By Georgina Griggs – Immigration Barrister
Throughout the Covid-19 pandemic, and following Brexit, we noticed an enormous improve within the variety of organisations making use of for Skilled Worker sponsor licences, significantly organisations within the care sector. On account of Covid restrictions, and the rise in software numbers, the House Workplace waved via quite a few functions from care properties and different organisations within the care sector, granting sponsor licences with out conducting compliance audits.
During the last 18 months or so, now we have seen the House Workplace conducting compliance checks on organisations that already maintain licences, with a deal with people who function within the care sector. We regularly write concerning the significance of making certain that sponsor licence holders are compliant with their duties, and the implications of failing to take action – this appears all of the extra related within the current local weather.
This submit will discover the present panorama, together with latest caselaw, key themes, and steps you possibly can take to guard your care organisation from suspension and / or revocation.
Current Case-Regulation on Compliance with Sponsorship Duties within the Care Sector
Prestwick Care Ltd v Secretary of State for the House Division
Prestwick Care sponsored 219 staff within the Expert Employee route (Well being and Care sub-category). Following a compliance audit performed by the House Workplace, their licence was suspended pending additional investigation, on the premise that the organisation had dedicated a number of breaches of its duties, together with: recouping the Immigration Expertise Cost from migrants, paying migrants lower than the quantity said on their Certificates of Sponsorship (“CoS”), and offering incorrect job descriptions.
When a licence is suspended, licence holders have the best to answer, inside 20 working days of the suspension discover, which is precisely what Prestwick Care did. They admitted that the breaches had taken place, however that steps had been taken to appropriate the breaches. However this, the House Workplace determined to revoke the licence – a choice which isn’t attainable to enchantment.
Prestwick Care utilized for Judicial Review of the choice, difficult it on the premise that it was procedurally unfair. A part of the problem was that the House Workplace was topic to a heightened commonplace of procedural equity, given the influence that revoking the licence would have on the area people and its service customers. This argument was rejected by the court docket, on the premise that sponsorship will not be a basic proper, however a privilege and it’s the duty of the organisation to make sure that they’re complying with the duties that having a licence requires. This, in fact, echoes what is ready out within the House Workplace’s personal steering, and, due to this fact, once more highlights the significance of making certain that licence holders are compliant.
You may learn the complete judgment of the Excessive Courtroom 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 House Division
Supporting Care Ltd sponsored 68 staff within the Skilled Worker route (Health and Care sub-category). Like Prestwick Care, its licence was revoked on the premise that they’d breached their licence duties. By the point that Supporting Care Ltd’s substantive judicial overview occurred, just one situation remained: whether or not a selected employee was truly finishing up the function and job description for which she was sponsored to do. That is one thing I’ve seen come up in quite a few suspension / revocation instances, significantly for organisations within the care sector.
The employee in query had eight duties listed in her job description (as set out on the CoS), however she was discovered to solely be enterprise six of those in actuality. On this foundation, the House Workplace’s coverage steering said that this breach amounted to grounds for necessary revocation because the function she was truly enterprise didn’t match the job description on the CoS.
Not like in Prestwick Care, Supporting Care efficiently argued that the Secretary of State had did not conduct an adequately reasoned world evaluation of all related issues in deciding to revoke or downgrade the licence to a B-rating. Supporting Care argued that the influence of the revocation on the migrant staff, their households, and the weak service customers, would have a massively unfavourable influence. This was additionally raised in Prestwick Care, however solely after their licence was revoked (too late for judicial overview). The court docket discovered that the one cause that the licence, on this case, was revoked was as a result of the House Workplace’s coverage said that revocation was necessary in these circumstances. Accordingly, it was discovered that there’s nonetheless room for discretion to be exercised.
Whereas, finally, this was a great final result for Supporting Care, the time, effort, and money they should have spent in overturning the revocation determination will surely have taken its toll. This case is one more reminder that preparation to keep away from suspension and revocation within the first place is preferable!
You may learn the complete judgment of the Excessive Courtroom 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 Properties Arising From House Workplace Compliance Audits
At Richmond Chambers, now we have labored with quite a few care organisations in respect of their licence suspensions and revocation instances. For sure, we weren’t stunned to learn the above instances, and the compliance points that the House Workplace had raised.
Throughout the board, some key themes which have arisen in suspension notices are as follows:
Pay points
Care organisations holding sponsor licences ought to be very cautious about making certain that staff are paid the quantity said on their CoS. They need to additionally be certain that the pay that they’re providing to migrant staff is compliant with the minimal wage necessities, as set out in Appendix Expert Employee to the Immigration Guidelines. Failure to pay migrant staff the quantity said on their CoS, or according to the minimal wage necessities, is necessary floor for revocation.
Whereas paying your care employees the requisite quantity could appear to be a simple job, the place migrant staff are working variable hours, and organisations are sponsoring excessive numbers of staff, errors can occur. It’s important that sponsor care organisations be certain that they’re preserving observe of funds made to care staff, and that their charges of pay usually are not solely compliant with the Immigration Guidelines, but additionally with wider UK legislation, together with employment legislation.
Care organisations must also be very cautious about recouping prices (IHS and software charges and many others.) from their staff and may search specialist recommendation if they need to take action. It’s not permissible for organisations to recoup prices for the Immigration Expertise Cost, both wholly partially. That is additionally a floor for revocation.
Roles and occupation codes
That is one thing I’ve seen come up time and time once more in suspension notices, significantly within the care sector. Migrants ought to be enterprise the function that they’re sponsored to do, according to the job description set out of their CoS. Any modifications to job descriptions and / or job titles should be reported to the House Workplace through the SMS. If a change of job description is such that one other occupation code turns into extra appropriate, then a brand new CoS and a change of employment software is required. Failure to adjust to this responsibility, may end up in necessary revocation of the licence (as seen in Supporting Care above).
Normal sponsor duties
As care organisations develop, they will discover it tougher to make sure that their file preserving and reporting duties are saved updated. Additionally they could not appear to be a precedence, which is a big mistake. Ensuring that correct information are saved is important, as is making certain that issues which might be required to be reported are executed within the timeframes required. These are additionally grounds for revocation.
How Can You Guarantee That Your Care Organisation Protects Its Licence?
Mock compliance audits
Mock compliance audits are a wonderful approach of making ready for any compliance audit by the House Workplace, which may happen on an introduced or unannounced foundation. Taking the time to undertake a mock audit, with an immigration lawyer, can present invaluable recommendation on the way to make modifications to make sure that, within the occasion a licence audit is undertaken, you’re compliant.
In search of authorized recommendation within the occasion of a suspension
As above, within the occasion that your licence is suspended, you should have 20 working days to reply. It’s important that you simply acquire authorized recommendation as early as attainable, to make sure that you would be able to work collectively along with your consultant to organize detailed representations, proof, and authorized arguments. Whereas prevention is all the time higher, a well-prepared response could be the following neatest thing.
We’ve got labored with care organisations to overturn their licence suspensions, by offering detailed causes and explanations, whereas citing related legislation and excerpts of steering, the place relevant. Getting ready a response differs from case to case, as the main focus must be on the problems raised – they are often time consuming and annoying, given what’s at stake. Having a specialist lawyer with expertise on this space to guide the organisation, can present some peace of thoughts, and one of the best shot at overturning the suspension and avoiding revocation.
Contact our Immigration Barristers
For professional recommendation concerning managing your care organisation’s sponsor licence or care sector compliance points, suspension or revocation notices, contact our immigration barristers on 0203 617 9173 or full our enquiry type beneath.
