Case No: C1/2015/1573
Neutral Citation Number: [2016] EWCA Civ 770
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE HADDON-CAVE
[2015] EWHC 1329 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/07/2016
Before :

LORD JUSTICE MOORE-BICK
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE TOMLINSON
and
LORD JUSTICE KITCHIN

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Between :

	THE QUEEN ON THE APPLICATION OF RAJ AND KNOLL LIMITED	Appellant/
Claimant	
	- and -		
	THE SECRETARY OF STATE FOR THE HOME DEPARTMENT 	Respondent/Defendant	

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Mr Michael Biggs (instructed by Fernandes Vaz Solicitors) for the Appellant/Claimant
Mr Rory Dunlop (instructed by Government Legal Department) for the Respondent/Defendant

Hearing date : 21 June 2016

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Judgment
Lord Justice Tomlinson : 
1.	The Secretary of State for the Home Department, “SSHD”, has responsibility for the maintenance of the United Kingdom’s immigration controls.  The “Tier 2” Points-Based System, “PBS”, operated by the UK Visas and Immigration Section of the Home Department, is a scheme which covers the employment sector.  It is contained in Part 6A of the Immigration Rules.  Pursuant to the scheme skilled workers from outside the European Economic Area, the “EEA”, are allowed leave to enter and remain in the UK to fill particular jobs which cannot be filled by settled EEA workers.  The scheme permits employers to sponsor an applicant migrant by the issue to him or her of a Certificate of Sponsorship – “COS”.  In order to do so an employer must be licensed by the SSHD.  Possession of a COS does not guarantee an applicant migrant leave to enter or remain in the UK but it provides him/her with most of the necessary points under the PBS.  It follows that licensed sponsors play an active and crucial role in support of immigration control.  Unsurprisingly therefore sponsors are required to comply with comprehensive guidelines in matters of detailed record-keeping and reporting, and that compliance is monitored by the SSHD.  The rules are contained in published “Guidance”.  
2.	Tier 4 is a similar, but obviously not identical, system for licensing educational institutions to sponsor students from outside the EEA to enter and remain in the UK.  In that context Lord Sumption has observed, in R (New London College Ltd) v Secretary of State for the Home Department [2013] 1 WLR 2358 at 2372, paragraph 29: 
“There are substantial advantages for sponsors in participating [in the Tier 4 scheme], but they are not obliged to do so. The rules contained in the Tier 4 Guidance for determining whether applicants are suitable to be sponsoring institutions, are in reality conditions of participation, and sponsors seeking the advantages of a licence cannot complain if they are required to adhere to them.”
The same is obviously true of those who seek the advantages of a Tier 2 licence.  
3.	The Appellant Raj and Knoll Limited operates three nursing homes in the Walmer area of Deal, Kent: The Knoll at 196 Dover Road; Ami Court, at 198 Dover Road and Ami Lodge, at 79 London Road.  In November 2009 Raj and Knoll was granted a B-rated Tier 2 licence to cover three addresses: 79, Hythe Road, Ashford, Kent, the principal registered address of the business, The Knoll and Ami Court.  In April 2010 this was upgraded to an A-rating, earlier concerns about record-keeping having apparently been resolved to the Respondent’s satisfaction.  On 16 June 2014 the SSHD revoked the licence, having earlier suspended it, and on 4 July 2014 that decision was maintained in the face of further representations.  The licence was revoked because the Appellant had, in the opinion of the SSHD, failed to comply with the Guidance so far as concerned its duty to maintain and produce documents evidencing its compliance with the procedures contained in the Guidance.  
4.	By judicial review proceedings the Appellant challenged the SSHD’s decision on three main grounds.  First, the SSHD was said to have misconstrued one of her own letters as bringing the case within the purview of a particular rule contained in the Guidance.  Second, her decision was said to be in material part irrational.  Third, it was said that the SSHD had failed to consider exercising her discretion in a manner falling short of revocation.  Haddon-Cave J rejected that challenge and this appeal is brought with leave of Jackson LJ.  Jackson LJ granted permission to appeal principally in order that this court might examine the legal principles said by the judge to be relevant to the standard of review which the court should adopt in case of challenge to decisions taken by the SSHD in administering the scheme and monitoring compliance therewith.  Jackson LJ also stayed the revocation of the Appellant’s Tier 2 sponsor licence, which the Appellant has therefore continued to enjoy to this day.  
5.	It is said by the Appellant that it is obvious from the terms of the judge’s judgment that there had been no argument in the court below concerning the appropriate standard of review.  I am not sure that it is so obvious.  It might be an inference from the manner in which the judge expresses himself, although I am not sure that it is a necessary inference.  However that may be Mr  Michael Biggs, who conducted the ex parte application for permission to appeal before Jackson LJ on behalf of the Appellant, says that he thinks that he pointed out to Jackson LJ that the point was not argued below although he cannot be certain.  He says that he was completely satisfied that Jackson LJ had noticed that there had been no argument.  What on any view Mr Biggs did not tell Jackson LJ (because he did not know, not having appeared below) was that before the judge the principles which he enunciated in his judgment were conceded by counsel then appearing for the Appellant to be correct.  I accept the submission of Mr Rory Dunlop, for the SSHD, that had the question of the appropriate standard of review been a live issue before the judge, the SSHD would in all probability have wished to adduce evidence of the scale and extent of abuse in Tier 2 sponsoring in support of her contention that great weight should be given to the educated conclusions and predictions of a decision-maker expert and experienced in the field.  However I need not dwell on this point because in my view this challenge to the decision of the SSHD was bound to fail whatever the standard of review adopted by the court.  It is therefore unnecessary to decide whether the Appellant should be permitted to pursue the point, or whether the Respondent for her part should have challenged the grant of permission to appeal, rather than resist the point being argued on the appeal.  Whether decisions of the SSHD in this field attract an enhanced level of scrutiny, and what her own approach to suspension should be, are matters to be debated, if at all, on another occasion when (a) the court is properly informed as to the background against which the point must be decided and (b) the point is determinative of a challenge to a decision of the SSHD.  
The Guidance
6.	The Tier 2 Guidance referred to above provided, at material times: 
(1) Unless one of the exceptions apply, none of which is relevant to this appeal, the sponsor must conduct a Resident Labour Market Test, “RLMT”, and show that no suitable “settled worker” has applied for the job before it assigns a COS to a non-EEA migrant to fill a job – see section 28 of the Guidance; 
(2) Since April 2013, in order to conduct the RLMT the sponsor must advertise the job for 28 days using two methods: an advertisement through Job Centre Plus and one of a number of other methods, the relevant one here being on-line advertising – see Guidance paragraph 28.40; 
(3) The sponsor must keep the documents specified at Appendix D to the Guidance, to produce, if asked, in order to prove that it had conducted the RLMT – see Guidance paragraph 28.24.  Appendix D has been amended over time but, at all material times, it required a sponsor to keep the following documents where it relied on an on-line advertisement in order to conduct the RLMT: 
. . . A screenshot from the website hosting the advertisement, on the day the vacancy was first advertised, which clearly shows all of the following: 
•	Name of the website. 
