Another sponsor licence revocation case, New Hope Care Ltd [2024] EWHC 1270 (Admin) (24 May 2024), was handed down on 24 May 2024, following a hearing on 16 May 2024.
This follows the important High Court cases of Prestwick Care Ltd & Ors v Secretary of State for the Home Department [2023] EWHC 3193 (Admin) (14 November 2023) and Supporting Care Ltd, R (On the Application Of) v Secretary of State for the Home Department [2024] EWHC 68 (Admin) (19 January 2024), which are discussed in our previous post here. The exact timeline of these case hearings and judgments being handed down is important to the approach taken by David Pievsky KC sitting as a Deputy Judge in New Hope Care when assessing the 'global assessment' ground of challenge raised.
New Hope Care Ltd v Secretary of State for the Home Department
Background to the Judicial Review
New Hope Care Ltd sponsored 156 workers in the Skilled Worker route (Health and Care sub-category). Following a compliance audit conducted by the Home Office on 07 August 2023, their licence was suspended on 14 August 2023 pending further investigation, on the basis that the organisation was "failing to comply with duties as a licensed sponsor," but without giving further details. There was a proposed second visit on 06 September 2023, but the Authorising Officer, Mr Cheza, replied stating he had been detained in Zimbabwe and requested a later date. Only Mr Cheza held Key Personnel roles in relation to the licence. New Hope Care informed the Home Office that no-one else was aware of any sponsorship duties, and requested the visit be postponed. The second compliance visit was cancelled by the SSHD, with another to be rescheduled as appropriate.
Instead, on 06 October 2023, the decision to revoke the licence was made, on the grounds that:
- The Claimant's AO was not based in the UK and "there was no other AO in place";
- The Claimant had issued an excessive number of sponsorship certificates, representing a threat to immigration control;
- The Claimant had:
- issued zero hours contracts to some workers;
- paid some workers less than the amount on their CoS;
- paid some workers less than the national minimum wage or the working time regulations;
- paid some workers in cash; and
- purported to require workers to pay a penalty if they left their employment within 3 years;
- the Defendant also doubted that the Claimant was able to pay all of its employees;
- Some individuals had started to work for the Claimant more than 28 days after their employment had been due to begin;
- Right to work checks had not been carried out and/or kept for a number of workers. Record keeping was inadequate, and the AO had failed to keep a secure, personal email address. The Claimant's processes and procedures were not adequate.
New Hope Care applied for permission to Judicially Review the decision, challenging it on four grounds:
- Ground 1: irrationality. The revocation decision was irrational, in that there was no evidential foundation for the Defendant's contentions that (a) it had tried to visit the Claimant "on several occasions", and (b) the Claimant's AO was overseas "indefinitely";
- Ground 2: misdirection as to meaning of policy. The Defendant misconstrued its own policy, by treating a requirement for the AO to be "based in" the UK as requiring the AO to be continuously resident in the UK, and/or not physically absent from the UK for any or any substantial period of time;
- Ground 3: procedural unfairness. The Claimant was given no meaningful opportunity to respond to the Defendant's concerns, still less the 20 days referred to in the Guidance. Mr Cheza could and should have been interviewed, either on his return to the UK or remotely while he was abroad. The revocation decision constituted (a) an unlawful failure by the Defendant to follow its own guidance / promises, and (b) a departure from the standards of fairness at common law;
- Ground 4: failure to carry out a "global assessment". In exercising the discretion to revoke the Claimant's licence, the Defendant ought to have conducted a global assessment of "all relevant circumstances", including in particular the large size of the Claimant's workforce, and the many services it provides. These were important considerations, because the impact on migrant workers (and their families) whose immigration status was likely to be adversely affected, and the potential impact on those receiving care services from the Claimant, was very significant. Reliance is placed on a very recent decision of this Court in Supporting Care Ltd v Secretary of State for the Home Department [2024] EWHC 68 (Admin), in which a similar complaint succeeded.
