Background
J’s Supermarket held a licence to sponsor skilled workers. After a compliance visit, the Home Office found stark differences between the skilled managerial and shopkeeper duties stated in two certificates of sponsorship and the predominantly shop-floor work the employees described performing. The Secretary of State concluded that the roles were not genuine vacancies and revoked the licence. The Administrative Court dismissed J’s Supermarket’s judicial-review claim.
In the conjoined appeal, Prestige Social Care Services challenged the revocation of its sponsor licence. The Home Office relied on its unusually high staff turnover and recruitment failures involving, among others, a worker recruited for a driving role despite declaring that she could not drive and another worker who failed the required English-language test. The High Court found the conclusion that the driving role itself was non-genuine irrational, but refused relief under section 31(2A) of the Senior Courts Act 1981 because revocation was highly likely under the separate grounds in Annex C2(a) and (b) of the sponsor guidance.
The Court’s Holding
The Court of Appeal dismissed J’s Supermarket’s appeal. The suspension and revocation correspondence fairly identified the discrepancies and expressly stated the Home Office’s concern that the roles had been created to facilitate the workers’ leave to remain. J’s Supermarket therefore had a fair opportunity to answer the allegation. The Secretary of State had considered its later representations and rationally concluded that the sponsored skilled roles were not genuine under Annex C1(z).
The court also dismissed Prestige’s appeal and the Secretary of State’s cross-appeal. It agreed that recruiting a person unable to perform a role did not, without more, establish that the role itself was non-genuine, and that reliance on Annex C1(z) had not been put to Prestige fairly after being withdrawn and later revived. Nevertheless, revocation remained highly likely under Annex C2(a) and (b), which the decision letter had identified as independent grounds. Prestige’s recruitment failures and excessive turnover rationally supported findings of deficient processes, significant or systematic non-compliance, and a threat to immigration control.
Key Takeaways
- When sponsor-licence revocation rests on suspected dishonesty or deliberate abuse, procedural fairness requires the Home Office to identify the concern clearly, permit a response, and consider that response before deciding.
- A worker’s inability to perform a role may demonstrate seriously deficient recruitment, but it does not by itself prove that the vacancy was fictitious or non-genuine.
- Under section 31(2A), a court must refuse judicial-review relief where it is highly likely that correcting the identified error would not have produced a substantially different outcome, provided the court does not substitute itself for the decision-maker.
Why It Matters
The judgment clarifies how the Home Office may apply the sponsor guidance to discrepancies between certificates of sponsorship and work actually performed, and distinguishes a non-genuine vacancy from an authentic role filled through incompetent recruitment.
It also confirms that an unlawful ground for revocation will not necessarily invalidate the result where the decision expressly identifies independent, lawful grounds and the high statutory threshold for refusing relief under section 31(2A) is met.