Southcroft Healthcare Lodge Limited, R (on the application of) v The Secretary of State for the Home Department

A sponsor must report certain changes that affect sponsored workers within prescribed time limits: para. C1.11. Changes to a sponsored worker’s circumstances must normally be reported within 10 working days of the relevant event occurring. Reduction of a sponsored worker’s salary from the level stated on their certificate of sponsorship would be such a change: para. C1.13.

A sponsor must also keep documents for each sponsored worker: para. C1.33. A sponsor must provide to the Home Office, when asked, “any documents relating to your sponsored workers … that we might consider relevant to assessing your compliance with your duties as a sponsor … If you fail to provide the documents when asked or within the timeframe we specify, we will take action against you”: para. C1.34.

Para. C1.38 makes it clear that a sponsor “must comply with our immigration law and all parts of the Worker and Temporary Worker sponsor guidance.”

Annex C1 lists the circumstances in which revocation is mandatory, two of which are relevant. The first is set out in annex C1(s) and concerns the situation in which the role undertaken by a sponsored worker is inconsistent with the occupation code stated on the relevant certificate of sponsorship. The second, found in annex C1(aa), arises where the sponsor pays a sponsored worker less than the salary stated on the certificate of sponsorship and the Secretary of State has not been notified of any change in salary or the reduction is not otherwise permitted under the Rules or the Guidance.

Annex C2 sets out the cases in which the Secretary of State will normally revoke a sponsor licence. These include circumstances in which a sponsor fails to comply with the sponsor duties in section C1 of the Guidance (annex C2(a)) and where the Secretary of State is not satisfied that the sponsor is using a process or procedure that is necessary fully to comply with its sponsor duties (annex C2(b)).

Annex C3 is concerned with the circumstances in which the Secretary of State may revoke a licence. The general position is that a licence will not be revoked if only one of the specified circumstances arises but the right to do so is reserved. One such circumstance is if any level 1 or level 2 users disclose their sponsorship management system (“SMS”) password to another person: annex C3(f).

The Claimant had granted 97 certificates of sponsorship to workers to whom the Standard Occupational Classification (“SOC”) code 6145 (care workers and home carers) had been assigned. Their job descriptions indicated that the workers were involved in the provision of care and the Claimant’s mission statement stated that inter alia it provided care to adults with mental health conditions. However, the Claimant was not registered with the Care Quality Commission (“the CQC”). The Claimant explained that, as it did carry out regulated activities, it did not need to be registered. The Secretary of State concluded that the job description and the mission statement were inconsistent with that explanation. Accordingly, the Claimant was in breach of its duty as a sponsor to comply with domestic law for which the Secretary of State will revoke the licence: paras. 2-8 of the suspension letter.

The Secretary of State was not satisfied that the sponsored workers were paid the salary stated on their respective certificates of sponsorship. Such a breach which will result in revocation: paras. 9-13.

The Secretary of State noted that during the compliance visit Mr Adeboye had confirmed that only he and Mr Igwe had roles which were relevant to the operation of the sponsor licence. Pertinently, they were both responsible for reporting under theSMS. Although Mr Adeboye was not a level 1 user nonetheless he had access to the SMS. These arrangements indicated that Mr Igwe’s SMS password and username were not secure. This was a breach for which the Secretary of State may revoke the licence: paras. 14-17.

Two breaches were found in relation to monitoring of the Claimant’s employees’ immigration status. First, absent evidence that the sponsored workers’ share codes had been verified, the Secretary of State was not satisfied that the Claimant had a suitable system to check its employees’ right to work in this country. Such a breach will justify revocation: paras. 18-25. Secondly, the Claimant had failed to demonstrate that it had an effective system to monitor the visa expiry dates for all its sponsored workers: paras. 26-31.

As to its migrant tracking and monitoring obligations, the Secretary of State concluded that the Claimant was unaware of its reporting duties: paras. 32-35. She also found that the Claimant had failed to (i) report certain changes to the certificates of sponsorship (paras. 36-39) and (ii) have a system to track, monitor and report sponsored workers’ unauthorised absences (paras. 40-46).