•	Contents of the advert. 
•	Date and the URL. 
•	Closing date for applications.
Note: If the website clearly shows the date the vacancy was first advertised, the screenshot can be taken at any point during the period the vacancy is advertised.  
Where the advertisement is not on your own website and does not show your name, a copy of a letter or invoice from the website will be required, to prove that an advertisement was placed.
(4) The sponsor must report any change in circumstances, such as a change of its business address – Guidance paragraph 12.6; 
(5) The sponsor must report, within 10 working days, changes in the circumstances of the employees that it sponsors, including a change in the place where they are working – Guidance paragraph 15.7(d).
7.	The judge set out the principal relevant provisions from the “Guidance For Sponsors: Tier 2 and 5 of the Points-Based System” provided by the UK Border Agency which took effect on 13 December 2012 as follows: 
“What is sponsorship?
1.1 Sponsorship is based on two principles;
a) Those who benefit most directly from migration (employers, education providers or other bodies who are bringing in migrants) should play their part in ensuring the system is not abused.
b) We need to make sure that those applying to come to the UK for work or study are eligible and that a reputable employer or education provider genuinely wishes to take them on.
…
1.3 Sponsorship plays two main roles in a migrant's application for permission to come to, or remain in the UK to work or study:
a) It provides evidence that the migrant will fill a genuine vacancy that can't be filled with a suitable qualified or skilled settled worker, or that they will be studying for an approved qualification.
b) It involves a pledge from the sponsor that it accepts all of the duties expected when sponsoring the migrant.
…
2.8 We will monitor your ability and willingness to always comply with your duties. We will:
a) set a limit on the number of certificates of sponsorship (CoS) you can assign
b) visit you, to check you are complying with your duties
c) refer cases for civil penalty action, or possible prosecution if we find evidence that you may have employed migrants illegally.
For more information on sponsor duties, please see sponsor duties.
2.9 Throughout the validity period of your license we will 'rate' you as either A or B according to our assessment of your ability to comply with your sponsor duties. If you are B-rated you must meet a time-limited sponsorship action plan, which you must pay for and which will set out the steps you need to take to gain or regain an A-rating. If you do not meet the requirements of your action plan we will revoke your licence. For more information on ratings, please see rating sponsors.
2.10 You have a duty to act honestly in any dealings with us. This includes, for example, not making false statements and ensuring all essential information is disclosed when either applying for a sponsor licence or assigning or applying for a certificate of sponsorship (CoS).
2.11 If we believe you have not complied with your duties, have been dishonest or pose a threat to immigration control, we will take action against you. The action can result in your licence being revoked, suspended or downgraded to a B-rating and/or a reduction in the number of certificates of sponsorship (CoS) you can assign. For more information on the action we may take and the processes we will follow in such cases, please see what will happen if I don't comply with my sponsor duties.
….
14. Sponsor duties
What are my duties as a licensed sponsor?
14.1 As a licensed sponsor you will benefit directly from migration and we expect you to play your part in ensuring that the system is not abused. This means that you must fulfil certain duties. Some of these duties apply to all sponsors, whilst others are specific to those licensed under certain tiers or categories. The objectives of these duties are to:
a) prevent abuse of assessment procedures
b) capture early, any patterns of migrant behaviour that may cause concern
c) address possible weaknesses in process which can cause those patterns
d) monitor compliance with Immigration Rules.
…
15. Duties that apply to sponsors in all tiers
Record keeping duties
15.1 You must keep the following records or documents, and make them available to us on request: (See also, Appendix D – record keeping)
….
15.2 You must give us, when asked, any documents relating to your sponsored migrants or the running of your organisation that we consider relevant to assessing your compliance with your duties as a sponsor. We might, for example, ask for details of your recruitment practices so that we can make sure that a resident labour market test was carried out correctly. 
…
Reporting duties 
15.6 You must report certain information or events to us using the Sponsor Management System (SMS), within any time limit set. For more information on the SMS, please see what is the sponsor management system. Any information reported about a migrant's non-attendance, non-compliance or disappearance will be used to take enforcement action against them. If you are reporting any of the events in paragraphs a), b) or c) below, you must include the last recorded residential address and contact telephone number for the migrant, and any personal email addresses you have for them. 
15.7 You must report the following within 10 working days: 
… 
d) If there are any significant changes in the sponsored migrant's circumstances, for example: 
•	a promotion or change in job title, or core duties, other than those which need a change of employment application; 
•	a change of salary from the level stated on the CoS, other than changes due to annual increments or bonuses; 
•	a change of salary from that stated on the CoS due to maternity, paternity or adoption leave, or a period of long-term sick leave lasting one month or longer; 
•	the location they are employed at changes (including where a sports player moves on loan). 
…
What will happen if I don't comply with my sponsor duties? 
17.17 The majority of those who employ overseas workers are honest and willing to comply with their duties. Because sponsorship transfers a significant amount of responsibility for selecting migrants to sponsors, we have a duty to ensure that we deal appropriately with the minority who do not comply with their duties. 
17.18 We have measures to make sure that we enforce sponsors' duties and identify dishonest or incompetent sponsors early. This could result in your licence being revoked, suspended, or downgraded to a B-rating, and/or a reduction in the number of CoS you are allowed to assign. We may issue a civil penalty if you have broken the rules on illegal working. More information on the penalties for employing illegal workers is available on our pages on the GOV.UK website at 
www.gov.uk/government/publications/prevent-illegal-working-in-the-uk.
…
18. Downgrading your licence rating
18.1 If we believe you are not complying with your duties, have been dishonest or pose a threat to immigration control, we may revoke your licence or downgrade it to a B-rating.
…
Process we will follow in deciding what (if any) action to take
18.6 Unless revocation of a licence is mandatory, we will take all the facts of the case into account when deciding what action to take against you under one or more of the circumstances outlined in Annexes 3 and 4. No two cases are alike and we can't list all the circumstances in which we will revoke your licence, suspend your licence, downgrade your licence, limit the number of CoS you are allowed to assign or take no action. We consider:
a) The seriousness of your actions and harm done. We will treat seriously anything you have done or failed to do that resulted in migrants going missing.
b) Whether your actions are part of a consistent or sustained record of non -compliance or poor compliance, or are a single event.
c) Any action you have taken to minimise the consequences of what you have done or failed to do. For example, it may help if you tell us quickly that migrants you are sponsoring have stopped turning up for work. If an individual member of your staff is responsible for the problem, we will take into account any action you have taken against that person. We will treat the situation more seriously if you were involved in the actions of your staff or you deliberately ignored what they were doing.
d) Any civil penalties you have been issued with for an "offence" listed in Appendix C unless we withdrew the penalty or cancelled it on appeal.
…
Can my licence be revoked after it has been granted?
19.1 Certain circumstances can lead to your licence being revoked. If this happens it will be revoked in all the tiers, categories and sub-categories which you are licensed under.
19.2 If we revoke your licence and you are an endorsing body under the Tier 1 (Graduate Entrepreneur) scheme, we will withdraw you from that scheme. Any migrant you are endorsing will have their leave reduced to 60 days. This is to allow them to seek another route under which they can remain in the UK. If they have been unable to do this after the 60 days they must leave the UK or face enforced removal.
