Already in 2024, there have been two instances where the High Court has considered whether the Home Office was right (acted lawfully and proportionately) to revoke the skilled worker sponsor licences of two large care home providers. These were the cases of Prestwick Care Ltd & Ors v Secretary of State for the Home Department [2023] EWHC 3193 (Admin) and Supporting Care Ltd, R (On the Application Of v Secretary of State for the Home Department [2024] EWHC 68 (Admin).
The first, Prestwick Care Ltd, had their sponsor licence revoked. When they appealed the decision to revoke their licence, the High Court agreed with the Home Office’s decision and ruled that Prestwick Care Ltd can no longer sponsor overseas workers. Meanwhile, in the second, more recent case of Supporting Care Ltd the High Court found in favour of the care home and reinstated their licence. In this article, we will consider why the Court made different decisions in these two cases, and what other care homes can learn from these cases. With Home Office compliance visits on the rise and more care homes becoming approved sponsors, it has never been more important to ensure that your organisation is operating compliantly i.e. in line with its sponsor duties and wider UK laws.
The two cases before the Court
In the case of Prestwick Care Ltd, they employed 219 Skilled Workers under the Health and Care visa scheme and had been an approved sponsor for many years. In October 2022, the Home Office conducted a compliance visit, which resulted in the revocation of their licence shortly after in February 2023. There were six main areas where the organisation was identified by the Home Office as being ‘non-compliant:’
- Job descriptions – there were five individuals employed as Senior Care Assistants but who were not performing the role as described on the job description.
- Salaries – the Home Office found one instance of an employee being paid less than the salary stated on her Certificate of Sponsorship (also known as a ‘CoS’).
- Immigration Skills Charge – the Home Office identified that the care home operator had been recouping this payment from each sponsored worker, as well as the fee for assigning the worker’s CoS, both of which is forbidden.
- Record keeping – having incorrect home addresses for several sponsored employees was found to be an example of non-compliance.
- Sick pay – there were three instances of employees not receiving sick pay, or being told that they were not eligible for it, despite UK employment law requiring the employer to pay this.
- Monitoring – failure to record the expiry dates of eight sponsored employee’s visas led the Home Office to conclude they were non-compliant in this area.
Meanwhile, in the case of Supporting Care Ltd, there were also several compliance issues identified by the Home Office. However, by the time of the hearing, this had been whittled down to just one breach, involving just one worker (out of a total of 68 sponsored employees). Specifically, it related to the job description point above; the worker at Supporting Care Ltd was found to be undertaking six out of the eight duties listed on the job description, and this was sufficient to be deemed an issue of non-compliance. Ultimately, the High Court found that the Home Office did not have to revoke the licence because of that one issue of non-compliance, and indeed they acted disproportionately in revoking the licence of Supporting Care Ltd. As such, the Home Office’s decision was overturned, and Supporting Care Ltd’s sponsor licence was reinstated. In reaching this decision, the High Court decided that the Home Office had failed to conduct an adequately reasoned assessment of all relevant considerations in deciding to revoke the sponsor licence, including whether it was proportionate in the circumstances, given that it related solely to the role of a single employee from a workforce of 68 skilled workers. Whilst this is undoubtedly a good outcome for Supporting Care Ltd, it would of course have caused a great deal of stress for the company, its employees and its residents, which could perhaps have been avoided.
Lessons to be learnt
1. Know the rules
Both cases show just how seriously the Home Office take non-compliance and are a reminder that even seemingly small administrative oversights (such as not updating an employee’s address details) could have significant implications for employers. It is crucial that employers understand, and keep up to date with, the guidance in this area. It is worth reaffirming the Home Office’s expectations here. Sponsor licence holders must:
- Report events about their organisation or their sponsored workers;
- Keep records on their sponsored workers and their recruitment processes;
- Comply with sponsor guidance, UK law and exhibit behaviour that is conducive to the public good.
2. Check your job descriptions
The job description point, which arose in both cases outlined above, is an important one because it relates to the Home Office’s “genuine vacancy” requirement. The Home Office’s sponsor duties and compliance guidance stipulates that Certificates of Sponsorship must only be assigned to those filling a role as described. This is to ensure that sponsors are not “shoe-horning” non-skilled work into the Skilled Worker framework. It is interesting that, in the Supporting Care Ltd case, non-performance of just two out of eight key duties was sufficient to cause the Home Office to conclude that the care home was non-compliant in this area. Therefore, it is important that the job descriptions are not generic or vague, but that they accurately reflect the skilled role being recruited for.
3. Be prepared
Employers may also wish to consider a “mock audit” from an independent legal advisor who can spot any potential compliance issues and advise the best way to solve them. Similarly, carrying out an audit on all staff in respect of Right to Work checks could also help avoid a common pitfall. Employers might also want to consider bespoke training for staff members, especially those in key positions of responsibility in terms of handling the licence or who are responsible for carrying out right to work checks and monitoring visa expiry dates. These services, as well as general support for managing a sponsor licence, is something that the immigration team at Stephens Scown LLP would be able to assist with.
If you are seeking advice or have any questions in relation to this article, please contact our Immigration team.