Sponsor licence revocation: High Court ruling suggests mandatory grounds for revocation should allow for element of discretion

In Supporting Care Ltd, R (On the Application Of v Secretary of State for the Home Department [2024] EWHC 68 (Admin) the Claimant, a care provider based in London, successfully had the decision to revoke their sponsor licence overturned on Judicial Review.

The initial decision to revoke related to a single sponsored employee whom the Home Office concluded was not undertaking the role that she was purportedly sponsored to do, that of Senior Care Worker. Under the Home Office’s published guidance, this is a mandatory ground for revocation.

However, in finding that the Home Office fettered its discretion, the court noted the contradictions in the Home Office’s policy document, specifically:

Annex C1 of this document sets out the circumstances in which we will revoke your licence – these are known as ‘mandatory’ grounds of revocation. If any of these circumstances arise, we may revoke your licence immediately and without warning. [emphasis added].

The Home Office had not satisfactorily stated why they had reached the conclusion they had with no consideration of whether revocation was reasonable nor proportionate under the circumstances.

The decision to revoke would meant that all 68 migrant workers at Supporting Care Ltd and their families would be required to leave the UK, causing significant distress to them and the individuals under their care and would invariably have a negative impact on the provision of the provider’s services.

This raises an interesting contrast with the earlier decision in Prestwick Care Ltd & Ors v Secretary of State for the Home Department [2023] EWHC 3193 (Admin). In this case, the wider effect of the decision to revoke failed as an argument because the claimant (also a care provider) had not made these submissions in advance of the decision; the original decision maker can only make their decision on the basis of evidence and information in front of them at the time.

Also, unlike in Supporting Care Ltd, the extent of the breaches in Prestwick Care Ltd were such that the proportionality argument also failed; during the compliance visit, the Home Office identified the following:

• five senior care assistants who were not performing the job that they had been sponsored to do;
• a nurse having been paid less than the minimum salary rate during a period of training;
• non compliance with UK Employment Law in three further employees suffering breaches of National Minimum Wage Regulations.

Licence holders should be aware that it is highly likely that at some point the Home Office will conduct a compliance visit on them; this can be with or without notice so employers should ensure that their internal systems are such that they are ‘audit ready’ and are fluent on the regulatory requirements and risks that may be present.

Whilst the court in Supporting Care Ltd indicated that mandatory grounds for revocation are never quite that, this should not be a cause for complacency amongst licence holders.