19.3 For information on the circumstances in which we will revoke your sponsor licence, see annex 5.
19.4 If any circumstances in annex 5 arise, we will revoke your licence straight away. We will write to you to tell you that your licence has been revoked. There is no right of appeal and you won't be allowed to apply again for a sponsor licence for a period of six months from the date your licence is revoked.
19.5 For information on the circumstances in which we may revoke your sponsor licence, see annex 6.
19.6 We can't define in which exceptional circumstances we may not revoke your sponsor licence but when one of the circumstances listed in annex 6 applies, we view this as a (sic) serious and will look for evidence that you were either not responsible for what happened or, if you were, you took prompt action to remedy the situation.
For example:
a) one of your employees was wholly responsible for the dishonesty and was dismissed when it came to light; or
b) a migrant was paid the wrong salary because of a problem with your payroll system but this was put right as soon as possible.
…
What happens to my sponsored migrants if my licence is revoked?
19.9 If we revoke your licence, we will:
a) Immediately end (curtail) the permission to stay in the UK, or worker authorisation of any migrants whom we believe were actively involved (complicit) in any dishonesty (for example, if the migrant agreed that you would arrange a non-existent job for them so they could come to the UK)
b) reduce the length of the worker authorisation, or permission to stay in the UK of any other migrants (those who were not actively involved) to 60 calendar days. This is to give them a chance to find a new sponsor. If the migrant has less than 60 days of their leave or worker authorisation remaining, we won't reduce it.
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If my licence is revoked, can I apply again?
19.15 Once your licence has been revoked you can't make a further application for a sponsor licence for a period of six months from the date your licence was revoked. If you do make an application before that six month period has passed, it will be refused. The only exception to this is if your licence was revoked in error. If this happens we will contact you to make arrangements for it to be reinstated.
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28. Resident labour market test
Resident labour market test - Tier 2 (General)
28.1 The resident labour market test is there to protect the settled workforce and means that you must advertise the job you want to recruit for to give settled workers a chance to apply. You can only recruit a migrant if:
a) you have completed a resident labour market test and can show that no suitable settled worker is available to fill the job, or
b) the job is exempt from the resident labour market test.
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How to carry out the resident labour market test - Tier 2 (General)
28.16 Unless an exemption applies all jobs must be advertised to settled workers for 28 calendar days. For more information on exemptions, please see exemptions from the resident labour market test. You can advertise jobs in two ways:
a) Advertise the vacancy for a single continuous period, with a minimum closing date of 28 calendar days from the date the advertisement first appeared.
b) Advertise the vacancy in two stages, with each stage being advertised for no less than 7 calendar days but where both stages total a minimum of 28 calendar days. For example, you could at first advertise the vacancy for 14 calendar days and appoint any suitable settled worker who applies. If no suitable settled worker applies, you can't appoint a migrant worker at this stage as you must advertise the vacancy for a further 14 calendar days, making 28 calendar days in total. If no suitable worker settled applies during either the first or second stage, then the resident labour market test has been passed and you can appoint a Tier 2 migrant.
28.17 You must place two advertisements using the methods set out in this guidance. In many cases, one of those will be an online advertisement using the Jobcentre Plus Universal Jobmatch service or Jobcentre Online for jobs in Northern Ireland. This is mandatory for certain jobs. For more information on advertisement methods, please see resident labour market test Tier 2 (General) advertising methods.
28.18 When conducting the resident labour market test, you can only use the advertising methods set out in this guidance. The job advertisement must be in English, or Welsh if based in Wales, and it must include:
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Annex 3 - Circumstances in which we will downgrade your licence to a B-rating
We will downgrade your licence if:
a) You have certified that a migrant won't claim state benefits, and that migrant then does claim benefits, with your knowledge.
b) You fail to provide any documents listed in Appendix D of this guidance, to a compliance officer within the specified time limit.
c) As a result of information available to our compliance officers, we are not satisfied that you are using the processes or procedures necessary to fully comply with your sponsor duties.
…
Annex 4 - Circumstances in which we may downgrade your licence to a B-rating
We may downgrade your licence to a B-rating if:
a) You sponsor more than five migrants in the Tier 2 (ICT – Graduate Trainee) category with start dates in the same financial year.
b) You fail to keep any of the documents specified in Appendix D of this guidance.
c) You fail to comply with any of your sponsor duties.
Annex 5 - Circumstances in which we will revoke your licence
We will revoke your licence if:
a) We find, after your licence has been granted, that you gave false information on your sponsor licence application, or in support of your sponsor licence application, and had you given the correct information we would have refused your application.
… 
ac) If we have asked you to send us any documents or information and you do not send the documents or information within the given time limit.
…
Annex 6 - Circumstances in which we may revoke your licence
We may revoke your licence if:
g) You fail to comply with any or all of your sponsor duties.
h) We find that you have no level 1 user in place that meets the requirements set out in level 1 user.
i) You have no SMS users in place.
j) As a result of information available to our compliance officers, we are not satisfied that you are using the processes or procedures necessary to fully comply with your sponsor duties
…
TIER 2, TIER 4 AND TIER 5 OF THE POINTS BASED SYSTEM – GUIDANCE FOR SPONSORS APPENDIX D – KEEPING DOCUMENTS 
The following documents can either be kept as paper copies or in an electronic format. There is no prescribed method for storing the documents, but you must be able to make them available to us on request.
…
TIER 2, TIER 4 AND TIER 5 OF THE POINTS BASED SYSTEM – GUIDANCE FOR SPONSORS APPENDIX D – KEEPING DOCUMENTS 
Resident Labour Market Test Tier 2 and Tier 5
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Where the vacancy was advertised on the internet, including where it is advertised on your own website (where this is permitted), you must keep a screen shot from the website hosting the advertisement, on the day the vacancy is first advertised, which clearly shows: 
•	the name of the website; and 
•	the contents of the advert; and 
•	the date and the URL; and 
•	the closing date for applications. 
N.B if the website clearly shows the date the vacancy was first advertised, the screen shot can be taken at any point during the period the vacancy is advertised. 
Where the advertisement is not on your own website and does not show your name, a copy of a letter or invoice from the website will be required, to prove that an advertisement was placed.
…
If the recruitment was done using a recruitment agency, you must keep the following: 
•	a copy of the contract between you and the recruitment agent; 
•	a copy of the invoice; and 
•	copies of any adverts placed which clearly show the title of the publication, the date(s) and the advert as it appeared.”
The Factual Background
8.	The following description of the factual background is taken in part, with gratitude, from the skeleton argument prepared for the appeal by Mr Rory Dunlop for the SSHD.  
9.	Between February 2010 and 30 September 2013, the Appellant issued 32 COS.  Every single one of those 32 COS identified the migrant’s place of work (known as the “working at” address) as 79 Hythe Road, Ashford, Kent.  79 Hythe Road was (until 5 December 2013) the Appellant’s nominated head office address.  79 Hythe Road was never, at any point, a nursing home or the place of work of any of the Appellant’s employees.  
