By Dr. Catherine Taroni – Immigration Barrister
One other sponsor licence revocation case, New Hope Care Ltd [2024] EWHC 1270 (Admin) (24 May 2024), was handed down on 24 Could 2024, following a listening to on 16 Could 2024.
This follows the necessary Excessive Courtroom circumstances of Prestwick Care Ltd & Ors v Secretary of State for the Residence Division [2023] EWHC 3193 (Admin) (14 November 2023) and Supporting Care Ltd, R (On the Software Of) v Secretary of State for the Residence Division [2024] EWHC 68 (Admin) (19 January 2024), that are mentioned in our earlier publish here. The precise timeline of those case hearings and judgments being handed down is necessary to the strategy taken by David Pievsky KC sitting as a Deputy Decide in New Hope Care when assessing the ‘global assessment’ floor of problem raised.
New Hope Care Ltd v Secretary of State for the Residence Division
Background to the Judicial Assessment
New Hope Care Ltd sponsored 156 staff within the Skilled Worker route (Health and Care sub-category). Following a compliance audit carried out by the Residence Workplace on 07 August 2023, their licence was suspended on 14 August 2023 pending additional investigation, on the premise that the organisation was “failing to comply with duties as a licensed sponsor,” however with out giving additional particulars. There was a proposed second go to on 06 September 2023, however the Authorising Officer, Mr Cheza, replied stating he had been detained in Zimbabwe and requested a later date. Solely Mr Cheza held Key Personnel roles in relation to the licence. New Hope Care knowledgeable the Residence Workplace that no-one else was conscious of any sponsorship duties, and requested the go to be postponed. The second compliance go to was cancelled by the SSHD, with one other to be rescheduled as applicable.
As a substitute, on 06 October 2023, the choice to revoke the licence was made, on the grounds that:
- The Claimant’s AO was not based mostly within the UK and “there was no other AO in place”;
- The Claimant had issued an extreme variety of sponsorship certificates, representing a menace to immigration management;
- The Claimant had:
- issued zero hours contracts to some staff;
- paid some staff lower than the quantity on their CoS;
- paid some staff lower than the nationwide minimal wage or the working time laws;
- paid some staff in money; and
- presupposed to require staff to pay a penalty in the event that they left their employment inside 3 years;
- the Defendant additionally doubted that the Claimant was in a position to pay all of its staff;
- Some people had began to work for the Claimant greater than 28 days after their employment had been as a result of start;
- Proper to work checks had not been carried out and/or stored for plenty of staff. Report preserving was insufficient, and the AO had didn’t hold a safe, private electronic mail deal with. The Claimant’s processes and procedures weren’t ample.
New Hope Care utilized for permission to Judicially Review the choice, difficult it on 4 grounds:
- Floor 1: irrationality. The revocation resolution was irrational, in that there was no evidential basis for the Defendant’s contentions that (a) it had tried to go to the Claimant “on several occasions”, and (b) the Claimant’s AO was abroad “indefinitely”;
- Floor 2: misdirection as to that means of coverage. The Defendant misconstrued its personal coverage, by treating a requirement for the AO to be “based in” the UK as requiring the AO to be repeatedly resident within the UK, and/or not bodily absent from the UK for any or any substantial time frame;
- Floor 3: procedural unfairness. The Claimant was given no significant alternative to answer the Defendant’s considerations, nonetheless much less the 20 days referred to within the Steerage. Mr Cheza might and may have been interviewed, both on his return to the UK or remotely whereas he was overseas. The revocation resolution constituted (a) an illegal failure by the Defendant to comply with its personal steering / guarantees, and (b) a departure from the requirements of equity at frequent regulation;
- Floor 4: failure to hold out a “global assessment”. In exercising the discretion to revoke the Claimant’s licence, the Defendant should have carried out a worldwide evaluation of “all relevant circumstances”, together with particularly the big measurement of the Claimant’s workforce, and the numerous companies it supplies. These had been necessary issues, as a result of the impression on migrant staff (and their households) whose immigration standing was more likely to be adversely affected, and the potential impression on these receiving care companies from the Claimant, was very vital. Reliance is positioned on a really current resolution of this Courtroom in Supporting Care Ltd v Secretary of State for the Residence Division [2024] EWHC 68 (Admin), wherein the same grievance succeeded.
On 16 February 2024, permission was granted on all 4 grounds by Dexter Dias KC, sitting as a Deputy Decide.
Case earlier than David Pievsky KC sitting as a Deputy Decide
The substantive listening to came about on 16 Could 2024 and judgment was handed down on 24 Could 2024. Deputy Decide Pievsky concluded that Floor 3 (procedural unfairness) succeeded, however Grounds 1,2 and 4 failed. The sponsor licence revocation resolution was quashed.
