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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Country Court Care Ltd & Ors v Secretary of State for the Home Department [2015] EWHC 2054 (Admin) (17 July 2015)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/2054.html
Cite as: [2015] EWHC 2054 (Admin)
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
| COUNTRY COURT CARE LTD & Others |
Claimants |
|
| - and - |
||
| SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Ashley Serr (instructed by Government Legal Department) for the Defendant
Hearing date: 7 July 2015
____________________
Crown Copyright ©
- This is an application for permission to seek judicial review, and for interim relief pending the review hearing. The challenge is to two decisions of the Defendant, the Secretary of State for the Home Department, in relation to a Tier 2 Sponsor Licence for the employment of migrant workers:
- The Claimants allege that the Defendant acted irrationally, unlawfully and in a procedurally improper manner in making those decisions.
- It is, in addition, alleged that the Defendant continues to act irrationally, unlawfully and in a procedurally improper manner by failing to consider and respond to representations made to her on 12 March 2015, in the wake of the second of the impugned decisions.
- There are four Claimants: (1) the licensee, Country Court Care Ltd, which as its name suggests is a provider of care home services; two further companies in the same group called (2) Country Court Care Homes Ltd, and (3) Country Court Care Homes 2 Ltd; and (4) an individual named David Bellamy. He is a resident of a home operated by the Country Court Care Group in Boston, Lincolnshire
- The application for interim relief seeks, in effect, a stay of the decisions. At the present time, by order of Andrews J dated 22 April 2015 there is an interim relief in force which requires the Defendant, until this hearing or further order, to treat the revocation as a suspension of the First Claimant's Tier 2 Sponsor Licence.
- The First Claimant has operated since 1983. It runs 15 care homes, situated in Lincolnshire, Cambridgeshire, Sheffield, North Somerset and London. Across the 15 homes the First Claimant cares for 655 residents, and employs a team of 700 people.
- The First Claimant has held a Tier 2 Sponsor Licence since 2009. Of its 700 employees, 94 are sponsored under Tier 2. The remaining employees are domestic or EEA workers, or entitled to work through other routes.
- On 29 August 2014 and 2 September 2014 the Defendant's officers visited the First Claimant's head office in Broadgate House, Peterborough and undertook inspections.
- By letter dated 13 October 2014 the Defendant informed the First Claimant that its sponsor licence had been suspended. Representations were submitted to the Defendant on 17 November 2014, addressing the concerns raised. On 16 December 2014, however, the Defendant decided to revoke the First Claimant's Tier 2 Sponsor Licence.
- The First Claimant's representatives sent a pre action letter to the Defendant on 25 February 2015. That letter included further evidence, submitted to address a number of the Defendant's concerns. The Defendant replied by letter dated 5 March 2015, maintaining the revocation decision.
- The First Claimant wrote to the Defendant again, on 12 March 2015, including further evidence. Due to the impending expiration of the long stop judicial review time limit, the Defendant was given until 12.00 on 13 March 2015 to reply. There was no reply, and these proceedings were started.
- Putting the matter in the broadest of terms, migrants from outside the EEA may enter the UK to work if they are sponsored by a person or company that has a relevant licence from the Defendant. One of the schemes is Tier 2, under which the First Claimant had its licence. Tier 2 sponsors are able to grant individual migrants Certificates of Sponsorship, or CoS.
- Another scheme, available to students, is Tier 4, under which educational institutions are able to issue Certificates of Acceptance for Studies, or CAS.
- These schemes are not laid down by statute, but under non-statutory documents. The schemes are elements of the Points Based System, the context and nature of which was described in this way by Beatson LJ in Global Vision College v SSHD [2014] EWCA Civ [11], [12]:
- In this case the relevant document is the Defendant's Tier 2 and Tier 5 Sponsor Guidance, version 4/2014 ("the Guidance"). This explains the nature of sponsorship, which is stated at paragraph 1.1 of the Guidance to be based on two principles:
- The Guidance sets out a number of duties that must be performed by Tier 2 Sponsors, such as the First Claimant. The duties include a number which involve implementing and policing immigration policy in respect of migrants who are granted a CoS by the sponsor.
- The objectives of the Sponsor Duties are described in the Guidance at 14.1 as being to
- Among the duties, and of relevance to the present case, are reporting duties and record-keeping duties. The relevant provisions are as follows:-
- The location they are employed at changes ."
- The Guidance identifies the steps which the Defendant may take if a sponsor is in breach of their sponsor duties:
- Rating and downgrading of rating are dealt with in paragraphs 9 and 18 of the Guidance.
- The circumstances in which downgrading may take place which are identified in Annex 4 include "(b) You fail to keep any of the documents specified in Appendix D of this Guidance." Those documents include copies of a migrant's contract of employment or for service for the job they are sponsored to do, which clearly shows the names and signatures of all the parties involved.
- Revocation of licences may be mandatory or discretionary. Paragraph 19 of the Guidance contains the following relevant provisions:
- The grounds for mandatory revocation in Annex 5 of the Guidance include
- The grounds for discretionary revocation in Annex 6 include:
- The Guidance makes clear that unless there are mandatory grounds for revocation the Defendant will consider the downgrading option before exercising her discretion to revoke a licence.
- The legal principles applicable when a sponsor seeks to challenge the revocation of a sponsor licence granted under one of the Points-Based Schemes have been the subject of consideration on a number of occasions in cases concerned with Tier 4 licences.