10.	On 30 September 2013, compliance officers visited (for the first time) 79 Hythe Road, which turned out to be a newsagent’s shop.  The occupant told the Respondent’s officers that it had previously been owned by Mrs Patel (a director of the Appellant) and her husband but had been sold “some time ago”.  On the same day, i.e. 30 September 2013, the Appellant made a request by SMS (the electronic messaging system between the Respondent and sponsors) to change its registered address on the Respondent’s records.  However this request was rejected in a letter sent by email on 15 October 2013 because the Appellant had not, as required by the computerised system, forwarded its completed submission sheet within 10 working days of the electronic change of circumstance request. 
11.	On 15 October 2013 the Appellant attempted again to change its registered address on the Respondent’s records, still without supporting evidence.  On 17 October 2013, the Respondent emailed the Appellant stating that it would have 14 days to submit a change of address request, otherwise suspension action would be taken.  On 23 October 2013, the Appellant assigned two further COS to JP Oliappuram and M Augustine, migrants who were said to be “working at” 79 Hythe Road.  (Both were later granted leave to remain on the basis of these COS).  On 25 October 2013 the Appellant assigned a COS to A Shakya, a migrant who was said to be “working at” The Knoll, 196 Dover Road.
12.	On 31 October 2013 the Respondent rejected the application to change to the registered address as it lacked the necessary supporting evidence. A further application was made and rejected in a letter emailed on 15 November 2013 as the Appellant had not provided original or suitably certified copies of the supporting evidence as the Respondent had requested on 31 October 2013.  The Appellant made another request, finally with the necessary supporting evidence, and on 5 December 2013, the Appellant changed its address registered with the Respondent.  In the meantime, the Appellant assigned four further COS, three on 8 November 2013 and one on 14 November 2013.  Each of them used The Knoll as the “working at” address.
13.	On 18 March 2014 a further compliance visit took place which identified further failings by the Appellant.  
14.	On 15 May 2014, the Respondent wrote to the Appellant suspending its Tier 2 sponsor licence on various grounds, including the fact that it had failed to keep proper records of the RLMT for each post as required, and the fact that it had assigned COS showing 79 Hythe Road as the working address when, as Mrs Patel told the Compliance Officer, no Tier 2 migrants had ever worked there, and furthermore Mrs Patel had advised that the business at that address and the property itself had in any event been sold in 2013.  This letter stated inter alia: 
“To give you the opportunity to explain the above before we begin the revocation action, we are allowing you 20 working days to make representations, including submitting evidence, in response to the issues raised in this letter. If you fail to make representations or to adequately address the issues within this time, your licence will be revoked and you will no longer be able to sponsor employees.”
15.	The Appellant by its solicitors Messrs Fernandes Vaz made submissions to the Respondent in a letter dated 30 May 2014 with enclosures.  These enclosures provided partial, but incomplete, evidence of having conducted the RLMT – i.e. evidence of job centre advertisements but not of any additional form of advertising.  The Appellant put forward no explanation for why it had failed to inform the Respondent of the correct address at which its sponsored employees were working.  On the contrary, the letter stated: 
“The Certificates of Sponsorship assigned shows 79 Hythe Road as the working address.  When the licence application was made this was the Head Office in Ashford.  All Certificates were assigned to this address.”
This does not meet the point as 79 Hythe Road had never been the address at which the sponsored employees worked. 
16.	The Appellant’s letter of 30 May 2014 continued: 
“We consider that the suspension would be grossly unreasonable given the issues raised above.  The business is reliant on a significant number of migrant staff who are skilled and experienced and the revocation of the licence would result in the home being unable to function.  Given the complex needs of the residents it would also have a significant impact on the residents.  We have advised our client on the right to seek judicial review in the event that the decision to revoke is maintained.
Our client would like to put you on notice that they intend to challenge any decision to revoke the licence by judicial review and accordingly these representations are served in accordance with the pre-action protocol.”
No evidence was supplied to substantiate the assertion that in the event of revocation “the home” – it is unclear which – would be unable to function.  It seems that at the time there were twelve sponsored employees and all of them worked at The Knoll.  We were told at the hearing that all twelve have subsequently voluntary left the Appellant’s employment because of the uncertainty of the situation but that The Knoll continues to function.  No evidence was supplied as to the Appellant’s financial position, or, therefore, as to its ability to pay its employees at enhanced rates.  
17.	In a letter dated 16 June 2014, the Respondent revoked the Appellant’s licence.  The Respondent relied on Annex 5(ac) in light of the fact that the Appellant had failed to provide the documents requested to demonstrate compliance with the RLMT – e.g. no advertisements at all for one sponsored migrant (Antony Rejimon) and no online adverts (in addition to Job Centre Plus) for seven others.  The Respondent also relied on Annex 6(g) and (j) because the Appellant had not adequately explained why it had failed to report the correct working address of its sponsored workers.
18.	In a letter dated 17 June 2014 the Appellant made further submissions, demanding that the Respondent reconsider revocation.  Enclosed with these submissions was evidence of advertising which the Appellant had omitted to provide with its earlier submissions, including screenshots from Monster.com.  One of those was said to have been mentioned in the list of enclosures but omitted through clerical error.  The solicitors said that “under the rules of evidential flexibility it should have been requested”.  Another was said simply to have been “missed out”.  The solicitors also complained: 
“Additionally you have raised new issues regarding the recruitment agents without giving an opportunity to our client to make representations.  The consequences of your decision is (sic) so serious that we would have expected to be in a position to make representations.”
This was a reference to the following passage in the Respondent’s letter of 16 June: 
“9.	Furthermore, from the evidence submitted it is noted that you appointed agents to conduct the advertising on your behalf.  Paragraph 28.38 of the Tier 2 and 5 Sponsor Guidance states: 
		28.38	You can use an agency or head-hunter to help with your recruitment.  They may recruit for the post on your behalf, but the recruitment exercise must meet the requirements of the resident labour market test.
10.	Because a recruitment agency has been used it is normal practice for the address and name of the company the recruitment is being undertaken for, to be omitted from the advertisement.  When a recruitment agency is used a copy of the invoice and contract must be made available to evidence that the advert has been placed on behalf of the sponsor.  This is in accordance with Appendix D of the Tier 2 and 5 Sponsor Guidance which states: 
		If the recruitment was done using a recruitment agency, you must keep the following:
•	A copy of the contract between you and the recruitment agent; 
•	A copy of the invoice; and 
•	Copies of any adverts placed which clearly show the title of the publication, the date(s) and the advert as it appeared.
11.	We are not satisfied that you have adequately demonstrated compliance with the RLMT.  Annex 5(ac) states we will revoke your licence if: 
		We have asked you to send us any documents or information and you do not send the documents or information within the given time limit.”
