In 2022, the Home Office acknowledged the difficulties the UK care sector faced with recruitment of staff from within the country.

The role of care workers was therefore added to the then Shortage Occupation List (now the Immigration Salary List), allowing migrants to be sponsored under the Skilled Worker visa route to work in this job in the UK.

Since then, there has been a surge of Skilled Worker sponsor licence applications from the UK care sector – this is a prerequisite to be able to sponsor migrants in any industry. Figures show that 60,000 care worker visas were granted between June 2022 and June 2023, with the figures for the 2023-24 period likely to be higher still.

As a result, there has been greater scrutiny from the Home Office in relation to sponsorship matters in the UK care sector – both relating to sponsor compliance and limiting visa applications.

For example, in the English High Court case Prestwick Care Ltd & Ors v Secretary of State for the Home Department [2023] EWHC 3193 (Admin), the court upheld the Home Office’s decision to revoke the care home’s sponsor licence due to immigration compliance issues. The non-compliance issues noted were:

• migrants not performing the role as set out in their job description on their Certificate of Sponsorship (CoS);
• at least one migrant receiving a lower salary than that stated on their CoS;
• recouping the Immigration Skills Charge from migrants which is prohibited – something my colleagues have written about previously: Clawback clause for visa costs: What employers must consider | Burness Paull;
• poor record keeping resulting in incorrect residential addresses being held for some migrants;
• not recording visa expiry dates of some migrants; and
• non-compliance with employment law where some migrants were not receiving statutory sick pay.

In isolation, each of the above wouldn’t necessarily result in such extreme action being taken. However, taken together, the court found that this points to “a lack of rigour in following the guidance and record keeping and cannot but have led to the conclusion that the claimant could not be trusted to comply with its duties as sponsor, and it is trust which is the watchword of the sponsorship system”. This case underscores the importance of sponsor licence compliance.

In the more recent English High Court case, R (New Hope Care Ltd) v Secretary of State for the Home Department [2024] EWHC 1270 (Admin), the care home was successful in its judicial review on grounds of procedural fairness. For example, the Home Office had failed to follow its own guidance and procedures and failed to issue its reasons for suspension as it said it would. The decision to revoke the sponsor licence was therefore found to be unlawful. Challenging a Home Office decision by way of a judicial review to revoke a sponsor licence will not always be successful and will ultimately be fact dependent.

In an earlier blog, I wrote about the Home Office changes taking effect from 11 March 2024 that prevent family members from applying for Dependant visas to join the main individual who is sponsored as a care worker. This will likely make it more difficult to recruit migrant care workers.

With the recent change of government, is the Home Office likely to continue to scrutinise this industry?

Whilst I don’t expect immediate changes, it is likely that the Home Office will continue to focus its efforts on the UK care sector, especially from a compliance perspective. The Labour manifesto made a commitment to reduce reliance on overseas workers in certain sectors, including in health and social care and construction, by implementing skills training plans to grow home talent.

What should you be doing if you are in the UK care sector?

It is prudent to consider whether a Skilled Worker sponsor licence is required as part of your recruitment needs. Given potential plans to reduce the ability to sponsor in the UK care sector, bringing forward the sponsorship timeline seems sensible.

Where a sponsor licence is in place, it will be crucial to ensure continued compliance and maintenance. This could be achieved, for example, with regular “health checks” and/or undertaking mock compliance audits to minimise risks. Where the Home Office does write to you and is minded to suspend or revoke your sponsor licence, it will be crucial to seek legal advice at the earliest opportunity to make representations on your behalf.

We can help with strategic immigration planning, including supporting with sponsor licence applications and compliance audits. Please contact our market-leading team of immigration lawyers for expert advice and assistance on any of the above.

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