In relation to the question whether the sponsored workers were care workers, the Claimant accepted that although the job description and mission statement both referred to the provision of care, “it does not in any way suggest that personal care is undertaken as defined by CQC requirements and none of such services are being offered to service users.” It was argued that the word “care” was used in a broad sense of describing the support given to service-users rather than referring to a specific care role.

As to salary changes, it was admitted that the annual salary of one sponsored worker, Mr David Entonu, had been reassessed and reduced from £25,000 to £23,000. The Claimant regretted and apologised for its failure to report this change but said that it had now done so. The Claimant acknowledged that salary changes should have been reported within the prescribed time limits but it had not done so for which it also apologised.

As to the security of Mr Igwe’s password and username, Mr Adeboye asked the Secretary of State to:

“ … accept our assurances that [access to the SMS] is secure and as I stated in the body of this response, Mr Daniel Igwe is the only person with sole and absolute control of the system. He issues all of the certificates of sponsorships to workers following recommendation from me as the director of the Company. Although events have been reported late through our Sponsorship Management System …, however, on behalf of the Compliance Officer, I humbly and regretfully express our remorse …”

Sponsored workers’ visa expiry dates had previously been monitored by using a spreadsheet because “technical glitches” had prevented it using its software programme. The Claimant admitted that “this process was inadequate at times, a situation we regret and offer our deep remorse and undertake that it will not happen again hence we have invested in the software Cezzane.” The Claimant explained its new software programme thus:

“… we have installed a more robust system called Cezzane which contains a dashboard within a sharepoint with all employees’ details and visa expiry dates. This new system will be live and notification will be sent out to an employee from the sharepoint 90 days before expiry of their leave to remain. Furthermore, the system gives the Human Resources department an opportunity to track via expiry dates as part of the mandatory employer’s obligation.”

In answer to the Secretary of State’s request for documents in relation to four named workers, the Claimant said that three of the four employees had only started work on 10 July 2023 and so they had not yet received a salary payment. One worker had had her certificate of sponsorship withdrawn because she had withheld material information.

Mr Adeboye submitted that effect of suspension would have a “colossal impact” on the business which would be “crippled” because of the loss of contracts and goodwill. Mr Adeboye also said that “the fate of our workers would be unimaginable”.

The job description issue:

The Claimant had granted 97 certificates of sponsorship to which the SOC code 6145 had been assigned. The Secretary of State considered that the substance of code 6145 “strongly indicates a level of personal care is undertaken by the employee.” In light of the Claimant’s admission of a mistake in its letter of 26 October 2023, the incorrect code had been assigned as part of a “continued practice” in 97 cases. Consequently, annex C1(s) of the Guidance, a mandatory ground for revocation, was engaged. The failure to assign the correct SOC code in 97 cases was sufficient alone to justify revocation irrespective of any other matter: paras. 5-27 of the decision.

The salary issue:

As a result of an analysis of the earnings of four workers over a three-month period (30 April 2023-30 June 2023), the Secretary of State concluded that one, Mr Entonu, had been paid less than the annual salary stated on his certificate of sponsorship. In relation to all four workers, their monthly pay was less than the minimum amount (£2,083.33) that was required to be paid in accordance with the annual salary stated on their certificates of sponsorship. Accordingly, the Secretary of State was not satisfied that the Claimant was paying its sponsored workers the stated salary. Therefore, annex C1(aa) (another mandatory ground) applied and the breach was sufficient to require revocation by itself: paras. 28-42.

The password issue:

Having considered the information given by Mr Adeboye in interview and the Claimant’s written representations, the Secretary of State effectively preferred the former. That was because Mr Adeboye would not have given incorrect answers and the interview notes were endorsed with a declaration of truth. As he was not a level 1 SMS user, the information given in interview indicated that Mr Igwe had shared access to the SMS with Mr Adeboye to allow them both to perform reporting duties. That was not permitted and so annex C3(f) was relevant: the licence may be revoked where any level 1 or level 2 user discloses their SMS password to another person: paras. 43-63.