- R (Raj and Knoll) v SSHD [2015] EWHC 1329 (Admin) was one of the first cases to come before the court concerning the Tier 2 Points-Based System. Haddon-Cave J had to consider whether the applicable principles were the same as or similar to those applying to Tier 4 cases. He concluded that the schemes were very similar in nature, with much of the language of the Guidance for Tier 2 and Tier 5 sponsors being identical to the language of the Tier 4 Guidance. Having quoted extensively from passages in the Guidance at [19] he considered the applicable principles at [20]-[21], reaching these conclusions:
- Later in his judgment, at [22], [42] and [46] Haddon-Cave J added what might be regarded as three further statements of principle to be derived from the authorities:
- Mr Lemer's opening submission is that herein lies an important point of law. The approach adopted by Haddon-Cave J, of aligning the principles in Tier 2 cases with those established by the Tier 4 jurisprudence is mistaken, he submits. In deciding whether to grant permission I should acknowledge that there are good grounds for concluding that the principles applicable to Tier 2 cases are different. Mr Lemer submits in particular that the Defendant is not entitled to maintain such a "high index of suspicion" in Tier 2 cases as in Tier 4 cases. That principle does not transfer over. The financial incentives for Tier 4 sponsors are far greater, as they earn fees from sponsoring migrants as students in their institutions, rather than incurring costs in employing migrants; and the numbers involved are far greater in the educational field. Mr Lemer adds that Tier 2 care home cases are a particular sub-set of the Tier 2 category which engage the Article 8 rights of those being cared for. In those circumstances the suggestion that revocation should be expected in all but exceptional cases is inapt.
- I accept that the Article 8 rights of elderly and vulnerable individuals being cared for in homes operated by the holders of a Tier 2 Sponsor Licence are a material consideration. I return to this later. Beyond this, however, I do not consider that the points made by Mr Lemer are of sufficient weight to justify a distinction of principle between the approach to be taken by the court to decisions made in relation to the two different Tiers. The ability to employ migrant workers is no doubt a valuable benefit to the employer. Indeed, it is the First Claimant's own case that without the ability to do this it would have to close its operations (a matter to which I shall return). The First Claimant in this case is a substantial employer of migrant workers, but I have no doubt that there are Tier 2 sponsors with larger migrant workforces. The register of Tier 2 sponsors is a public document and I note that it includes such large organisations as J Sainsbury plc and Tesco Stores Ltd. There may well be educational institutions holding Tier 4 licences with fewer migrant students than some Tier 2 licence holders have migrant employees.
- Of course, the relevant principles must be applied with care to the facts of each individual case. However, subject to the additional relevance of Article 8 as mentioned above, I agree with Haddon-Cave J that the principles established in the Tier 4 cases and listed by him also apply to Tier 2 cases such as the present. I do not regard the contrary argument as a tenable one.
- The First Claimant's licence was revoked on essentially three grounds. It is convenient to consider in turn each of those grounds, together with the challenges made by the Claimant to revocation on that ground.
- The first ground relied on by the Defendant for discretionary revocation of the First Claimant's licence was failure to comply with reporting duties in respect of 7 workers who left its employment. The requirement of paragraph 15.7(b) of the Guidance is to report via the SMS within 10 days of the termination of employment or engagement. The first and most notable failure related to one Soni Thomas, who had been granted leave to remain to work for the First Claimant until 23 January 2015 but left its employment in December 2013. This was not discovered by the Defendant until the inspection visits in August and September 2014, some 9 months after Soni Thomas's departure from the company's employment. A further 6 workers had left without notification to the Defendant in accordance with paragraph 15.7(b).
- These matters were set out in the letter suspending the First Claimant's licence on 13 October 2014. The First Claimant responded on 17 November by accepting but explaining the failure. It was said that the First Claimant had its own internal case management system, on which the departure of Soni Thomas and the other staff members had been reported by "the HR manager who was getting familiar with the system". This was supported by a screenshot of the First Claimant's system. It was said that "the fact that it was actually reported proves that the duties expected from the sponsor were executed" and that a new "robust system" had been put in place where the Home Office SMS "is the only accessible system to the HR manager."
- In the decision letter the Defendant responded as follows
- The Defendant responded in a similar manner to what had been said about the failure to report the departure of the other 6 employees. Against this background the Defendant revoked the First Claimant's licence in reliance, so far as these matters are concerned, on paragraphs (g) and (j) of Annex 6.
- It is relevant to note at this point some passages in the Conclusion section of the decision letter. This took into account not only the reporting failures now under discussion but also the other matters to which I shall come. It stated as follows:
- After further representations the final decision of 5th March 2015, to affirm the revocation of the licence, contained the following:
- Mr Lemer advances two submissions in relation to this ground of revocation. The first is that it was not open to the Defendant as a matter of law to rely on the ground of discretionary revocation provided for by Annex 6 paragaph (j). The second is that the Defendant irrationally failed to consider properly or at all whether to exercise her discretion not to revoke, or whether to downgrade, pursuant to paragraphs 18.6 and 19.6 of the Guidance.
- This raises a short point of construction. Paragraph (j) is cast in the present tense, and requires the Defendant to direct her mind to whether the licensee is complying with its duties at the time the decision on whether to revoke is made, it is said. Reliance is placed on R (Goldsmith International Business School) v SSHD [2014] EWHC 1232 [40-47] (Irwin J). Here, it is submitted, the failures were historic, the human error involved in failure to report was understandable, and the problem issue had been rectified by the time of the decision letter. There was therefore no basis for concluding that the First Claimant was not "using the processes or procedures necessary to fully comply with your sponsor duties."
