Process, Substance and Remedy: R (Pathan) v Secretary of State for the Home Department,  UKSC 41
After an enjoyable summer break, it is time to get through the blogging backlog (the “bloglog”?) and a good place to start is the interesting decision of the UK Supreme Court in R (Pathan) v Secretary of State for the Home Department,  UKSC 41, which prompts reflection on the content of procedural fairness, the divide between procedure and substance and remedies in administrative law matters.
Pathan was an immigrant to the United Kingdom. He owed his application status to his employer, a food company based in Southern England. This company held a licence to sponsor applicants such as Pathan. Pathan applied to renew his immigration status, with the company as his sponsor. Unbeknownst to Pathan, the company’s licence was revoked by the Home Secretary. The result was that his application was rejected for want of a sponsor. With the rejection of the application (and, indeed, the revocation of the company’s licence), Pathan’s immigration status lapsed and he became liable to removal from the United Kingdom.
The first point to consider is the procedural fairness of the revocation process as applied to Pathan. The majority held that even though the applicant could make no relevant submissions about the revocation of certification — as this was a matter as between the Home Secretary and the company — his case could be “regarded as akin to the conventional procedural fairness situation of an applicant being allowed to make further submissions with a view to improving the chances of his application succeeding” (at para. 103, per Lord Kerr and Lady Black). Accordingly, he was entitled to “prompt notification” from the Home Secretary that the certification was to be revoked (at para. 201, per Lord Wilson). Had he been notified, he would have had a “real and distinct advantage” in terms of ordering his affairs (at para. 105). Even if his application sponsored by this particular company was doomed to fail, notice would have nonetheless allowed him to attempt to make alternative arrangements: ” he might have had different opportunities to find an acceptable sponsor which would have enabled him to put in an application on that basis before his original application was determined against him in light of the withdrawal of Submania’s licence” (at para. 133, per Lord Kerr and Lady Black). As Lord Kerr and Lady Black put it (at para. 139):
It can be argued that the making of submissions on the decision to be taken is integral to the decision-making process, whereas the opportunity to avoid the effect of an adverse outcome by taking a course not directly connected to that process is not. But why should this make a difference to the characterisation of the duty? Again, the notion of what is fair holds the key. If there is a duty to allow representations to be made for the purpose of bringing about a result favourable to the representor, why should it not also be fair to allow the affected person to have the chance by a different means to secure that outcome? In both cases the duty to act fairly involves allowing the opportunity to influence the result.
The majority was cognisant of the importance of the individual interests at stake, noting the “major disruption” to Pathan’s life and that of his family (at para. 126). It was a decision which had, in Lady Arden’s words, a “profound influence on the life of the applicant” (at para. 69). According a right to notice, in these circumstances, can be seen to be broadly consistent with the dignitarian underpinnings of the contemporary law of procedural fairness.
That said, Pathan represents something of an extension of the scope of procedural fairness. Ordinarily, the right to notice protects an individual’s dignity interests (by allowing them to participate in a decision which will affect their future) and enhances the accuracy of the final decision (by ensuring that relevant information held by the individual is put before the decision-maker). Here, however, the decision which was to affect Pathan’s future had, really, nothing to do with Pathan, who was a collateral victim of the company’s failings, such that he could not participate in the revocation process at all. Moreover, Pathan had nothing relevant to say about the certification decision. In sum, the mere fact that a decision had adverse consequences for Pathan’s interests — entirely independently of his ability to participate in the decision-making process — was enough to trigger the right to notice. One can imagine scenarios far removed from the instant case where Pathan would suggest that individuals have a right to notice.
But Pathan was not really interested simply in receiving notice. What he needed was an extension of his immigration status to allow him to find a new sponsor. Hence the importance of distinguishing between procedure and substance. The particular problem for Pathan was that his immigration status in the United Kingdom was tied to the company which sponsored him. When the company’s status as a sponsor fell away, Pathan’s immigration status fell away with it. As such, as Lady Arden explained in her partial dissent, the right to notice “is largely pointless” if Pathan had “no meaningful opportunity to take steps in light of the information” if the Home Secretary “is able to reject his application the very next day” (at para. 72). Lady Arden resisted the conclusion that Pathan’s claim was for a substantive benefit rather than a procedural right. Lord Briggs aimed a powerful counterpunch at her analysis:
Time before determination to enable an applicant facing a refusal to prepare for an orderly departure from the UK (Mr Pathan’s third alternative) is in my view clearly substantive. It can have no effect on the outcome of his application and is not sought to give him time to take a procedural step in the process. It is just a way of getting a longer time as a lawful migrant than provided by the Rules, before becoming an overstayer. It is like an occupier of a home seeking the adjournment of a possession application to which he has no defence, in order to give him more time to move out than permitted by the court’s limited jurisdiction to postpone enforcement of a possession order once made. It is, at best, substance dressed up as procedure (at para. 178).
