Immigration may be the political hot potato of the campaign trail but for many social care providers, the employment of overseas workers is not a political debate but rather a vital way of ensuring the most vulnerable in our society are looked after.  

Against a backdrop of political rhetoric and the horror stories of the abuse of overseas workers, the Home Office’s response is not always executed well and in a way that helps not hinders. As is evidenced by the recent case of R (New Hope Care Ltd) v Secretary of State.  

The High Court found that the Home Office’s decision to revoke the provider’s sponsorship licence without allowing time for representation was unlawful.

Key points

Ensure your sponsorship licence paperwork and procedures are compliant because if they are… 
You can robustly defend any steps taken by the Home Office to suspend or revoke those licences.   
The Home Office is not required to carry out a  ‘global assessment’ of the impact of revocation where a revocation is mandatory in accordance with their guidance.

Case details

The New Hope Care Ltd operator was visited by a Home Office compliance team on 7 August 2023.  The authorising officer was not present during the visit as they were out of the country. Seven days later the HO suspended New Hope’s sponsorship licence on the grounds that they had failed to comply with the duties required of them.  

The suspension letter contained no reason for the suspension but promised full reasoning and details once the HO investigation had been completed.  The operator was informed that it would have 20 working days to respond to the investigation.

A second compliance visit was then proposed by the HO on 6 September 2023, but the authorising officer requested it be postponed as he had been detained in Zimbabwe.  The HO agreed to this cancellation and asked that they be informed when the authorising officer returned to the UK.  

The next correspondence was a HO decision letter on 6 October 2023, informing the provider that their sponsorship licence had been revoked and giving the five reasons for this action. 

The provider bought a judicial review claim against the Home Office’s decision. Interestingly, the claim was based on four grounds, but they were only successful on the one: procedural unfairness. The HO had failed to follow the procedure it had set out in its suspension letter and had failed to follow the procedure as outlined in the sponsor guidance. 

Global assessment – are they required when revocation of licence is mandatory?

Their fourth ground concerned the issue of the HO’s requirement to undertake a global assessment on the impact of any revocation i.e. An assessment of what impact the decision might have on the care provided and the families of the sponsored workers. This ground was rejected following the findings in an earlier case  Prestwick Care v Sec of State. This case concluded that where a revocation was mandatory (in accordance with HO guidance) then a global assessment was not necessary. This contrasted with the judgement in the case of Supporting Care v Sec of State which held that the global assessment was required even where a revocation was mandatory. This latter case is being appealed by the HO in the Court of Appeal.  

Whilst New Hope was successful in demonstrating procedural unfairness no evidence was given in court regards the substantive allegations raised. Those were serious matters and so it’s likely that the HO will seek to remake its revocation decision. Issues included the following: 

• authorising officer not in the country; 
• 156 certificates in 8 months; 
• zero hours contracts had been issued to sponsored workers and some had been paid less than the NMW or less than the amount on their certificates of sponsorship and some had been paid in case; 
• some sponsored workers started work more than 28 days after they received their CoS; and
• there was inadequate record keeping including right-to-work checks and a secure personal email address for the authorising officer.

Learning points

Faced with reports of migrant workers being treated badly and in blatant breach of sponsorship certificates, the HO is becoming increasingly robust with its compliance visits. Providers need to ensure their systems and checks can match this robustness. 

Given recent decisions, providers may no longer be able to plead that revocation be overturned in light of the impact of the decision on the people who are being cared for or the family of the sponsored worker.  It will be the adherence to the HO guidance and sponsorship requirements which will have the sway. 

HO is under political pressure to address sponsorship abuses and so may miss deadlines or make erroneous assumptions. Be willing, armed with good practices and evidence, to push back and demonstrate adherence or willingness to put right any issues that have been highlighted.

How we can help

We have successfully advised clients when their licences have been suspended: liaising with the HO, assessing clients’ practices and systems and ensuring their licence is restored. 

If you are considering applying for a sponsorship licence and are concerned about the scrutiny, we have a Sponsor Licence Report which outlines the application process and the duties and requirements of being a sponsoring employee.   

We have a Sponsorship Licence Checklist which is a comprehensive document which assists both application for a sponsorship licence and adherence to the requirements of a sponsor.

To enmailto:hazel.findlay@anthonycollins.comsure your Right To Work checks are compliant we have produced a toolkit together with supporting letters and flowcharts.

If you would like any further details on this case, the products outlined above or advice on immigration and sponsorship issues, please contact me or my colleague Hazel Findlay.