It is true that the Respondent had not previously expressly raised this point.  The Respondent had established on the compliance visit in March 2014 that the Appellant used the services of Vostek Limited as a recruitment agency.  The Vostek website states: “Vostek Limited is a leading immigration and recruitment firm based in the heart of London, specialising in healthcare recruitment, with particular expertise in immigration related to employment and in general.  Vostek enjoys an excellent reputation nationally and internationally for the quality of services provided to its established client base.  The firm combines its formidable strength in healthcare based immigration using a friendly and open approach to client service”.  Given the status of Vostek, advertisements placed on its behalf for care home staff that did not identify the Appellant Raj and Knoll Limited would be of no evidential value in determining whether RLMT had been satisfied.  There had to be evidence that the advertisement was specifically placed on behalf of the Appellant.  In such circumstances in accordance with Appendix D of the Guidance the sponsor should provide a copy of the contract between itself and the recruitment agent and a copy of the invoice or invoices between itself and the recruitment agency.  The complaint therefore that new issues had been raised regarding the recruitment agents without giving an opportunity to the Appellant to make representations is utterly hollow.  Without dealing with the point the Appellant could not satisfy the Respondent that an advertisement placed by Vostek had been placed on its behalf, as it was required to do under the Guidance.  
19.	By letter dated 23 June 2014 the Respondent notified the Appellant that the additional documents submitted had been considered but no reason had been found to overturn the original decision which was maintained.  It was observed that the point about linking the advertisement placed by a recruitment agent to jobs offered by the Appellant was not new as paragraph 4 of the letter of 15 May 2014 had pointed out that “Appendix D of the sponsor guidance requires you to retain evidence to demonstrate that you have complied with the resident labour market test”.  It was further pointed out that the Appellant had not demonstrated that the screen shots from Monster.com actually related to jobs offered by the Appellant and that the Appellant still had not addressed its failure to report its change of business address and change of location of employees.  
20.	In a letter dated 27 June 2014 the Appellant made further submissions, demanding that the Respondent reconsider revocation.  The Appellant provided invoices demonstrating that Monster had invoiced Vostek for the relevant advertisements.  This was of course of no assistance in establishing that the advertisements had been placed by Vostek on behalf of the Appellant.  The Appellant accepted that it had failed to correct the working addresses of its employees but said that “at most this was an administrative issue” and blamed it on the system being designed in “such an archaic fashion that it requires every employee’s record to be individually changed”.  Finally, the Appellant defended its decision to assign two COS to migrants to work at 79 Hythe Road on 23 October 2013, even though this was not an address at which any sponsored employee had worked and moreover the Appellant had sold 79 Hythe Road by then, saying it would not have been ‘appropriate’ to use any other address until the Appellant’s change of head office address had been accepted.  The Appellant did not explain how this explanation could be reconciled with the fact that it had used The Knoll as the “working at” address for the 5 COS issued between 25 October 2013 and 8 November 2013.  
21.	By letter dated 4 July 2014 the Respondent again confirmed that the decision to revoke was maintained.  The letter pointed out that for each of two advertisements on Monster.com whilst the Appellant had provided three individual screen shots, all marked page 1 of 1, all of which collectively contained most of the information required to show compliance with the RLMT, there was nothing in the content of the advertisement which linked all three pages together and more importantly they did not on their face demonstrate that they related to the Appellant.  The letter asserted that the Appellant’s explanation for not informing the Respondent of the true working address for its employees was not credible – the “working at” address on the COS was free text and so the Appellant was not obliged to use its registered address; furthermore, even on 3 July 2014, seven months after the Appellant had sold 79 Hythe Road, the Appellant had made no effort to change the “working at” addresses for its employees from 79 Hythe Road to their true working address.  
22.	On 11 July 2014 the Appellant filed its claim for judicial review and sought interim relief.  Permission to apply and interim relief were granted by Mostyn J on 28 July 2014.  
The Judgment Below
23.	After summarising the facts and setting out the relevant provisions from the Guidance the judge observed that the principles applicable to the Tier 2 and Tier 4 Points Based Systems are similar and that the watchword for both is trust.  He continued: 
“21. 	The following common principles can be derived from the recent case law: 
(1) 	The essence of the system is that the Secretary of State imposes "a high degree of trust" in sponsors granted ('Tier 2' or 'Tier 4') licences in implementing and policing immigration policy in respect of migrants to whom it grants Certificate of Sponsorship ("CoS") or Confirmation of Acceptance ("CAS") (per McGowan J in London St Andrews College v Secretary of State for the Home Department (supra) (2014) EWHC 4328 (Admin) at [12]) (and see Silber J in R (Westech College) v Secretary of State for the Home Department (2011) EWHC 1484 (Admin)).
(2) 	The authority to grant a certificate (CoS or CAS) is a privilege which carries great responsibility: the sponsor is expected to carry out its responsibilities "with all the rigour and vigilance of the immigration control authorities" (per McGowan J in London St Andrews College v Secretary of State for the Home Department (supra) at [13]).
(3) 	The Sponsor "must maintain its own records with assiduity" (per McGowan J in London St Andrews College v Secretary of State for the Home Department (supra) per McGowan J at [13]).
(4) 	The introduction of the Points-Based System has created a system of immigration control in which the emphasis is on "certainty in place of discretion, on detail rather than broad guidance" (per Lord Hope in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, reported at [2012] 1 WLR 2208 at [42]).
(5) 	The CAS in the 'Tier 4' scheme (the equivalent of the CoS in the 'Tier 2' scheme) is very significant: the possession by a migrant of a requisite CAS provides strong, but not conclusive, evidence of some of the matters which are relevant upon the migrant's application for leave to enter or remain (Global Vision per Beatson LJ at [12], citing Lord Sumption SCJ in R (New London College Ltd) v Secretary of State for the Home Department [2013] UKSC 51. 
(6) 	There is no need for UKBA to wait until there has been breach of immigration control caused by the acts or omission of a sponsor before suspending or revoking the sponsorship, but it can, and indeed should, take such steps if it has reasonable grounds for suspecting that a breach of immigration control might occur (per Silber J in R (Westech College) v Secretary of State for the Home Department (2011) EWHC 1484 (Admin) at [17-18]).
(7) 	The primary judgment about the appropriate response to breaches by licence holders is that of the Secretary of State. The role of the Court is simply supervisory. The Secretary of State is entitled to maintain a fairly high index of suspicion and a 'light trigger' in deciding when and with what level of firmness she should act (R (The London Reading College Ltd) v Secretary of State for the Home Department (2010) EWHC 2561 Admin per Neil Garnham QC.
(8) 	The courts should respect the experience and expertise of UKBA when reaching conclusions as to a sponsor's compliance with the Guidance, which is vitally necessary to ensure that there is effective immigration control ((per Silber J in R (Westech College) v Secretary of State for the Home Department (2011) EWHC 1484 (Admin) at [29(d)]).”
24.	The judge then proceeded to address and answer the Appellant’s three grounds of challenge summarised at paragraph 4 above as follows: 
(1)	Read fairly and with common sense, the Respondent’s letter of 15 May 2014 was a request to the Appellant to provide the documents it was required to hold in order to prove that it had gone through the RLMT for each of the posts for which it had assigned a COS.  The Appellant had not provided those documents within the time specified and so Annex 5(ac) was engaged.  The SSHD was entitled to revoke on this ground alone.  I would for my part emphasise that Annex 5 indicates that revocation will take place in the circumstances described therein, and paragraph 19.4 of the Guidance explains that that will happen “straightaway”.  