The monitoring issue:

Having considered the findings of the compliance visits, the suspension letter and the Claimant’s representations, the Secretary of State considered that the Claimant had no system to make sure that follow-up checks could be made of a sponsored worker’s right to work before expiry of the visa. Although the Claimant had relied upon its purchase of the Cezzane software to demonstrate that it had such a system in place, it had only provided a one-page document which gave only general information about the new programme. Therefore, the Claimant had provided no evidence that the required system in use. Consequently, annex C2(a) and (b) were engaged, breach of which would normally result in revocation: paras. 64-75.

The documents issue:

Notwithstanding the clear terms of her letter of 4 October 2023, the Secretary of State’s request for three classes of documents in relation to four specific workers had not been answered. In fact, no documents had been provided with the Claimant’s representations of 26 October 2023 or at any time before the decision. Accordingly, annex C2(a) and C1.34 applied, a ground on which the Secretary of State will normally revoke a licence: paras. 97-103.

The essence of the system is that the Secretary of State imposes a high degree of trust in sponsors who are granted licences in implementing and policing immigration policy in respect of migrant workers to whom it grants certificates of sponsorship.

The grant and maintenance of a sponsor licence is a privilege and not a right.

The authority to grant a certificate of sponsorship is a privilege which carries great responsibility. For that reason, a sponsor is expected and required to carry out its responsibilities with “all the rigour and vigilance of the immigration control authorities” and “to maintain its own records with assiduity”.

The introduction of the points-based immigration system has created a system of immigration control in which the emphasis is on “certainty in place of discretion, on detail rather than broad guidance”.

The certificate of sponsorship is very significant because it provides strong, but not conclusive, evidence of some of the matters which are relevant to the migrant’s application for leave to enter or remain.

The Secretary of State is entitled to “maintain a fairly high index of suspicion and a ‘light trigger’ in deciding when and with what level of firmness she should act.” She need not wait until there has been a breach of immigration control caused by the sponsor’s acts or omissions. To that end, the Secretary of State “can, and indeed should, take such steps if she has reasonable grounds for suspecting that a breach of immigration control might occur”.

The Secretary of State has “stringent powers to suspend or revoke a sponsor’s licence” if she “becomes concerned that a sponsor is not complying its obligations and must be sensitive to any factors which might suggest the possibility of any breaches of immigration control having occurred or being about to occur”.

The primary judgment about the appropriate response to breaches by sponsors is that of the Secretary of State. The court’s role is supervisory: it should respect the Secretary of State’s experience and expertise when reaching conclusions about the sponsor’s compliance with the Guidance which is vitally necessary to ensure that there is effective immigration control. The authorities indicate that the court does not have “this critically important experience or expertise”.

In considering the scheme “it must be understood that the grant of [sponsor] status is a fragile gift, constant vigilance about compliance is a minimum standard required for such sponsors. The burden of playing an active role in the support of immigration control is a heavy one.” For that reason, the Secretary of State is “entitled to review purported compliance with a cynical level of supervision.”

Interpretation of policy documents is a matter of law which the court must decide for itself: Mandalia v. Secretary of State for the Home Department [2015] UKSC 59.

There is a public law obligation on the Secretary of State to provide adequate reasons for her findings. Reasons must be intelligible and adequate. They must enable to reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues and explain how any question of law or fact was resolved. In particular, the reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example, by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds: South Buckinghamshire District Council v. Porter [2004] WLR 1953, para. 36. For the sake of completeness, I should note that Lord Brown’s summary of principle in Porter emphasised that:

“Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

The court should adopt a flexible approach to irrationality in public law. The common law no longer insists on the uniform application of the rigid test of irrationality once thought to be applicable under the so-called Wednesbury principle. As the Court of Appeal confirmed in Prestwick, the primary judgment about the appropriate response to breaches by licence-holders is that of the Secretary of State: Raj and Knoll [2015] EWHC 1329 (Admin), para. 21.

Ground 1: failed to appreciate that a finding of dishonesty or bad faith was required in respect of the question of genuine vacancy and, in any event, he failed to make reasoned and rational findings on that question.

Ground 2: failed to ask the correct question or make reasoned and rational findings on the question of wages paid to the sponsored workers.