- Mr Serr submits that paragraph (j) should not be construed so narrowly. However I consider it is clearly arguable that this paragraph is designed to allow the Defendant to revoke by reference to the current position, and does not permit a revocation based solely on past defaults which have been remedied. That said, the decision letter does not indicate that the paragraph was misconstrued by the decision-maker, and Mr Serr is on stronger ground when he submits that past failures are relevant to an assessment by the Defendant of the licensee's current compliance.
- Revocation is permitted if the Defendant is "not satisfied" that the licensee is operating the necessary processes and procedures. In my judgment the Defendant's conclusion as expressed in the decision letter of 16th December 2014 is clearly to be read as an expression of dissatisfaction with the evidence of the First Claimant's current compliance with the necessary processes and procedures, and therefore as falling within the lawful parameters of Annex 6 paragraph (j).
- This ground of challenge would in any event have faced the obstacle that it was plainly open to the Defendant to revoke on the basis of paragraph (g) of Annex 6, which was clearly the primary basis for the Defendant's decision. Mr Serr described the failures in the First Claimant's reporting duties as "catastrophic". That may be something of an overstatement, but it was in my judgment entirely legitimate for the decision-maker to characterise them in this way, in paragraph 9 of the decision letter of December 2014:
- In reliance on paragraphs 18.6 and 19.6 of the Guidance and the decision letter of 16 December 2014 from which I have quoted above, Mr Lemer advances two distinct arguments. He submits first of all that the Defendant was obliged to but simply failed to consider factors relevant to the exercise of discretion. It is not disputed that the Defendant was bound to consider whether to exercise her discretion. Mr Serr asserts that a fair reading of the decision letter, bearing in mind that it was not written by lawyers and applying principles outlined above, makes it plain that she did so.
- In my judgment the decision letter clearly does reflect a process of discretionary decision making, which involved an assessment of the gravity of the breaches identified by the Defendant, and the nature of the appropriate response. It is unreal for the Claimant to contend otherwise. Paragraphs 52 and 53 of the decision letter show that the decision-maker followed the process laid down by paragraph 20.6 of the Guidance, considering the possibility of downgrading before turning to discretionary revocation. Rational grounds for not adopting the course of downgrading were provided.
- The letter set out all the material considerations and made clear the essential nature of the reasoning process engaged in. That reasoning process was, in summary, that the breaches (including those to which I shall come) gave rise to discretion to revoke; the lesser step of downgrading had been considered but rejected because the breaches were so severe and frequent; and the conclusion had therefore been reached that the discretion should be exercised in favour of revocation; in doing so regard had been had to the Article 8 rights of the residents, but it had been determined that revocation was nonetheless proportionate.
- The fact that it might have been preferable for the decision letter to spell out that the decision-maker had considered whether the facts of the case were of an exceptional kind or otherwise justified departure from the approach laid down in the Guidance does not mean that the decision is flawed.
- Mr Lemer's second argument in support of this ground of challenge is that the decision to revoke was an irrational one. This is a somewhat stronger argument, as it acknowledges what seems to me to be the clear reality, that the Defendant took account of the relevant considerations. It is nevertheless in my opinion an unsustainable contention. As noted in the decision letter, the effect of the failure so far as Mr Thomas was concerned was the "has been in the UK since [31 December 2013] without the correct permission, however UKVI were only made aware of this fact as a result of our visit."
- I have quoted at [43] above the assessment made by the Defendant of the gravity of the reporting failures, which I consider to be an entirely legitimate assessment. It is clearly proper to take the view that the system of immigration control depends on accurate and timely reporting by sponsors of the whereabouts and employment status of migrant workers they sponsor. It is to be noted that the passage quoted emphasises also the importance of carrying out such reporting "on the correct systems." It is easy to understand why the Defendant, operating a system that must depend heavily on data management, places weight on this element of the reporting duties, contained in paragraph 11.1 of the Guidance.
- The decision letter went on to state that the Defendant was not satisfied that the First Claimant had the processes in place to ensure compliance with reporting duties. It pointed out that "To date the required reporting has not been completed on the appropriate systems, therefore we are not satisfied that this concern has been addressed." It is said, as it was in the wake of the decision letter, that there was no need to use the SMS to report, given that the Defendant had identified the failures and the individuals involved. That in my judgment fails to give appropriate weight to the importance of reporting being carried out by the sponsor, rather than by the Defendant through monitoring visits, and being carried out via the SMS provided for the purpose. At all events, that is a view the Defendant was clearly entitled to take.
- In the end, I consider that Mr Serr is right to submit that the watchword for sponsors under Tier 2 as under Tier 4 is trust, and that the Defendant was plainly entitled to take the view that her trust in the First Claimant as a sponsor had been so severely undermined by its breaches of duty that downgrading was not a sufficient measure, and only revocation would be appropriate.
- The second ground of revocation was a failure, in breach of the duty imposed by paragraph 17.5(d) of the Guidance, to report within the required timescales when sponsored workers had moved to work at an address different from the one stated on their CoS. This was identified as a ground for revocation in the suspension letter of October 2014.
- This ground was elaborated in the decision letter of December 2014. This said that the Defendant had identified that workers were working at addresses other than those stated on their CoS. Each CoS issued to a sponsored worker bore the First Claimant's head office address as their main work location, when (the Defendant asserted) they were in fact based at a different location. The decision letter went on
- The First Claimant's response was to complain, by letter of 25 February 2015, that the Defendant had given insufficient information in the suspension letter, and to maintain that their workers "are regularly moving between CCG's various homes" so that the Defendant could not rationally require reporting "on a daily basis" of such movements. "The sponsored workers CoS's refer to all of the addresses at which they work under the 'Other regular work addresses in the UK' heading". Alternatively, it was said that in these circumstances the location of employment should be treated as the head office.