(2)	The Appellant’s failures to report its change of business address, and the working address of its employees, were breaches of its sponsor duties and matters giving rise to serious disquiet, not de minimis.  The Guidance at Annex 6 sub-paragraphs (g) and (j) makes clear that the SSHD may in such circumstances revoke and I would for my part add that paragraph 19.6 of the Guidance likewise makes clear that it will only be in exceptional circumstances that the SSHD will not exercise the power to revoke.  The evidence disclosed no exceptional circumstances.  The judge concluded that the SSHD’s reliance on these matters as justifying revocation was not irrational.  
(3)	There was no obligation on the Respondent to make explicit that she had considered her discretion and it was unnecessary to do so in this case because, given the number and seriousness of the Appellant’s breaches, immediate revocation was “obvious and axiomatic”.  There was in any event no reason to suppose that the SSHD had not followed the process set out in paragraph 18 of the Guidance.
The Appeal
25.	The Appellant’s submissions on appeal can be summarised as follows: 
(a)	The judge wrongly applied a restricted standard of review; 
(b)	The judge was wrong to reject arguments that either (a) the Appellant had provided adequate evidence of conducting the RLMT or (b) any failure was minor.  In that regard since the SSHD had elected to consider evidence submitted after the revocation on 16 June, failure to comply had to be evaluated by reference to the totality of the evidence supplied by 4 July and not just that available to the SSHD on 16 June.  
(c)	The judge was wrong to conclude that the Respondent’s assessment of whether the Appellant had breached sponsor duties by failing to report a change of circumstances was reasonable.  
(d)	The judge failed to have regard to the Appellant’s evidence that the work address of its employees was provided to the Respondent in any event.  
(e)	The judge was wrong to reject the argument that the Respondent had failed to demonstrate that the manner in which her discretion should be exercised had been fully considered.  
Discussion
26.	I have already indicated that I do not think it necessary to address the first point.  Mr Biggs’ challenge was to sub-paragraphs (6), (7) and (8) of the judge’s summary of the applicable principles at paragraph 29 of his judgment.  I mean no disrespect to Mr Biggs’ carefully formulated argument on that topic if I summarise it as challenging the appropriateness of the SSHD adopting a “light trigger” approach and suggesting that the court in turn should adopt a heightened standard of review as otherwise the SSHD would have carte blanche to engage in oppressive decision-making.  
27.	There are two reasons why I do not regard these arguments as arising in the present case.  First, I do not consider that it is correct to characterise the approach taken by the SSHD as evincing the use of a light trigger, i.e. an approach which permits the slightest infraction to be visited with an immediate draconian response.  The SSHD placed before the judge a witness statement made by the relevant decision-maker, Elaine Lillico, which carefully explained the process which she had followed in deciding what if any action to take.  In that statement Ms Lillico sets out the matters, which are in any event apparent from the correspondence, which had given rise to and supported her “concerns that the sponsor is not fully aware of its responsibilities and demonstrated a somewhat cavalier attitude towards them”.  I would add that in that regard the Appellant’s solicitors in my view adopted a wholly inappropriate and unjustified confrontational stance which can have done nothing to allay Ms Lillico’s concerns and indeed can only have contributed to them.  Ms Lillico’s conclusion was: 
“67.	Annexes 5 and 6 of the Guidance provide circumstances where the UKVI will (in the case of Annex 5) or may (in the case of Annex 6) revoke a sponsor licence.  In my revocation letter of 16 June I cited Annex 5(ac) failing to give documents or information requested within a given time limit, and Annex 6(g) and (j) failing to comply with any or all of the sponsor duties and not using processes and procedures necessary to fully comply with sponsor duties.
68.	I have no doubt that revocation was appropriate in the circumstances.  The Claimant had failed to provide sufficient evidence of conducting an RLMT, had repeatedly failed to provide accurate information in respect of work location of its migrant workers and had certainly issued two COS with details that were false and it must have known were false.  Even after revocation the Claimant failed to provide necessary evidence to demonstrate compliance in its further submissions and only conceded a breach in its failure to notify changes of work location in its correspondence of 27 June 2014.  Even then the Claimant did not accept any culpability and showed no insight into the seriousness of its actions – trivialising the failure and blaming the Defendant’s IT system.  As stated in the Guidance at paragraph 6.11: 
	6.11	You are responsible for all actions of anyone you have set up as a user of the SMS, including representatives.  If we are considering taking action against you, we will treat anything done by a representative on your behalf as if it was done by you.  You may want to take precautions, by checking the identity of the representative and ensuring that they (sic) are suitable to do the activity required.  If you do not meet your responsibilities, we will take action against you.  
As a sponsor, the Claimant had a responsibility to ensure it could carry out all of its sponsor duties and to ensure the addresses as stated on the sponsor licence were correct at all times.”
28.	I would also note that the importance of proper record-keeping and the ability on request to produce documentary evidence of compliance with the relevant procedures is not just obvious but is in any event clearly spelled out in the Guidance.  It has been repeatedly reiterated in the jurisprudence summarised by the judge at sub-paragraphs (1) to (4) of paragraph 21 of his judgment, recording principles with which Mr Biggs has not taken issue.  The obligation thus cast upon sponsors is not onerous and compliance is not difficult.  Failure to comply on the scale found here combined with exculpatory statements which demonstrate a complete lack of understanding of the obvious importance of generating and preserving material evidencing that the scheme is being correctly applied is bound to lead to the conclusion that the sponsor’s attitude to compliance is cavalier.  Thus I see no evidence that the SSHD either did act or must be regarded as having acted only on suspicion, which is perhaps another way of expressing what has been castigated by Mr Biggs as a light trigger approach.  Far from using a weapon with a light trigger, Ms Lillico appears to have subjected each tranche of documentation supplied by the Appellant to the most rigorous analysis, declaring herself satisfied where deficiencies were rectified or where she had been shown to be wrong, and only pursuing those points in respect of which it was clear that compliance was defective.  
29.	For this reason therefore it is unnecessary to decide whether the judge was right to record at paragraph 21(6) that the SSHD can revoke a licence if she has reasonable grounds for suspicion that a breach of immigration control might occur.  In the present case the SSHD did not act on suspicion of breach but on demonstrable breach not rectified after the provision of a reasonable time within which to do so.  
30.	A word of explanation is perhaps required so far as concerns the judge’s apparent “acceptance” at paragraph 42 of his judgment of the evidence of Ms Lillico as to why the Appellant’s failures to fulfil its duties as summarised at sub-paragraphs (g) and (j) of Annex 6 of the Guidance “clearly raised the suspicion index”.  In fact Ms Lillico does not use the expression “suspicion index”.  That expression comes from the judgment of Mr Neil Garnham QC sitting as a Deputy Judge of the Administrative Court in R (London Reading College) v SSHD [2010] EWHC 2561 (Admin).  That was a Tier 4 case.  At paragraph 60 Mr Garnham said this: 
“60.	It has to be remembered that the primary judgment about the response to breaches of a College's duty is the Defendant's, and the Court's role is simply supervisory. It has also to be remembered that the underlying principle behind this scheme is that the UKBA entrusts to Colleges the power to grant visa letters on the understanding, and with their agreement, that they will act in a manner that maintains proper immigration control. The capacity for damage to the national interest in the maintenance of proper immigration control is substantial if Colleges are not assiduous in meeting their responsibilities. In those circumstances, it seems to me that the Defendants are entitled to maintain a fairly high index of suspicion as they go about overseeing colleges and a light trigger in deciding when and with what level of firmness they should act.”
