Can a Tier 2 (General) appeal succeed on human rights grounds, where the appellant has suffered a potential breach of employment contract?
By shanthi-law, Apr 21 2014 09:49AM
1. Appellant entered the United Kingdom on a Tier 4 (General) visa to pursue a Masters degree which she successfully complete, and obtained a two year work visa under the now discontinued Tier 1(Post-study Work) Scheme. During the course of the latter, she became accredited as teacher in the UK and was eventually offered (and accepted) a permanent contract with a Secondary School in the public sector. A term of the contract was that the school would issue the appellant a Certificate of Sponsorship to enable her to continue her employment beyond the currency of her Tier 1 (Post-Study Work) visa.
2. As the deadline to renew approached, it was discovered that school's Tier 2 Sponsors Licence (which they had presumably held since being passported onto the Register of Tier 2 Sponsors when the Points Based System was launched) had run its four year period of validity and expired. An application for renewal was hurriedly submitted and ( while the renewal application was pending consideration and, on the advice of predecessor to UK Visas and Immigration, 'UKVI') the Appellant submitted her application for Tier 2 (General) visa with a covering letter asking for it to be put on hold until the outcome of her Sponsoring employer's license renewal - the clear gamble being:
i) tier 2 (General) application will be refused, if the licence renewal is refused; or,
ii) if renewal was granted, the employer would be given an opportunity to issue the Appellant the required Certificate of Sponsorship (CoS) and forward it to UKVI to process her visa.
3. Unfortunately, the Tier 2 (General) application was refused by UKVI citing failure to issue the appellant her CoS. When these questions were put to the employer, they appeared to suggest their ignorance or unfamiliarity with the UKVI's Sponsor Management System and (despite there being no scope for triggering asponsor-led review of a decision short of appealing when a right of appeal is available) maintained they would make haste to put an emergency CoS in place. This assurance was taken on good faith but, at the same time, an in-time appeal was pursued to the First-tier Tribunal (Immigration and Asylum Chamber) (FTT).
4. Between lodgement of appeal and listing of date of hearing before FTT no progress on issuing CoS was made and the appellant's employer's offer to do so also lost credibility, particularly when said employer had postponed decision to issue CoS until after the date of hearing before FTT - a period of four to five months from filing the appeal. Pausing there: had the CoS been issued any time sooner, it would have fallen foul of section 19 of the UK Borders Act 2007 which restricts the appellant from submitting post-decision evidence and the appellant would not have succeeded in her appeal under the Immigration Rules. The appeal hinged its bets completely under Article 8 of the the European Convention of Human Rights 1950 and interrelated concepts such as 'common law principle of fairness' etc.
5.Returning to the facts: things took an unexpected turn when the Respondent's Bundle (usually released 14 days or seven days before the FTT Hearing, or -in this case-, earlier still) revealed a series of emails exchanged between the appellant's would-be Tier 2 (General) Sponsor and the relevant department of UKVI, initiated by the latter:
a) enquiring about the status of the CoS following renewal of the Sponsor's Tier 2 (General) Licence for a further four years;
b) followed by an email from the Sponsor to UKVI seeking guidance on how to issue a CoS (i.e. precise procedure involved);
c) UKVI directing the Sponsor to the UKVI's own Sponsor Management System helpful step-by-step manuals;
d) followed by an email yet again from UKVI to the Sponsor seeking an update after a gap of no response at all; and,
e) a simple, curt email from the Sponsor to UKVI stating that they will not be proceeding to issue a CoS as the appellant-employee will be leaving their employment shortly.
6. By this time, the appellant was still employed by the Sponsor and, while a capability process had been initiated by the Sponsor, the process was at its early stages and to suggest that appellant's employment had ceased and/or would end shortly was premature in the extreme, disingenuous and unlawful.
7. The appellant's appeal was pleaded on this ground and permission was sought to obtain witness summonses against the key protagonists involved from the Sponsor's side to compel attendance at the hearing to give evidence, be questioned and/or cross-examined about the circumstances underlying the events (absent their agreement to attend, which was declined by their lawyers) under paragraph 2.1(8) of the Senior President's 'Practice Statements: Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal' dated 10 February 2010. Unfortunately, the applications were turned down on the basis that the FTT had received enough material (personnel file of the appellant, minutes of meetings, full and frank disclosure of emails with the school - including those cited as attracting 'without prejudice' : see: South Shropshire District Council v Amos  1 WLR 1271, CA and Schering Corpn v Cipla Ltd (2004) Times, 2 December (LADDIE J)) to determine the appeal.
8. Although the appeal had to fail under the Immigration Rules owing to the lack of a CoS, the FTT Judge (in a thorough analysis) concluded the facts outlined were 'exceptional' enough to allow the appeal on human rights grounds to enable the appellant to seek redress from her Sponsor via the Employment Tribunal where they (the Sponsor) appeared to have a prima facie case to answer.
9. This decision does not attract the weight of precedence, however, it is nevertheless a reminder that Article 8's 'public interest' provision can be successfully pleaded to allow an appellant (like the appellant in this appeal) to seek remedy through the courts where there has been a genuine legal wrong committed against them.