It is undoubtedly becoming increasingly frequent that care homes across England and Wales are facing sponsor licence revocation. In recent months, 550 suspension letters have been issued and over 300 licences across all sectors have been revoked, showing it is not just care homes that face a licence revocation. Here, Alex Christen and Sophie Evans address recent case law on revocation, what that means for care homes the importance of “Mock Sponsor Licence Audits.”
R (New Hope Care Ltd) v SSHD
In August 2023, a care home operator was visited by the Home Office compliance team. A week later, the Home Office suspended the care home operator’s licence claiming that the organisation failed to comply with its sponsor duties. It confirmed that the operator would be provided with full findings in a detailed report, and that they would have 20 working days to respond. In September 2023, the Home Office contacted the operator to arrange a second compliance visit where an authorising officer would need to be interviewed. The operator’s authorising officer responded explaining that he had been detained abroad and proposed the visit be rearranged once he had returned to the UK. The Home Office agreed and asked the authorising officer to inform the Home Office of his return so that the visit could be rescheduled. There was no further correspondence between the Home Office and the care home operator for a (relatively short in Home Office terms) period. In October 2023 however, the Home Office issued the care home operator with a decision letter revoking its sponsor licence for 5 reasons claiming that it had contravened sponsor guidance.
The care home operator sought a judicial review of the Home Office’s revocation decision, succeeding on the ground of procedural unfairness.
It was found that the Home Office failed to follow the procedure set out in its suspension letter and its sponsor guidance. It stated that it would provide full and detailed reasons for the suspension and that the operator would have 20 working days to respond. The Home Office failed to follow through with this. In line with the Home Office’s sponsor guidance, it must first provide reasons for the suspension, and then allow the licence holder at least 20 days to provide a response which must be considered by the Home Office before deciding to revoke a sponsor licence. The Home Office failed to do this.
Therefore, it was held that the Home Office’s revocation decision was unlawful as it was inconsistent with published policy, contrary to a legitimate expectation and procedurally unfair at common law. The care home operator did not provide any response to the allegations raised by the Home Office, and no issues were considered in court. There is no doubt that the Home Office may seek to challenge this decision, however, the positioning of the court seems clear through their findings that, irrespective of the procedure stipulated in the suspension letter and sponsor guidance, “the common law right to be heard before important benefits are taken away is fundamental.”
What does this mean for care home operators?
The Administrative Court’s judgment is promising. It upholds that sponsor licence holders who fail in their Home Office compliance are provided with sufficient detail of the visit’s findings and any allegations made against them. Notably, it upholds that such holders are given a substantive amount of time to respond and explain their positioning. However, it is not free reign for sponsors to ignore their compliance responsibilities and sponsor duties. In this case, had the process been followed correctly the Home Office may still have revoked the licence given the alleged sponsor breaches were potentially quite serious.
Cases like such and various statistics show a rise in Home Office compliance visits concluding in sponsor licence revocations. Due to this, sponsor licence holders, particularly those who are care home operators, should consider “Mock Sponsor Licence Audits.”
Why have a “Mock Sponsor Licence Audit”?
The Home Office can visit at any time, and it is important to remember that it is only a matter of time before they do. During a compliance visit, Home Office officers have authority to request access to personnel records, interview employees and assess whether fundamental sponsorship principles are being maintained. The importance of getting this right is paramount for a licence holder – the Home Office review company policies and procedures and thoroughly check whether a suspension, and revocation is required. If a sponsor licence holder fails to satisfy its sponsorship duties, it could lose its licence which means it will lose the ability to sponsor employees.
Capital Law’s Mock Sponsor Licence Audit
What is it?
A new and dynamic mock ‘Sponsor Licence Audit,’ thoroughly assessing sponsor licence holders’ documents and HR systems to make sure they are compliant and prepared for the real Home Office visit.
How does it work?
Our immigration team will provide you with guidance to help you adequately prepare for our audit and explain the methodology behind it. They will begin with reviewing your HR systems and employee records on the day to make sure they are appropriate and compliant. Our business immigration specialists will then review the current status of your licence and make sure it reflects your business, ensuring you are fully aware of your record keeping and reporting obligations. Once completed, they will guide you and your sponsored employees through the type of questions you may be asked by the Home Office during their visit. It is important to note that not only you will likely be questioned, but your sponsored employees also. Our immigration team will then provide a full report detailing risk areas and action points and give clarity as to the reality of your sponsor licence position. You will then be fully aware of what to expect from a Home Office visit and be able to improve any risk areas in preparation for it.
For more details about our Mock Sponsor Licence Audit please contact our business immigration team.
