Care Home Wins Legal Battle to Retain its Sponsor Licence
On 19.01.2024, the High Court ruled in favour of Supporting Care Ltd, a London-based care home, which had fought to keep their sponsor licence after the Home Office revoked it due to non-compliance. The case, Supporting Care Ltd, R (On the Application Of v Secretary of State for the Home Department [2024] EWHC 68 (Admin), offers an interesting look into how a business in this situation was able to challenge the revocation of their licence.
FACTS OF THE CASE
The care home, Supporting Care Ltd, were subject to a Home Office compliance audit as part of their sponsor licence. The Home Office found six compliance breaches and as a result, they revoked the care home’s sponsor licence in June 2023.
The care home challenged the Home Office’s decision via judicial review and by the time a substantive hearing was held, the breaches had been whittled down to a single breach – a single employee who was a foreign worker who was employed in a “shortage occupation” role. Out of the eight job duties listed on her certificate of sponsorship (CoS), she was not performing two.
According to the Home Office guidance published in March 2023, this was grounds for mandatory revocation. On page 57, where “The role undertaken by a worker you have sponsored does not match one or both of the following: • the occupation code stated on the CoS you assigned to them • the job description on the CoS you assigned to them,” the sponsor licence will be revoked.
THE CARE HOME’S ARGUMENT
During the judicial review, the care home argued four grounds, one of which was successful. The successful ground was that the Secretary of State had failed to conduct “an adequately reasoned global assessment of all relevant considerations in deciding whether to revoke or downgrade the sponsor licence.”
After its sponsor licence was suspended, the care home had informed the Home Office that its 68 sponsored foreign workers (and their families) would be forced to leave the UK (or quickly find another sponsor) if their licence was revoked. The care home emphasized that this would cause distress to the workers and patients and stated that this would adversely affect the business and the vulnerable patients who were being cared for by the foreign workers. Furthermore, the care home argued that there was room for discretion in the wording of the guidance, which stated on page 50:
Annex C1 of this document sets out the circumstances in which we will revoke your licence – these are known as ‘mandatory’ grounds of revocation. If any of these circumstances arise, we may revoke your licence immediately and without warning. If we do not revoke your licence immediately, we will suspend your licence pending further investigation.
The first sentence definitively sets out that if the circumstances arise, revocation “will” happen. However, the next sentence says that if the circumstances arise, the Home Office “may” revoke the licence.
The care home further argued that the Home Office was required to use their discretion, as per Mandalia v Secretary of State for the Home Department [2015] UKSC 59 at para 31, where Lord Dyson of the Supreme Court had stated “it is a well-established principle of public law that a policy should not be so rigid as to amount to a fetter on the discretion of decision-makers…”
In accepting this argument, the High Court found that the Home Office should have engaged with the facts of the case and explained why it was “reasonable and proportionate to revoke” the sponsor licence. In their view, the Home Office had failed to do both. Furthermore, the Home Office had been motivated by breaches relating to a single employee, in a large care home with over 68 skilled workers. At para 55, judge Siddique observed,
“There was no actual or at least demonstrable engagement with any other consideration such as the impact of revocation upon the other 67 migrant workers and their families, the vulnerable individuals under care or to [sic] adverse impact to the Claimant and the wider industry.”
The High Court therefore quashed the Home Office’s decision to revoke the sponsor licence.
During their arguments, the care home put forth another ground, which was unsuccessful, and the reasons for this are worth consideration by sponsors in similar positions.
The care home argued that almost all (six out of eight) job duties on the CoS were being undertaken and it therefore did not make sense for the Home Office to say that in general, the worker’s duties did not match the CoS.
The High Court noted it was critical to strike a balance; a licence should not be revoked for “very minor or meaningless discrepancies or variances between the work undertaken and the job description.” On the other hand, “substantial or significant variances” would undermine the trust that the Home Office would put in a sponsor to maintain proper immigration control.
In this case, the two duties which were not being carried out were:
- “To undertake some administrative duties e.g. care plans.”
- “To ensure that all residents care needs are catered for by liaising with team managers and carrying out care plans for residents, and be responsible for shifts and rotas.”
Although these were administrative duties, Judge Siddique stated, “In my judgment an objectively undertaken qualitative assessment of such duties could not realistically conclude that they are very minor or meaningless. Instead, such work can fairly and properly be described as substantial and / or significant.” He and the court therefore dismissed this ground on the basis that it could not be proven that the Secretary of State had misconstrued the guidance and CoS description and therefore arrived at an irrational or inadequately reasoned conclusion.
How will this impact your business?
As can be seen from this case, the Home Office undertakes routine audits regularly to ensure that sponsors are following all compliance rules when employing foreign workers. It is essential to ensure that you are complying with all your sponsor duties, and the Home Office has produced several guides to explain sponsor duties and compliance.
If you are the Skilled Worker or otherwise sponsored by your UK employer, it is essential to ensure that you are carrying out all duties as stated on your certificate of sponsorship (CoS). If the nature of your role is scheduled to change, we recommend that you discuss that with your employer and/or an immigration advisor as soon as possible.
Nasıl yardımcı olabiliriz?
We highly recommend seeking guidance at all stages of the process. Our lawyers are experienced with obtaining sponsor licences, making Skilled Worker applications, and other related areas. We can:
- Evaluate your matter and provide objective feedback on the success of your application
- Prepare your application and supporting documents
- Write covering representations detailing how you meet the legal requirements
Aşağıdakilere yardımcı olacağız:
- Bir davanın tüm gerçeklerini elde etme
- İlgili belgeleri toplama
- Advising on the best solutions
- Uzmanlığımızı kullanarak birebir görüşme hazırlığı yapmak
- Preparing the application (including completion of forms)
- Preparing covering submissions
- Submitting the application(s) to the relevant authority
- Bir karar verilene kadar ilgili makamla iletişim kurma
- Advising about rights and entitlements following a decision an application
- Takip desteği ve hizmetleri sağlama
Contact us today for more information at 0208 995 3556 or info@descartessolicitors.co.uk.
By Tiffany Carpenter
27.02.2024