Birds Hill Nursing Home & Anor v Secretary of State for the Home Department

The 1^st Claimant runs the Birds Hill Nursing Home in Dorset. The 2^nd Claimant is one of the Home’s elderly residents. When the claim form was issued, the 2^nd Claimant was Robin Livingstone, another of the residents of Birds Hill. Sadly Mr Livingstone died. At the hearing, I gave permission for Ms Janes (acting through Ms Coveney as her litigation friend) to be substituted. By this application for judicial review they seek to challenge the Secretary of State for the Home Department’s (‘SSHD’) decision to revoke the 1^st Claimant’s Tier 2 sponsor licence. Permission to apply for judicial review was granted by Collins J on 29^th December 2014.

Tier 2 is part of the points based system of immigration control. Those who wish to employ workers from outside the European Economic Area must be licensed by the SSHD to sponsor them. If they are licensed, they may issue Certificates of Sponsorship (‘CoS’) usually up to a specified number. While possession of a CoS does not guarantee that the holder will be granted leave to enter the UK, in most cases that will be the consequence. As a result, the system of granting CoS is a critical part of immigration control.

The 1^st Claimant was originally awarded a Tier 2 sponsorship licence in March 2009. Sponsors are provided with Guidance which is updated periodically. Relevant to the present application is the ‘Tier 2 and 5 of the Points Based System: Guidance for Sponsors’ (‘the Guidance’) issued on 6^th April 2014. This explains that there are four routes within Tier 2 for skilled, sponsored workers. The one relevant to the present case is ‘Tier 2: General’. The Guidance explains that ‘this is for skilled workers who have received a graduate level job offer from a UK employer.’ Paragraph 24.7 of the Guidance goes on to explain that, with immaterial exceptions, migrants sponsored under Tier 2 (General) ‘can only work in a skilled occupation at or above National Qualification Framework (NQF) level 6. This does not mean that the person employed to fill the job must be educated to that level, it means that the work that the person will do is pitched at that level.’ Information on which jobs are set at these different skill levels is given in codes of practice.

The employees whose roles are at issue in this application were described as ‘Public Relations Officers’. The relevant code of practice provides that Public Relations Officers or Public Relations Professionals are among the occupations skilled to NQF 6. The Code gives examples of the types of task that someone in this position might perform. They are:

By contrast, nursing auxiliaries and assistants and senior care workers are rated as occupations skilled to NQF level 3. In other words, these are not occupations for which the 1^st Claimant could issue a CoS.

Sponsors may be visited by the SSHD to check they are complying with their duties. That is what happened on 2^nd April 2014 when Wendy Ley, an officer of the SSHD, visited Birds Hill. She interviewed Mr Roshan Seewooruthun, a director of the 1^st Claimant and inspected some of their records. Her attention focussed on the work of three of the 1^st Claimant’s employees for each of whom the 1^st Claimant had issued a CoS describing his or her job as Public Relations Officer. These were Joseph Joseph, Manju Kapoor and Sunita Rani. In each case, the job description in the CoS said,

Mr Seewooruthun told Ms Ley that each of these three employees was a Public Relations Officer with one based on each of the three floors of the Nursing Home. It seems the floors correspond to wards which are given the name of Nightingale, Merlin and Starling. Mr Seewooruthun said that each floor was like a separate nursing home and there was no staff movement between them. He told Ms Ley that there were six public relations officers in total, 2 for each floor. He described their role as follows:

Ms Ley examined some of the paperwork in relation to each of these three employees and was concerned.

The interview assessment form for Joseph Joseph said that he had applied for a position as a senior health care assistant. It was noted that he had general care experience. He had previously been a nurse in India. He had worked as a health care assistant in the UK since August 2011. It was noted that he was offered the position of ‘PRO if qual’ (presumably Public Relations Officer if qualified). There was no indication on the interview assessment form as to how he was qualified to be a public relations officer.

The interview assessment form for Manju Kapoor said that he had applied for the position of ‘SHCA – Mgr’ (presumably Senior Health Care Assistant Manager). It was noted that he had 2 years experience in the UK as a Senior Health Care Assistant in dementia care and as an assistant team leader in a care home. Under ‘Position offered’ the form recorded ‘Yes. PRO to join team.’