- In support of this line of submission, a witness statement of the owner and MD of the First Defendant, Aly Khan Kachra, was supplied. This said "We have a variety of workers who work within the community and it would be impossible to detail all the addresses on a regular basis. Moreover the migrants visit several addresses a day which is why the main head office address has been provided."
- The Defendant's decision letter of 5 March 2015 maintained reliance on failure to report working locations, but expanded on the Defendant's assessment of the facts, and on the grounds of revocation arising from the facts. The letter stated:-
- The conclusion arrived at was that the First Claimant had "knowingly provided false information", and ground (j) of Annex 5 was relied on as mandating revocation. The letter added that "No evidence of any changes or improvements to your CoS allocation process has been provided, therefore, we are satisfied that the original revocation point still stands." This was a reference to the discretionary revocation grounds (g) and (j) which had originally been relied on.
- The First Claimant made yet further representations on 12 March 2015, which sought to explain the position adopted in the letter of 25 February. It was said that "For the avoidance of doubt, the Sponsor was not suggesting that each and every CoS that had been issued listed all the migrants' alternative work locations on the CoS". In support of this it was said that, "as mentioned in the witness statement, a large number of the sponsor's migrant workers work within the community." Their CoS referred only to the head office, because they worked at a variety of addresses. Given that workers in this category accounted, it was said, for some 45% of the 190 CoS issued by the Claimant, it was argued that it was impossible to construe the 25 February letter as a representation that all workers' places of work were listed on all the CoS.
- On 26 March 2015 the Defendant wrote in response as follows:
- Although it came into the picture latest it is convenient to address the mandatory ground of revocation first. As Mr Serr submits, if this is sound, the other points fall away. Mr Lemer submits as follows (a) reliance on mandatory revocation undermines the procedural propriety of the Defendant's approach; further and alternatively (b) the Defendant maintained reliance on that ground for revocation without addressing what had been said in the representations 12 March 2015. Mr Serr characterises the First Claimant's position with regard to worker location as "evasive and contradictory", and representing a clear failure to comply with the reporting duties imposed by the Guidance. He submits that the 25 March decision letter did not ignore but fairly reflected the representations put forward, whilst rejecting them and adhering to the earlier decision.
- In my judgment the Defendant was fully entitled to conclude that the First Claimant had made false representations, knowing them to be false. The Defendant's final letter, of 26 March 2015, was justified in saying that the Claimant had insufficiently addressed the issue.
- The letter of 25 February 2015 represented on its face that all the addresses at which any of the First Claimant's workers worked had been recorded on their CoS's. That bald statement needs to be read in its context, I accept. The context includes not only the rest of the letter but also the witness statement of Mr Kachra. He referred only to those of the First Claimant's workers who worked in the community. Reading the letter and the witness statement together, and adopting a generous interpretation, the First Claimant might be taken as saying, in relation to these peripatetic workers, that they worked in so many places that reporting of each change was impracticable or meant that in substance they were working from head office.
- But that does not detract from the fact that the First Claimant represented, in relation to its other migrant workers those employed in its homes that "all of the addresses at which they work" were recorded on their CoS. This category of migrant worker, on the Claimant's figures, represented 55% of the total of 190, and hence about 105 workers. But the statement cannot have been true in respect of them, or at the very least the Defendant was fully entitled to reach that conclusion. The Claimant has 15 homes, but only 8 of the 190 workers had any address other than head office recorded on their CoS. The Defendant was entitled to conclude that a large number of CoS's therefore contained representations which the First Claimant must have known to be false, that the worker was employed at head office.
- As I read the decision letter, the Defendant also concluded that the First Claimant had made a knowing false representation about the extent of movement of workers between homes. The letters of 5 and 26 March 2015 both rejected as incredible the suggestion that workers were moving between homes "on a daily basis". The proposition seems to me self-evidently fanciful, especially when regard is had to the geographical spread of the homes. As the decision letters noted, the Claimant has completely failed to explain the rationale for this alleged daily movement, which further undermines its credibility.
- For these reasons I conclude that whatever the merits of any of the other grounds of challenge might have been the revocation decision was plainly warranted pursuant to paragraph (j) of Annex 5.
- I would not have accepted, in any event, the complaint that the Defendant had failed to specify her concerns adequately. It is the First Claimant which was the employer of these individuals, and it possessed or should have possessed the information necessary to identify where its staff had worked and whether this was accurately recorded on the CoS. The suggestion in the Grounds and Mr Leman's skeleton argument, that the Claimant had "repeatedly" provided a staff list setting out the locations of its migrant employees, is not borne out by examination of the records. In any event, it would not detract from the fact that the Defendant was entitled to conclude that false information was knowingly provided in the respects I have mentioned. I do not accept that the Defendant can fairly be accused of failing to consider the exercise of her discretion. The discretionary grounds were the original grounds relied on, and separately identified in the decision letter of 5 March. My conclusions on this issue in the present context are the same as those I reached in relation to the first ground of challenge.
- This was not the subject of extensive argument, and was not presented in the decision letters or in the argument of either side as a matter of great moment. In the light of my conclusions above and below I do not need to dwell on it.
