The claimant, a business providing care services, held a sponsor licence granted by the Home Office which enabled it to sponsor overseas nationals who were not “settled workers” or did not otherwise have the necessary immigration status to work in the United Kingdom so as to employ them for its business. Pursuant to the Secretary of State’s guidance document, Workers and Temporary Workers: guidance for sponsors, it was the responsibility of the claimant as a licence holder to ensure that such workers met the relevant immigration requirements, and the claimant was required to have an authorising officer who had to be “based in the UK” during the period of their appointment. The claimant’s authorising officer was away from the UK and was absent during the Home Office’s first compliance visit. Forming the view that there was a strong indication that the claimant was failing to comply with its sponsor duties under the guidance, the Secretary of State decided to suspend its sponsor licence pending a full investigation. The claimant was notified that the relevant findings along with full and detailed reasons for the suspension decision would be provided, to which the claimant would be given 20 working days to respond. The Home Office subsequently requested to arrange a second compliance visit during which the authorising officer would need to attend for an interview along with two identified sponsored workers. As the authorising officer remained outside of the UK, the claimant requested, and the Home Office agreed, to cancel the scheduled second compliance visit and to reschedule it once the authorising officer had returned to the UK. In the absence of any further correspondence, the Secretary of State made the decision to revoke the claimant’s sponsor licence on the basis that it had failed to comply with its sponsor duties, constituting a risk and significant threat to immigration control. The claimant sought judicial review of that decision, contending, inter alia, that the Secretary of State had (1) misconstrued his own policy by treating the requirement that the authorising officer be “based in” the UK as requiring the authorising officer to be continuously resident in the UK without any substantial periods of absence abroad, (2) failed to carry out the required global assessment taking into account the likely impact of revocation on the individuals cared for and employed by the claimant, and (3) acted in a procedurally unfair way in failing to give reasons for the suspension decision and to provide an opportunity for the claimant to respond.
On the claim—
Held, claim allowed. (1) The requirement in the Secretary of State’s guidance document, Workers and Temporary Workers: guidance for sponsors that the authorising officer of the sponsoring employer be “based in” the United Kingdom in a practical and effective sense fell to be construed in accordance with the ordinary meaning of the language used, and the question whether someone was based in the UK for the purposes of that guidance was a question of degree requiring an exercise of judgement. A brief or temporary absence from the UK would not mean that they were no longer “based” here, although there might come a point where someone’s absences were so prolonged, repeated, or indefinite that it was no longer sensible or realistic to remain satisfied that they were based in the UK. Similarly, the fact that someone paid tax in the UK and owned a home or ran a business here, would not compel the Secretary of State accept that they were based in the UK, however long they spent abroad. In the present case, the Secretary of State had not simply treated the absence of the claimant’s authorising officer from the UK as dispositive of the issue, but rather had properly considered all relevant circumstances. Accordingly, the Secretary of State had not misdirected himself in concluding that the claimant’s authorising officer had not been based in the UK as required by the guidance (paras 78–82).
(2) In determining whether to revoke a sponsor licence granted to a care provider, the Secretary of State was not required to make a global assessment considering the precise impact of revocation on the licence holder, or on the care economy, or the impact on care and health, in any particular case. Rather, such matters were not relevant either to the question whether the licence holder had acted in breach of the requirements in the guidance and, if so, what, if any, the appropriate sanction should be. There was a meaningful distinction to be drawn between the Secretary of State, on the one hand, being required to stand back from the detail of an analysis of misconduct, and asking whether the ultimate sanction of revocation was proportionate in all of the circumstances (bearing in mind the obvious seriousness of that decision, and the sorts of built-in consequences which were likely to flow from it), which might well be required and, on the other hand, proactively being required to investigate and make precise findings about the particular likely impact on the actual individuals who had been cared for by the sponsor, or the actual employees whose immigration status might be at risk, or the particular impact on the family members of those employees, or to try and predict or assess the impact of revocation of the sponsor’s licence on the UK care support economy, which would not be required. Accordingly, the Secretary of State had not been required to conduct the global assessment contended for by the claimant in the present case (paras 124–130).
(3) Having regard to (i) the provisions of the guidance detailing the procedure that would be followed in circumstances where the Secretary of State believed that a licence holder was in breach of its sponsor duties, (ii) the requirements of common law procedural fairness and (iii) the legitimate expectation created by the correspondence sent to the claimant by the home office, the decision of the Secretary of State to revoke the claimant’s sponsor licence without affording a proper opportunity to answer the allegations made against it had been unlawful, since it was inconsistent with published policy, procedurally unfair at common law and contrary to a legitimate expectation. Accordingly, the decision to revoke the claimant’s sponsor licence was revoked (paras 95–106, 109–115, 131, 132).
Zane Malik KC (instructed by Lawmatic Solicitors) for the claimant.
William Irwin (instructed by Treasury Solicitor) for the Secretary of State.