Ground 3: failed to ask the correct question or make reasoned and rational findings on the question of sharing an SMS password.

Ground 4: misconstrued the Guidance and erred in law in holding that the Claimant does not have a system in place to monitor visa expiry dates.

Ground 5: misconstrued the Guidance and erred in law in holding that the Claimant has not provided requested documents pursuant to it.

Ground 6: acted in a procedurally unfair manner.

Ground 7: failed to conduct an adequately reasoned global assessment of all relevant considerations in deciding whether to revoke or downgrade the sponsor licence.

Issue 1 – the job description issue:

Whether the Claimant seeks to advance a ground that has not been pleaded in the statement of facts and grounds of judicial review.

Whether the Secretary of State made adequately reasoned and rational findings in relation to the job description issue.

Whether, if the court upholds the Secretary of State’s decision on this issue, this amounts to a finding that the Secretary of State made a freestanding, lawful decision to revoke the Claimant’s sponsor licence.

Issue 2 – the salary issue:

Whether the Claimant seeks to advance a ground that has not been pleaded in the statement of facts and grounds of judicial review.

Whether the Secretary of State asked herself the correct question and made the adequately reasoned and rational findings in relation to the salary issue.

Whether, if the court upholds the Secretary of State’s decision on this issue, this amounts to a finding that the Secretary of State made a freestanding, lawful decision to revoke the Claimant’s sponsor licence.

Issue 3 – the password issue:

Whether the Secretary of State asked herself the correct question and made adequately reasoned and rational findings in relation to the password issue.

Issue 4 – the monitoring issue:

Whether the Secretary of State misconstrued the Guidance and erred in relation to the monitoring issue.

Issue 5 – the documents issue:

Whether the Secretary of State misconstrued the Guidance and erred in relation to the documents issue.

Whether, if the court upholds the Secretary of State’s decision on this issue alone, this amounts to a finding that the Secretary of State made a freestanding, lawful decision to revoke the Claimant’s sponsor licence.

Issue 6 – downgrading alternative and discretion:

Whether the Secretary of State made a lawful assessment of all relevant considerations in deciding whether to revoke or downgrade the Claimant’s sponsor licence.

Issue 7 – materiality and s. 31(2A) of the Senior Courts Act 1981:

To the extent that the Claimant has succeeded on any of its grounds, whether the errors found to have occurred are material and whether it is appropriate to withhold relief under s. 31(2A) of the Senior Courts Act 1981 (“the 1981 Act”).

In the context of an appeal such as this it is important that the grounds of appeal should be clearly and succinctly set out. It is also important that only those grounds of appeal for which permission has been granted by this Court are then pursued at an appeal. The Courts frequently observe, as did appear to happen in the present case, that grounds of challenge have a habit of “evolving” during the course of proceedings, for example when a final skeleton argument comes to be drafted. This will in practice be many months after the formal close of pleadings and after evidence has been filed.

These unfortunate trends must be resisted and should be discouraged by the courts, using whatever powers they have to impose procedural rigour in public law proceedings. Courts should be prepared to take robust decisions and not permit grounds to be advanced if they have not been properly pleaded or where permission has not been granted to raise them. Otherwise there is a risk that there will be unfairness, not only to the other party to the case, but potentially to the wider public interest, which is an important facet of public law litigation.”

Para. 29 states that:

“… the Secretary of State took no issue as to SOC code when [the certificates of sponsorship] were assigned. It is not open to the Secretary of State to now contend that the wrong SOC code was used and, on that basis, hold that there are no genuine vacancies. The Secretary of State does not suggest that the Claimant had any incentive to dishonestly mislead the Secretary of State in that respect. Accordingly, it cannot be suggested that the Claimant dishonestly exaggerated the job description so to facilitate sponsored workers entry and stay in the United Kingdom.”

Although the correctness or otherwise of the SOC code is pleaded, the point is tied to the genuineness of vacancies and the question whether wrong SOC codes were used dishonestly to misrepresent the job so as to ease migrants’ entry into this country.

