Mr Tammina came to the UK in 2008. From 2014, he was employed by Ratna Marble and Granites, who sponsored his work visa. In October 2017, the Home Office suspended the employer's visa sponsorship licence. In late December 2017, the Home Office permanently revoked their licence. Mr Tammina was therefore no longer eligible to work in the UK on the basis of the Ratna sponsorship.
However, Mr Tammina complained that at no point was he told about the revocation of Ratna's sponsorship power. Relying on the Supreme Court's decision in Pathan, he argued that this state of affairs was procedurally unfair and that the subsequent refusal of his visa was vitiated by public law error. The Upper Tribunal rejected his case for three reasons in Tammina v Secretary of State for the Home Department [2025] EWCA Civ 24 (20 January 2025) the Court of Appeal endorsed two of those reasons and refused Mr Tammina's appeal.
Distinguishing Pathan
In Pathan, the majority of the Supreme Court held that Mr Pathan had been treated in a procedurally unfair way when the licence of his visa sponsor (in that case, a company called Submania Ltd) was terminated without this being communicated to him. As a result, he was unable to make any real representations when challenging his subsequent removal from the UK. The parallels between Mr Pathan's case and Mr Tammina's case are obvious. Why, then, did the Upper Tribunal (and the Court of Appeal) dismiss Mr Tammina's judicial review, when it allowed Mr Pathan's case to succeed?
Upper Tribunal Judge Blundell, and Lord Justice Snowden in the Court of Appeal, found that there were (at least) two important features distinguishing Pathan from Tammina. The first, and most important, difference was that "Mr. Tammina was aware from an early stage that there were difficulties with Ratna's sponsor's licence". [37] He knew, for example, that the propriety of Ratna's sponsorship had been investigated, and suspended temporarily, pending a full decision carrying the possibility of permanent revocation: [37]. He had also lodged (separate) judicial review proceedings against his original removal order, which had been settled via Consent Order. That Order had itself made implicit, if not explicit, reference to a future decision regarding possible suspension of the licence: [38]. The result, as the Court of Appeal put it, was that "Mr. Tammina must have been aware for a number of months in late 2017 that the status of the [sponsorship] from Ratna upon which his application depended was in doubt": [39].
Another reason for dismissing Mr Tammina's case from Mr Pathan's was that in the latter's case "the reason that a failure to give prompt notification of revocation of his sponsor's licence was procedurally unfair to Mr. Pathan was because it deprived him of the opportunity to take steps to mitigate or avoid the consequences that such revocation would inevitably have for his application." ([43]). By contrast, Mr Tammina had an opportunity to "take steps to mitigate or avoid the consequences [of] such revocation". As noted above, he had knowledge that the revocation decision was incoming. He knew that he would have a number of weeks to secure his own position. The decision to revoke the licence could not be said to have come as a surprise to him. If he failed to make alternative arrangements regarding his visa, that was a risk he took of his own account.
A third reason was offered by the Upper Tribunal. Because Mr Tammina was not only involved in the decision to suspend the licence in the first place, but was, in effect, part of the reason for that suspension (his kind of employment being unlawful), UT Judge Blundell argued that he should therefore be stripped of any benefit arising from procedural unfairness – he was not blindsided by the decision to revoke the licence but "complicit" in it. The Court of Appeal did not endorse this ground. Mr Tammina's involvement in the process would surely mean that he could not be surprised at the revocation decision (see reasons one and two, above) but the Court balked at the language of "complicity", warning that "such a finding should not be made without it being clear what is actually being said. If an allegation of conscious wrongdoing is being made, then it should be made explicitly, and the applicant should be given a fair opportunity to deal with it." [54]
Comment
Beyond the interesting facts, there are three further points to note about this case.
The first is that the distinction between Mr Tammina's case and Mr Pathan's case is based on reading in an inference into the Pathan Supreme Court judgment. The fact that Mr Pathan had no prior knowledge or involvement in the suspension and revocation of his sponsor's licence was not addressed in Pathan. Indeed, as the Court of Appeal notes, "there is no clear statement to this effect in any of the judgments"; the Court was left, instead to "put… the pieces together" to arrive at the conclusion that "Mr Pathan was not aware that his sponsor's licence had even been suspended, still less revoked" himself: [40]. The point had to be "deduced" ex post facto: [42]. Whilst this is a perfectly reasonable inference to make, it should be underscored that it remains just that – an inference.
The second point is that the pains the Court went to when distinguishing Pathan shows that procedural fairness, and especially the right to notice, is a severely context-dependent exercise. We cannot extract general points from Pathan about exactly when and where a right to notice will be required; instead, the courts must conduct, at times, an intensely fact-sensitive examination, in an attempt to chalk out a very thin line distinguishing when the right to notice will, and will not, render a decision procedurally unfair.
A final point is that despite being impressed – on the whole, barring the "complicity" remarks – with the judgment of UT Judge Blundell, the Court reminded itself that the question of whether a decision is tainted by procedural unfairness is a question of law which gives a binary answer – the role of the appellate judge is therefore to determine whether the tribunal judge was right or wrong (rather than, say, whether he came to tenable or reasonable conclusion): "Whether the procedure that has been followed by an administrative authority was fair or unfair is a hard-edged question of law, and the question for an appellate court is simply whether the decision of the tribunal in this respect was right or wrong": [27]. This is obviously correct.