Judicial Review Application on Home Office Decision to Revoke a Care Home Sponsor Licence
New Hope Care Ltd [2024] EWHC 1270 (Admin) (24 May 2024)
Is your business in the care home or nursing home sector? If it is then it is likely to have a sponsor licence to sponsor overseas carers and senior carers on Health and Care Worker Visas.
In this blog, our Immigration Solicitors are reporting on the latest sponsor licence revocation and judicial review court case involving a company operating in the healthcare sector.
UK Online and London-Based Immigration Solicitors and Sponsorship Licence Lawyers
For immigration advice call OTS Solicitors on 0203 959 9123 or contact us online.
The case of New Hope Care Ltd [2024] EWHC 1270 (Admin) (24 May 2024)
The case of New Hope Care Ltd [2024] is the latest decision on sponsor licence revocation. It is important reading for those in the health and adult care sector as it emphasises that the Home Office is focusing on sponsor licence compliance and will revoke a care home sponsor licence even if that decision places the business owners, all their employees and sponsored workers, care home residents and their relatives, the local authority and NHS in difficulty.
Sponsorship Licence Lawyers warn that the Home Office investigation in to New Hope is not an isolated case. It follows the sponsor licence revocation care home case of Prestwick Care Ltd & Ors v Secretary of State for the Home Department. For more information on the background to that earlier sponsor licence revocation decision have a look at our blog here.
The Home Office decision to revoke the New Hope Care Ltd sponsor licence
The court case on New Hope Care Ltd was reported in May 2024. The court proceedings involved an application for judicial review by the care home business after its sponsor licence was revoked by the Home Office in October 2023.
The care home argued that the decision to revoke its licence was irrational and procedurally unfair as well as submitting other grounds of appeal, such as the Home Office failure to carry out a global assessment of the impact of the revocation on the 150 plus sponsored employees employed on Health and Care Worker Visas and other interested parties, such as the care home residents, local authority and NHS.
The court granted the judicial review application on one of the four grounds of appeal. Accordingly, the sponsor licence revocation decision is quashed based on Home Office procedural unfairness.
What is of particular importance to care home and nursing home owners is the rationale used by the court to refuse the judicial review on three of the grounds of appeal.
The Home Office investigation into New Hope Care Ltd
Care home and nursing home owners and their key personnel will understandably want to know what they can learn from the court decision.
According to the case report, the Home Office list of the New Hope care home failings on compliance included:
- The authorising officer for the business was not based in the UK
- The business paid some sponsored workers less than the figures stated on their certificates of sponsorship
- The company had not carried out right-to-work checks on some employees
- Reporting and record keeping was inadequate
- The number of sponsored certificates was a threat to immigration control
- The business allegedly required sponsored workers to pay a penalty if they tried to leave their employment within three years of starting work
- The company had not complied in some cases with the working time regulations or the national minimum wage
Sponsorship Licence Lawyers warn that the compliance issue list does not need to be as long as the one above for the Home Office to decide to investigate, carry out a compliance visit, suspend your sponsor licence and then make the ultimate decision to revoke it.
If a licence is revoked it means your business cannot continue to employ its sponsored workers on Health and Care Worker Visas. The employees’ visas will be curtailed resulting in each employee having to find a new sponsoring employer or leave the UK. For the employer there is reputational damage and they are potentially left unable to recruit sufficient staff to care for residents unless (by some miracle given the UK care home staffing crisis) the care home can employ British workers as carers and senior carers and therefore not require a sponsor licence to keep operating.
Our Business Immigration Solicitors have picked out two key points in the decision for concerned care home and nursing home owners.
The judicial review decision – the authorising officer and the requirement to be based in the UK
Some business owners may be asking the question ‘Does an authorising officer need to be in the UK at the time of the Home Office visit?’
