As the Home Office continues to step up enforcement action in the care sector, we have had another sponsor licence revocation decision involving a large care home operator successfully judicially reviewed in the High Court. In R (New Hope Care Ltd) v Secretary of State for the Home Department [2024] EWHC 1270 (Admin) the care home operator’s claim for judicial review succeeded on grounds of procedural unfairness.

The judgment follows the two recent contrasting decisions written up by us in Prestwick Care and Supporting Care on the Home Office’s duty to undertake a global assessment of the impact of the revocation decision where mandatory revocation is engaged. Although this debate is likely to be considered by the Court of Appeal when the Home Office appeal the decision in Supporting Care, here the High Court gives its view on whether discretion can be exercised in cases involving mandatory revocation.

Background

The care home operator was visited by the Home Office’s compliance team on 7 August 2023 to assess its suitability as a sponsor. The care home’s authorising officer was not present during the compliance visit as he was outside the country. The timeline of events that followed the compliance visit is important to the grounds on which this claim for judicial review succeeded.

On 14 August 2023 the Home Office suspended the care home operator’s licence on the basis that the organisation was failing to comply with its sponsor duties. Strangely, the suspension letter did not disclose any further detail on the reasons for suspension. It simply confirmed that the care home operator would be provided with full findings and detailed reasons on completion of the Home Office’s investigation. The care home operator would then have 20 working days to provide its response.

The Home Office subsequently contacted the care home operator to arrange a second compliance visit for 6 September 2023, at which the authorising officer would need to be present for an interview. The authorising officer responded to the Home Office explaining that he had been detained in Zimbabwe following a politically motivated arrest and requested that the proposed compliance visit be rearranged once he was able to return to the UK.

The Home Office agreed to cancel the compliance visit scheduled for 6 September 2023 and asked the authorising officer to inform the Home Office when he returned to the UK so that the compliance visit could be rescheduled. There was no further correspondence between the Home Office and the care home operator.

On 6 October 2023, the Home Office issued the care home operator with a decision letter revoking its sponsor licence for five reasons that contravened sponsor guidance:

1. The authorising officer was not based in the UK.
2. The care home operator had issued an excessive number of certificates of sponsorship. In the 8 months that the care home operator held its sponsor licence, it had assigned 156 certificates of sponsorship. Combined with the authorising officer’s absence from the UK, this represented a threat to immigration control.
3. The care home operator had issued zero hours contracts to some sponsored workers, paid some of them less than it stated on the workers’ certificates of sponsorship, paid some of them less than the national minimum wage, and paid some of them in cash.
4. Some sponsored workers had started work more than 28 days after the start date on their certificate of sponsorship.
5. There was no evidence of right to work checks being carried out on a number of staff. Record-keeping was in general inadequate, and the authorising officer had failed to keep a secure personal email address.

Judicial review

The care home operator sought judicial review of the Home Office’s revocation decision on four grounds. It succeeded on one ground, procedural unfairness. The Home Office failed to follow the procedure it set out in its suspension letter, as well as the procedure stipulated by the sponsor guidance.

The Home Office suspension letter stated that it would provide full and detailed reasons for the suspension of the licence and the care home operator would subsequently have 20 working days to respond to these findings. That did not happen.

The sponsor guidance also sets out procedure that must be followed when a sponsor licence is suspended. The Home Office must first provide reasons for the suspension, and the licence holder should then be given at least 20 days to provide a response to the reasons for suspension. This response must be considered by the Home Office before deciding to revoke a sponsor licence. Again, that did not happen in this case.

The judgment also makes clear that, irrespective of the procedure stipulated in the suspension letter and sponsor guidance, “the common law right to be heard before important benefits are taken away is fundamental”.

The revocation decision was therefore unlawful because it was inconsistent with published policy, contrary to a legitimate expectation and procedurally unfair at common law. There was no evidence put forward by the care home operator in response to the substantive allegations raised by the Home Office on its reasons for revocation and the issues weren’t considered in any detail by the court. Given the seriousness of the allegations, it seems likely that the Home Office will seek to remake this revocation decision.

Is the Home Office required to undertake a global assessment on impact of revocation?

The fourth ground raised by the care home operator was the Home Office’s failure to carry out a global assessment on the impact of the revocation decision. Supporting Care succeeded on this basis, which was contrary to the earlier findings in Prestwick Care that the wider impact of the revocation decision didn’t matter where revocation was mandatory. The court in this case overwhelmingly sided with the judgment in Prestwick Care.

The court decided that where revocation is mandatory, a global assessment of the impact of revocation on those affected, even if diligently carried out, would not change the outcome of the decision. Any view to the contrary would undermine the policy position of the Home Office that serious misconduct should justify revocation because the risk to the immigration system is simply unacceptable. Any potential wider impact does not outweigh that policy position on immigration control. This aligns with the court’s decision in Prestwick Care.

The court in any case noted that the Prestwick Care decision was published after oral arguments had been heard in Supporting Care, and it is unlikely that the judge was aware of the judgment when he handed down his decision. Had he been aware, it is likely that he would have followed the precedent set by the court in Prestwick Care.

Conclusion

It is not surprising that that this claim for judicial review succeeded on procedural unfairness grounds. The Home Office suspended the care home operators sponsor licence without giving any reasons for suspension, and then revoked the licence without giving any opportunity for a response to the allegations of non-compliance.

The judgment more importantly answers the question raised in our previous discussion in Supporting Care, is mandatory revocation actually mandatory? This court says yes, but the question could soon be revisited by the Court of Appeal which is currently considering the Home Office’s application to appeal the decision in Supporting Care.