Para. 30 alleges that:

“… it is tolerably clear … that the Secretary of State arrived at his decision on the basis that the sponsored workers do not undertake regulated activities. However, there is no explanation by the Secretary of State as to how that leads to a conclusion that [the] wrong SOC code was used and there are no genuine vacancies. There is a gap in the reasoning.”

As with para. 29, although the correctness of the SOC code is pleaded, it is as part of the broader question of the genuineness of vacancies.

Finally, para. 38 contends that:

“… there is simply no engagement by the Secretary of State with the detailed statement of Abayomi Joshua Adeboye. It is directly on point. The complete failure to have regard to this crucial evidence is a plain public law error and [it] makes the revocation decision irrational.”

The Secretary of State’s conclusion that the Claimant had assigned a total of 97 certificates of sponsorship under SOC code 6145 and that the roles undertaken by the workers did not correspond with that code was inadequately reasoned and irrational.

Although the Claimant accepts that its workers do not carry out regulated activities or provide personal care, the Secretary of State gave no adequate explanation about how those facts lead to the conclusion that an incorrect SOC code was used.

In any event, SOC code 6145 was sufficiently broad to include those such as the Claimant’s workers who “liaise with professional staff in carrying out care plans, etc.”

In the circumstances, there was no adequately reasoned engagement by the Secretary of State with the Claimant’s evidence nor does the Secretary of State identify the correct SOC code for the Claimant’s support workers. It is not enough for the Secretary of State to assert that an incorrect SOC code has been used.

Para. SW6.1 of the Rules, a mandatory requirement for leave to enter or remain, requires that a worker “must be sponsored for a job in an eligible occupation code.” If the Secretary of State was not satisfied that SOC code 6145 was correct, she should have refused the workers’ applications for leave to enter or remain.

Her assessment was clearly set out in the decision. It was based on three facts which entitled her to conclude that the SOC stated on 97 certificates of sponsorship did not correspond with the work undertaken:

The Claimant’s submissions to the Secretary of State accepted that it had made a mistake when assigning the 97 certificates of sponsorship and that the relevant workers were support, not care, workers.

The Guidance makes it clear that responsibility for assigning the correct occupation code rests with the sponsor. It is equally clear that a sponsor must withdraw a certificate of sponsorship and assign a new one if an error has been made.

In the circumstances, there had been a breach of annex C1(s) for which the Secretary of State will revoke a sponsor’s licence.

In answer to the Claimant’s new points:

The ONS published the Standard Occupational Classification 2010. It is contained in two volumes: the first is concerned with the structure and descriptions of unit groups and the second is the coding index itself. The former provides a classification for what is called “Minor Group 614” under the heading of “caring personal services”. The introductory paragraph states that those services are provided by those working in:

“caring personal services occupations transport patients by ambulance, stretcher, wheelchair or other means and assist health professionals with the care of patients in hospitals, dental surgeries, nursing homes, residential homes, clinics, day care services and within the home.”

Occupations identified as falling within Minor Group 614 are nursing auxiliaries and assistants; ambulance staff (but excluding paramedics); dental nurses; house-parents and residential wardens; care workers and home carers; senior care workers; care escorts and undertakers’ assistants.

The SOC’s coding index identifies the occupations that fall within the scope of particular SOC codes. For example, SOC 6145 includes activity organisers in nursing homes and old people’s homes; carers; carers (welfare services); care nurses; care workers (including welfare services); community care workers; domiciliary carers; residential care workers; care visitors; hobby therapists; home carers; nursing home orderlies; personal carers; residential officers (welfare services) and sitters (welfare services).

SOC code 6145 provides that:

“6145 CARE WORKERS AND HOME CARERS

Care workers and home carers attend to the personal needs and comforts of the elderly and the infirm with care and support needs (‘service users’) within residential care establishments, day care establishments or in their own homes.

TYPICAL ENTRY ROUTES AND ASSOCIATED QUALIFICATIONS

There are no formal academic entry requirements. In most cases workers will be required to register with the appropriate statutory body which involves satisfying the registration criteria …

TASKS

•

assists and enables service users to dress, undress, wash, use the toilet and bathe;

•

serves meals to service users at table or in bed, and assists with feeding if required;

•

generally assists with service users’ overall comfort and well being;

•

provides interest and activities to stimulate and engage the service user;

•

helps with daily activities such as letter writing, paying bills, collecting benefits;

•

undertakes light cleaning and domestic duties including meal preparation as required;

•

monitors service users’ conditions by taking temperature, pulse, respiration and weight and contributes to record keeping;

•

liaises with professional staff in carrying out care plans etc.

