He Reigns Healthcare Services Ltd, R (on the application of) v Secretary of State for the Home Department

Matthew Butt KC:

1. This is a renewed application to bring a claim in judicial review brought by “He Reigns Healthcare Services Ltd” (the Claimant) against the Secretary of State for the Home Department (the Defendant). It relates to the sponsorship of foreign workers.

2. Under the Immigration Rules, foreign nationals may enter the UK to work if sponsored by an employer. The Defendant awards licences to employers who may then grant certificates of sponsorship to workers as permitted by the licence. The scheme is entirely voluntary, and an employer can choose to only employ those who already have permission to work in the UK. Those who are granted a licence are given considerable advantages in the labour market. It is well established that with these advantages come considerable responsibility.

3. The Claimant is a provider of at home care and support services under contract. In order to service the contracts, it has entered into the Claimant utilises sponsored migrant labour. It was issued a skilled worker sponsor licence in this regard by the Defendant on 22 April 2022.

4. On 20 March 2024 the Defendant suspended the Claimant’s licence with immediate effect. The Claimant was given 20 working days to make representations against this decision. In the suspension letter, the Defendant stated that she had suspended the Claimant’s licence as she had evidence to suggest that it posed a serious threat to immigration control.

5. The letter set out its concerns including that the Claimant had assigned or intended to assign a volume of certificates of sponsorship that were disproportionate to the profile of the company and that sponsored workers were not occupying genuine vacancies. A third concern was raised relating to the Claimant’s registered address, but this has fallen away.

6. The Defendant required that the Claimant provide evidence to confirm the genuineness of the roles it had assigned and/or intended to assign. The required information included current staff lists, evidence the company required its current level of recruitment, evidence to demonstrate that sponsored workers are performing their role as described and copies of current official contracts.

7. The Claimant was given 20 working days to provide the above and was told that if it failed to provide this or alleviate the Defendant’s concerns then its licence would be revoked.

8. It was clear therefore that the Defendant’s primary concern was that the Claimant was issuing certificates of sponsorship to more migrants than it had suitable work for. The Defendant was giving the Claimant the opportunity to demonstrate that it did indeed have enough work for its sponsored migrants. The obvious means of doing so was to provide the evidence required. This would have shown that the Claimant had sufficient work for its sponsored workers within the roles specified on their certificates of sponsorship.

9. A letter in response was sent by the Claimant’s solicitor on 15 April 2024. The Claimant denied posing any threat to immigration control. Complaint was made that the process followed had been unfair and that no evidence had been submitted to show that the Claimant indeed posed a threat to immigration control.

10. In terms of a substantive response, the letter stated that the number of certificates issued was not excessive in the context of its operation and that one of the reasons for recent recruitment stems from the approval of a bid with the London Borough of Havering.

11. The Claimant’s letter makes reference to “evidence attached.” It was unclear from the statement of facts and grounds (SFG) and the Claimant’s skeleton argument (which was served the afternoon before the renewal hearing) what evidence was and was not served with this letter. The Claimant relies upon a 1000+ page bundle in this claim which includes a witness statement from the Claimant’s executive director but not all of this material was before the Defendant. I have had to determine what material was in fact before the decision maker and I address this at §24-31 below.

12. Having considered the Claimant ‘s response a decision to revoke was made on 12 June 2024. In the revocation letter, the Defendant stated that she had considered the information and documentation provided and had taken the decision to revoke the sponsor licence.

13. The letter noted that of the 124 workers sponsored by the company, 50 did not appear on the payroll records provided which covered the period of January to March 2024. Further the letter noted that six contracts had been provided (with the London Borough of Sutton, Southwest London Integrated Care and 4 private clients) which represented 813 hours of work per week. 124 workers, however, had a capacity to work 4960 hours if each worked 40 hours per week. As such the Defendant concluded that the Claimant had not demonstrated that it required this level of recruitment and that the sponsored workers roles have “either been exaggerated or do not exist, therefore we do not accept that you are offering your sponsored workers genuine vacancies”. This was said to be a mandatory ground of revocation (see below).

