Care home operator successfully challenges Home Office approach to genuine vacancy requirement

A care home operator has successfully challenged the Home Office’s decision to refuse a defined certificate of sponsorship request on the grounds that the care home could not provide official contracts for guaranteed hours of work to show that the jobs were genuine.

The High Court’s decision in Hartford Care Group Ltd, R (On the Application Of) v Secretary of State for the Home Department [2024] EWHC 3308 (Admin) declaring the Home Office’s approach to the genuine vacancy requirement unlawful is good news (for once) for care sector sponsors and prospective sponsors.

Background

Since October 2023 the Home Office has started asking care sector sponsors to provide copies of contracts they have in place to demonstrate their need for additional workers. This approach has been deployed for both existing sponsors making requests for additional certificates of sponsorship, and prospective sponsors seeking a sponsor licence for their care business.

The care home operator in this case made a request for 70 defined certificates of sponsorship on 9 January 2024. Recognising that care workers may be reluctant to come to the UK if they could not bring family members, it was an attempt to recruit more overseas staff under the existing rules before the prohibition kicked in from 11 March 2024.

On 19 January 2024 the care home operator received a Home Office request for additional information which, for the first time, asked for copies of official contracts with local authorities which:

include a clear description of the scope of the service to be delivered; for example, the start and end date of the agreement, the nature of the service provided under the agreement, the number of service users covered by the agreement, the number of staff required to service the agreement and the locations that the staff will undertake the work.

The care home operator provided contracts with three local councils. They were all flexible contracts which made no guarantees as to number of users or staff, which is common in social care where local authorities do not commit to long term contracts. But a flexible contract without guarantees around the number of service users or number of staff did not satisfy the Home Office under their new approach to the genuine vacancy requirement.

The Home Office refused the request because the care home operator had been unable to demonstrate that there were confirmed contracts requiring immediate placement of 70 workers. The decision maker also stated that the role had to currently exist to meet the genuine vacancy requirement, not be based on expected demand. This is a strange position given that businesses commonly recruit in anticipation of future demand.

Judicial review

Instead of making another defined certificate of sponsorship request, the care home operator initiated judicial review proceedings. It claimed that the new approach should be expressly contained in the immigration rules, failing which, it at least amounted to new policy which had not been published.

The court did not agree, but it did hold that the new approach was nevertheless irrational:

It was irrational and Wednesbury unreasonable for the Defendant to require care providers to provide contracts with specific requirements for guaranteed hours of work in order to show that the job was genuine. Such contracts simply did not exist as standard contracts in the care sector. The Defendant was requesting evidence that it was impossible for the Claimant and others to provide and which had little or no bearing about whether there was a particular job vacancy within one of their care homes.

The sole reason for doubting the vacancies were genuine was the absence of contracts containing provisions mandating guaranteed hours. This was held to be irrational and unreasonable and the decision was quashed.

The Home Office will now reconsider the request for 70 certificates of sponsorship. This time, they will need to do so without taking account of the lack of specific guarantees in the three local authority contracts provided by the care home operator.

Implications

The judgment is positive for the care sector. Presumably now sponsors and prospective sponsors with previous refusals solely due to lack of specific guarantees in contracts can reapply with an expectation that the request will be granted.

What about those without any contracts in place at all? The court rejected the Home Office’s submission that current vacancies cannot be based on expected demand, suggesting a sponsor can still meet the genuine vacancy requirement without providing contracts proving that a vacancy needs to be filled immediately to meet current demand.

It will be interesting to see how the Home Office’s approach to the genuine vacancy requirement develops following this judgment. Given the intense scrutiny that remains in care sector compliance, sponsors will certainly still be required to provide alternative evidence showing their need for workers, such as an organisational chart showing current and genuine job vacancies.