RELATED JOB TITLES

Care assistant

Care worker

Carer

Home care assistant

Home carer

Support worker (nursing home)”

The Claimant submitted that the Secretary of State was required to identify the correct occupation code. I do not accept this submission because it is plainly the sponsor’s obligation to do so. Para. S3.29 of the Guidance states that it is the sponsor’s responsibility to assign the correct occupation code, a task with which the Secretary of State cannot help. Para. S3.30 re-states the sponsor’s responsibility to select the correct occupation code and identifies the consequences for failing to do so. If a sponsor has provided incorrect information, para. S3.30 clearly warns that the Home Office “will take compliance action against you. This could include revoking your sponsor licence.” The weight of the sponsor’s responsibility requires it to withdraw a certificate of sponsorship and assign a new one if a significant error (such as allocation of the wrong occupation code) has been made: para. S3.36.

The Claimant also argued that, as the Secretary of State had failed to identify that the Claimant had not used the correct occupation code when each of the 97 workers was granted leave to enter or remain, she could not later rely upon annex C1(s) to revoke the sponsor’s licence. Putting to one side the important point that the Claimant’s submission is unsupported by authority, I am not persuaded that the submission is correct because it ignores the nature of the scheme and its broader relationship with the Rules. The scheme relies heavily on trust. An essential element of that trust is the expectation that an applicant worker’s employment will be consistent with the terms of his certificate of sponsorship, the scheme’s rules and wider domestic law (including immigration and employment law). The purpose of compliance visits is to check whether trust in a particular sponsor is justified. As the Secretary of State submitted, if the Claimant’s argument were right, no action could be taken in cases of mistake or deception because the Secretary of State could and/or should have uncovered the relevant error or lie at the leave stage. If that were so, annex C1(s) (as well as the other provisions in the annexes to Part 3 of the Guidance) would serve no purpose.

The Secretary of State failed to consider “global wages”. In short, it is not open to the Secretary of State to select a period of three months and, on the basis of wages paid during that period, conclude that the Claimant has paid its workers less than the amount stated on the certificate of sponsorship.

The Claimant relied upon the recent decision of Treal Care (UK) Limited v. Secretary of State for the Home Department [2025] EWHC 1797 (Admin) in which the court concluded that the Guidance does not set out the period over which the Secretary of State should review a person’s pay when assessing whether the requirements has been met.

The Secretary of State failed to ask herself the correct question and acted irrationally in holding, on the basis of wages over a three-month period, that the Claimant had paid its workers less than the amount stated on their certificates of sponsorship.

The Secretary of State also failed to engage with the evidence in an adequately reasoned manner. Mr Entonu’s evidence was clear: the wages reviewed fell within a transition period and there was a minor error in net wages which was promptly corrected. The Secretary of State did not recognise the error. Likewise, the Secretary of State failed properly to consider the evidence from other workers which was available to her before the decision was made.

The Secretary of State analysed payments made to four sponsored workers (including Mr Entonu) over a three-month period. None of the salaries met the expected base salary level when annualised that would meet the sum stated on the workers’ certificates of sponsorship. The Claimant has not challenged that factual finding.

Following the start of his employment by the Claimant, Mr Entonu’s annual pay was “re-assessed” and reduced to £23,000. The Secretary of State was not told about the reduction as she should have been. This finding was also not challenged by the Claimant.

On that basis, the Secretary of State concluded that annex C(1)(aa) of the Guidance applied. It provides that a licence will be revoked if the sponsor pays the worker less than the amount stated on the worker’s certificate of sponsorship and the sponsor has not notified the Secretary of State of the change in salary or the reduction is not otherwise permitted by the relevant rules or guidance.

