The Care Sector Bi-Annual Update – Care home operator takes on the Home Office and wins
18th March, 2025
The social care sector is becoming used to increased levels of scrutiny placed on it by the Home Office.
Case update – Hartford Care Group Limited v SSHD EWHC 3308
The aforementioned scrutiny is regarding requests for Certificates of Sponsorship which are needed to recruit and extend the visas of international employees sponsored under the Skilled Worker route. It is not uncommon to receive a response to a request, giving the provider 5 working days to collate rafts of information and documentation for the Home Office’s consideration.
This approach, and specifically the rejection of a Defined CoS application by the Home Office on the basis that evidence of genuine vacancies for the role was not provided, was recently challenged in the courts by Hartford Care Group Limited (“Hartford Care”) (R (Hartford Care Group Limited) v SSHD [2024] EWHC 3308). The outcome was that the High Court ruled against the Home Office’s decision to refuse its application for 70 DCoS applications from the Claimant.
In this case, Hartford Care, an established and frequent sponsor of Skilled Worker visas, applied to the Home Office for 70 DCoS to sponsor care workers on 9 January 2024, in anticipation of the 11 March 2024 rule change prohibiting carers and senior carers from bringing their family members to the UK on dependant visas.
On 19 January 2024, the Home Office asked Hartford Care to provide additional information. In particular, contracts with local authorities which guaranteed hours of work for the 70 future applicant’s to determine that there were “genuine vacancies” available for all applicants. The genuine vacancy requirement gives the Home Office discretion when considering applications and the ability to challenge whether or not there is a vacant role to be sponsored as the applicant suggests.
Hartford Care provided contracts with three local councils, however, the contracts that were provided were all flexible contracts which did not guarantee the hours of work for members of staff, as is the norm. The DCoS application was rejected on the basis that they had failed to provide contracts requiring immediate and genuine employment for all 70 applicants.
Hartford Care argued that such contracts do not exist in the care sector and that flexible contracts are common in the sector. The Home Office’s position was that a role has to exist at the time of applying for a DCoS to meet the genuine vacancy requirement and not be based on expected demand and as such contracts, specifying the hours of work for each DCoS requested must be provided.
High Court Judgment
The High Court held that the Home Office should have
“taken steps to gather relevant information before reaching the decision that [Hartford Care’s] jobs were not genuine. Had the [Home Office] made any sufficient enquiry of those in the care sector, it would have been immediately clear that it was irrational to take into account the lack of official contracts with guaranteed hours. The guarantee of hours was properly found in the sample employment contract between [Hartford Care] and the care worker. That was the evidence which confirmed that the care worker was not being recruited on a ‘zero hours’ basis or on some other basis which did not guarantee that they would have full time paid employment”.
The High Court agreed with Hartford Care and found the Home Office’s developing practice of expecting guaranteed hours contracts dissatisfying, describing it as both irrational and impermissible. It was requested that the High Court issue a declaration that any DCoS and visas issued as a result of this successful court challenge permitted the care workers to bring their families as dependants, despite being issued after the rule change.
The High Court however refused this request. Its logic was that:
“there is no evidence about the circumstances of those who would apply, in particular as to their family circumstances. It is a matter of speculation whether those recruits would have applied for immigration status prior to the 11 March 2024 changes. It would be wrong to restrict the discretion of the [Home Office] in considering any such application and it would be too early to do so at this stage. Any such historic unfairness would be a relevant factor to take into account, but would need to be balanced with all other individual circumstances applying at the time and as such the [Home Office] may decide to grant some or all of the 70 DCoS on reconsideration following this judgment”.
What does this mean for care providers?
The fact that the High Court found that job vacancies can be genuine, where there are no commissioning contracts explicitly detailing the number of hours of care or staffing levels required, does not mean that providers won’t continue to see these types of information request from the Home Office. They continue to be prevalent when making applications for sponsor licences and Certificates of Sponsorship. There is also an increasing number of compliance visits being carried out by the Home Office, looking at sponsor licence compliance as well as compliance with right to work obligations.
What this case does do however, is it increases the likelihood of a provider receiving their sponsor licence or requested allocation of Defined or Undefined Certificates of Sponsorship where alternative documentation is provided, such as standard employment contracts, internal vacancy and hours trackers, evidence of approved provider status and requests for additional support hours.
Further, sponsors with previous rejections in comparable circumstances may wish to consider reapplying and referencing this High Court’s decision should an information request be received.
Despite this victory for the care sector , it remains important for employers and sponsors to ensure that they are maintaining accurate and complete documentation and are able to provide these to the Home Office within tight timescales.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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