14. A pre action letter was sent by the Claimant on 24 June 2024 and after an exchange of correspondence this claim was issued on 29 August 2024.

15. The Claimant brought 6 grounds of claim. Grounds 5 and 6 related to the lack of any global assessment having been made by the Defendant before revoking the sponsor licence. Permission was originally granted on grounds 5 and 6 only but the claim was stayed pending the decision of the Court of Appeal in Prestwick Care Ltd & ors v SSHD 2025 EWCA Civ 184. As the Court of Appeal determined in that case that there is no requirement to provide a global assessment, grounds 5 and 6 have been abandoned.

16. The claim is renewed on grounds 1-4 upon which permission was originally refused.

17. The Court of Appeal in Prestwick Care Ltd noted at §4 that there are currently over 115,000 sponsors in the UK including just under 9,000 in the social care sector alone. The scheme is heavily dependent on trust and there is plainly the potential for abuse. The Defendant has to ensure and enforce compliance with the scheme as part of her overall management of immigration. This is a considerable undertaking.

18. The duties of organisations that sponsor workers under the Skilled Worker route, and the action the Defendant may take against organisations that breach those duties, are set out in the Defendant’s non statutory guidance entitled “ Workers and Temporary Workers: guidance for sponsors Part 3: Sponsor duties and compliance” (Version 03/23) (the Sponsor Guidance).

19. Paragraph C1.38 of the Sponsor Guidance, under the heading “Complying with our immigration laws” provides: “You must comply with our immigration laws and all parts of the Worker and Temporary Worker sponsor guidance. To do this, you must: … not assign a CoS where there is no genuine vacancy or role which meets the Worker or Temporary Worker criteria – if you assign a CoS and we do not consider it is for a genuine vacancy, we reserve the right to suspend your licence, pending further investigation which may result in your licence being revoked”.

20. A genuine vacancy is defined at paragraph C1.44 of the Sponsor Guidance, and examples of non-genuine vacancies are set out at paragraph (z) of Annex C1 namely where: We have reasonable grounds to believe the role for which you have assigned a CoS is not genuine – for example, because it: • does not exist; • is a sham (including but not limited to where the CoS contains an exaggerated or incorrect job description to deliberately make it appear to meet the requirements of the route you assigned it under when it does not); or • has been created mainly so the worker can apply for entry clearance or permission to stay.

21. Annex C1 also sets out the circumstances in which the Defendant will revoke a licence as mandatory grounds of revocation which include assigning a certificate for a non-genuine vacancy. This may be done immediately and without warning or (as here) following suspension pending further investigation.

22. The Court of Appeal again stressed in R (London) St Andrews College v SSHD [2018] EWCA Civ 2496 the heavy duty upon sponsors including that they must maintain records with assiduity, and that the Defendant is permitted to apply both a “high index of suspicion” and a “light trigger” in deciding what enforcement action to take. This court’s role is confined to one that is both supervisory and which respects the expertise the Defendant’s officers bring to their compliance role.

23. In Prestwick Care Ltd the Court of Appeal considered the procedural safeguards which will apply when there is an express or implied finding of dishonesty. The Court noted that dishonesty is a serious allegation carrying with it serious consequences and the burden is on the Defendant to prove dishonesty and not on the sponsor to prove it was not dishonest: §133. When the Defendant has a suspicion that a sponsor has behaved dishonestly, she must indicate that clearly to the sponsor so that the sponsor has a fair opportunity to respond: §134. Having received the response the Defendant must consider all of the circumstances before drawing the inference that there has been dishonesty. If the allegation has been fairly put in the suspension letter, then the sponsor may put forward alternative explanations which can be considered: §135. Finally, if the Defendant draws the inference of dishonesty, she must set out the reasons for her decision in the revocation letter. These need not be lengthy or legalistic, but the sponsor is entitled to know the reasons for this decision §136. The Court further cautioned against an approach in this regard which is too legalistic as this would be inconsistent with the notion of a light trigger: §§125 and 131.