- The submission of Mr Lemer is that the revocation decision puts at risk the physical and psychological integrity of the "patients" and "may cause stress and distress which could have an impact on their health", meaning that Article 8 is engaged. Reliance is place on Watts v United Kingdom (2010) 51 EHRR [96]-[102] and R (Forest Care Home Ltd) v Pembrokeshire CC (2011] CCL Rep 103 [44] (Hickinbottom J) It is submitted that in these circumstances the Defendant is under an "enhanced obligation to act proportionately when considering revocation action in such cases". I understood Mr Lemer's reference to "patients" to encompass both residents and non-residents, cared for by the Claimant companies.
- I accept that the removal of a person from their home is a step which engages Article 8, so that the authority must address its mind, when considering the exercise of its powers, to the twin questions of whether the contemplated step would represent or lead to an interference with Article 8(1) rights and, if so, whether the requirements of 8(2), including the proportionality test, are satisfied. I am prepared to assume that the abrupt withdrawal of services from a non-resident may, if the services are not adequately and promptly substituted, engage Article 8 private life considerations also. I must go on to consider standing, and the argument that there is or will be unjustified interference in this case.
- It is clear that the Fourth Claimant, a resident of one of the Claimants' homes, has standing. I did not understand this to be in dispute. However, I am invited on the Claimants' behalf to consider the wider picture. First, the Fourth Defendant is said to be in one sense a representative claimant. By that is meant that the Claimants serve a number of elderly and vulnerable residents in the same manner, all or many of whom are at risk of infringements of their rights. The Fourth Claimant is not in the procedural sense a representative claimant, however, and it is not obvious that he could be, pursuant to the rules. The better description would probably be that the Fourth Claimant is a sample claimant. Mr Lemer argues that it would have been impracticable to join all the others, but a sample non-resident could have been but is not before the court.
- That leads to the question of whether the First Claimant has standing to pursue a claim in reliance on the Article 8 rights of those for whom it provides care, residents or non-residents. There is a divergence of authority on the question: compare Forest Care (above) at [44], where the claimant was held to have standing to sue on behalf of its residents, with R (Broadway Care Centre Ltd) v Caerphilly County BC [2012] EWHC 37 (Admin) [60]-[74] (HHJ Seys Llewellyn), where the opposite conclusion was reached, on the basis that the claimant care home provider was not a "victim" for the purposes of s 7 Human Rights Act 1998. Mr Serr invites me to follow Broadway Care Centre. I can see that there are powerful arguments for doing so. But the issue is worthy of more detailed development, and it would in my judgment be unsatisfactory to resolve this aspect of the claim on that basis at the permission stage. I therefore approach the issue on the assumption that the rights of all the corporate Claimants' clients, resident and non-resident, are to be considered.
- Mr Lemer tells me that the Article 8 issue is raised in two pending substantive judicial review claims (R (Birdshill Nursing Home) v SSHD CO/4659/2014 and R (Raunds Lodge Nursing Home) v SSHD CO/5800/2014). He relies on that as support for his submission that the point is at least arguable. As I noted during the hearing, however, nursing home cases are more likely to raise important Article 8 considerations. Moreover, such cases must always turn on their particular facts and I know nothing of the facts of those two cases. What I can do is to reach a conclusion on the evidence before me in the present case.
- In doing so I bear in mind that the approach to be taken must be one of anxious scrutiny. It is not simply a question of whether the Secretary of State has reached a decision which is rational or falls within the range of reasonable responses. For that reason Mr Lemer's submission that the wording of the decision letter indicates that the Defendant muddled up the separate issues of interference and justification is of less importance. I am not impressed by that criticism in any event, addressed as it is to a letter written by administrators rather than lawyers. I recognise that this is a permission application and not the substantive hearing.
- My conclusion is however that the proposition that the Defendant's decision to revoke the First Claimant's licence is unlawful on the grounds of unjustified interference with the Article 8 rights of the residents of the Claimants' homes is not arguable.
- The first question is whether the decision would lead to any interference with Article 8 rights at all. As Mr Serr points out, one should beware of treating revocation as if it involved the withdrawal of a licence to carry on business. What is at stake is the withdrawal of a licence to employ migrant workers, who presently represent some 15% of the Claimant's workforce. Further, the focus for this purpose must be on the rights of the clients, and not the interests of the corporate Claimants. Even if revocation would mean the Claimants would be unable to continue to provide the same or any services to some of their clients, it does not follow that those clients' rights would be interfered with in a material way. Adequate alternative provision may be available.
- The evidence of the likely impact, though extensive, is not entirely satisfactory. The evidence of impact on the business and its consequential impact on clients comes from the owner of the First Claimant. There is no evidence from independent professionals. Other evidence, from relatives of residents and others, works on the assumption that the consequences predicted by Mr Kachra would come to pass. I view with a somewhat sceptical eye what Mr Kachra has to say. It is undoubtedly self-serving, in the objective sense. And it is remarkable how often dire predictions prove ill-founded, once put to the test. Commercial motives would be bound to impel the corporate Claimants to seek the outcome most suited to their clients.
- Nevertheless, I am willing to accept that the inability to continue to employ migrant workers may lead the First Claimant to withdraw in part or even entirely from home-based care, that is care for non-residents. Those individuals will lose contact with familiar individuals. Alternative provision will need to be sought out and put in place. That is not insignificant. I am willing to accept also that the residential care business would be affected in such a way as to impact, as Mr Kachra says, on about half the residents. Again, established relationships would be disrupted, and it may be that for a time the quality of care would be adversely affected. At worst, what would be involved is a move to another home. It is not easy to understand Mr Kachra's evidence on that point.
