The High Court has again confirmed that mandatory sponsor licence revocation is, indeed, mandatory. One Trees Estates Ltd, R (On the Application Of) v Secretary of State for the Home Department [2024] EWHC 1644 (Admin) brings consensus to the courts’ approach on the Home Office’s duty to undertake a wider impact assessment in mandatory revocation cases.

It follows a series of conflicting decisions in judicial review claims against sponsor licence revocation from care home operators in Prestwick Care, Supporting Care and New Hope Care,

Background

The Home Office revoked this care home operator’s sponsor licence on 26 July 2023 following a compliance visit which uncovered grounds for mandatory revocation. Six senior care workers were found to be carrying out the duties of a carer, rather than a senior care worker. It was determined that their roles did not represent genuine vacancies as the duties listed on their certificates of sponsorship were exaggerated and incorrect.

While several issues were raised by the Home Office when it initially suspended the care home operator’s licence on 6 June 2023, the revocation decision was based solely on the genuine vacancy issue, which is a mandatory ground for revocation.

Judicial review

The care home operator challenged the revocation decision on four grounds, but permission to proceed to a substantive hearing was granted on a single ground only. The only question for the court to consider was:

Did the Secretary of State make a material public law error in failing to conduct an adequately reasoned global assessment of all relevant considerations in deciding how to exercise his discretion?

The care operator accepted it had breached the genuine vacancy requirement, which falls within the Home Office’s list of “Circumstances in which we will revoke your licence”. However, relying on the earlier case of Supporting Care, the care home operator argued that, notwithstanding the wording of the Home Office guidance, the Home Office has a residual discretion as a well-established principle of public law.

The revocation decision in Supporting Care was quashed because the Home Office had failed to conduct an adequately reasoned “global assessment” of all relevant considerations in deciding whether to revoke the care home operator’s sponsor licence. The Home Office had not exercised its residual discretion and properly engaged with the impact of revocation on the workers, their families, the vulnerable service users receiving care, or the adverse impact of revocation on the business and the wider care home sector.

In the present case, One Trees Estates had 116 employees, of which 34 were sponsored workers, and provided nursing care for up to 70 service users. It argued that the Home Office did not properly engage with the consequences of the revocation decision, in that all 34 sponsored workers were required to find an alternative sponsor or leave the UK within 60 days of notice from the Home Office. In addition, the revocation decision disrupted the continuity and quality of care its vulnerable residents receive, caused reputational damage and potential financial loss.

Relying on the contrasting judgment in Prestwick Care, the Home Office submitted that the wider impact of the revocation decision was irrelevant where mandatory grounds are made out. The Home Office did accept that it has residual discretion, but argued that even where the revocation grounds are discretionary, revocation can be expected in all but “exceptional circumstances”.

Is the Home Office required to exercise its residual discretion in mandatory revocation cases?

The court held in favour of the Home Office and dismissed the care home operator’s claim for judicial review. In doing so, the court agreed with the precedent established in Prestwick Care and affirmed in New Hope Care.

Requiring the Home Office to conduct a global assessment over and above the considerations set out in the Guidance “would serve to undermine rather than uphold the Secretary of State’s primary purpose of maintaining proper immigration control.”

While the Home Office does have a residual discretion, the court held that there was “no proper basis for an exercise of residual discretion in favour of the [care home operator] given the [Home Office’s] conclusion that the breach of guidance was serious.”

In other words, where the Home Office concludes that the breach of guidance is serious enough to invoke mandatory revocation, there is no reason to exercise residual discretion and conduct further investigations on the impact of the decision, and mandatory revocation is, in fact, mandatory.

Conclusion

There now seems to be a consensus on this issue in the High Court, with the one anomaly being the decision in Supporting Care. The High Court disregarded that decision in this case on the basis that the outcome would have been different had the judge been aware of the earlier authority established in Prestwick Care.

The Home Office have now been granted permission to appeal the Supporting Care decision to the Court of Appeal and it will be interesting to see if the Court of Appeal follow precedent set in the High Court. Given the Home Office’s current high level of enforcement action in the care sector, this will undoubtedly not be the last judicial review claim brought against mandatory sponsor licence revocation.