On 16 February 2024, permission was granted on all four grounds by Dexter Dias KC, sitting as a Deputy Judge.
Case before David Pievsky KC sitting as a Deputy Judge
The substantive hearing took place on 16 May 2024 and judgment was handed down on 24 May 2024. Deputy Judge Pievsky concluded that Ground 3 (procedural unfairness) succeeded, but Grounds 1,2 and 4 failed. The sponsor licence revocation decision was quashed.
Ground 4: Failure to carry out a 'global assessment'
Most interestingly, for the purpose of this post, is the consideration of Ground 4: the 'global assessment' ground in light of Supporting Care. While permission to appeal to the Court of Appeal is being sought in Supporting Care, further assessment by the High Court is likely to be useful for practitioners, and potential Claimants, alike.
This is found at §122 – 129 of the judgment, and the conclusions from §124 onwards are worth setting out in full:
"124. My conclusion, with all due deference, is that as things stand there is a powerful reason for not following the decision in Supporting Care, and that I should not uphold Ground 4 in this case. I would make five points about this.
125. First, the Judge in Supporting Care, HHJ Siddique sitting as a Deputy High Court Judge, did not address Prestwick.
i) Prestwick was a very recent decision of this Court. It was handed down on 14 November 2023, the day before oral arguments in Supporting Care took place. My understanding is that it was not published on Bailii until 14 December 2023. Supporting Care was handed down on 19 January 2024. Nothing I say is intended to suggest any criticism, butthe position is that neither the Judge nor counsel in Supporting Carewere aware of the decision in Prestwick.
ii) Prestwick was highly relevant to Ground 4. The context was the very same Guidance, and a very similar legal complaint – i.e. that the Defendant had not considered the potential impact of revocation on the sponsor's business (see §14(m)), or on those to whom it provided care services (see §29).
iii) In answer to that complaint, this Court (HHJ Kramer, sitting as a Deputy High Court Judge) identified serious principled and methodological objections with the notion that the Defendant is required to consider the precise impact of revocation on a licence holder, or on the care economy, or the impact on care and health, in any particular case: see at §§92-3.
iv) The Judge in Prestwick also robustly held at §§90-91 that the Defendant is simply not required to take such factors into account, either in reaching a decision about whether the licence holder has complied with the guidance, or (if not so satisfied), what the Defendant should do about it,because they are not even "relevant considerations". To my mind,that is a complete answer to the Claimant's virtually identical complaint, at paragraph 38 of the JR Grounds in this case, that the Defendant failed to assess or address those matters, insofar as they arose in this case, as "relevant circumstances".
v)The Judge in Supporting Carewould in all likelihood have followed Prestwickhad he known of it; and would duly have rejected the "global assessment" JR Ground that was before him, unless convinced that Prestwickwas itself wrongly decided 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) Icannot myself see a powerful reason for not following the decision in Prestwick. On the contrary, I respectfully agree with it.
126. Secondly, the Judge in Supporting Care referred, when rehearsing the submissions that had been advanced to him under Ground 4, to older binding authority which in my Judgment also bears on that Ground (see at §§47-9). I have found it difficult to see how those particular authorities then feed into the dispositive part of the Judgment at §§50-56. The key authorities in this regard were:
i) Raj and Knoll in the Court of Appeal ([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 College) 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 venture to suggest that there is a meaningful distinction between the Defendant (a) being required to stand back from the detail of an analysis of misconduct, and to ask whether the ultimate sanction of revocation is proportionate in all of the circumstances (bearing in mind the obvious seriousness of that decision, and the sorts of 'built-in' consequences which are likely to flow from it); and (b) proactively being required to investigate and make precise findings about the particular likely impact on the actual individuals who have been cared for by the Claimant, or the actual employees whose immigration status may be at risk, or the particular impact on the family members of those employees, or to try and predict or assess the impact of revocation of the sponsor on the UK care support economy. In my Judgment, a "global assessment", as it has perhaps not entirely helpfully [1] been described, may well be required in the sense of meaning (a); but it is not required if it bears meaning (b), essentially for the reasons set out in Prestwick, Raj and Knoll, and New London College.
