Challenging Sponsor Licence Decisions - Responding to Rejection, Refusal, Suspension and Revocation

Rejection or refusal of a sponsor licence application (Pre-licence)

Following a rejection or a refusal of a sponsor licence application, the first step would be to understand the type of decision. This is because the options and remedies will differ significantly.

Rejection of a sponsor licence application

A sponsor licence application could be ‘rejected’ where it is deemed as invalid. Examples of an invalid application could be:

•        An incorrect application fee was paid, e.g., paid the small business fee of £574 when in fact, the correct fee payable should have been £1579 (medium or large business)
•        Failed to submit mandatory documents or within the required 5 working days deadline from submitting the application
•        Application made by an unauthorised person; or failure to appoint a Level 1 user

A rejection simply means that the application submitted was not procedurally compliant; therefore, if the application was rejected as invalid, a fresh application can be submitted straight away without a 6-month cooling off period. The Home Office will also in most circumstances refund the application fee for the rejected application.

As there is no right of appeal or review for rejected sponsor licence applications, the only option is to re-submit a fresh application with a new fee payable.

Refusal of a sponsor licence application

If the refusal of the sponsor licence application was due to either a caseworker error, or supporting evidence not being considered correctly by UKVI, then it is possible to request for the error be corrected by submitting a pre-licence error correction form, and if appropriate, submit a new sponsor licence application.

However, the company could be subject to a 6-month ‘cooling off’ period before a new application can be submitted if the refusal was as a result of any of the following:

• Submission of false documents or acted in bad faith
• The Home Office do not believe that the company has the processes to comply with sponsor duties
• The Authorising Officer (AO) has a relevant unspent criminal conviction
• The AO is legally banned from becoming a company director
• Failed to meet the criteria to be a sponsor under the category which you applied

Furthermore, if the refusal occurred due to a previous civil penalty, the company should not reapply until at least for 12 months from the date the civil penalty is paid in full. In some cases, the company may need to wait five years.

Challenge by Judicial Review

Unfortunately, as there is no right of appeal or request for an administrative review following the refusal of a sponsor licence application, the decision (if not due to a Home Office casework error as mentioned above) can only be challenged by submitting a judicial review application to the High Court. You would need to establish that the Home Office acted unlawfully, irrational or procedurally unfairly in its decision-making; all difficult things to prove.

To start proceedings you must in most cases send a pre-action letter, in line with the court’s protocols for judicial review. The pre-action protocol letter (commonly, PAP) is an opportunity to set out your case, and can result in the Home Office reversing its decision, so it is worth focusing on the content of this letter. You should usually give the Home Office at least 14 days to respond. If the Home Office responds maintaining the decision, or does not respond within 14 days, you can then issue judicial review proceedings. The judicial review application must be made as soon as possible, but in any event within 3 months from the date of the decision to refuse the application – not the date you receive a response to pre-action correspondence.  

Revocation of a sponsor licence

If the Home Office decide to revoke a company’s sponsor licence, they will set out their reasons in a letter. Published guidance does allow them to revoke the licence without first suspending.

Following the revocation, the Home Office will also take steps to curtail the visas of sponsored workers to 60 days, but this can take several months. There are certain situations where workers’ visas can be cancelled immediately, for example, if the workers are complicit in any wrongdoing, for example they agreed that the sponsor would arrange a non-existent job for them to come to the UK. It is important to note that sponsored workers are permitted to work for the company until their permission is curtailed.

Once their licence is revoked, the sponsor will be removed from the register of sponsors, and they will not be eligible to apply again for a sponsor licence for at least 12 months.

Similar to refusal of a sponsor licence application, there is no right of appeal or review following a revocation; therefore, the only remedy will be judicial review.

A judicial review application will succeed where public law grounds for challenge are accepted by the Administrative Court; this could be where, for example:

• Revocation is not in accordance with published policy
• The decision was taken in a procedurally unfair way

It must be noted that judicial review proceedings can be costly for a business; and if the claim is unsuccessful, the company most likely will be ordered to pay towards the Home Office’s legal costs. However if it is successful, it is likely that the Home Office will be ordered to pay towards the Claimant’s costs.

Reported judicial review decisions from the court tell us that challenging Home Office decisions this way is difficult. The courts have confirmed that the Secretary of State – the Home Secretary – is entitled to adopt a light-trigger approach to licensing, and to suspend or revoke where a sponsor is failing to meet its duties and responsibilities. We have seen success with challenges based on procedural unfairness, but even with these, the Home Office can simply re-make a decision – this time following correct procedures - to revoke if it considers there are grounds to do so.