Court of Appeal considers jurisdiction to re-open appeal in relation to the points based system following Supreme Court judgment in Pathan v SSHD

The Court of Appeal has handed down judgment in Khan v Secretary of State for the Home Department [2021] EWCA Civ 1655, refusing to re-open an appeal following the Supreme Court overturning the Court of Appeal judgment in Pathan v SSHD [2020] UKSC 41. By application dated 6 August 2015, Ms Khan sought Tier 2 leave to remain (leave as a worker). The application was made whilst she was an overstayer but she benefited from the grace period given by the Secretary of State to applications made shortly after leave expires (the grace period being 28 days at the time). This meant the application was not refused solely because she was an overstayer. On 5 May 2016, her sponsor’s licence was suspended due to concerns around the company’s suitability to be a sponsor. Following an investigation, the licence was revoked on 3 June 2016. As Ms Khan no longer had a valid Certificate of Sponsorship, her application for leave was refused on 6 June 2016. In the Upper Tribunal, UTJ Canavan had found the process by which Ms Khan’s application was refused was fair. She referred to the Court of Appeal judgment in Pathan and Islam [2018] EWCA Civ 2103. Ms Khan appealed the Upper Tribunal judgment to the Court of Appeal. By order dated 6 July 2021, McCombe LJ refused permission. Subsequent to this, the Supreme Court handed down judgment in Pathan, finding that the Secretary of State had unlawfully failed to give prompt notification to Mr Pathan of the revocation of his sponsor’s licence. In his case, there was a three month period before his application for leave was refused, during which time he could have attempted to take action such as finding another sponsor. In Ms Khan’s case, there was only a three day period between the revocation of her sponsor’s licence and refusal of her application. As such, she did not argue there was a duty to notify in relation to the revocation, but a duty to notify in relation to the suspension. The Court of Appeal has limited jurisdiction to re-open an appeal. The requirements in r52.30 are, in summary, (1) it is necessary to avoid real injustice, (2) the circumstances are exceptional and (3) there is no alternative effective remedy. For example in R (Goring-on-Thames Parish Council) v South Oxfordshire DC [2018] EWCA Civ 860, the Court stated the requirements “will be engaged only where some obvious and egregious error has occurred in the underlying proceedings and that an error has vitiated - or corrupted - the very process itself”. The Court did not consider r52.30 was met (paragraphs 31-40). The reasoning, in summary, was as follows:

• There was, on the facts of the case, no critical undermining of the litigation process. The permission decision from McCombe LJ dealt with the grounds of appeal and reached a conclusion.
• The legal and factual situation in Pathan is different to the present case. Pathan did not suggest that procedural fairness may require notification of the suspension of a sponsor’s licence; and did not grant permission to appeal to Mr Islam, who was an overstayer (unlike Mr Pathan).
• There is no real injustice. There is no realistic prospect that she would have been able to obtain a new employer able to act as a sponsor between the suspension and her application being refused.
• The fact Ms Khan was liable for the costs of the judicial review did not amount to an exceptional circumstance.

This case clarifies the scope of the Pathan judgment, which will be of relevance where fairness issues arise in Tier 2 cases. It also has wider relevance to the jurisdiction of the Court of Appeal in re-opening appeals. Leon Glenister appeared for the Secretary of State.