The court has held that a Home Office decision to refuse a Defined Certificate of Sponsorship application was unreasonable and irrational, in a successful judicial review outcome for a care home sponsor.
The recent case of Hartford Care Group Ltd, R (On the Application Of) v Secretary of State for the Home Department [2024] EWHC 3308 (Admin), involved a leading UK care home organisation which challenged the Home Office’s refusal of their application for 70 Defined Certificates of Sponsorship (DCoS).
The sponsoring organisation provides care services to 19 care homes across the south of England and has recruited a high number of overseas workers since obtaining its sponsor licence in April 2019.
The care home had applied for 70 DCoS in January last year. Following the DCoS application, the Home Office had requested further information from the sponsor which included a request for official employment contacts demonstrating guaranteed hours of work. The sponsor responded to the Home Office and provided the requested information, including the official contracts, however these did not contain clauses on guaranteed hours of work.
The Home Office rejected the DCoS application in full, advising that because the contracts did not contain clauses on guaranteed hours, they found the vacancies to not be genuine.
‘Genuineness’ is a term which is often raised by the Home Office when considering applications, be it for a sponsor licence or skilled worker application, or an application for Certificates of Sponsorship, as was the case here. The Home Office can use their discretion when assessing an application, and if they find that any information provided, or not provided, suggests that a role is not genuine, this can be sufficient reason for them to refuse an application.
In this case, the sponsoring organisation argued that there is no requirement in the Immigration Rules for official contracts containing guaranteed hours, and that the Home Office’s decision to reject the DCoS application on this basis was therefore in contrary to the Rules, and irrational.
The court agreed with this argument and stated that:
“It was irrational and Wednesbury unreasonable for the Defendant to require care providers to provide contracts with specific requirements for guaranteed hours of work in order to show that the job was genuine. Such contracts simply did not exist as standard contracts in the care sector. The Defendant was requesting evidence that it was impossible for the Claimant and others to provide and which had little or no bearing about whether there was a particular job vacancy within one of their care homes.”
The court went on to confirm that the refusal of the DCoS request was irrational and unreasonable as:
“a. job vacancies can be genuine without there being such a contract;
- such standard contracts never contain the provisions that the Defendant required as they are designed to ensure a flexible provision of care workers to meet the fluctuating needs of a local authority;
- a business can have genuine vacancies without any local authority demand where it is providing services to individual service users without the involvement of any local authority and irrespective of any official contract;
- it is based on the false assumption that local authorities will specify their number of users or the number of staff required or otherwise commit themselves to providing guaranteed working hours to a care provider.”
The court declared that the Home Office’s decision to refuse the DCoS application was unlawful and quashed the decision.
The court’s judgment shows their consideration to the nature of how organisations operate in the care sector, and this decision will be welcome news to care home sponsors who may be asked to provide similar documents to the Home Office.
Increased scrutiny for care homes
In the past few years, we have seen increased scrutiny from the Home Office when deciding applications from sponsors in the care sector.
We previously looked at the series of conflicting case law regarding care homes who had their sponsor licences revoked by the Home Office. In the most recent case, the court agreed with the Home Office that revoking a sponsor licence does not require them to consider the wider commercial impact on the business and local care services. The court often does side with the decision from the Home Office.
We have also seen an influx of compliance action from the Home Office in recent years, much of this taking place in the care sector.
Care home sponsors will often find that when they are making sponsor licence or skilled worker applications, or applying for a DCoS or undefined CoS allocation, they will often be subject to increased Home Office scrutiny. This often comes in the form of a request for additional information or documents, which can be arduous to provide depending on the request. The Home Office also carry out frequent compliance visits on sponsoring organisations in the care sector.
Sponsors should therefore expect to be faced with additional requests from the Home Office and be prepared to provide further information regarding the organisation and any roles to be filled.
However, this recent decision demonstrates the Home Office’s requests for certain documents may not always be reasonable, or be enough to result in a refusal if the sponsor cannot provide it.
How our Immigration Solicitors can help
If your organisation requires legal assistance in relation to obtaining or maintaining a sponsor licence, resolving any existing compliance action, or assistance with Skilled Worker applications, we would be more than happy to assist you.
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