In the light of the judge’s conclusion concerning the scale and seriousness of the Appellant’s failures, I am not entirely sure why he thought it necessary or appropriate to use the expression “suspicion index”.  The SSHD did not here act pre-emptively but rather on the basis of established infraction.  In context it may be that the judge meant no more than that he accepted that Ms Lillico had reasonably formed the view that the Appellant demonstrated a somewhat cavalier attitude to compliance and showed no insight into the seriousness of its actions.  
31.	Before leaving this part of Mr Biggs’ submissions I would however add two notes of caution.  First, paragraph 21(6) of the judge’s judgment is an incomplete verbatim citation from paragraph 17 of the judgment of Silber J in R (Westech College) v SSHD [2011] EWHC 1484 (Admin) omitting the important qualification added by Silber J “provided of course UKBA complies with its public law duties”, a point which Silber J re-emphasised in the next paragraph of his judgment.  Second, Westech was concerned with the Tier 4 scheme, the details of which were not shown to us.  I have already pointed out that whilst similar to that scheme Tier 4 is not identical with the Tier 2 scheme with which we are presently concerned.  I merely record Mr Dunlop’s submission that there are features of the Tier 4 scheme which give rise to the argument that the SSHD may act on suspicion alone.  
32.	The reason why it is equally unnecessary to consider whether the judge in reviewing the SSHD’s decision should have adopted a heightened or enhanced standard of review is because I agree with the judge that given the litany and seriousness of the Appellant’s various breaches of the Guidance, revocation was obvious and axiomatic.  The decision of the SSHD would have been upheld whatever recognisable standard of scrutiny the judge chose to employ, and when it came to the point of decision I cannot detect that the judge proceeded on other than Wednesbury grounds.  I was not however immediately impressed by the submission that the supervision of this scheme by the SSHD attracts an enhanced standard of judicial scrutiny.  The mere fact that the decision-making in this area may have serious commercial consequences for licensed sponsors is not of itself a reason to impose heightened scrutiny.  The circumstance that the SSHD has special expertise in and experience of decision-making in this field, and that the court possesses no particular institutional competence and can claim no special constitutional legitimacy militates against that submission – see per Lightman J in R (Cellcom) v DG of Telecoms [1999] ECC 314 at paragraph 26 and per Laws LJ in R (Law Society) v London Criminal Courts Solicitors’ Association [2015] EWHC 295 (Admin) at paragraphs 32 and 33.  It is also clear that the exercise in which the SSHD is engaged involves no fundamental right of the Appellant but on the contrary a right contingent upon adherence to the rules:  cf per Lord Sumption, R (New London College Ltd) v Secretary of State for the Home Department, in the passage cited at paragraph 2 above.  
33.	I turn then to consider Mr Biggs’ second main submission, which concerns the adequacy of the record-keeping concerning the conducting of the RLMT.  
34.	Viewed as at 16 June 2014 the position is plain.  Evidence of online advertisements in relation to three out of four posts identified at paragraph 7 of the Respondent’s letter of that date had not been supplied within the 20 days afforded by the letter of 15 May 2014.  On 17 June 2014 the Appellant said that one of these had in fact been supplied on 18 March 2014, but it was accepted that the other two had not been supplied – one through clerical error, one because it was “missed out”.  This generated a mandatory duty of revocation under Annex 5 paragraph (ac).  
35.	I am prepared to accept, without deciding, that it is nonetheless relevant to have regard to the documentation subsequently supplied which the Respondent elected to receive and examine.  I have already dealt with this material at paragraphs 20 and 21 above, and explained why it was still non-compliant.  I have also already, at paragraph 18 above, dealt with the suggestion that there was procedural unfairness in raising the point that there was nothing to indicate that the relevant online advertisements had been placed by Vostek on behalf of the Appellant.  I do not accept Mr Biggs’ submission that the Respondent “refused to reopen that point”.  By her letter of 23 June 2014 the Respondent indicated that it was wrong to regard the point as a new one, but there is no reason to believe that the Respondent would have declined to take into account, had it been produced, a copy of the contract between the Appellant and Vostek and/or relevant invoices.  It could have been explained, if it be the case, that no formal contract exists between the Appellant and Vostek.  During the course of the judicial review proceedings the Appellant produced a copy of a letter dated 1 July 2007 from Mrs Patel at The Knoll confirming that Vostek Limited had been authorised to advertise on her behalf for a staff nurse post.  It is said by Mr John of Vostek that this letter was “filed” with the Appellant’s application for a sponsor licence, presumably some time before November 2009.  It is said that the Respondent was in consequence “fully aware” of Vostek’s “involvement with this business”.  One needs only to recite this forlorn attempt to plug the gap in the documentary record to appreciate that the system cannot possibly operate in this way, with the Respondent expected to piece together information as if she were completing a crossword puzzle.  In any event, authority to place an advertisement for a staff nurse in 2007 manifestly fails to supply the information which the Respondent had asked to see in 2014, and which it was the duty of the Appellant to generate and to retain.  
36.	Haddon-Cave J dealt under one heading with the change of business address and the failure to supply the correct working address for the sponsored employees.  It was on the latter failure that the Respondent relied in revoking the licence.  The Respondent’s letter of 15 May 2014 had reminded the Appellant that all the Certificates of Sponsorship assigned by it showed 79, Hythe Road as the working address and that paragraph 15.7 of the Guidance requires a sponsor to report within 10 working days any change in the location at which a sponsored employee works.  Mr Biggs accepts that the Certificates of Sponsorship had been inaccurately completed but he suggests now, although the Appellant did not so suggest at the time of revocation, that this was Vostek’s error, that Vostek had confused the concept of working for the company the address of which was registered with the concept of working at a particular address.  I have already recorded at paragraph 20 above the incredible explanation which the Appellant gave at the time for the provision of this inaccurate information.  The new explanation may be more credible but it comes too late and, equally if not more importantly, it does not in any event render the record-keeping compliant.  Mr Biggs characterises this as an error of form rather than of substance and submits that the breach was not of sufficient seriousness to justify revocation.  I do not accept that this was an error of form rather than of substance.  The substance of the requirement was to record the location at which the sponsored employees could be found during their working hours, and to keep that information up-to-date.  It is obviously of critical importance that the Respondent be kept informed of the location at which sponsored employees are working.  Only in that way can she ensure that the system is not abused.  The breach went to the root of what was required.  There was not partial non-compliance but a complete failure to comply.  
