Successful judicial review of home office decision concerning a skilled tier 2 migrant worker
The High Court recently allowed an application for judicial review, brought by Worthingtons Solicitors on behalf of a Russian software engineer, against a decision by the UK Home Office to dramatically reduce the length of his permission to stay in the UK: Talalaev’s [Constantine Sergeivich] Application [2013] NIQB 119
On the particular facts of this case, the Applicant, Mr Talalaev, a skilled tier 2 migrant worker, who had spent the last seven years living lawfully in Northern Ireland, furthering his education and contributing his expertise to the UK high tech industry here, had been granted a visa to stay in the UK as a skilled worker. However, following a dispute with his previous employer, the applicant was dismissed from his job and subsequently informed by the UK Home Office that a decision had been made to dramatically reduce the duration of his permission to stay in the UK. No warning was given to the applicant that such draconian action was being considered by the Home Office.
The Applicant was informed by the Home Office that he had 60 days to leave the country, unless he could make some sort of new application to stay in the UK. The Applicant was offered no opportunity to appeal this decision (he had no right of appeal under the part of the Immigration Rules which the decision had been made under) and when he advised the Home Office that he had in fact been offered another job, but was waiting for his new employer to obtain the licence (from the Home Office) that they needed to employ him, he was informed by the Home Office that the decision made was correct and could not be changed. This is despite the fact that it was accepted that the Applicant’s skills and experience were needed within the UK economy.
As he had no right of appeal against the decision reached by the Home Office, the Applicant had no option but to retain Worthingtons Solicitors to seek a judicial review of the Home Office’s decision in the High Court.
Giving Judgment, Mr Justice Treacy ruled that while Rule 323A of the Immigration Rules is intended to ensure that those who are no longer employed by their sponsor have their permission to stay in the UK reduced, the rule should not be so rigidly applied that the Home Office do not allow for exceptions, such as those exceptional circumstances in this case where the Applicant had secured a new job and was in the process of re-applying for tier 2 worker status with the new employer as his new sponsor.
The Judge went on to state that a UK Home Office decision maker must review the exercise of their discretion on a case by case basis, and questioned whether the exercise of discretion could be effectual when the person affected by the decision, is not first invited to make any representations about the facts relating to their case. On this basis, the application for judicial review was allowed and Judgment was given in favour of the Applicant.
This decision should afford some additional protection to those skilled migrant workers who find themselves in similar situations, but in some cases it may be that the only effective remedy is to initiate judicial review proceedings.
If you have been affected by a decision by the UK Home Office from which there is no right of appeal, it is important to seek the right legal advice fast. A judicial review must be always be sought promptly unless there is good reason for any delay, and legal aid funding is available if you qualify financially. Please contact Brian Moss for advice in these matters.