128. Fourthly, even if there is the duty for which the Claimant contends, I do not consider that the Defendant breached that duty. I do not in particular accept that it would be fair to dismiss, as Mr Malik KC urged me to do, what the Defendant said at paragraphs 77-78 of the decision letter (see paragraph 14 above) as constituting "generic" language, justifying an inference that the Defendant used a "copy and paste" approach. That would be unjustified and unfair to the Defendant. The fact that the language happens to be the same as in two paragraphs of previous letters does not mean that a legally adequate thought-process leading to the use of that language has not occurred in this case. In any event, I think thatthe Defendant can be taken to have known the size of the business he was considering, and to have understood the potential impact of revocation on that business, on many of its workers and their families, and on those individuals to whom it provides care. These are, to be blunt, obvious: they are potential consequences of any decision to revoke a large organisation's sponsor licence.
129. Finally, my view is that, ifafter a wholly fair and lawful process a company holding a sponsor licence had been found to have committed all of the breaches said to have occurred in this case (see paragraph 13 above), revocation would in that situation have been highly likely. A "global assessment" of the impact of revocation on those adversely affected, even if diligently, precisely, and conscientiously carried out in the most detailed way by the Defendant as contended for by Mr Malik KC, would not, in all probability, change that outcome. To hold otherwise would, in my Judgment, have the effect of undermining a policy position that has been taken by the Secretary of State, i.e. that certain sorts of misconduct should invariably or almost invariably justify revocation because the risk to the immigration system of allowing people who have committed that sort of misconduct to carry on as sponsor licence holders is simply unacceptable. That is a policy judgment that the Defendant is entitled to make. The large size of the Claimant undertaking (which on analysis, is the key driver of Mr Malik KC's points about the adverse consequential impact on "large numbers" of workers or "large numbers" of other individuals) does not appear to me to be capable of bearing anything like the mitigating weight that he seeks to place on it, in a situation where, on the relevant hypothesis, a Secretary of State has otherwise rationally concluded that the undertaking represents an unacceptable risk to immigration control and that the risk cannot be permitted to continue. So if necessary, and if wrong about everything else relevant to Ground 4, I would have concluded that on the relevant counterfactual premise, it would have been "highly likely" that the outcome for the Claimant would not have been substantially different, had the conduct complained of under Ground 4 not occurred.
The 'Note 1' for §127 reads:
"I say not entirely helpfully because the word "global" seems ambiguous in this context, and because this complaint can adequately be slotted into one of the orthodox judicial review grounds, i.e. an alleged failure to have regard to relevant considerations, or a failure to seek further information about them"
The judgment in New Hope Care could precede a similar decision by the Court of Appeal, if permission is indeed granted in Supporting Care.Even if it does not, it potentially weakens the potential for reliance on Supporting Care as an authority, as we now have two High Court cases to one against a global assessment.
This could mean that the somewhat anomalous ground of 'failure to conduct a global assessment' which has given hope to some recipients of revocation decisions since 19 January 2024, will likely need to be replaced with an acceptance that failures to adhere to the complex Sponsor Licence Compliance Guidance cannot be outweighed by arguments about the impact of revocation in a particular area, or in relation to individuals needing care, or of economic impact, or business difficulty. The 'orthodox' judicial review grounds of failure to have regard to relevant considerations / failure to seek further information can cover much of the same content as one would in advancing grounds based on failure to conduct a global assessment. This is encapsulated in the third point (§127 above).
The approach in New Hope Care could anticipate the end of hope for some, and some former sponsor licence holders might be well advised to accept a revocation decision, improve their systems markedly and prepare a robust sponsor licence application after the relevant cooling off period has elapsed, rather than incur the expense and effort required in even an unsuccessful challenge.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.