In the circumstances of New Hope, the Home Office visited the care home for a compliance visit and the licence was suspended. The Home Office arranged a second visit but the authorising officer requested its cancellation as he was detained overseas. He was the authorising officer and filled the other key personnel roles so there was no appropriate stand-in. The Home Office agreed to cancel the second visit and rearrange it but then revoked the licence without carrying out a further inspection. The court held that was procedurally unfair.
The immigration rules require an authorising officer to be based in the UK. The New Hope Care company argued that this does not mean the authorising officer needs to be physically present in the UK 365 days a year and that the Home Office should have followed its guidance and re-interviewed the authorising officer before it revoked the licence.
On this point, the judge concluded that ‘’The words "based in" are ordinary English words. Whether someone is "based in" a particular country can be a question of degree, requiring the application of a judgment. A brief or temporary absence from a country does not mean that they are no longer "based" there. However, to my mind, it is equally obvious that there may come a point where someone's absences are so prolonged, repeated, or indefinite that it is no longer sensible or realistic to remain satisfied that they are based in that country’’.
The judge went on to say ‘’It certainly does not follow, in my Judgment, simply from the fact that someone pays tax in the UK and owns a home or runs a business here, that the Secretary of State is compelled to accept that they are "based in" the UK, however long they spend abroad. That would be absurd; particularly so in the context of the regulatory framework to which this case relates, and the obvious importance, as stressed in the Guidance, of having an AO "in place" who is "based in" the UK in a practical and effective sense. A person may, of course, own properties (a home, or otherwise), or run or work for a business, in more than one jurisdiction’’.
In the case of the New Hope authorising officer, it was said that he had been overseas for around 50% of the duration of the sponsor licence and had no set return date to the UK because of his circumstances overseas. It is certainly possible for an authorising officer to go abroad but Sponsorship Licence lawyers recommend that:
- The authorising officer has a return date for return to the UK and can return to the UK if there are sponsor licence compliance issues that put the sponsor licence at risk. It should be possible to negotiate a delay in a visit by the Home Office or return visit provided that the authorising officer is able to give a UK return date
- Other key personnel are appointed so they can manage the sponsor licence and carry out routine reporting and recording duties in the absence of the authorising officer or, if that is not possible, a sponsor licence management service is used
- There is an investment in Immigration Law Training
In this case, the Home Office lost their case defending the judicial review application as they had told the company that they would arrange another visit and then did not do so as they proceeded to revoke the licence instead. Therefore, lessons need to be learnt at the Home Office.
The judicial review decision – the need for the Home Office to carry out a global assessment
The care home argued that the Home Office's decision to revoke the licence without first carrying out a “global assessment” of the impact of the decision to revoke on the Health and Care Worker Visa holders and residents in the care home was contrary to recent judicial review decisions.
The judge clearly found this ground of judicial review application troubling as there is competing case law and a pending appeal on the issue. Ultimately the judge erred on the side of the argument that holds that where there are serious breaches of sponsor licence compliance the global assessment of the impact on visa holders and care home residents cannot change the consequences of sponsor licence non-compliance. If this trend of decision continues it is bad news for sponsor licence holders as it means the interests of residents or the NHS and bed blocking will not override the decision to revoke.
Immigration Law Training from OTS Solicitors
The risk of sponsor licence revocation can be reduced through using a professional sponsor licence management service and through regular Immigration Law Training.
Our Sponsorship Licence Lawyers can provide:
- One-off training on specific weak spots or a package of sessions
- In-person training or webinars and Zoom meetings
- Health care and Health and Care Worker Visa specific training
- Practical business focussed Immigration Law Training
We can pitch our Immigration Law Training at an introductory, refresher or advanced level so your care home or nursing home key personnel gets the information they need from our training provision. Our Business Immigration Lawyers can then continue to work with your company through providing sponsor licence management services and a broad range of business immigration legal services.
UK Online and London-Based Immigration Solicitors and Sponsorship Licence Lawyers
For immigration advice call OTS Solicitors on 0203 959 9123 or contact us online.
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