The interview assessment form for Sunita Rani said that she had applied for the position of ‘HCA – PRO’ (presumably Health Care Assistant - Public Relations Officer). The ‘Position offered’ is not entirely clear but appears to say ‘offer STV and PRO role’.

Ms Ley also observed that each of these three employees had been the subject of a Criminal Records Bureau check. In each case the certificate had described his or her role as ‘Senior Health Care Assistant.’

Ms Ley was also shown what appeared to be a staff rota. It had a heading ‘Nightingale HCAs’ which included Mr Joseph, Ms Kapoor and Ms Rani.

The Guidance for sponsors explains that the SSHD may revoke a licence. It spells out situations where revocation is mandatory and others where it is discretionary. The circumstances where it is discretionary (i.e. where a licence may be revoked) are specified in Annex 6. They include where,

the job description in the codes of practice containing the SOC code stated on the CoS you assigned to them… and/or

the job description in the CoS you assigned to them.’

The Guidance explains in paragraph 19.6

On 29^th May 2014 the SSHD wrote to the 1^st Claimant and raised its concerns as to whether the Mr Joseph, Ms Kappor and Ms Rani were undertaking the job descriptions which their CoSs had assigned to them or whether they were really working as Health Care Assistants. The 1^st Claimant’s licence was suspended and it was given a period to respond to the concerns. This letter also raised separate concerns about another employee, Mr Poochakkattil and whether he was working as a Supervised Practice Nurse (as his CoS said) or as a Health Care Assistant. It is right to note that in subsequent correspondence, the SSHD was satisfied as to Mr Poochakkattil’s position.

Solicitors on behalf of the 1^st Claimant responded on 25^th June 2014. They maintained that the three employees really were Public Relations Officers. They said that from the staff rota it was difficult to distinguish the role of individual members. The rota was used for internal purposes only. CRB checks had been carried out because the three employees interacted with residents and, in those circumstances, the Care Quality Commission required an enhanced CRB check. The solicitors provided examples of the individualised work records for each of the three employees which referred to each of them as ‘PRO’ and copies of their contracts of employment also described each of them as a Press Relations Officer.

On 8^th July 2014 the SSHD wrote to the 1^st Claimant to say that it was revoking the sponsorship licence. The staff rota, personnel files and interview assessment notes all showed that the three were employed as health care assistants. Mr Seewooruthun had said they worked as part of the care team. Although the staff rota was said not to describe accurately the staff designations, other documentation from the 1^st Claimant (an ‘off duty rota’) had done precisely that. There was conflicting evidence as to where within the home each of them was working. Other corroborating evidence to show that they were doing the work in their job description had not been provided.

On 9^th September 2014 the 1^st Claimant’s solicitors wrote challenging the SSHD’s decision. This added to the reasons why the requests for CRB checks had described the three as carers or health care assistants. The solicitors said that the three employees had been described as health care assistants to ‘avoid delays and duplication of work’ as well as the obligation on all who worked with vulnerable adults to have such checks. The solicitors provided a letter from Mr Seewooruthun who said that he described the Public Relations Officers as part of the care team because it was important that residents and their families were happy and people with nursing and caring experience would understand if the 1^st Claimant was providing a service of the requisite standard. The solicitors also said that, even if the staff were health care assistants it would not matter because the 1^st Claimant could issue a CoS to a health care assistant. Mr Lemer on the Claimant’s behalf accepted at the hearing that the solicitors were wrong about this. He was right to do so. As I have shown, a health care assistant would be NQF level 3 and a CoS could only be issued for a job which was equivalent to NQF level 6.

The solicitors also argued that the revocation of the 1^st Claimant’s licence was disproportionate. If the 1^st Claimant’s licence was revoked it would mean that the business was not financially viable. It would become insolvent and the 105 people it employed would lose their jobs. Closure would also have a profound effect on the frail and vulnerable elderly residents. It was argued that this would be contrary to Article 8 of the ECHR.

