High Court clarifies meaning of “non-genuine vacancy” in sponsor licence revocation

The High Court has conducted a detailed analysis of what constitutes a “non-genuine vacancy” in R (Prestige Social Care Services Ltd) v Secretary of State for the Home Department [2025] EWHC 2860 (Admin). In doing so, the court introduced a new analytical framework for assessing whether a role is genuine.

The specific examples in the sponsor guidance, such as roles created to facilitate entry, all require dishonesty. But a role can also be “not genuine” if it simply fails to meet the guidance’s definition of a genuine vacancy, regardless of dishonesty.

Background

This case follows the Court of Appeal’s decision Prestwick Care which confirmed there is no duty to conduct an impact assessment in mandatory revocation cases. As anticipated, the claimant’s global assessment ground fell away as a result, with the court noting this is “one of a run of first instance cases” where that has happened.

However, Prestwick left another question unresolved. In the linked case of Supporting Care, the Court of Appeal found the Home Office had acted unlawfully in effectively finding dishonesty without proper procedural safeguards. But the question of whether a “non-genuine vacancy” finding always requires dishonesty was not settled.

The claimant, a specialist care provider in the East Midlands, had its licence revoked in October 2024. The Home Office cited three concerns: staff turnover of over 40% (later recalculated to over 60%), a sponsored worker whose visa was refused, and another worker who was recruited into a driving role despite stating on her application she could not drive.

Both parties argued Prestwick had answered the dishonesty question but reached opposite conclusions. The care home operator argued that a “non-genuine vacancy” finding always requires dishonesty, which the Home Office accepted it had not found. The Home Office disagreed.

“Non-genuine vacancy”

Since Prestwick and other recent decisions had not addressed this issue, the court considered older case law from the Tier 2 sponsorship era. It found conflicting High Court authority: one line of cases suggested dishonesty was not required, while another interpreted the examples in the guidance as requiring deliberate deception.

The court observed that those earlier cases had all focused on interpreting the specific examples of non-genuine vacancies listed in the guidance: roles that don’t exist, sham arrangements, or positions created to facilitate entry into the UK. This case takes a different approach.

The guidance now contains an explicit definition of what makes a vacancy genuine. It must require the worker to perform the specific duties of the role, must not include dissimilar or lower-skilled duties, and must be appropriate to the business in light of its scale and business model. The court held that if a role fails to meet these definitional requirements, it can be found “not genuine” even without any dishonesty.

In short, there are now two routes to a “non-genuine” finding. Where the Home Office alleges the role falls within the specific examples, such as deliberate exaggeration, this remains an allegation of dishonesty and requires the procedural safeguards set out in Supporting Care. But where the role simply fails to meet the definition of genuine, no such finding of dishonesty is needed.

The judgment

Applying this rationale to the current case, the court found the conclusions on staff turnover and the failed visa application were rational. On the worker who couldn’t drive, the court found while her recruitment was rationally a severe failure of practice, it was irrational to conclude her role was “non-genuine” simply because she could not drive. The fact that her sponsorship was withdrawn within two months precisely because she could not drive suggested the role was actually genuine.

Nevertheless, the claim was dismissed. The Home Office had also relied on failure to comply with sponsor duties, and each of the three concerns supported this finding.

The worker whose visa was refused was sponsored despite no proper basis for believing he would meet the English language requirement was a breach of the duty to only assign a certificate of sponsorship where the sponsor believes the worker will meet immigration requirements. The worker who couldn’t drive was recruited into a role she was clearly unable to perform was a breach of the duty to only sponsor workers who are able to fill the role. The high staff turnover evidenced systemic failures in recruitment practices that posed a threat to immigration control. Together, these failures justified revocation.

While the care home operator didn’t succeed, it has at least “cleared its name” of the non-genuine vacancy finding. With the cooling-off period now passed, it can reapply, though it must demonstrate it has addressed the reasons for revocation.