24. It was not clear on the papers precisely what material was provided to the Defendant by the Claimant before she made the decision under challenge.

25. The Claimant submitted within the SFG that the Defendant had access to rotas, payslips and contracts from up to seven local authorities and 18 private clients. This was relevant to how many hours of work the Claimant had available to its 124 sponsored staff.

26. It is further suggested in the SFG and the Claimant’s skeleton argument that the Defendant was also provided with training records, leave and rota data, evidence showing staff engaged in shadowing and training, parental leave and details of certificates which had been cancelled. This was relevant to how many of the Claimant’s 124 sponsored staff were working at the relevant time and the 50 staff “missing” from the payroll.

27. It was plain from the summary grounds of defence (SGD) that the Defendant did not accept that she had been provided with all of this material. The Defendant relies upon her decision letter which states that the Claimant was provided (i) payslips for January to March 2024 (ii) a staff rota for March and April 2024 and (iii) contracts for the six clients set out above.

28. In refusing permission on grounds 1-4 the Deputy Judge stated that the evidence as to what documents had been provided to the Defendant was very unclear. He noted internal contradictions in the SFG as to which local authorities the Claimant had contracts with. He preferred the contemporaneous letter of the Defendant which listed the material provided to the Claimant’s pleadings on the point. The Claimant was therefore clearly on notice as to the importance of this point and the likely approach to be taken by this court.

29. At the commencement of the oral hearing, I asked Mr Malik who represents the Claimant which documents were in fact before the Defendant. He told me that this was unclear and that he did not have instructions on the point.

30. I asked the same question of Mr Hill who represents the Defendant. He told me that his instructions were that the defendant was not provided with letters concerning approval of leave, payroll data (other than that set out above), other contracts cited by the Claimant (other than the six noted above) or parental leave data. This was also set out in a written response to the Claimant’s skeleton argument. He relies upon the content of his client’s 12 June 2024 letter as contemporaneous evidence of the same.

31. Mr Malik applied for an adjournment to serve further evidence on this point. I refused this application as there was no basis to grant an adjournment when one party had provided clear instructions and the other had no good reason for failing to address the point before the renewal hearing. I therefore notified the Claimant that I would proceed on the basis that the Defendant had correctly identified the material it was provided with in advance of the decision under challenge. This is the approach I have taken throughout this judgment.

32. The SFG does not set out discrete submissions on each ground. The skeleton argument adopts different numbering to the SFG and has reformulated and renamed some of the grounds. I have tried not to take an overly technical approach but ultimately, I must decide whether the claim is arguable based upon the grounds as pleaded with the SFG.

33. Ground 1 alleges that the Defendant failed to ask the correct question or make reasoned and rational findings on the question of “genuine vacancy”. At its heart this ground complains that the Defendant did not approach the question of dishonesty properly .

34. The Claimant relies upon the procedural safeguards applicable in dishonesty cases as set out at §133 to §136 of Prestwick Care Ltd . As the Court of Appeal’s judgment in that case post-dates the issuance of this claim, I have not restricted the Claimant’s case where it relies upon this authority. Mr Malik has made full submissions on this point in his skeleton argument and orally at the renewal hearing.

35. The Claimant submits that only a deliberate and therefore dishonest exaggeration can justify revocation of a licence on the basis of “non-genuine roles”. The Claimant submits that there is no evidence that the Defendant applied itself to the question of the Claimant’s state of mind and whether the company through its staff had behaved dishonestly.

