R (New Hope Care Ltd) v Secretary of State for the Home Department [2024] EWHC 1270 (Admin) (24 May 2024)
In these judicial review proceedings, David Pievsky KC held that the SSHD's decision to revoke New Hope Care Ltd's sponsor licence without first providing it a meaningful opportunity to respond was unlawful. It was inconsistent with published policy, contrary to legitimate expectation, and procedurally unfair at common law. New Hope Care is a large business which provides care services to individuals in need. It was co-founded by its director Mr Patrick Cheza ("C"). In January 2023, New Hope Care had been granted the licence allowing it to sponsor non-settled workers. Notably, a licence holder needed to have an authorising officer ("AO") who was "in place" under the SSHD's guidance "Workers and Temporary Workers: guidance for sponsors – version August 2022". New Hope Care's AO was C, its director. The guidance also required New Hope Care's personnel to be "based in the UK". On 7 August 2023, a Home Office compliance team visited New Hope Care with a view to assessing its suitability as a sponsor. C was not present. On 14 August 2023, New Hope Care's licence was suspended due to its "failure to comply with its duties". The suspension letter stated that further details could not be provided at that stage. However, it stated that after further enquiries, detailed reasons would be provided for the suspension after which New Hope Care would then have 20 days to respond. On 30 August 2023, the SSHD was informed that C had been detained in Zimbabwe. On 5 September 2023, the SSHD agreed to cancel the 6 September visit and reschedule it once C was back in the UK.
Subsequently, on 6 October, the SSHD sent a decision letter revoking New Hope Care's licence which listed a number of breaches of the guidance including the fact that its AO was not "based in the UK". Granting New Hope Care's judicial review application in part, the court examined the key issues of irrationality, misdirection, procedural unfairness and global assessment. The SSHD's decision letter had stated that "several attempts" had been made to visit the claimant, which was an overstatement of the true position. It also stated that C's absence from the UK was "indefinite", without recording that his detention meant he was unable to return even though he wanted to. David Pievsky KC determined that to the extent there were errors or infelicities in the use of the words "several occasions" or "indefinitely" in paragraph 2 of the decision letter, these errors were not operative reasons for the overall decision, and did not render it irrational. There was a separate issue about whether the procedure used to make the decision was fair, which included the question whether it was fair and lawful for the decision-maker to proceed to make a revocation decision at the stage that he did, without carrying out further investigation or taking other procedural steps. But that point raised different issues of law, and needed to be addressed separately.
Misdirection
The court said that the words "based in" were ordinary English words. Whether someone was based in a particular country could be a question of degree, requiring the application of a judgement. A brief or temporary absence from a country did not mean that a person was no longer "based" there. But where someone's absences were so prolonged, repeated, or indefinite, it was not sensible to remain satisfied that they were based in that country.
It did not follow from the fact that someone paid tax, owned a home or ran a business in the UK that the SSHD was compelled to accept that they were based in the UK, however long they were abroad. David Pievsky KC held that:
80. It certainly does not follow, in my Judgment, simply from the fact that someone pays tax in the UK and owns a home or runs a business here, that the Secretary of State is compelled to accept that they are "based in" the UK, however long they spend abroad. That would be absurd; particularly so in the context of the regulatory framework to which this case relates, and the obvious importance, as stressed in the Guidance, of having an AO "in place" who is "based in" the UK in a practical and effective sense. A person may, of course, own properties (a home, or otherwise), or run or work for a business, in more than one jurisdiction.
The court said that the SSHD had not treated C's absence from the UK as dispositive of the issue of whether the claimant had an AO in place who was based in the UK.
David Pievsky KC explained that the approach had been to consider the following factors taken together: the extent of C's absences; the reasons for them, the circumstances and adverse implications of them; and the fact that there was no specific date of return, nearly two months after the licence had been suspended. Overall, the SSHD's approach was not a misdirection of law.
