such a finding is one of the circumstances that requires the SSHD to revoke a licence. However, it is the revocation that it the outcome, not the finding that a particular circumstance arises. That is clear, in my view, from the wording of paragraph C10.4 of the Guidance, and the approach to a residual discretion even where wording is mandatory in New Hope Care (at paragraph 112). Moreover, although Mr Malik argues that the outcome differs where there has been a finding of dishonesty because it may be more difficult for a sponsor to obtain a licence again where such a finding has been made, the wording of the Guidance is clear, at paragraph 10.16, that in all cases of revocation there is a cooling off period before a sponsor may seek a further licence. The outcome, therefore, remains the same.

109. In Bradbury , it is important to note, the Court of Appeal made clear (at paragraph 74) “ the section emphatically does not require the court to embark on an exercise where the error is left out of account and the court tries to predict what the public body would have done if the error had not been made. Approaching section 31 (2A) in that way would run the risk of the court forming a view on the merits and deciding if it thinks the public body would reach that view if it had not made the error. Rather, the focus should be on the impact of the error on the decision making process that the decision maker undertook to ascertain whether it is highly likely that the decision that the public body took would not have been substantially different if the error had not occurred.”

110. It is important that I guard against second guessing an alternative decision but look to the actual process, and the actual reasoning of the SSHD. In considering, as the Defendant invites me to, the alternative route to revocation pursuant to Annex C1(s), it is right to note that in the reconsideration letter there is there no mention of C1(s). In this, as Mr Malik KC points out, this case differs from Prestwick where the SSHD did refer to Annex C1(s) as an alternative to C1(z). Mr Malik further observes that in that case (at paragraph 139), such reference did not permit reliance on section 31 (2A) in the face of procedural unfairness. Annex C1(s) requires revocation of a licence where the role “ does not match ” the CoS.

111. It is necessary therefore to consider the approach in the reconsideration letter to that question. In dealing with NC, the SSHD stated explicitly (at paragraph 8-11) that there were “several discrepancies” between the actual role performed and that described in the CoS, and that he was performing an unskilled role instead of that described in the CoS. Her conclusion, having considered the Claimant’s representations (at paragraph 21) was “ We therefore remain dissatisfied that your client has demonstrated that Mr Chandrasekaran is performing the duties specified on his respective CoS”. Her assessment was the same in relation to MC (at paragraphs 25-28), and her conclusion (at paragraph 36), in the same terms. The SSHD did, therefore, make clear her consideration of the facts necessary for a conclusion under Annex C1(s), albeit she did not refer to that paragraph in terms.

112. Mr Malik KC submits, correctly, in my view, that Annex C1(s) does not require deliberate misconduct in the way that C1(z) does, and that it would be possible for a sponsor to have inadvertently failed to ensure that the role being performed did not match the job description in the CoS. In such circumstances, he submits, the SSHD would be entitled to exercise her discretion not to revoke, by reference to the residual discretion under Annex C1 identified in New Hope Care (at paragraph 112). He points in this regard to the alternatives to revocation addressed at paragraph C9.15 of the Guidance. However, it is right to note that paragraph C1(s) does fall within the list of circumstance where “ we will revoke your licence ”, and that the SSHD here concluded that the mismatch between the actual role and the job description was deliberate rather than inadvertent, because she says the role had been created to facilitate entry to the UK. The SSHD has demonstrated that it was highly likely here on her stated determinations of fact that revocation would have followed from the mismatch that she found, and that paragraph C1(s) would have permitted such revocation.

113. If I were wrong as to that, it would be necessary to consider the SSHD’s further reasons, which addressed the application of Annex C2(a) and (b). This involves consideration of her findings as to failures by the Claimant to comply with their duties as a sponsor in relation to the reporting of the position re AJ (issue 3), and in relation to having written job descriptions, written evidence of pension scheme operation and opt out, and staff recruitment (issues 3-5). Annex C2(a) and/or (b) would “normally” lead to revocation. The Defendant submits that I can therefore conclude it to be highly likely that the outcome would have been the same regardless of such procedural defects as I find there to have been.

114. The Claimant submits that this is an invitation for me to second guess the SSHD’s decision, putting myself in place of decision maker. Here, the reconsideration letter does make clear that the SSHD found that the Claimant had failed in their duties as a sponsor in those various respects. However, as Mr Malik KC correctly points out, at paragraph C10.5 of the Guidance, it is indicated that “ Annex C2 … sets put the circumstances in which we will normally revoke your licence, unless there are exceptional circumstances ”. Annex C2 “ lists the circumstances in which we will normally revoke your sponsor licence. We may downgrade or suspend your licence first while we consider the matter… ”. It follows that the finding of circumstances falling within Annex C2 would not necessarily have led to a decision to revoke, and might lead to a downgrading of the licence instead. That is acknowledged by the SSHD in her reconsideration letter at paragraph 89: “ the guidance for sponsors makes it clear that sponsorship is a privilege, not a right and that alternative action such as downgrading a licence is appropriate if circumstances limited to those listed in Annex C2 or Annex C3 arise .”

115. It follows that if I were considering the application of section 31 (2A) to a decision reached by reference to Annex C2, I would not , on the balance of probabilities, be able to conclude it to be highly likely that the decision that the SSHD took would not have been substantially different if the error had not occurred. However, as is clear from my conclusions above, I do not find the SSHD’s decision here to have been irrational, unfair or unsupported by evidence. Moreover, to the extent that any procedural flaw undermined such a conclusion, section 31 (2A) would entitle me to refuse relief by reference to Annex C1(s). Conclusion

116. Accordingly, I grant the Claimant permission to argue their ground 7, but I refuse the Claimant’s application on all of their grounds to quash the SSHD’s decision.