- There is no doubt, however, and no dispute that such interference would be the consequence of pursuit by the Defendant of legitimate aims, prescribed by law. The key question, as recognised in the decision letter, is that of proportionality. It is at this point that the Claimants' argument seems to me to meet a very considerable indeed ultimately immovable obstacle. The proposition appears to be that even if (as I have concluded) revocation rather than downgrading would be a proper course to take in the abstract, downgrading was the only lawful course for the Defendant to take once the clients' Article 8 rights are brought into the equation. I cannot accept that stark proposition.
- Mr Serr criticises the First Claimant's reliance on this line of argument as "using its own residents as a shield against appropriate enforcement action by the Defendant". That is a dramatic turn of phrase, but it seems to me to be a point well taken. In my judgment, having reached the conclusion that trust had been so undermined by the Claimants' breaches of duty that revocation not downgrading was the appropriate course, the Defendant was clearly right to conclude that any impact on the Claimants' clients was a necessary and proportionate consequence of enforcing the system.
- A good deal of the evidence relied on concerns the abruptness of the anticipated rupture of the business, and relationships between carer and client. It is said, for instance, that recruitment firms have advised the First Claimant that "effective recruitment cannot be carried out within the 60 day window insisted [on] by the Defendant" (Kachra para 33.) I can see the force of that as a general proposition. However, the initial decision was notified as long ago as last December, and the latest decision letter on which debate has focused was sent on 26 March, nearly 4 months ago now. Mr Kachra's most recent statement was made on 31 March. The interim relief granted has deprived this point of much if not all of its force. In any event, whether the action consequent on the revocation decision was taken too swiftly, to the prejudice of the residents, is of course an entirely different matter from whether revocation is legitimate at all. Undue haste is not a criticism raised by the grounds of claim. It is the decision to revoke that is under attack, not the pace of its implementation.
- For the reasons I have given the application for permission will be dismissed. The question of interim relief accordingly does not arise.
Mr Justice Warby :
Introduction
i) a decision of 16 December 2014 to revoke the Tier 2 Sponsor Licence of Country Court Care Ltd, the First Claimant; andii) a decision of 5 March 2015 to maintain the revocation of that licence.
The factual background in brief
The legal and policy framework
"The Points-Based System was progressively introduced during 2008 and 2009. Its details are set out in the Immigration Rules, Appendices to those Rules, and supplementary guidance. Jackson LJ has stated that 'none of these documents are light reading' and, more recently, that the provisions 'have now achieved a degree of complexity which even the Byzantine emperors would have envied.: R (WGGS Ltd t/a Western Governors Graduate School) v Secretary of State for the Home Department [2013] EWCA Civ 177 at [6] and Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568 at [4].
Previous decisions (in particular R (New College Ltd) v Secretary of State for the Home Department [2013] UKSC 51, reported at [2013] 1 WLR 2358 at [1] and [3], and see Toulson LJ in the Divisional Court at [2013] EWHC 31 (Admin) at [35] have referred to the centrality of the status of a licensed sponsor to the operation of the Points-Based System. The centrality is the result of the policy decision to try to improve immigration control by ensuring that sponsors carried out a high degree of due diligence to check that CAS holders would meet the requirements for entry clearance or leave to remain."
"a) Those who benefit most directly from migration (employers, education providers or other bodies who are bringing in migrants) should play their part in ensuring the system is not abused.
b) We need to make sure that those applying to come to the UK for work or study are eligible and that a reputable employer or education provider genuinely wishes to take them on."
"a) prevent abuse of assessment procedures;"
b) capture early, any patterns of migrant behaviour that may cause concern
c) address possible weaknesses in process which can cause those patterns
d) monitor compliance with Immigration Rules."
"15 Duties that apply to sponsors in all tiers
Record keeping duties
15.1 You must keep the following records or documents, and make them available to us on request: (See Also, Appendix D-record keeping).
a) A photocopy or electronic copy of the relevant page, or pages, of each sponsored migrant's passport, worker authorisation (Purple Registration Certificate) or UK immigration status document and biometric residence permit (if available), that shows their entitlement to work including their period of leave to remain in the UK.
b) Each sponsored migrant's contact details (up to date UK residential address, telephone number, and mobile telephone number).
15.2 You must give us when asked any documents relating to your sponsored migrants or the running of [y]our organisation that we consider relevant to assessing your compliane with your duties as a sponsor.
Reporting duties
15.6 You must report certain information or events to us using the Sponsor Management System (SMS) [an online tool], within the time limit set.
15.7 You must report the following within 10 working days:
b) If a sponsored migrant's contract of, or for employment, or services or registration is terminated earlier than shown on their certificate of sponsorship (CoS), for example if the migrant resigns or is dismissed. You must include the name and address of any new employer that the migrant has moved to, if known.
d) If there is any significant changes in the sponsored migrant's circumstances, for example:
"What will happen if I don't comply with my sponsor duties?
17.17 The majority of those who employ overseas workers are honest and willing to comply with their duties. Because sponsorship transfers a significant amount of responsibility for selecting migrants to sponsors, we have a duty to ensure that we deal appropriately with the minority who do not comply with their duties.
17.18 We have measures to make sure that we enforce sponsors' duties and identify dishonest or incompetent sponsors early. This could result in your licence being revoked, suspended, or downgraded to a B-rating, "
"9. Rating sponsors
What are sponsor ratings?
9.1 A sponsor licence can be rated either 'A' or 'B'. An A-rating is awarded when you are first granted a licence on the basis that you have systems in place to be able to meet your sponsor duties.