On 30^th September 2014 the SSHD maintained the decision to revoke the 1^st Claimant’s sponsorship licence. In a letter of the same date, it also responded to a letter before action. The SSHD did not accept that loss of the licence would lead to closure of the business. It would still be open to the 1^st Claimant to recruit workers from the UK or elsewhere in the EEA.

On 3^rd October 2014 the 1^st Claimant’s solicitors wrote again to the SSHD. They submitted material which they said illustrated the work which the Public Relations Officers had done.

The SSHD responded on 13^th October 2014. Again the decision was maintained. It was said that the further material supplied either did not have an identified author or the name was not that of any of the three employees in question. It did not therefore support the 1^st Claimant’s case that these three were doing the jobs described in their CoS.

The challenge made in these proceedings is to the decision to revoke (8^th July 2014) and to the two decisions to maintain that decision (i.e. on 30^th September 2014 and 13^th October 2014). Interim relief granted by Cox J. on 6^th November 2014 means that the revocation decision has not yet taken effect.

The Claimants’ grounds for seeking judicial review can be grouped into two broad limbs. The first challenged the SSHD’s conclusions that Mr Joseph, Ms Kapoor and Ms Rani were doing the jobs specified in the job descriptions in their CoSs. The legal error in this connection was variously characterised as mistake of fact, failure to take into account relevant circumstances, taking into account irrelevant circumstances or reaching a perverse conclusion. The second broad limb was to say the revocation was a breach of the 2^nd Claimant’s right to private life as guaranteed by Article 8 of the European Convention on Human Rights (‘ECHR’).

In essence the SSHD’s case was that the job description for Mr Joseph, Ms Kapoor and Ms Rani was to work as Public Relations Officers but in substance they were working as health care assistants or, at least, not doing the job of a PRO. Mr Lemer takes issue with a number of the constituent elements which led the SSHD to this conclusion.

This included the three employees. The SSHD argued that this supported the case that they were in fact HCAs (i.e. health care assistants). The 1^st Claimant had explained that this rota had a historical heading that no longer accurately reflected the roles of all the staff concerned. Not all of them were HCAs. It was notable that one of the other staff mentioned was Paul Joseph whom the SSHD now accepted was a Supervised Practice Nurse. Since he was not an HCA, the SSHD could not deduce from the presence of the names of Mr Joseph, Ms Kapoor and Ms Rani on the list that they were HCAs.

In my judgment, though, this was but one strand of evidence which the SSHD was entitled to take into account in reaching her conclusion that the three employees in question were not in fact working as Public Relations Officers. The 1^st Claimant had said in correspondence that this rota did not distinguish between different roles of the various staff included in the list. The SSHD was entitled to observe that the 1^st Claimant had produced another rota (the off-duty rota) which did list staff according to their roles and separated out, for instance, staff who worked in the office. The names of the three employees did not appear on that list, but they did appear on the rota which purported to identify HCAs. While the presence of Paul Joseph’s name on the list as well showed that it was not an infallible indication that those listed were HCAs, it was a pointer.

It is important to recall that judicial review is not an appeal on the facts. In my judgment, there was no legal error in the SSHD taking into account this piece of evidence.

Mr Lemer argues that the SSHD failed to take into account a material fact, namely that each of the three employees in question was offered a position as a PRO. Furthermore, the individualised work rotas likewise identified each of them as a PRO.

In my judgment, though, this is to misunderstand the point which is being made on behalf of the SSHD. She does not dispute that nominally each of the three was appointed as a Public Relations Officer. Her complaint is that that nominal description did not accord with the reality of the work which they did. In that context, the interview assessment notes were highly relevant. In each case they showed that the interviewer had noted the employee’s previous experience as a care assistant or nurse. None of them showed any previous experience in public relations.

Mr Lemer says that the SSHD acted unfairly towards the 1^st Claimant in relying on the absence of corroborating evidence in the revocation decision since this point had not been taken in the letter suspending the 1^st Claimant’s licence.