36. I accept that if the decision under challenge rested upon a finding of dishonesty (be that express or implied) then the procedural safeguards in Prestwick Care Ltd would be engaged. I also accept that reading the suspension and revocation letters together were this a dishonesty case, then the procedural requirements would arguably not have been met. That is because there was no express warning that dishonesty was under consideration and no reasoned basis provided for a finding that there had indeed been dishonesty.

37. I do not agree that there must be dishonesty on the part of a licence holder before a sponsor licence can be revoked on the ground set out at Annex C1(z) to the Immigration Rules.

38. I also do not agree that the suspension and/or decision letter impliedly came to a conclusion that the Claimant had deceived the Defendant or acted dishonestly. That was not due to an error on the part of the Defendant, it was because in this case no such finding was necessary.

39. The Defendant was concerned that the Claimant did not have enough work to justify the number of certificates it had issued. She was also concerned that 50 of the 124 workers to whom certificates had been issued were not shown on the payroll. I address below whether these were fair and proper conclusions for the Defendant to have reached on the evidence. Assuming for present purposes that the Defendant did have reasonable grounds to suspect that this was the case, then this would strongly suggest that some of the roles for which certificates had been issued did not exist. This could have resulted from negligence on the part of the Claimant, ignorance as to the correct approach or misplaced optimism that there would be sufficient work. In such circumstances certificates would be issued where there was no genuine vacancy, but this would not be due to dishonesty or deliberate exaggeration by the Claimant, it would be due to ignorance, negligence and/or incompetence.

40. This case can be contrasted with the position in Prestwick Care Ltd in which the revocation letter stated that ‘ the role of senior carer undertaken by Ms Rima does not represent a genuine vacancy within your organisation and has been exaggerated in order to facilitate her stay in the UK’ : §65. The judge at first instance concluded that this was a finding of deliberate exaggeration by the Defendant and therefore a finding of dishonesty: §73. In the Court of Appeal both parties accepted that finding and that therefore this was a dishonesty case: §130. In this case there was no finding of dishonesty by the Defendant who disavows dishonesty in her response to the claim. Having read the suspension and revocation letters together, I do not consider it arguable that they amount to a finding of dishonesty.

41. It cannot be right that the Defendant must prove deceit or dishonesty before a licence can be revoked on the basis that a sponsor has issued certificates for roles which are not genuine. This would enable sponsors to benefit from incomplete record keeping. It would enable a sponsor to plead negligence, ignorance or incompetence as a defence. Such an approach would be inconsistent with the high degree of trust that is placed in sponsors, the need to keep records with assiduity and the light trigger that the Defendant is entitled to bring to these proceedings.

42. I do not therefore consider it arguable that there was a breach of the procedural safeguards that apply in cases where deceit or dishonesty has been impliedly or explicitly found. The Defendant concluded on the evidence she saw that certificates had been issued for roles that were not genuine. She was not required to find that this was due to dishonesty and did not in this case do so.

43. The Claimant next submits that the Defendant’s assessment was inadequate as she failed to properly and fully assess all of the contracts disclosed. This it is submitted would have revealed contracts with Croydon, Havering, Thurrock and other private clients. Later in the SFG the Claimant makes reference to contracts with Lambeth and Hammersmith and Fulham.

44. The Claimant within the SFG submits that the Defendant misdirected herself by only considering contracts with Sutton, Southwest Integrated Care and four private clients. The Claimant submits that it is “trite” that all of the contracts provided exceeded the 813 hours that the Defendant assessed were available.

45. This submission however fails. The Claimant accepted at the hearing that it cannot say what material was before the Defendant. I accept what I have been told by the Defendant that the material provided was confined to the six contracts set out in the revocation letter.

46. In any event even the material before this court does not take the Claimant as far as the SFG claims. I have seen an unsigned and undated document relating to Havering, but this does not prove that a valid contract was in place. I have seen a document relating to a Homecare Quality Visit Report completed by Croydon Council but no contract. There is no contract relating to Thurrock, Lambeth or Hammersmith and Fulham. I asked Mr Malik about the absence of this material but could not say why it was not before the court.

