On 26 June 2024 the Administrative Court handed down its judgment in the case of R (on the application of One Trees Estates Limited) v SSHD [2024] EWHC 1644 (Admin), a case that considers whether the Home Office should conduct a reasoned global assessment when considering how to exercise its discretion in cases involving sponsor licence revocations. 

Over the past year or so we have seen a number of legal challenges – many involving care homes – to decisions issued by the Home Office to revoke a sponsor licence. Sponsor licences are issued to companies to enable them to sponsor and recruit international workers. Many organisations use a sponsor licence to sponsor Skilled Workers.

Since 15 February 2022, care workers have been recognised as a shortage occupation (or an occupation eligible for a lower salary since the Immigration Rule changes implemented in April 2024), enabling those that hold a sponsor licence to sponsor care workers; prior to this date only senior care workers could be sponsored. Once the sponsor issues a Certificate of Sponsorship, the worker can then proceed with an application for permission to enter or remain in the UK under the Health and Care Worker provisions of the Skilled Worker route.

Due to the difficulties faced recruiting care workers, many care homes in the UK have secured a sponsor licence to enable them to widen the talent pool from which they can recruit. This resulted in the previous conservative government announcing plans to prevent sponsored care workers from bringing their family to the UK, in the hope that this helped to bring down net migration figures.

All organisations that hold a sponsor licence can face a compliance visit from the Home Office. It was following a compliance visit that One Trees Estates Limited, a nursing care provider, had their sponsor licence revoked. They sought to challenge the revocation, but their judicial review was dismissed by the Administrative Court in the recent decision of R (on the application of One Trees Estates Limited) v SSHD [2024] EWHC 1644 (Admin).

Background

One Trees Estates sponsored 34 care workers, and on 26 April 2023, they were visited by Home Office compliance officers who were checking whether the organisation was abiding by the extensive compliance duties imposed upon it as a sponsor licence holder. Several sponsored workers and the manager of the care home were interviewed during the visit.

Following the compliance visit, the Home Office suspended One Trees Estates’ sponsor licence, alleging several compliance failures. After receiving representations from the sponsor, the Home Office subsequently revoked their licence. The licence was revoked on grounds of ‘genuine vacancy’; the Home Office concluded that several named workers who were sponsored as senior care workers were undertaking the role of care worker. The Home Office concluded that their roles did not represent genuine vacancies, and that One Trees Estates had breached their sponsorship duties.

What is a genuine vacancy?

Home Office guidance confirms that a genuine vacancy is one which:

• “requires the jobholder to perform the specific duties and responsibilities for the job and meets all of the requirements of the relevant route
• does not include dissimilar and/or predominantly lower-skilled duties
• is appropriate to the business in light of its business model, business plan and scale”

The issue in the present case was that workers (senior care workers) were undertaking lower-skilled duties (those that a care worker would undertake).

The decision

It is important to understand that in judicial review litigation the entirety of the decision can’t be reviewed and appealed; rather, the court must assess whether the procedure followed by a public body is lawful. In other words, whether any other reasonable decision maker would have reached the same conclusion.

In One Trees Estates’ the Claimant care home accepted that they had assigned Certificates of Sponsorship where no genuine vacancy existed. It was further accepted that this is a mandatory revocation ground specified in Home Office guidance. However, it was argued that the Home Office could have still exercised discretion, and that they did indeed address discretion in their decision. When addressing discretion in their decision, the Claimant noted that the Home Office had simply copied and pasted paragraphs from a decision that was quashed by the Administrative Court in the case of Supporting Care Ltd v SSHD [2024] EWHC 68 (Admin) (‘SCL’).

The case of SCL also involved a sponsor licence revocation on grounds of genuine vacancy, but the decision was quashed because it was concluded that the Home Office had failed to conduct a reasoned ‘global assessment’ of all factors relevant to a decision to revoke or downgrade a sponsor licence. The Home Office had not, for example, engaged with the impact of revocation on the workers, their families, the vulnerable user of care facilities, or the impact on the care home or the wider care home sector.

The case of R (Prestwick Care Ltd) v Secretary of State for the Home Department [2023] EWHC 3193 was also considered by the Administrative Court. In Prestwick Care, similar to SCL, it was argued that the Home Office had failed to consider the impact revocation would have on the business and on those to whom it provided care to, but the submission was rejected. The judge concluded there was no requirement to take these factors into account when deciding whether sponsorship guidance had been complied with. It was recognised that the Home Office’s expertise lies in immigration control, and that it is ‘unrealistic’ for her to consider the economic implications of a revocation decision on the businesses that rely on sponsored labour. Similar provisions also apply when considering the impact on the health and social care sector. It was concluded that ‘neither the commercial viability or healthcare provision issues should need addressing because they are not relevant to the central question, namely, can I trust this sponsor to comply with the Guidance?’. The decision in Prestwick Care was also relied on by David Pievsky KC who was sitting as a Deputy High Court Judge in the case of R (on the application of New Hope Care Limited) v Secretary of State for the Home Department [2024] EWHC 1270 (Admin).

Prestwick Care was followed by the Administrative Court in One Trees Estates; it was concluded that the Home Office had no obligation to address discretion. In any event, the decision maker must have been aware of the size of the business and the obvious commercial and non-commercial consequences arising from revocation, and that these consequences would apply to most care home providers. The court further concluded that even if a detailed global assessment had been conducted, the outcome of the case would have been the same.

Where does this leave us?

For severe breaches to sponsor guidance resulting in mandatory revocation, there is no requirement for the Home Office to undertake an assessment of residual discretion (or a global assessment). At paragraph 41 of her decision, Deputy Judge of the High Court Margaret Obi notes that there were no exceptional circumstances in the case, which does potentially leave scope for an argument that a global assessment may be necessary in another exceptional case. Of course, in less serious cases where it isn’t mandatory to revoke a licence, discretion will be relevant.

Sponsorship compliance duties are summarised in my earlier blog that can be accessed here. Failure to comply with sponsorship duties is serious and could result in the mandatory revocation of a sponsor licence; those that hold a sponsor licence should seek legal advice in relation to their compliance duties, and perhaps undergo a mock audit whereby we can review your policies and procedures and note any potential compliance issues that need addressing.