37.	Mr Biggs complains that the judge did not deal with the submission that the Respondent in any event knew where these employees were working.  I am not surprised that the judge did not deal with this point as it is not a point that was raised by the Appellant either before the revocation of 16 June 2014 or before the final letter of 4 July 2014.  Mr Biggs’ submission is in any event unsound.  Two matters are relied upon.  The first is that in the course of just over two years the Respondent made two compliance visits to the Appellant’s premises, on 1 February 2012 and on 18 March 2014.  It is not apparent that those visits were concerned with ascertaining who worked where, so that the Appellant cannot by reliance thereupon establish that the Respondent knew the precise working location of all its sponsored employees, even were that relevant.  The second matter relied upon is that, according to an email of 10 July 2014 sent by a Mr Devasia of Vostek to the Appellant’s solicitors, there was sent to UKBA on 16 April 2014 in connection with an application for restricted Certificates of Sponsorship an organisational diagram from which it is apparent that all twelve of the Tier 2 sponsored employees then working for the Appellant were working at The Knoll.  It is unclear to precisely whom within UKBA this chart was sent.  It plainly was not sent to the Sponsor Compliance Unit at UK Visas and Immigration, which is that part of the Home Office performing the relevant supervisory function.  Even leaving aside the point that this document was not made available in the context of the suspension and revocation process initiated by that Unit by its letter of 15 May 2014 following the 18 March 2014 visit, it ought to be obvious that a spreadsheet recording that on one particular day twelve unnamed Tier 2 sponsored employees work at a particular location is no substitute for correctly completing Certificates of Sponsorship and keeping the electronic record up-to-date.  The sponsor duties as more particularly spelled out in paragraph 15.7 of the Guidance require the maintenance of clear and accurate records which are continually updated as necessary.  In R (On the Application of WGGS Limited t/a Western Governors Graduate School) v SSHD  [2013] EWCA Civ 177, Jackson LJ said: 
“41.	Mr Macdonald submits that there were strong mitigating circumstances to excuse WGGS's failure to report. First, the provisions imposing the obligations to report were unclear. I reject that submission. 
42.	Secondly, Mr Macdonald submits that no harm was done by the failure to report, because UKBA already knew the facts. I reject this submission. UKBA is, amongst many other duties, seeking to regulate the admission of foreign students to some 2,100 different colleges. Each of those colleges is issuing CASs to students whom it deems worthy of receiving onto its courses. The UKBA needs to keep a clear record of what the position is in respect of each college. It is entirely reasonable for UKBA to require that each non-enrolment be reported. Also, even though UKBA can discern from its records which students have been refused entry clearance or leave to remain, UKBA still needs the comfort of seeing that colleges which seek HTS status are performing their obligations. 
43.	It should not be forgotten that under the PBS colleges are performing functions which used to be undertaken by entry clearance officers or other UKBA officials. There is a clear responsibility on those colleges to show that they deserve the trust which is being placed in them.”
The same is true, mutatis mutandis, of the Tier 2 scheme.  A principal purpose of the record-keeping required is that information as to sponsored employees including their whereabouts during the working day is instantly available from an obvious and identified source.  It is no answer to the Respondent’s complaint on this score that somewhere within her very large department there might have been found the relevant information, although as I have already pointed out even the premise for this inadequate response is in any event unsound.  
38.	Mr Biggs’ final point is that the Respondent failed to demonstrate in her decision letters that she had properly considered the exercise of her discretion.  Those letters contained no analysis of the consequences of revocation for either the Appellant or the residents of the care homes, despite those consequences having been specifically raised in the Appellant’s letter of 30 May 2014.  It was, submitted Mr Biggs, incumbent on the Respondent to show that she had engaged with that point and to enunciate her reasons for concluding that it was nonetheless appropriate to revoke the licence.  
39.	I have already pointed out at paragraph 16 above that the Appellant’s assertions as to the damaging consequences which would flow from revocation were unsubstantiated.  It may therefore be no matter for surprise that the Respondent felt it unnecessary expressly to address them.  There is also the point that so far as concerns the failure to comply with sub-paragraph (ac) of Annex 5, revocation was in any event mandatory.  So far as Annex 6 is concerned, revocation where that is engaged is generally to be expected in the absence of exceptional circumstances – see paragraph 19.6 of the Guidance.  I do not consider that it was incumbent upon the Respondent to spell out that, as was obvious, exceptional circumstances were neither relied upon nor present.  
40.	So far as is necessary, which in my view it is not, the Respondent relies upon the evidence of Ms Lillico.  Evidence from a public body seeking to explain the thought processes which informed its decision may sometimes, as Mr Dunlop accepted, be viewed with circumspection, but there is no bar to its admissibility arising alone from the circumstance that it was not made available at the time when the decision was made.  Ms Lillico’s witness statement does not, as Mr Biggs submitted, contain ex post facto reasoning.  Rather, it sets out the reasoning by which the decision was in fact informed when it was made.  The principal significance of Ms Lillico’s evidence is that it draws attention to the Appellant’s cavalier approach to record-keeping and the failure either to understand or to acknowledge both its purpose and importance and the nature of the responsibility cast upon licence sponsors as the quid pro quo of the advantages conferred upon them.  That evidence is entirely credible and in any event the correspondence between Messrs Fernandes Vaz and the Respondent, not all of which I have reproduced above, speaks for itself, and fully justifies the view to which Ms Lillico came at the time.  On the information then available the Respondent was amply justified in concluding that the Appellant was not complying with its sponsor duties, had an inappropriate attitude to compliance and, to use the words of Jackson LJ, did not deserve the trust being placed in it.  
41.	For all these reasons I would dismiss the appeal.  In my judgment the challenge to the decision of the Respondent fails by a wide margin.  The Appellant has failed to grapple with the simple point that, for good reason, it was required to maintain the electronic equivalent of a paper trail and that it failed to do so.  It does not advance its case to question the necessity for each element in the trail.  
42.	Before parting with the appeal I wish to make two further points.  First, the Respondent has cast no aspersion upon the quality of care afforded by the Appellant at its three care homes, and my conclusions on this appeal equally imply no criticism in that regard.  Second, subsequent to the revocation of the licence and in the course of these judicial review proceedings the Appellant has tendered further evidence, in the shape both of further documentation and of witness statements from Mrs Patel and Mr John of Vostek.  Under the current Guidance the Appellant is at liberty to apply for restoration of its licence.  Mr Dunlop told us on instructions that unless something of which the Respondent is not currently aware were to come to light in a pre-licence visit, the Respondent would be minded to grant any such application in light of the fact that: 
(a)	the Appellant has continued as a sponsor for the 2 years since the revocation decision as a result of the orders for interim relief, 
(b)	the Appellant does not appear, so far as the Respondent is aware, to have breached its sponsor duties in that time, and 
(c)	the Appellant has since the revocation of the licence provided further evidence which at least partially mitigates the failures that led to revocation.  
43.	I appreciate that this indication does not dispel Mrs Patel’s belief that she has been treated unfairly, which is apparently why she has pursued this appeal rather than apply for restoration of the licence.  I cannot agree that the Appellant has been treated unfairly, but in the light of the circumstance that there is no criticism of the quality of care afforded in the Appellant’s care homes I am happy to be able to record what we were told would be the likely outcome of an application for the licence to be restored.          
Lord Justice Kitchin :
44.	I agree.
Lord Justice Moore-Bick : 
45.	I also agree.