Floor 4: Failure to hold out a ‘global assessment’
Most curiously, for the aim of this publish, is the consideration of Floor 4: the ‘global assessment’ floor in mild of Supporting Care. Whereas permission to attraction to the Courtroom of Enchantment is being sought in Supporting Care, additional evaluation by the Excessive Courtroom is more likely to be helpful for practitioners, and potential Claimants, alike.
That is discovered at §122 – 129 of the judgment, and the conclusions from §124 onwards are value setting out in full:
“124. My conclusion, with all due deference, is that as issues stand there’s a highly effective motive for not following the choice in Supporting Care, and that I mustn’t uphold Floor 4 on this case. I’d make 5 factors about this.
125. First, the Decide in Supporting Care, HHJ Siddique sitting as a Deputy Excessive Courtroom Decide, didn’t deal with Prestwick.
i) Prestwick was a really current resolution of this Courtroom. It was handed down on 14 November 2023, the day earlier than oral arguments in Supporting Care came about. My understanding is that it was not revealed on Bailii till 14 December 2023. Supporting Care was handed down on 19 January 2024. Nothing I say is meant to counsel any criticism, however the place is that neither the Decide nor counsel in Supporting Care had been conscious of the choice in Prestwick.
ii) Prestwick was extremely related to Floor 4. The context was the exact same Steerage, and a really comparable authorized grievance – i.e. that the Defendant had not thought of the potential impression of revocation on the sponsor’s enterprise (see §14(m)), or on these to whom it supplied care companies (see §29).
iii) In reply to that grievance, this Courtroom (HHJ Kramer, sitting as a Deputy Excessive Courtroom Decide) recognized critical principled and methodological objections with the notion that the Defendant is required to contemplate the exact impression of revocation on a licence holder, or on the care economic system, or the impression on care and well being, in any specific case: see at §§92-3.
iv) The Decide in Prestwick additionally robustly held at §§90-91 that the Defendant is just not required to take such components into consideration, both in reaching a call about whether or not the licence holder has complied with the steering, or (if not so happy), what the Defendant ought to do about it, as a result of they don’t seem to be even “relevant considerations”. To my thoughts, that could be a full reply to the Claimant’s nearly similar grievance, at paragraph 38 of the JR Grounds on this case, that the Defendant didn’t assess or deal with these issues, insofar as they arose on this case, as “relevant circumstances”.
v) The Decide in Supporting Care would in all chance have adopted Prestwick had he recognized of it; and would duly have rejected the “global assessment” JR Floor that was earlier than him, until satisfied that Prestwick was itself wrongly determined or that there was a “powerful reason” for not following Prestwick: see R v Manchester Coroner ex parte Tal [1985] 1 QB 67 per Goff LJ (as he then was) at p. 81 and Willers v Joyce (No 2) [2018] AC 843 per Lord Neuberger at §9.
vi) I can not myself see a robust motive for not following the choice in Prestwick. Quite the opposite, I respectfully agree with it.
126. Secondly, the Decide in Supporting Care referred, when rehearsing the submissions that had been superior to him below Floor 4, to older binding authority which in my Judgment additionally bears on that Floor (see at §§47-9). I’ve discovered it tough to see how these specific authorities then feed into the dispositive a part of the Judgment at §§50-56. The important thing authorities on this regard had been:
i) Raj and Knoll within the Courtroom of Enchantment ([2016] EWCA Civ 770) per Tomlinson LJ at §32 (“The mere fact that the decision making in this area may have serious commercial consequences for licensed sponsors is not of itself a reason to impose heightened scrutiny. The circumstance that the SSHD has special expertise in and experience of decision making in this field, and that the Court possesses no particular institutional competence and can claim no special constitutional legitimacy, militates against that submission… It is also clear that the exercise in which the SSHD is engaged involves no fundamental right of the Appellant, but on the contrary a right contingent upon adherence to the Rules”); and
ii) R (New London Faculty) v SSHD per Lord Sumption JSC at §29 (“There are substantial advantages for sponsors in participating [in the Tier 4 scheme] but they are not obliged to do so. The Rules contained in the Tier 4 Guidance for determining whether applicants are suitable to be sponsoring institutions, are in reality conditions of participation, and sponsors seeking the advantages of a licence cannot complain if they are required to adhere to them.”