This point has no merit. The letter of suspension had said that none of the named sponsored workers were employed in the capacities assigned to them in their CoSs. It would plainly have been open to the 1^st Claimant to put forward any evidence to the contrary in response to this letter and such evidence could, equally plainly, have included anything to corroborate the 1^st Claimant’s position that the three employees were in fact working as PROs. But, in any case, such evidence could have been produced at a later stage in the correspondence. The 1^st Claimant’s solicitors did purport to provide such evidence with their letter of 3^rd October 2014. However, in the letter of 13^th October 2014 the SSHD did not accept that the documents supplied in fact constituted corroborative evidence. There was no legal error in that response.

Mr Lemer said that the SSHD had not taken into account the evidence which supported the 1^st Claimant’s position that the three employees did in truth work as PROs. Notably, they were paid at the level which the Code of Practice said was appropriate for PROs and this was a higher rate than would have been usual for a health care assistant. They had been appointed to the position of PRO. Their individualised work rotas identified them as PROs. The 1^st Claimant’s Director had explained why CRB checks were needed.

Although Mr Lemer sought to characterise this argument in various different ways, it was in truth an argument that the SSHD’s decision that the 3 employees were not working according to the job descriptions in their CoSs was perverse.

I reject that argument. There was ample evidence on which the SSHD could come to that conclusion. Apart from the staff rotas and the interview assessment forms, there was the comment of the director that the PROs were part of the care team. He seemed to regard the function of a PRO as a combination of family liaison and care quality control. That did not fit the paradigm of the role of a Public Relations Officer as set out in the code of practice. It was also not obvious as to why a Public Relations Officer had to have contact with patients (and so needed to have a CRB check) or, if there was such a need, why the CRB could not be informed of the real position rather than be told that the checks were needed because they were health care assistants.

All of these matters had to be considered by the SSHD against the background of the inherent unlikelihood of a nursing home with some 72 residents needing 6 Public Relations Officers (three from outside the EEA). Furthermore, those 3 (if the ‘Nightingale HCA’ rota was correct) all worked on the same ward or floor of the nursing home.

It is axiomatic that the SSHD is the primary fact finder. A factual conclusion will only be unlawful as perverse if it is one to which no reasonable fact finder could come. The Claimants in this case come nowhere near to establishing that that test is met. The breach which the SSHD identified meant that the licence may be revoked. However, the Guidance also showed that a sponsor could expect to lose their licence in these circumstances except in exceptional cases. The 1^st Claimant could not show that the breach was inadvertent, or that prompt action had been taken to correct the position, or that there was any other special reason why revocation should not follow.

There has recently been discussion as to whether principles which have been developed in the context of judicial reviews of the SSHD’s decisions to revoke or suspend licences to sponsor students (who are part of Tier 4 of the points based system) should be applied also in the context of comparable decisions in relation to sponsors of Tier 2 immigrants. In R (Raj and Knoll Ltd) v SSHD [2015] EWHC 1329 (Admin) Haddon-Cave J held that they were. So, too, did Warby J in Country Court Ltd v SSHD[2015] EWHC 2054 (Admin). Country Court was a decision to refuse permission to apply for judicial review on a renewed application, but I was told that the Judge had given permission for the decision (which was reserved) to be cited. On the other hand, the Court of Appeal has very recently granted permission to appeal to the Claimants in Raj and Knoll Ltd.

This is all very interesting, but the present case is far from the borderline where the precise nature of the SSHD’s powers to intervene may be material. In this case, the SSHD took account of all relevant circumstances, did not take account of anything immaterial and reached a conclusion which was plainly open to her. Accordingly, this first limb of the Claimants’ challenge fails.

I accept that for frail, elderly residents (such as the 2^nd Claimant) the continuing ability to live in the nursing home to which they have become accustomed is an important part of their private lives to which Article 8 of the ECHR is directed.

However, Article 8 would only be engaged by the SSHD’s decision in this case if it constituted an ‘interference’ with those private lives. The Claimants say it would because, if the revocation decision stands, the 1^st Claimant will go out of business, Birds Hill will close and the residents (including the 2^nd Claimant) will have to move.