47. The Defendant was entitled to conclude that the Claimant had contracts with only the six clients referenced in its revocation letter. It is unarguable that there was a public law error in not considering other contracts which were not disclosed at the time the decision was made and neither was the Defendant put on inquiry as to their existence.

48. Ground two alleges that the Defendant failed to disclose evidence to prove that the Claimant posed a serious threat to immigration control. This ground is unarguable. The suspension letter made clear the basis for the decision and that this related to the fact that there were reasons to suspect that roles for which certificates had been issued were not genuine. This would self-evidently pose a risk to immigration control.

49. The Claimant was told what evidence to provide in response and was given 20 working days to send this and any representations to the Defendant.

50. It was therefore clear that the Claimant needed to satisfy the Defendant that it had sufficient work on its books to cover its sponsored workforce. It is clear from the Claimant’s letter of 15 April 2024 that the author understood that this was the matter in issue. The Claimant cannot to date explain why it is that he was unable to provide the required material to the Defendant.

51. Ground 2 appears to morph into ground 3 which alleges that there were irrational conclusions made regarding the 50 unaccounted for sponsored workers.

52. Within the revocation letter, the Defendant stated that its records showed that the Claimant employed some 124 sponsored workers yet in the January to March payroll records provided, 50 of these workers did not feature. The Claimant does not dispute this premise.

53. The Claimant purports to rely upon the witness statement of its executive director in this regard, however, Mr Malik accepts that this was not provided to the Defendant until the claim form was served. It is therefore hard to see how the Defendant could have fallen into public law error by not considering this at the time she made her decision.

54. As to the underlying documents, the Claimant again could not assist the court with what documents were in fact provided to the Defendant relevant to the 50 missing workers.

55. The SFG states that 25 workers were shadowing or training (and thus it is said not working) and 25 were either on unpaid leave, maternity leave, had resigned or had their certificates of sponsorship revoked. I accept the evidence from the Defendant that material purporting to evidence this was not provided in advance of the decision under challenge. There was therefore no public law error in failing to identify this material.

56. In any event the evidence served with the claim does not establish that which the Claimant submits it does. Of the 8 workers said to be on parental leave, I took Mr Malik to four of the letters relied upon. He accepted that these do not cover all of the period for which they were absent from the payroll. This does not therefore explain why they were not on the payroll.

57. Furthermore, of the workers said to be on unpaid leave, 4 of the letters do not cover any or all of the period in which they were absent from payroll.

58. I asked Mr Malik how many of the 50 workers the Claimant could in fact account for and he was unable to answer this question. Mr Malik relied upon his client’s disorganisation and incomplete record keeping. This was an inevitable concession but one that sits uncomfortably with the requirements imposed upon a sponsor.

59. It is therefore unarguable that the Defendant fell into public law error in concluding that 50 of the 124 workers were unaccounted for on the payroll. This was a reasonable conclusion on the evidence.

60. The SFG complains that the Defendant had a duty to interview the Claimant’s management and workers but identifies no legal support for this proposition. None can be found within St Andrew’s College or Prestwick Care Ltd and there is no requirement to do so within the Sponsor Guidance. The remainder of this ground morphs into grounds 5 and 6 which have been abandoned.

61. The Claimant raises further points by way of his skeleton argument including that there was an unfair 20MB limit for evidence to be submitted, but I accept the Defendant’s response that this was applied to each attachment and thus the Claimant could have sent multiple attachments. It is also submitted that there was insufficient engagement with the Claimant’s representations, but I do not accept this to be arguable. The approach taken by the Defendant gave the Claimant a meaningful opportunity to respond to the suspension letter and to allay her concerns that it posed a threat to immigration control. The reasons provided in the revocation letter are legally adequate.

62. I therefore refuse the application for permission to bring a claim in judicial review.