In answer to the Claimant’s new point based on the Treal case, it was factually different to the present claim; the judge did not purport to state any relevant point of legal principle but in any event paras. 66 and 67 of the judgment undermine the Claimant’s case that the Secretary of State may not select a period of three months and conclude, on that basis, that the Claimant has paid its workers less than the amount stated on the certificate of sponsorship. In fact, the Treal judgment confirms that the Secretary of State is entitled to do that.

In answer to the pleaded argument, the Claimant accepted that it should have notified the Secretary of State that Mr Entonu was not to be paid the salary stated on his certificate of sponsorship. It failed to do so. Accordingly, the Claimant breached paras. SK 5.1-5.5; SK 8.6; SK 12.10; SK 12.26; C1.11; C1.13 and annex C1(aa) of the Guidance.

Mr Entonu’s statement (dated 15 December 2023) was provided to the Secretary of State and before the decision was made. He said that he had been under-paid but the error had been made good. That may be so but the point is that, irrespective of any shortfall, his annual salary had been reduced and officials had not been informed about it. The Claimant’s representations rightly accepted this failure. The result is that his annual salary was not that stated on his certificate of sponsorship.

Mr Damilola Adeyemi did not provide a statement but the other two employees (Ms Dominion Ayodele and Ms Deborah Kwarteng) did do so. The former agreed that she was paid less than the salary stated on her certificate of sponsorship. At para. 11 of her statement, Ms Ayodele said that, after she arrived in this country, her annual salary was “adjusted”, that is to say, reduced from that stated on the certificate. The latter also agreed that she was paid less than the stated salary in April and May 2023 but that she had accepted the position: paras. 10 and 11. Again, the result is that the annual salaries of these three employees were less than that stated on their certificates of sponsorship.

The Secretary of State made no reasoned finding that the SMS password had been disclosed to another person. On the contrary, it was only said that she was “not satisfied that this issue had been addressed” and it appears that she merely suspected a disclosure. That is an insufficient basis on which to revoke the licence because the Secretary of State must be satisfied that the password has in fact been disclosed to another person.

The Secretary of State failed to consider the evidence of Mr Igwe and Mr Adeboye and so failed to consider relevant matters. The former confirmed that the Claimant’s system is protected by its own firewall; the password and the login details are effectively secured and no-one else knows those details or sits with him when he issues a certificate of sponsorship. The latter confirmed that at no point was the password shared.

It is not disputed that the Guidance provides that only level 1 or level 2 users should have access to the password for the SMS. The Claimant’s level 1 user was Daniel Igwe. Mr Adeboye was neither a level 1 nor a level 2 user. He should not, therefore, have been provided with the password.

The question is whether the Secretary of State was lawfully entitled on the evidence before her to conclude that the SMS password had been shared by Mr Igwe with Mr Adeboye. The answer is that the Claimant’s evidence clearly demonstrated that the password had been shared. The Secretary of State considered the evidence of Mr Igwe and Mr Adeboye but reasonably preferred the account they gave in interview.

The password issue is not one which would necessarily require revocation of the licence. That said, it formed part of the totality of failings that led to the Secretary of State deciding that revocation was required.

Paras. 43-53 of the decision clearly set out the Secretary of State’s reasoning. In an interview with Home Office officials, Mr Igwe and Mr Adeboye said that they were responsible for reporting under the SMS. The handwritten note of the interview records that “AO [Mr Adeboye] or Daniel [Igwe] responsible for reporting via SMS.” The interview notes ended with a signed declaration that the information in the handwritten note was a “true and accurate description of the comments and responses I have given to the questions asked.” As it is accepted that Mr Adeboye was not a level 1 user and had not applied to be a level 1 user, he should not have been able to access the SMS. On that basis, the Secretary of State concluded that Mr Igwe had shared his SMS password with Mr Adeboye. The information given in interview, supported by a signed declaration of truth and the uncontroversial fact that Mr Adeboye was not and never had been a level 1 SMS user, was the reasonable basis upon which the Secretary of State concluded that Mr Igwe had shared his SMS password with Mr Adeboye. As the Secretary of State recorded at para. 48 of the decision, in the Claimant’s representations Mr Adeboye referred to the use of “our” username and password, a reference which is consistent with Mr Igwe having shared those details.

