A care home operator has successfully contested the Home Office’s refusal to grant a defined certificate of sponsorship (COS). The rejection was based on the care home’s inability to provide official contracts guaranteeing work hours as proof of genuine job vacancies.
In Hartford Care Group Ltd, R (On the Application Of) v Secretary of State for the Home Department [2024] EWHC 3308 (Admin), the High Court ruled that the Home Office’s approach to the genuine vacancy requirement was unlawful. This decision marks a positive shift for care sector sponsors and prospective employers navigating immigration regulations.
Background
Since October 2023 the Home Office has started asking care sector sponsors to provide copies of contracts they have in place to demonstrate their need for additional workers. This approach has been deployed for both existing sponsors making requests for additional certificates of sponsorship, and prospective sponsors seeking a sponsor licence for their care business.
In this case, the care home operator requested 70 defined certificates of sponsorship on 9 January 2024. Recognising that care workers may be reluctant to come to the UK if they cannot bring family members, this was an attempt to recruit more overseas staff under the existing rules before the prohibition kicked in on 11 March 2024.
On 19 January 2024, the care home operator received a Home Office request for additional information which, for the first time, asked for copies of official contracts with local authorities which:
include a clear description of the scope of the service to be delivered; for example, the start and end date of the agreement, the nature of the service provided under the agreement, the number of service users covered by the agreement, the number of staff required to service the agreement and the locations that the staff will undertake the work.
The care home operator provided contracts with three local councils. They were all flexible contracts that did not guarantee the number of users or staff, which is common in social care where local authorities do not commit to long-term contracts. However, a flexible contract without guarantees around the number of service users or staff did not satisfy the Home Office under their new approach to the genuine vacancy requirement.
The Home Office refused the request because the care home operator had been unable to demonstrate that there were confirmed contracts requiring the immediate placement of 70 workers. The decision maker also stated that the role had to currently exist to meet the genuine vacancy requirement, not be based on expected demand. This is a strange position given that businesses commonly recruit in anticipation of future demand.
Judicial review
Instead of requesting another defined certificate of sponsorship, the care home operator initiated judicial review proceedings. It claimed that the new approach should be expressly contained in the immigration rules, failing which, it at least amounted to the new policy which had not been published.
The court did not agree, but it did hold that the new approach was nevertheless irrational:
It was irrational and Wednesbury unreasonable for the Defendant to require care providers to provide contracts with specific requirements for guaranteed hours of work in order to show that the job was genuine. Such contracts simply did not exist as standard contracts in the care sector. The Defendant was requesting evidence that it was impossible for the Claimant and others to provide and which had little or no bearing about whether there was a particular job vacancy within one of their care homes.
The sole reason for doubting the vacancies were genuine was the absence of contracts containing provisions mandating guaranteed hours. This was held to be irrational and unreasonable and the decision was quashed.
The Home Office will now reconsider the request for 70 certificates of sponsorship. This time, they will need to do so without taking into account of the lack of specific guarantees in the three local authority contracts provided by the care home operator.
Implications
The judgment is positive for the care sector. Presumably, now sponsors and prospective sponsors with previous refusals solely due to lack of specific guarantees in contracts can reapply with an expectation that the request will be granted.
What about those without any contracts in place at all? The court rejected the Home Office’s submission that current vacancies cannot be based on expected demand, suggesting a sponsor can still meet the genuine vacancy requirement without providing contracts proving that a vacancy needs to be filled immediately to meet current demand.
It will be interesting to see how the Home Office’s approach to the genuine vacancy requirement develops following this judgment. Given the intense scrutiny that remains in care sector compliance, sponsors will certainly still be required to provide alternative evidence showing their need for workers, such as an organisational chart showing current and genuine job vacancies.