9,2 After your licence has been granted, if we find evidence that you are unable or unwilling to continue to meet your sponsor duties, or we have evidence of immigration abuse, we may downgrade your licence to a B-rating.
18. Downgrading your licence rating
18.1 If we believe you are not complying with your duties, have been dishonest or pose a threat to immigration control, we may revoke your licence or downgrade it to a B-rating.
Process we will follow in deciding what (if any) action to take
18.6 Unless revocation of a licence is mandatory, we will take all the facts of the case into account when deciding what action to take against you under one or more of the circumstances outlined in Annexes 3 and 4. No two cases are alike and we can't list all the circumstances in which we will revoke your licence, suspend your licence, downgrade your licence, limit the number of CoS you are allowed to assign or take no action. We consider:
a) The seriousness of your actions and harm done. We will treat seriously anything you have done or failed to do that resulted in migrants going missing.
b) Whether your actions are part of a consistent or sustained record of non -compliance or poor compliance, or are a single event.
c) Any action you have taken to minimise the consequences of what you have done or failed to do. For example, it may help if you tell us quickly that migrants you are sponsoring have stopped turning up for work. If an individual member of your staff is responsible for the problem, we will take into account any action you have taken against that person. We will treat the situation more seriously if you were involved in the actions of your staff or you deliberately ignored what they were doing.
18.11 If we award a B-rating you will not be able to award any certificates of sponsorship (CoS) or to sponsor new employees until
a) you have demonstrated your commitment to make improvements by signing up to the measures set out in the action plan
b) you have paid the action plan fee."
"19 Revoking a licence
19.1 Certain circumstances can lead to your licence being revoked
19,3 For information on the circumstances in which we will revoke your sponsor licence, see annex 5.
19.4 If any circumstances in annex 5 arise, we will revoke your licence straight away
19.5 For information on the circumstances in which we may revoke your sponsor licence, see annex 6.
19.6 We can't define in which exceptional circumstances we may not revoke your sponsor licence but when one of the circumstances in annex 6 applies, we view this as a serious (sic) and will look for evidence that you have robust processes and procedures and have taken all reasonable steps to verify information that you are required to obtain and hold in connection with your duties under this guidance as well as any information that you send to us.
19.7 If the circumstances in annex 6 arise and we believe that the evidence we have shows that you are breaching your duties and/or pose a threat to immigration control, we will suspend your licence
19.8 If the circumstances in annex 6 arise and we do not believe it is necessary to suspend your licence, we may downgrade it to a B-rating."
"j) You have knowingly provided false statements or false information, or not provided information that you held when required to, to us
ac) If we have asked you to send us any documents or information and you do not send the documents within the given time limit."
"g) You fail to comply with any or all of your sponsor duties;
.
j) as a result of information available to our available to our compliance officers we are not satisfied that you are using the processes or procedures necessary to fully comply with your sponsor duties."
"20. Suspending a licence
Process we will follow in deciding what (if any) action to take
20.6 Where any of the criteria arise listed in annex 6 as those which 'may' immediately result in revocation of your licence, we will first consider downgrading your licence. However, we may immediately suspend your licence."
Legal principles
"20. The principles applicable to 'Tier 2' and 'Tier 4' Points-Based Systems are similar: the watchword for both is 'trust'
21. The following common principles can be derived from the recent case law.
(1) The essence of the system is that the Secretary of State imposes a "high degree of trust" in sponsors granted ('Tier 2' or 'Tier 4') licences in implementing and policing immigration policy in respect of migrants to whom it grants Certificate of Sponsorship (CoS) or Confirmation of Acceptance ("CAS") (per McGowan J in London St Andrews College v Secretary of State for the Home Department (supra) [2014] EWHC 3428 (Admin) at [12]) (and see Silber J in R (Westech College) v Secretary of State for the Home Department [2011] EWHC 1484 (Admin)).
(2) The authority to grant a certificate (CoS) or (CAS) is a privilege which carried great responsibility: the sponsor is expected to carry out its responsibilities " with all the rigour and vigilance of the immigration control authorities" (per McGowan J in London St Andrews College v Secretary of State for the Home Department (supra) at [13])
(3) The sponsor "must maintain its own records with assiduity" (London St Andrews College v The Secretary of State for the Home Department" (supra) per McGowan J at [13]).
(4) The introduction of the Points-Based System has created a system of immigration control in which the emphasis is on 'certainty in place of discretion, on detail rather than broad guidance' (per Lord Hope in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, reported at [2012] 1 WLR 2208 at [42]).
(5) The CAS in the 'Tier 4' scheme (the equivalent of the CoS in the 'Tier 2' scheme) is very significant: the possession by a migrant of a requisite CAS provides strong, but not conclusive, evidence of some of the matters which are relevant upon the migrant's application for leave to enter or remain (Global Vision per Beatson LJ at [12], citing Lord Sumption SCJ in R (New London College Ltd) v Secretary of State for the Home Department [2013] UKSC 51.
(6) There is no need for UKBA to wait until there has been a breach of immigration control caused by the acts or omission of a sponsor before suspending or revoking the sponsorship, but it can, and indeed should, take such steps if it has reasonable grounds for suspecting that a breach of immigration control may occur (per Silber J in R (Westech College) v Secretary of State for the Home Department [2011] EWHC 1484 (Admin) at [17-18]
(7) The primary judgment about the appropriate response to breaches by licence holders is that of the Secretary of State. The role of the Court is simply supervisory. The Secretary of State is entitled to maintain a fairly high index of suspicion and a 'light trigger' in deciding when and with what level of firmness she should act (R (The London Reading College Ltd) v Secretary of State for the Home Department [2010] EWHC 2561 (Admin) per Neil Graham QC.