127. Thirdly, I enterprise to counsel that there’s a significant distinction between the Defendant (a) being required to face again from the element of an evaluation of misconduct, and to ask whether or not the last word sanction of revocation is proportionate in the entire circumstances (making an allowance for the apparent seriousness of that call, and the kinds of ‘built-in’ penalties that are more likely to circulate from it); and (b) proactively being required to analyze and make exact findings concerning the specific doubtless impression on the precise people who’ve been cared for by the Claimant, or the precise staff whose immigration standing could also be in danger, or the actual impression on the relations of these staff, or to try to predict or assess the impression of revocation of the sponsor on the UK care help economic system. In my Judgment, a “global assessment”, because it has maybe not completely helpfully[1] been described, might be required within the sense of that means (a); however it’s not required if it bears that means (b), basically for the explanations set out in Prestwick, Raj and Knoll, and New London Faculty.
128. Fourthly, even when there may be the obligation for which the Claimant contends, I don’t take into account that the Defendant breached that obligation. I don’t particularly settle for that it will be honest to dismiss, as Mr Malik KC urged me to do, what the Defendant mentioned at paragraphs 77-78 of the choice letter (see paragraph 14 above) as constituting “generic” language, justifying an inference that the Defendant used a “copy and paste” strategy. That will be unjustified and unfair to the Defendant. The truth that the language occurs to be the identical as in two paragraphs of earlier letters doesn’t imply {that a} legally ample thought-process resulting in using that language has not occurred on this case. In any occasion, I believe that the Defendant might be taken to have recognized the dimensions of the enterprise he was contemplating, and to have understood the potential impression of revocation on that enterprise, on lots of its staff and their households, and on these people to whom it supplies care. These are, to be blunt, apparent: they’re potential penalties of any resolution to revoke a big organisation’s sponsor licence.
129. Lastly, my view is that, if after a completely honest and lawful course of an organization holding a sponsor licence had been discovered to have dedicated the entire breaches mentioned to have occurred on this case (see paragraph 13 above), revocation would in that scenario have been extremely doubtless. A “global assessment” of the impression of revocation on these adversely affected, even when diligently, exactly, and rigorously carried out in essentially the most detailed means by the Defendant as contended for by Mr Malik KC, wouldn’t, perhaps, change that end result. To carry in any other case would, in my Judgment, have the impact of undermining a coverage place that has been taken by the Secretary of State, i.e. that sure types of misconduct ought to invariably or nearly invariably justify revocation as a result of the chance to the immigration system of permitting individuals who have dedicated that kind of misconduct to hold on as sponsor licence holders is just unacceptable. That may be a coverage judgment that the Defendant is entitled to make. The massive measurement of the Claimant enterprise (which on evaluation, is the important thing driver of Mr Malik KC’s factors concerning the adversarial consequential impression on “large numbers” of staff or “large numbers” of different people) doesn’t seem to me to be able to bearing something just like the mitigating weight that he seeks to position on it, in a scenario the place, on the related speculation, a Secretary of State has in any other case rationally concluded that the enterprise represents an unacceptable danger to immigration management and that the chance can’t be permitted to proceed. So if essential, and if improper about all the things else related to Floor 4, I’d have concluded that on the related counterfactual premise, it will have been “highly likely” that the result for the Claimant wouldn’t have been considerably totally different, had the conduct complained of below Floor 4 not occurred.
The ‘Note 1’ for §127 reads:
“I say not entirely helpfully because the word “global” appears ambiguous on this context, and since this grievance can adequately be slotted into one of many orthodox judicial evaluation grounds, i.e. an alleged failure to have regard to related issues, or a failure to hunt additional details about them”
The judgment in New Hope Care might precede the same resolution by the Courtroom of Enchantment, if permission is certainly granted in Supporting Care. Even when it doesn’t, it doubtlessly weakens the potential for reliance on Supporting Care as an authority, as we now have two Excessive Courtroom circumstances to 1 towards a worldwide evaluation.
This might imply that the considerably anomalous floor of ‘failure to conduct a global assessment’ which has given hope to some recipients of revocation selections since 19 January 2024, will doubtless have to be changed with an acceptance that failures to stick to the advanced Sponsor Licence Compliance Steerage can’t be outweighed by arguments concerning the impression of revocation in a specific space, or in relation to people needing care, or of financial impression, or enterprise issue. The ‘orthodox’ judicial evaluation grounds of failure to have regard to related issues / failure to hunt additional info can cowl a lot of the identical content material as one would in advancing grounds based mostly on failure to conduct a worldwide evaluation. That is encapsulated within the third level (§127 above).
The strategy in New Hope Care might anticipate the top of hope for some, and a few former sponsor licence holders is perhaps effectively suggested to just accept a revocation resolution, enhance their programs markedly and put together a sturdy sponsor licence utility after the related cooling off interval has elapsed, quite than incur the expense and energy required in even an unsuccessful problem.
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