I accept that the revocation decision will impact, not just on the three ‘Public Relations Officers’ but all of the non-EEA staff to whom the 1^st Claimant has presently issued CoSs. In his witness statement dated 6^th October 2014 Mr Seewooruthun says that 50% of the care team are overseas migrants and the business would not be viable if the revocation decision was maintained. This in turn would mean that the nursing home would have to close.

In the letter of 30^th September 2014, responding to the letter before claim, the SSHD said that, following revocation, current workers with authorisation or permission to stay would be allowed 60 days to find another sponsor. It would also be open to the 1^st Claimant to employ workers from within the EEA. In his submissions, Mr O’Brien, for the SSHD said that there would need to be clearer evidence before the implicit conclusion of the SSHD that revocation of the licence would not lead to closure of the 1^st Claimant’s business could be challenged. An expert report from an accountant or something similar would be necessary.

I agree that the evidence is unsatisfactory on this issue. Mr Seewooruthun says that 50% of his care team are ‘migrants’ but that is ambiguous as to whether they come from within or outside the EEA. As the SSHD said in the letter to which I have just referred, the 1^st Claimant would be still free to use EEA nationals notwithstanding the revocation of its licence to sponsor non-EEA nationals. Although it was not in evidence, Mr O’Brien told me (without objection from Mr Lemer) that at the time of revocation the 1^st Claimant had an allocation of 10 CoSs. The numbers had been higher in 2012-13 when 30 CoSs had been allocated and in 2013-2014 when 22 CoSs had been allocated. Mr Lemer relied on the further witness statement of Mr Seewooruthun dated 22^nd October 2014 to argue that there were practical difficulties in recruiting European staff and, in particular, recruiting a significant number of staff at the same time and at short notice. That may be, but the evidence is still very limited and it does not come from an independent source. As Warby J said in Country Care Ltd v SSHD [2015] EWHC 2054 (Admin) at [74] in a very similar context ‘It is remarkable how often dire predictions prove ill-founded once put to the test.’ If it would not be possible for the 1^st Claimant to carry on, there is no evidence either as to what prospects there would be of finding some other provider to take on the business as a going concern (although, it is fair to say that this is not a specific point taken by the SSHD). For all of these reasons, in my judgment the Claimants have not established the premise of their Article 8 argument - that revocation of the 1^st Claimant’s licence would mean that Birds Hill would have to close. Still less have they established that the SSHD was not entitled to be sceptical as to whether that would be the consequence of maintaining the decision to revoke.

I will, though, proceed in the alternative to consider the position on the assumption that the Claimants could surmount that hurdle.

Clearly, the interference with the 2^nd Claimant’s private life would be for a legitimate aim, and one which is prescribed by law. As with so many Article 8 disputes the real issue is whether the interference would be disproportionate or otherwise not justified in a democratic society. This is not an issue on which any of the decisions of the SSHD have expressed a view and, therefore, it is for me to reach a conclusion – see comparably Belfast City Council v Miss Behavin’ Ltd. [2007] 1 WLR 1420 (HL) at [46]-[47].

In my judgment the answer is plain. Any such interference would be proportionate and would be justified in a democratic society.

The SSHD has lawfully concluded that employees of the 1^st Claimant to whom it had issued CoSs were not working in accordance with the job descriptions which the 1^st Claimant had assigned to them. That was a serious default on the part of the 1^st Claimant. It had taken place in relation, not just to one, but to three employees. The Points Based System places considerable trust in the hands of licensed sponsors. This has been said previously in connection with the issue of Confirmations of Acceptance for Studies by colleges who sponsor students as part of Tier 4 (see e.g. London St Andrews College v SSHD [2014] EWHC 4328 at [12]), but I respectfully agree with Haddon-Cave J in Raj and Knoll Ltd at [21] that the same principle must also apply to the issue of CoSs by Tier 2 licensed sponsors. What has happened here has shown, regrettably, that trust in the 1^st Claimant was misplaced. I cannot see how in those circumstances the SSHD could be expected to continue to trust the 1^st Claimant to operate the sponsorship system properly (see the similar conclusion of Warby J. in Country Court at [79]).

It follows that all of the grounds of challenge fail and this application for judicial review must be dismissed.