But this punch missed the mark. Any procedural fairness claim will have the obtention of a substantive benefit, of one sort or another, as its ultimate goal. This does not transform a procedural claim into a substantive claim. Lord Kerr and Lady Black explained that the “cornerstone” here was procedural fairness (at para. 132), with “timely notification” affording Pathan an opportunity to order his affairs (at para. 133). However, anything beyond this would require a substantive challenge to the legality or rationality of the immigration status regime:
That is not to say that the Secretary of State should be fixed with a positive duty to provide Mr Pathan with that opportunity, much less that he should have allocated a specific period (not already available under the Rules/legislation) within which it might be exploited. The duty to act fairly in these circumstances involves a duty not to deprive, not an obligation to create. It appears to us that requiring of the Secretary of State that he or she should supply a period of time for someone such as Mr Pathan during which to deal with the decision would be to impose a positive duty, and, importantly, a duty that would involve an extra extension of leave beyond that expressly set out in the legislation/Rules. Such an extension is a matter of substance. In contrast, there is nothing incompatible with the legislation or the Rules in allowing the affected person to know, as soon as may be, of the circumstances which imperil their application, so that they may make use of whatever time remains to them under those provisions. This does not confer a substantive benefit. It may be properly characterised as a procedural duty to act fairly. It is not a duty to bestow. It is an obligation not to deprive (at para. 108).
This seems right to me.
What then of the appropriate remedy? Lady Arden and Lord Wilson dissented: having agreed that Pathan’s procedural fairness rights were breached, they would have crafted a remedy to give him a meaningful opportunity to right the wrong he had been subject to. But Lord Kerr and Lady Black and Lord Briggs (who thought there was no breach of procedural fairness at all: see para. 181) demurred. In this case, three months elapsed between the revocation and the notification to Pathan that his application had been refused. Accordingly, for Lord Kerr and Lady Black, there was a period of time within which Pathan would have been able to make alternative arrangements (at para. 111). It seems, then, that it was enough to declare that there had been a breach of procedural fairness and leave it at that.
Lord Briggs suggested that there was no breach of procedural fairness at all. It was, in his view, “a rare example of pointlessness” (at para. 162):
It is plain that this inaction by the Secretary of State did not amount to a breach of the audi alteram partem rule. Mr Pathan was not seeking to be heard in support of his application, after being informed of the revocation of his licence. Further submissions would have been pointless. The integrity of the outcome was in no way affected by the refusal of his original application at a time when he was unaware of the revocation of his sponsor’s licence (at para. 165).
This, however, is “to confuse the duty with the court’s discretion to determine the appropriate remedy” (at para. 72, per Lady Arden). As Lord Kerr and Lady Black observed, “the duty to give notice of a decision to someone who will be adversely affected by it cannot be defined solely by the consideration that it is pointless for that person to make representations with a view to reversing or avoiding the effect of the decision” (at para. 131). As soon as there was a material impact on Pathan of the failure to give timely notification, the duty of procedural fairness was breached. A remedy could then be withheld in the discretion of the court, on the basis that the procedural unfairness ‘made no difference’ to the outcome. But remedial discretion and the law of procedural fairness are analytically distinct.
In summary, this was a complex case. Given that the four separate judgments diverged on each of these three points, Lord Kerr and Lady Black provided a helpful summary (at para. 143):
We consider that it is necessary, in a case where all members of the court have provided judgments, to identify the core of the decision of the court. Here, it consists in (1) the decision that the appeal must be allowed (as agreed by us in our joint judgment and by Lord Wilson and Lady Arden in their respective judgments, albeit that there are differences of reasoning), (2) the determination (agreed by at least four members of the court) that there was a duty on the Secretary of State to notify Mr Pathan promptly of the revocation of his sponsor’s licence, it being procedurally unfair not to do so, and (3) the determination (agreed by us and Lord Briggs) that there is no positive obligation on the Secretary of State to provide a period of time following notification to enable an applicant to make an alternative application or otherwise to react to the revocation of the sponsor’s licence.
Ultimately, Pathan won the smallest of victories. His rights were breached, but he had little or nothing to show for it. This is attributable not to any failings of administrative law doctrine but the “tough, rigid regime” for immigrants like Pathan (at para. 184, per Lord Briggs). Some sorts of unfairness are beyond the powers of the courts to remedy, certainly where the duty of fairness is the primary ground relied upon.
This content has been updated on October 25, 2021 at 19:19.