Latest decision of the Court of Appeal regarding extension of Tier 2 visas

The Court of Appeal In the case of Pathan & Anor v Secretary of State for the Home Department [2018] EWCA 2103, confirmed that applications for leave to remain in the UK on the basis of Tier 2 visa can be refused if the sponsor’s licence is revoked, even while the application is pending.

In the above-mentioned case, applicants applied for the extension of their Tier 2 work visas from the UK. As a part of the application, they had to provide a valid Sponsorship Certificate issued by their employer, who was granted a Sponsor Licence. The rules state that, if for any reason the company’s licence has been revoked, the Sponsorship Certificate will be automatically declared invalid. Before sending documents to the Home office, both applicants received valid Sponsorship Certificates. While their applications were pending consideration, both employers’ Tier 2 licences were revoked, and consequently, the applicant’s visas were refused due to the invalid Sponsorship Certificates. Prior to the Home Office refusal, the applicants were not notified about the licence revocation and were not given any time to legalize their stay in the UK or search for a new sponsor (employer).

The Court of Appeal did not find any violations in the actions of the Home Office for the following reasons:

- There is no requirement for Home Office to provide extra time to the Tier 2 applicant to search for a new sponsor;

- Applicants were aware of the rules and requirements prior to making the application, including the possibility of refusal if they fail to provide a valid Sponsorship Certificate;

- To prevent staying in the UK illegally and getting an entry ban for future travel, applicants could voluntarily leave the country and if required could apply for new Tier 2 visas from the country of their citizenship;

- The decision to provide the person extra time to stay (usually up to 60 days) can be made if the employer's licence has been revoked while the applicant still has a valid Tier 2 visa in other words applicant’s leave to remain was curtailed. The Home Office distinguishes rights of the applicants with valid visa and those, whose visas have been expired and had to be extended.

This decision once again reminds that the purpose of the Tier 2 category is to fill a certain vacancy, where the local labour market could not find the suitable candidate among residents in the UK. If this vacancy becomes unavailable for any reasons, the applicant has no grounds to continue residing in the country. In fact, Tier 2 visa does not provide an opportunity to come to Great Britain to work or search for a job, but only the opportunity to fill a certain vacancy.