Procedural Fairness and the High Bar of Section 31(2A): Lessons from TJT Trading Express Ltd v SSHD

In R (TJT Trading Express Ltd) v Secretary of State for the Home Department [2025] EWHC  (Admin), Mrs Justice Hill DBE reaffirmed foundational public law principles in the context of immigration sponsorship revocation, setting critical boundaries for Home Office discretion under sponsor guidance.

Background and Facts

TJT Trading Express Ltd, the Claimant, operated a petrol station and convenience store in Yorkshire. It had held a Skilled Worker sponsor licence since 2022. In November 2023, the company assigned a Certificate of Sponsorship (CoS) to Mr Sivalingam, the brother-in-law of its director, for the position of Petrol Station Manager. The Secretary of State subsequently revoked the sponsor licence with immediate effect in March 2024, without first suspending the licence or inviting representations.

The revocation letter cited two mandatory grounds from Annex C1 of the Sponsor Guidance: (1) that a CoS had been assigned to a close relative without disclosure (ground (o)), and (2) that there were reasonable grounds to believe the job role was not genuine (ground (z)). The Claimant brought a judicial review challenge, arguing that the revocation was procedurally unfair and legally flawed.

Grounds Pleaded

The Claimant advanced the following principal grounds:

Ground 1 – Procedural Unfairness: The Secretary of State failed to provide the Claimant an opportunity to make representations prior to revoking the licence, thereby breaching the common law duty of fairness. The decision was taken without considering mitigating factors or alternative sanctions, such as suspension or downgrading.

Ground 3 – Error of Approach and Irrationality: The decision under ground (z) was based solely on the familial relationship and lack of disclosure, without properly engaging with the genuineness of the vacancy or the recruitment process. There was no adequate reasoning or evidence of dishonesty.

The Secretary of State sought to defend the decision by arguing that where a mandatory ground under Annex C1 applied, procedural fairness was not required, and any alleged errors were immaterial to the outcome.

Procedural Fairness Reaffirmed

Mrs Justice Hill rejected the Secretary of State’s arguments. She held that the Claimant was entitled to be notified of the allegations and given an opportunity to respond before such a serious sanction was imposed.

“The common law right to be heard before important benefits are taken away is, as I have said, fundamental. I think it applies even where, as here, the benefit that has been conferred is ‘a privilege not a right’ (as the Guidance describes sponsorship at C1.3). It applies with full force – and certainly no less force – where, as here, a public authority considers that there has been, in effect, a litany of failures, justifying very firm intervention.”
(para [105])

The Court emphasised that even where “mandatory” grounds are cited, the classification does not displace the need for procedural fairness, especially in the absence of urgency. The judgment echoes the approach in New Hope Care Ltd and Balajigari, which insist on pre-decision engagement when reputational harm or serious allegations (e.g. dishonesty, bad faith) are involved.

Materiality and Section 31(2A) SCA 1981

The Home Office argued that any breach of fairness was immaterial under both the common law “inevitability” standard and section 31(2A) of the Senior Courts Act 1981 (“highly likely” threshold). Mrs Justice Hill dismissed this, stressing that procedural rights are not overridden by a one-sided assessment of the strength of the evidence:

“It has repeatedly been recognised that it is difficult, and often impossible, to uphold a Defendant’s s.31(2A) argument where there has been a decision-making process which is not in accordance with the law: and this must be a fortiori the position when considering an immateriality argument at common law… the court will be slow to hold that there is no obligation to give the opportunity [to make representations in advance], when such an obligation is not dispensed with in the relevant statute.”
(para [110])

This part of the judgment clarifies that section 31(2A) is not a mechanism for salvaging an unfair process simply because the decision-maker believes the outcome would have been the same. The test under s.31(2A) sets a deliberately high bar—it must be “highly likely” that the outcome for the applicant would not have been substantially different. That is not a licence to speculate.

The Court stressed that where a serious procedural defect has occurred—especially one going to the fairness of the process—it is inappropriate to conclude with confidence what the decision would have been had the process been lawful. As Mrs Justice Hill pointed out, procedural fairness is concerned with more than outcome: it protects the integrity of administrative justice, ensures transparency, and affirms the right of the affected party to be heard before reputationally and economically damaging decisions are imposed.

“Had the Claimant had the opportunity to make representations, mitigating arguments… could have been advanced as envisaged by paragraph C9.11 of the Guidance. This indicates that… whether revocation of a licence would be a justified and proportionate sanction… bearing in mind any relevant mitigation.”
(para [112])

Implications

The judgment reinforces a crucial distinction between the substance of Home Office guidance and its procedural application. It confirms that even within a regulatory framework emphasising strict compliance, the principles of procedural fairness remain integral.

The decision also offers clarity on the limits of the Home Office’s discretion, affirming that the use of terms such as “mandatory” revocation in guidance does not shield decisions from legal scrutiny where fairness and proportionality are lacking.

More broadly, the ruling in TJT Trading contributes to a growing judicial consensus resisting overreliance on s.31(2A) as a fallback to uphold otherwise unlawful decisions. It serves as a caution against attempts to curtail remedies where the procedural right itself is fundamental to the legitimacy of administrative action.

Lessons to Learn

The decision in TJT Trading Express Ltd underscores key practical and legal lessons for public authorities and legal practitioners alike:

• Procedural obligations cannot be circumvented by internal policy: Whether or not a ground for revocation is labelled “mandatory” in policy guidance, the common law requirement to afford an opportunity to be heard persists.
• Section 31(2A) is no cure for flawed process: Courts will not entertain hypothetical assertions that a different process would not have changed the outcome. The judgment sends a clear message that lawful decision-making processes must precede and inform outcomes, not follow them.
• Importance of pre-decision engagement: Authorities exercising coercive powers must not overlook the duty to provide prior notice and invite representations, particularly where reputational or economic harm is foreseeable.
• Robust judicial supervision of public law decisions: This case reaffirms the role of the judiciary in preserving the integrity of administrative justice, ensuring that expediency does not erode basic fairness.

Conclusion

TJT Trading offers a timely reaffirmation that even within a “privilege-based” sponsorship regime, public authorities must adhere to procedural safeguards. It reinforces that legality, fairness, and reasoned decision-making are the backbone of administrative action, even where the Home Office exercises specialist judgment in immigration control.

The case will likely serve as a key authority in future challenges to sponsor licence revocations, particularly those made without notice or opportunity to respond. It is a reminder that fundamental rights to fairness do not yield easily to administrative convenience or policy rigidity, and that section 31(2A) is not a shield for unlawful decision-making. This judgment will resonate beyond immigration law, reinforcing procedural standards applicable across public law domains where individuals or organisations face significant consequences from executive action.

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