Legal unreasonableness, materiality, and the alternative 'procedural fairness lens' through which these cases can (theoretically) be seen.

The UKSC's recent decision in R (Pathan) v Secretary of State for the Home Department [2020] UKSC 41 is an interesting read with particular resonance for #auslaw #admin, #migration and public lawyers.

Interestingly, the decision raises Li-style legal unreasonableness, materiality, and the alternative 'procedural fairness lens' through which these cases can (theoretically) be seen. It's a fascinating contrast in approach.

In short, a Tier 2 (General) Migrant visa applicant's sponsoring company had their sponsorship revoked whilst the visa application was on foot. Like in Aus, possession of a valid certificate of sponsorship is a mandatory requirement for such a visa.

The Supreme Court unanimously held that the Secretary denied the Applicant procedural fairness by failing to promptly to notify the Applicant of the revocation of his sponsor’s licence.

However, the Court split 3:2 over whether the refusal to grant the Applicant 'extra time' to find an alternative sponsor after was irrational or unfair.

Answering "no", Lord Kerr and Lady Black held that such an obligation is outside the duties of procedural fairness, with Lord Briggs adding - in a materiality-esque argument - that this would be futile, and designed to protect a 'collateral advantage' (his migration status).

Conversely, Lady Arden and Lord Wilson disagree, suggesting that the duty is nevertheless one of procedural unfairness, and that whilst the possibility of finding an alternative sponsor may be small, it is still existent.

https://www.supremecourt.uk/cases/docs/uksc-2018-0194-judgment.pdf

By Aaron Moss @Aaron_M_Moss1