Earlier this month we considered a High Court judgment which upheld the Home Office’s decision to revoke a large care home operator’s sponsor licence due to several non-compliance issues. The High Court has now handed down its judgment in Supporting Care Ltd, R (On the Application Of v Secretary of State for the Home Department [2024] EWHC 68 (Admin), another case involving the revocation of a care home operator’s sponsor licence.

Background

The care home operator in this case employed 68 sponsored workers. Its skilled worker sponsor licence was revoked in June 2023 following a Home Office compliance audit earlier in the year. The licence was revoked on the basis that there had been six compliance breaches of Home Office policy. By the time of the substantive hearing in November 2023 this had been whittled down to just one area, relating solely to one sponsored employee.

The employee was sponsored as a senior care worker. Following interviews with the employee conducted during the compliance visit, the Home Office was not satisfied that the employee’s actual duties matched the job description on her certificate of sponsorship.

Of the eight duties listed on her certificate of sponsorship, the employee was found not to be undertaking two: liaising with managers to set care plans for residents, and communicating with other members of the care team. Even though the employee was still undertaking six out of the eight of her listed duties, Home Office policy guidance provides for mandatory revocation of a sponsor licence where a role does not match the job description on the certificate of sponsorship.

Judicial review

The care home operator sought judicial review of the Home Office’s revocation decision. The claim succeeded on one of the four grounds, namely that the Secretary of State failed to conduct an adequately reasoned global assessment of all relevant considerations in deciding whether to revoke or downgrade the sponsor licence.

The care home operator’s sponsor licence was suspended on 11 May 2023 and the Home Office invited submissions and supporting evidence before making its final decision on revocation. In its response on 5 June 2023, the care home operator highlighted that its 68 migrant workers and families would be required to leave the UK, that there would be consequential distress suffered by them and the vulnerable individuals under their care, and that there would likely be an adverse impact to services. In the care home operator’s submission, these factors were not adequately considered by the Home Office before deciding to revoke its sponsor licence.

The court identified that the only reason the licence was revoked was because Home Office policy stated revocation was mandatory in the circumstances. The care home operator accepted that Home Office policy provided for mandatory revocation but interestingly submitted that the policy still provided room for discretion to be exercised.

Reference was to paragraph C10.4 of the Home Office’s sponsor compliance guidance which states:

Annex C1 of this document sets out the circumstances in which we will revoke your licence – these are known as ‘mandatory’ grounds of revocation. If any of these circumstances arise, we may revoke your licence immediately and without warning. [emphasis added]

On the one hand, the guidance suggests that revocation will happen if a worker is not carrying out the duties on their certificate of sponsorship, but the same paragraph suggests that, even where there are mandatory grounds, revocation is discretionary. This is something that I haven’t picked up on before, but it raises a very interesting question as to the meaning of “mandatory”.

Citing paragraph 31 of the Supreme Court judgment in Mandalia v Secretary of State for the Home Department [2015] UKSC 59, the care home operator also argued that public law principles nevertheless require discretion to be properly exercised.

But, in his judgment in the WL (Congo) case, Lord Dyson JSC had articulated two qualifications. He had said, at para 21: ‘it is a well established principle of public law that a policy should not be so rigid as to amount to a fetter on the discretion of decision-makers’…Lord Dyson JSC had also said, at para 26, ‘a decision-maker must follow his published policy . . . unless there are good reasons for not doing so.’

These are both clever arguments, and the court ultimately agreed. At paragraph 53 of the judgment, the court found that the Home Office is not “absolved from engaging with the facts of a particular case and explain[ing], with adequate reasons, why it is reasonable and proportionate to revoke a sponsor licence”.

The Home Office had failed to conduct an adequately reasoned assessment of all relevant considerations in deciding to revoke the sponsor licence. There was no engagement with the question of whether revocation in the circumstances was reasonable and proportionate, when a finding in relation to dishonesty related only to the role of a single employee from a workforce of 68 skilled workers. The decision was quashed on this basis.

Lessons learned

Failing to account for the impact on the business was also advanced as a ground in the earlier case of Prestwick Care Ltd & Ors v Secretary of State for the Home Department [2023] EWHC 3193 (Admin) but it was dismissed for two reasons. First, Prestwick Care’s submission on impact to business and the wider community was not advanced prior to the revocation decision, which is a classic failing in a judicial review. The court’s job is to review the decision made based on the evidence the decision-maker had in front of them and the Home Office was not under any duty to make its own impact assessment when deciding to revoke the licence.

Second, the breaches of the sponsor policy guidance were so significant that the court would have reached the same conclusion regardless. There were numerous breaches of sponsor guidance spanning multiple sponsored workers which led to the conclusion that Prestwick Care could not be trusted to comply with its sponsor duties.

In contrast, Supporting Care had one breach, involving just one worker, and it was proportionate to depart from the mandatory revocation provided for in the guidance. The submissions on impact to the business and its workers were also advanced prior to the revocation decision in June 2023.

Conclusion

This judgment tells us that the Home Office will initiate licence revocation where sponsors fail to comply with their sponsor duties, even where the breaches relate to just one single sponsored worker failing to undertake a small proportion of the duties on their certificate of sponsorship. While sponsors can take some solace in the High Court’s approach to proportionality in this case, sponsor compliance should be always be taken seriously to avoid the expense and uncertainty of litigation.