Procedural unfairness
The court said that once a decision to suspend a licence had been made, paragraphs C9.10 – C9.14 of the guidance required the SSHD to (i) provide initial reasons for the decision, (ii) give the claimant at least 20 days to respond, and (iii) consider the response prior to making a revocation decision.
David Pievsky KC rejected the argument that the SSHD can just dispense with the need for basic procedural fairness, and give the licence holder no opportunity to respond to an allegation. As he said:
98. A critical issue between the parties is the correct interpretation of paragraphs C9.10 – C9.14 of the Guidance. As I have noted, this is an objective question for the Court. I cannot accept Mr Irwin's suggested construction of those paragraphs. It would have the overall effect that, in any case where a circumstance said to be mandatory (i.e. falling within Annex C1 of the Guidance) is in play, the Defendant can simply dispense with the need for basic procedural fairness, and give the licence holder no opportunity to respond to an allegation before a final decision is taken. That cannot be right.
As part of that overall conclusion, David Pievsky KC went on to emphasise the following points. First of all, there are no express words within the Guidance itself which can justify such an interpretation. Moreover, secondly, there is no principled reason which justifies such an interpretation of the Guidance. Thirdly, the Guidance itself has to be interpreted against the background of the common law. The wording of the paragraphs considered did not support an interpretation that the SSHD could dispense with the need for basic procedural fairness and there was no evidence that the SSHD had considered that there was any good reason for such departure.
The suspension letter had highlighted the procedural requirements of the guidance. That amounted to a clear and unambiguous promise about the procedure which would be used. There was no evidence at all that departing from those commitments were a justified and proportionate course of action. Thus, the SSHD had unlawfully resiled from a procedural legitimate expectation. There was no evidence of any notice being given to New Hope Care of the reasons said to justify revocation and that involved a clear departure from the requirements of common law procedural fairness.
It was not possible to conclude that such procedural unfairness was immaterial because revocation would have been inevitable. On the evidence, whilst revocation was a "serious possibility", that was a long way from the high hurdle of "highly likely". David Pievsky KC held as follows:
115. I uphold all three elements of Ground 3. The revocation decision was unlawful because it was inconsistent with published policy, contrary to a legitimate expectation, and procedurally unfair at common law.
Next, the court considered the global assessment ground.
Global assessment
New Hope Care placed reliance upon R (Supporting Care Ltd) v SSHD [2024] EWHC 68 (Admin). In Supporting Care, a revocation decision made by the SSHD was quashed by the court because the SSHD had not, it was said, properly engaged with the impact of revocation on the workers, their families, the vulnerable individuals receiving care, or the adverse impact of revocation on the business and the wider industry. In the present case, New Hope Care submitted that the SSHD had failed to examine the impact of revocation decision on the workers, their families and the vulnerable care recipients.
However, Supporting Care was inconsistent with Prestwick Care Limited v SSHD [2023] EWHC 3193 (Admin). The court applied Prestwick where it was held that the SSHD was not required to take such factors into account. Whilst a "global assessment" might require the SSHD to stand back from the detail to ask whether revocation had been proportionate, the SSHD was not proactively required to investigate and make precise findings as to the particular likely impact on actual care recipients, employees and their family members.
If after a fair and lawful process a licence holder had been found to have committed the breaches said to have occurred in the present case, a global assessment of the impact of revocation on those adversely affected would not have, in all probability, changed the outcome.
For the court to hold otherwise would have the effect of undermining the SSHD's policy position; that certain misconduct almost invariably justified revocation because the risk to the immigration system of allowing people who had committed such misconduct to carry on as licence holders was unacceptable. Overall, that was a policy judgement the SSHD was entitled to make.
Comment
Overall, the court was of the view that it cannot be right for the SSHD to simply dispense with the need for basic procedural fairness, and give the licence holder no opportunity at all to respond to an allegation before a final decision is taken. The court's decision accords with the legal principle that no one should be condemned unheard.