During the Covid-19 pandemic, and following Brexit, we saw a huge increase in the number of organisations applying for Skilled Worker sponsor licences, particularly organisations in the care sector. Due to Covid restrictions, and the increase in application numbers, the Home Office waved through a number of applications from care homes and other organisations in the care sector, granting sponsor licences without conducting compliance audits.
Over the last 18 months or so, we have seen the Home Office conducting compliance checks on organisations that already hold licences, with a focus on those that operate in the care sector. We often write about the importance of ensuring that sponsor licence holders are compliant with their duties, and the implications of failing to do so – this seems all the more relevant in the present climate.
This post will explore the current landscape, including recent caselaw, key themes, and steps you can take to protect your care organisation from suspension and / or revocation.
Recent Case-Law on Compliance with Sponsorship Duties in the Care Sector
Prestwick Care Ltd v Secretary of State for the Home Department
Prestwick Care sponsored 219 workers in the Skilled Worker route (Health and Care sub-category). Following a compliance audit conducted by the Home Office, their licence was suspended pending further investigation, on the basis that the organisation had committed multiple breaches of its duties, including: recouping the Immigration Skills Charge from migrants, paying migrants less than the amount stated on their Certificate of Sponsorship ("CoS"), and providing incorrect job descriptions.
When a licence is suspended, licence holders have the right to reply, within 20 working days of the suspension notice, which is exactly what Prestwick Care did. They admitted that the breaches had taken place, but that steps had been taken to correct the breaches. Notwithstanding this, the Home Office decided to revoke the licence – a decision which is not possible to appeal.
Prestwick Care applied for Judicial Review of the decision, challenging it on the basis that it was procedurally unfair. Part of the challenge was that the Home Office was subject to a heightened standard of procedural fairness, given the impact that revoking the licence would have on the local community and its service users. This argument was rejected by the court, on the basis that sponsorship is not a fundamental right, but a privilege and it is the responsibility of the organisation to ensure that they are complying with the duties that having a licence requires. This, of course, echoes what is set out in the Home Office's own guidance, and, therefore, again highlights the importance of ensuring that licence holders are compliant.
You can read the full judgment of the High Court in Prestwick Care Ltd & Ors v Secretary of State for the Home Department [2023] EWHC 3193 (Admin) (14 November 2023).
Supporting Care Ltd v Secretary of State for the Home Department
Supporting Care Ltd sponsored 68 workers in the Skilled Worker route (Health and Care sub-category). Like Prestwick Care, its licence was revoked on the basis that they had breached their licence duties. By the time that Supporting Care Ltd's substantive judicial review took place, only one issue remained: whether a particular worker was actually carrying out the role and job description for which she was sponsored to do. This is something I have seen arise in numerous suspension / revocation cases, particularly for organisations in the care sector.
The worker in question had eight duties listed in her job description (as set out on the CoS), but she was found to only be undertaking six of these in reality. On this basis, the Home Office's policy guidance stated that this breach amounted to grounds for mandatory revocation as the role she was actually undertaking did not match the job description on the CoS.
Unlike in Prestwick Care, Supporting Care successfully argued that the Secretary of State had failed to conduct an adequately reasoned global assessment of all relevant considerations in deciding to revoke or downgrade the licence to a B-rating. Supporting Care argued that the impact of the revocation on the migrant workers, their families, and the vulnerable service users, would have a hugely negative impact. This was also raised in Prestwick Care, but only after their licence was revoked (too late for judicial review). The court found that the only reason that the licence, in this case, was revoked was because the Home Office's policy stated that revocation was mandatory in these circumstances. Accordingly, it was found that there is still room for discretion to be exercised.
While, ultimately, this was a good outcome for Supporting Care, the time, effort, and money they must have spent in overturning the revocation decision would certainly have taken its toll. This case is yet another reminder that preparation to avoid suspension and revocation in the first place is preferable!
You can read the full judgment of the High Court in Supporting Care Ltd, R (On the Application Of) v Secretary of State for the Home Department [2024] EWHC 68 (Admin) (19 January 2024).
Key Themes for Care Homes Arising From Home Office Compliance Audits
At Richmond Chambers, we have worked with numerous care organisations in respect of their licence suspensions and revocation cases. Needless to say, we were not surprised to read the above cases, and the compliance issues that the Home Office had raised.
Across the board, some key themes that have arisen in suspension notices are as follows:
Pay issues
Care organisations holding sponsor licences should be very careful about ensuring that workers are paid the amount stated on their CoS. They should also ensure that the pay that they are offering to migrant workers is compliant with the minimum salary requirements, as set out in Appendix Skilled Worker to the Immigration Rules. Failure to pay migrant workers the amount stated on their CoS, or in line with the minimum salary requirements, is mandatory ground for revocation.
While paying your care staff the requisite amount may seem to be an easy task, where migrant workers are working variable hours, and organisations are sponsoring high numbers of workers, mistakes can happen. It is essential that sponsor care organisations ensure that they are keeping track of payments made to care workers, and that their rates of pay are not only compliant with the Immigration Rules, but also with wider UK law, including employment law.
Care organisations should also be very careful about recouping costs (IHS and application fees etc.) from their workers and should seek specialist advice if they wish to do so. It is not permissible for organisations to recoup costs for the Immigration Skills Charge, either wholly in part. This is also a ground for revocation.
Roles and occupation codes
This is something I have seen arise time and time again in suspension notices, particularly in the care sector. Migrants should be undertaking the role that they are sponsored to do, in line with the job description set out in their CoS. Any changes to job descriptions and / or job titles must be reported to the Home Office via the SMS. If a change of job description is such that another occupation code becomes more suitable, then a new CoS and a change of employment application is required. Failure to comply with this duty, can result in mandatory revocation of the licence (as seen in Supporting Care above).
General sponsor duties
As care organisations grow, they can find it more difficult to ensure that their record keeping and reporting duties are kept up to date. They also may not seem to be a priority, which is a huge mistake. Making sure that proper records are kept is essential, as is ensuring that things that are required to be reported are done in the timeframes required. These are also grounds for revocation.
How Can You Ensure That Your Care Organisation Protects Its Licence?
Mock compliance audits
Mock compliance audits are an excellent way of preparing for any compliance audit by the Home Office, which can take place on an announced or unannounced basis. Taking the time to undertake a mock audit, with an immigration lawyer, can provide invaluable advice on how to make changes to ensure that, in the event a licence audit is undertaken, you are compliant.
Seeking legal advice in the event of a suspension
As above, in the event that your licence is suspended, you will have 20 working days to respond. It is essential that you obtain legal advice as early as possible, to ensure that you can work together with your representative to prepare detailed representations, evidence, and legal arguments. While prevention is always better, a well-prepared response can be the next best thing.
We have worked with care organisations to overturn their licence suspensions, by providing detailed reasons and explanations, while citing relevant law and excerpts of guidance, where applicable. Preparing a response differs from case to case, as the focus needs to be on the issues raised – they can be time consuming and stressful, given what is at stake. Having a specialist lawyer with experience in this area to guide the organisation, can provide some peace of mind, and the best shot at overturning the suspension and avoiding revocation.