Associate Harry Yu delves into the implications of a recent judicial review case involving Prestwick Care Ltd, shedding light on the importance of immigration compliance for sponsors.
The points-based system was introduced by the Labour Government in February 2008 and over the years has evolved into the various work visa categories which we know well today, including the Skilled Worker visa and the Health and Care Worker visa. Since the inception of the points-based system, the concept of immigration compliance has been key for sponsors.
Prestwick Care Limited
In this briefing, we discuss a case involving a large care home business that had held a sponsor licence since 27 November 2008, namely: Prestwick Care Ltd v Secretary of State for the Home Department.
Suspension of sponsorship licence
Prestwick Care was a corporate group which employed 857 workers and operated 15 care homes, providing a total of 813 beds. It held a sponsor licence and sponsored 219 workers (likely under the health and care visa route). In short, the company was subject to a compliance visit by the Home Office, who thereafter decided to suspend the company’s sponsor licence in December 2022 on the basis that the company had multiple breaches to its sponsor duties including recouping Immigration Skills Charge from migrants, paying migrants less then what was stated on their Certificate of Sponsorship and providing incorrect job descriptions. Upon suspension of the sponsor licence, the Home Office wrote to the company. The company responded admitting to a breach and said that it would be correcting the breach.
On February 2023, the Home Office revoked the company’s sponsor licence. The company then applied for judicial review to challenge the Home Office’s decision on the basis that it was procedurally unfair. In summary, the company had argued that the Home Office acted unfairly as it had not invited them to submit representations in their suspension letter. The company claimed that the Home Office was subject to a heightened standard of procedural fairness when deciding whether to revoke their sponsor licence because they were a care home business and the impact of revocation (i.e. not being able to sponsor migrant care workers) would be particularly grave to them.
The court rejected this argument and ruled that there was no heightened standard of fairness because sponsorship is not a fundamental right, instead it is a privilege which could be removed if there were reasonable grounds to suspect breach of immigration law. The court ruled that the onus was on the sponsor licence holder to provide evidence necessary to address the Home Office’s concerns and the company had failed to do so.
The court made it clear that the Home Office was entitled to maintain a high index of suspicion and a light trigger in deciding when and with what level of firmness they should act with respect to sponsor licence compliance. As such, the court dismissed Prestwick’s claim for judicial review.
There appear to be several lessons / missed opportunities by Prestwick, worth learning from this case, namely:
1. Day-to-day immigration advice
It is unknown whether the company had legal advice each time they sponsored health and care workers, but it would have been glaringly obvious for any qualified immigration practitioner to advise against actions such as recouping Immigration Skills Charge from the workers. Having legal advice on a day-to-day basis, especially when preparing immigration applications may be a good idea for businesses as errors/breaches can be prevented.
2. Mock audits
It is unknown whether the company had conducted mock audits on its immigration compliance systems previously, but if it had, then it could have identified many of these sponsor licence compliance issues prior to the Home Office compliance visit and had a chance to remedy them. Perhaps the result of the Home Office compliance visit may have been more light-touched (e.g. downgrade as opposed to suspension) if a company was upfront about any breaches and have taken action to remedy such breaches (although this would depend on a case-by-case basis).
3. Inadequate response to the Home Office when the window was open
The Home Office guidance states that sponsor licence-holders have 20 working days after being notified of licence suspension to present representations, evidence, and seek a review of the decision. This is what happened in the Prestwick case and ultimately (as seen in the procedural fairness argument), the company missed this opportunity to submit strong representations/evidence in support of its case.