With so many care operators now having sponsor licences in order to sponsor care workers, two recent High Court decisions Prestwick Care Ltd & Ors v Secretary of State for the Home Department and Supporting Care Ltd, R (On the Application Of v Secretary of State for the Home Department are going to be of interest. Both cases illustrate how important it is for care operators to adhere to the sponsorship duties that they owe to the Home Office under their sponsor licence.
In both cases, Judicial Review proceedings were brought by two care homes against decisions made by the Home Office to revoke their respective sponsorship licences following a compliance visit to their premises. Both care homes relied heavily on sponsored workers to fill staffing shortages and so were anxious to get the licence re-instated.
While the outcome in the cases differed, the decisions provide a cautionary tale for care home employers. The Home Office consider sponsorship to be "a privilege not a right" and will not shy away from taking action over even isolated breaches of duties. With labour shortages still critical for many employers, loss of a licence can have far reaching commercial and reputational impacts on a business.
Sponsorship duties
Sponsorship duties are an integral part of the sponsorship system. All sponsor licence holders must comply with them as failure to do so can have serious consequences. These include reporting duties which require a sponsor to report changes or events on the sponsor management system (SMS) within a certain timeframe. These could be changes which relate to the sponsor and/or the worker.
A sponsor must also meet recording-keeping duties which detail the records that an employer must keep on file in respect of their sponsored workers for instance, a contract of employment or payroll information. Finally all sponsors have a general duty to comply with UK immigration law and wider UK law and not engaging in behaviour or actions that are not conducive to the public good.
If the Home Office finds evidence a business is not complying with its duties, there can be serious consequences. A business can lose its licence and this can lead to the visas of its sponsored workers being curtailed and them having to leave the UK or find new employers. The business may also be prevented from applying for another licence for 12 months, impacting their ability to secure the talent they need.
Prestwick Care case
In the Prestwick Care case, the Home Office conducted a compliance visit in October 2022 on the care home operator. They employed 219 Skilled Workers under the Health and Care visa. Following the visit, the Home Office notified the care home in February 2023 that their licence was being revoked. The compliance visit had revealed numerous instances where the business had failed to comply with their sponsorship duties and therefore the Home Office considered they had grounds to revoke the licence.
The breaches listed involved the following;
Offering a genuine vacancy: Senior Care Assistants were found to be not performing the same role as was outlined in their job descriptions on the Certificate of Sponsorship (CoS). This raised the concern that the roles were not genuine. The Home Office makes clear that a CoS can only be assigned for a genuine vacancy, and a deliberately exaggerated or incorrect job description is considered as indicative of a bogus role. It is therefore vital that accurate job descriptions are included with any sponsored visa application.
Salary was lower than the salary on CoS: There were instances found of workers being paid lower amounts that than the amount that was indicted on their CoS. Any drop in a worker's salary should be reported on the sponsor management system. Failure to do so can lead, as it has in this case, to the revocation of the licence.
Failure to comply with employment law: The Home Office found instances of workers being told, wrongly, that they were not eligible for sick pay. A sponsor must adhere to wider employment law principles during sponsorship and this again is grounds for revocation of the licence.
Clawing back the Immigration Skills Charge: The care home operator was seeking to recover the money they had paid for the immigration skills charge from the sponsored worker concerned. The immigration skills charge (ISC) is a levy placed on employers for use of the sponsorship system. This must be paid by the sponsor and cannot be passed on to or recouped from the sponsored worker. While employers are able to recover some of the other visa costs associated with sponsorship, recouping the ISC is grounds for revoking a licence.
Deficiencies in Monitoring: The compliance visit also found examples of where sponsored employees visa expiry dates were not being recorded properly. The Home Office expects a sponsor to have the proper processes and procedures in place so that they can meet their sponsorship duties. This requires a sponsor to carefully track the expiry dates of their workers who are on time limited visa.
Failure to keep accurate records: The Home Office found instances of there being no record of a sponsored worker's up to date address. Sponsors must ensure that their workers know that they must update them when they change address. While this is not a mandatory grounds for revocation of a licence, it is vital part of a sponsor's duty to monitor their sponsored workers location while they are in the UK.
Prestwick argued that the court should consider the wider impact the loss of the licence would have on the wider community and its other employees. The court was not persuaded by this and asserted that the Home Office did not have to consider wider circumstances. It found that the Home Office was justified in revoking the licence as the breaches pointed to a 'lack of rigour' in following the necessary guidance and so the care home could not be 'trusted to comply with its duties as a sponsor'.
Supporting Care case
In this case, The Home Office had revoked the licence citing six breaches of their published guidance but by the time the court proceedings had started this has been reduced to a breach relating to just one employee. It was felt that her duties did not match the description of her role on the certificate of sponsorship and therefore her role was not genuine.
The revocation of the licence had jeopardised the status of the other 67 other workers within the business and the court, in contrast to the Prestwick case, was persuaded to consider the wider impact the loss of the licence would have. The Judicial Review was successful but on one ground, namely that the Home Office had failed to conduct an adequately reasoned global assessment of all relevant considerations in deciding whether to revoke or downgrade the sponsor licence.
The court held that the Home Office had failed to consider the impact that the revocation of the licence would have on other sponsored workers, the vulnerable people in their care or the business and the care industry. The court also considered that revocation may not have been a proportionate response when there was only one instance of a breach in the sponsorship duties.
What do these cases this mean for employers?
Both these cases does show how hard the Home Office can come down on sponsors who are failing to meet the expectations of sponsorship. The grounds for revocation of a licence are extensive and it is easy for even the most conscientious of employers to slip into bad habits. The Home Office has shown itself willing to revoke a licence for even the most minor of breaches of sponsorship duties.
While the Supporting Care case shows that some sympathy may be shown by the courts for isolated slip ups, a care home with significant levels of non-compliance is likely to find themselves in hot water.
With the care sector seemingly becoming the major uses of the sponsorship system, care homes are going to come under increasing scrutiny by the Home Office. It is therefore vital that businesses ensure that their internal procedures are robust and that their staff are trained and up to speed on sponsorship duties. Sponsors should also consider putting in place immigration policies to ensure the sponsored workers and the HR teams understand the roles they play in ensuring the business remains compliant. Doing the ground work now will pay dividends in the long term to ensure that the risk of revocation is reduced.