(8) The courts should respect the experience and expertise of UKBA when reaching conclusions as to a sponsor's compliance with the Guidance, which is vitally necessary to ensure that there is effective immigration control (per Silber J in R (Westech College) v Secretary of State for the Home Department [2011] EWHC 1484 (Admin) at [29 (d)]).
(9) The court should act with caution in judicial review of decisions in this field. See Raj & Knoll Ltd [22], citing Lord Brown-Wilkinson in R v Bishop Challoner School, ex p Choudhury [1992] 2 AC 182, 197E:
Moreover, the court should not approach decisions and reasons given by committees of laymen expecting the same accuracy in the use of language which a lawyer might be expected to adopt.
(10) Revocation of the sponsor's licence is likely and to be expected for any infraction of the requirements imposed by the Guidance: see Raj &Knoll at [42] citing Hickinbottom J in R (Central College of London Limited) v Secretary of State for the Home Department [2012] EWHC 1273 [42-44] and McGowan J in London St Andrews College, [31-32].
(11) It must be understood that the grant of [sponsor] status is a fragile gift, constant vigilance about compliance is a minimum standard required for such sponsors. The burden of playing an active role in the support of immigration control is a heavy one. The SSHD is entitled to review purported compliance with a cynical level of supervision: Raj &Knoll [46] citing McGowan J in London St Andrews College [36].
The decisions and the grounds of challenge
(i) Failure to update the status of workers
"3. Your representations state that you intend to implement a new HR system and have provided a witness statement from Michael Kealey, Director of Kealey HR Ltd to support this. You have also provided two undated policy documents which detail the procedure to be followed, however these documents do not mention when they were implemented, contain no review date or details of who this has been distributed to. In addition this evidence does not include robust processes to ensure that all change of circumstances are reported to the Home Office, which you have previously failed to do.
5. You have provided no evidence to support your claim that you have replaced your HR manager.
6. You have admitted that you failed to report the premature end of employment for Soni Thomas (C2G5L44002F) on 31 December 2013. This is a clear breach of your sponsor duties which as a consequence poses a serious threat to immigration control.
8. Your representations in response to our aforementioned correspondence fail to address this point. Again this is a clear breach of your sponsor duties which poses a serious threat to immigration control."
"Conclusion
52 We have considered the possibility of downgrading your licence and issuing you with an action plan, however, we will only take this course of action where there is scope to rectify short comings or omissions in systems or retained documents.
53 As already stated, you have acted in contravention of annexes 5 (ac) [a ground which was later withdrawn] and 6 (g) and (j) of the Tier 2 and 5 Sponsor Guidance. Downgrading your licence is not appropriate due to the severity and frequency of your non-compliance with your sponsor duties.
54 We believe the issues describes above constitute a failure to comply with your sponsor duties.
55 Annex 6 (g) of the Tier 2 and 5 Sponsorship Guidance states that we may revoke your licence if:
You fail to comply with any or all of your sponsor duties.
56 Taking into account all of the above, your sponsor licence has been revoked with immediate effect. There is no right of appeal against this decision.
58 Your representative has claimed that suspension and revocation of a care home licence is liable to interfere with the rights of your elderly and vulnerable residents, and have raised interference with Article 8 of the European Convention on Human Rights in this regard. Having considered the facts of this case, we are satisfied that, given the severity and frequency of your non-compliance with your sponsor duties, the revocation of your sponsor licence is proportionate, in line with the published policy and does not interfere with your residents' rights at all."
"14 In their most recent letter, your representative states that you have made steps to remedy this flaw in your systems No evidence of any improvements to your systems has been provided, other than your statement that the HR manager has been replaced, therefore we remain dissatisfied that you have adequate processes in place necessary to comply with your sponsor duties.""
The first ground of challenge
"Your failure to ensure that the correct reporting was carried out on the correct systems is a serious breach of your sponsor duties and severely hinders UKVI in its duty to maintain effective immigration control."
The second ground of challenge
(ii) Failure to provide accurate 'working at' information
"Although your sponsored workers are allowed to change their locations of employment to different branches listed under your licence you are obliged to report every instance where such a change takes place."
This was said to give rise to grounds to revoke under paragraphs (g) and (j) of Annex 6.
"Of the 190 CoS you have assigned throughout the life of your licence, only 8 CoS contain a work address which is not that of your head office Of these 8, only one CoS lists more than one of your branches as a regular 'other' work location, therefore we are not satisfied that the statements made by you and your representative are factual. For this reason, we believe that you have provided false information to us.
.
your sponsored workers are clearly not all based at your head office address We have not been provided with any evidence or explanation as to why all your sponsored workers would be required to move between homes with such frequency as to exempt you from your reporting duties, nor do we find it credible that such moves would occur on a 'daily' basis."
10. You have continued to insufficiently address the issue of your sponsored workers working at addresses other than the Head Office that are not stipulated on your migrant employees Certificates of Sponsorship (CoS). If a sponsored worker is working at different address that is not already stated on their CoS this must be reported on via the Sponsor Management System (SMS).
13. You have also not provided sufficient justification to explain why all sponsored workers are required to move between homes so frequently as to exempt you from reporting. We do not accept that it is credible that such moves occur on a daily basis."
(iii) Failure to provide documents
Article 8 ECHR
Standing
Merits arguability
Conclusion