High Court Challenges Home Office on Care Sector Sponsorship Rules

30th January 2025

Developments in Sponsorship Rules for Care Businesses

A recent High Court judgment provides clarity on the Home Office’s practices regarding care businesses holding UKVI sponsor licences.

Since late 2023, the Home Office has increasingly required additional information from care businesses when they request Certificates of Sponsorship (CoS). These additional information requests have significantly impeded care businesses from hiring sponsored workers. This judgment examines the Home Office’s approach to additional information requests and how they may be conducted moving forward.

 

Case Background

In January 2024, Hartford Care Group requested 70 defined CoS with hopes to hire new sponsored workers before the care worker dependent ban came into force in March 2024. After additional information was requested and submitted, the request for CoS was subsequently refused. In response, Hartford Care Group wrote a pre-action letter against this decision.

The Home Office’s additional information request included multiple documents from the sponsor, with a particular focus on:

  • Copies of official contracts or agreements demonstrating genuine vacancies related to current requests.
  • Specific details such as the start and end dates, scope of services, number of service users, required staff and work locations.

These types of requests will by now be very familiar to care businesses who have requested CoS in the last year and a half. Although Hartford Care Group submitted the necessary documents requested including framework agreements with three local authorities, the Home Office rejected the CoS request, arguing that the agreements did not contain specific hours, number of service users or number of staff. They claimed that Hartford Care Group intended to sponsor migrant workers prior to securing additional work for them to undertake.

 
Key Issues

1. Is the prevalence of additional information requests (specifically the request for care contracts which contain guaranteed hours) a new policy of the Home Office?

The Home Office argues this approach reflects their “evolving understanding” of the care sector and that they are able to request this additional information in pursuit of evaluating the genuine vacancy requirement, providing them with the flexibility to request a wide range of information.

The judge ruled that the Home Office had changed their approach in how they evaluate the genuine vacancy requirement and described the approach as “irrational and impermissible”.

2. Do care agreements which contain no guaranteed number of hours, service users or staff required indicate the lack of a genuine vacancy?

The judgment clarified that care agreements, such as framework agreements or spot contracts, which lack specific provisions for hours, service users, or staff do not automatically indicate a lack of a genuine vacancy.

The judge specifically outlined that:

  • The evidence requested by the Home Office, such as contracts from the local authority specifying number of hours, staff or service users, does not exist in practice as standard care contracts never contain these provisions.
  • A business can have genuine vacancies without 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 guaranteed working hours to a care provider.

The absence of these contracts was used as a reason for rejection despite the other evidence in the businesses favor which indicated genuineness such as: other documents provided (contracts of employment, organizational chart), the generally acknowledged situation within the care sector that there is a shortage of care workers and the “trusted status” of the business.

3. What is good evidence of a genuine vacancy?

  • Consideration of a business model or plan may include a higher staff ratio than the minimum needed to service a local authority contract. 
  • A business may opt for a premium service with higher staffing levels. This policy indicates that the Home Office must judge whether a job is a genuine vacancy looking at the requirements of the care provider’s business and not only by the requirements of its clients and customers.” This kind of information cannot be found within the care contracts requested.
 
Judgement

The Court concluded that:

  • It was unlawful for the Home Office to judge the genuineness of vacancies solely based on whether the care provider had official contracts containing the provisions that were requested.
  • The decision was not in accordance with the immigration rules or “The Claimant’s statutory and regulatory duty to ensure sufficient staff;”
  • The judge termed the contracts which the Home Office had based the CoS rejection on as an “irrelevant factor.”

It is clear that the Home Office did not take the time to look into the care sector before requesting documents as it would have come to light fairly quickly that the documents requested did not exist.

 
Conclusion

This High Court ruling highlights the need for the Home Office to adopt a more nuanced approach to assessing genuine vacancies in the care sector. It affirms that care businesses can legitimately hire workers to meet expected demand or facilitate growth, even without such contracts. 

As the care sector continues to face staffing shortages, it is essential for the Home Office to balance the genuine vacancy requirement with the practical realities of care providers. This judgement provides assurance for care businesses that their operational challenges will be better understood and accommodated moving forward.

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