Although the Claimant noted that para. 52 of the decision simply stated that the Secretary of State was not satisfied that the password issue had been addressed, if paras. 43-53 of the decision are read in the round, it is tolerably clear that, having considered matters (including the Claimant’s representations), the Secretary of State preferred the evidence given in interview and supported by a signed declaration of truth. That was a reasonable approach and conclusion. Although para. 52 could have been more clearly drafted, the effective conclusion was that, because the password had been shared, the Claimant had breached annex C3(f).

As indicated above, paras. 43-53 of the decision were informed by material relied upon by the Claimant. For example, the Claimant’s representations were explicitly cited and considered. Although Mr Igwe’s statement was not expressly identified or quoted, the decision identified those parts of the Claimant’s representations which dealt with Mr Igwe’s role in relation to the SMS and access to it. Notably, Mr Igwe’s statement did not address the principal question, namely whether Mr Adeboye had accessed the SMS to make reports.

Access to the SMS is an important and sensitive matter. As Mr Spicer said in paras. 16 and 17 of his statement, the SMS is the means by which authorised users manage or renew their organisation’s licence or services. It is used to create and assign certificates of sponsorship and to report changes in their own and their sponsored workers’ circumstances. It is, therefore, important that the security of the SMS is protected and preserved and so access should only be provided to authorised persons. In these circumstances, the Secretary of State is entitled to take appropriate action where there are reasonable grounds for suspecting a breach of immigration control may happen. For that reason, I accept that, as the Court of Appeal affirmed in Prestwick, she may apply a “fairly high index of suspicion” and “a light trigger” in responding to a case where a sponsor’s failings may result in a breach of immigration control.

Para. 74 of the decision stated that the “guidance makes it clear that a sponsor is expected to have a system in place to ensure that they can conduct follow-up checks on a sponsored worker’s right to work prior to the expiry of any existing permission.” There is, however, nothing in the Guidance which requires a sponsor to have such a system.

The Claimant now uses the Cezzane HR system. The Secretary of State’s conclusion that the Claimant has not assured her that the system has been bought, installed and implemented failed to take into account Mr Adeboye’s evidence that expressly confirmed that Cezzane had been in use since June 2023. That failure amounts to a public law error.

In any event, the Secretary of State also failed to take into account the Claimant’s submission that it had monitored visa expiry information using a spreadsheet. In particular, the Secretary of State gave no or no adequate reasons whether the use of a spreadsheet is a process or procedure that is caught by annex C2(b) of the Guidance.

The Raj and Knoll principles emphasise that a sponsor is expected to “maintain its own records with assiduity” and to carry out its responsibilities with “all the rigour and vigilance of the immigration control authorities.” That expectation is echoed by the Guidance which emphasises “certainty in place of discretion … detail rather than broad guidance.”

The decision relied on a finding that the Claimant had failed to have in place an effective system to monitor the visa expiry dates for all its sponsored workers. That finding relied upon six admitted failings made by the Claimant in its submissions of 27 July 2023. In those circumstances, the Secretary of State’s conclusion that annex C2(a) and (b) had been breached was fair, rational and reasonable.

It was only after the various failings has been identified and admitted that the Claimant started to use the Cezzane system. The Secretary of State was, therefore, entitled to consider the position as it was found to be in May 2023. In any event, notwithstanding Mr Adeboye’s assertion that Cezzane had been installed, there was no direct evidence that the system was in fact used to monitor visa expiry dates.

As with the password issue, the monitoring issue was not one that by itself would justify revocation. That said, it formed part of the totality of failings that led the Secretary of State to conclude that revocation was required and in addition to the separate findings on the job description, salary and password issues that justified revocation.

The Claimant admitted that there were areas in which it had not been as proactive as the Guidance demanded “due to technical glitches”. The Claimant had previously used a software system (known as “Personio”) that had caused “glitches” which had caused an “irreparable loss of data”. In response, the Claimant had used a spreadsheet to monitor compliance with immigration rules and guidance but that had been “inadequate at times”. The Claimant assured the Home Office that the deficiency would not happen again and it had invested in Cezzane.

The Claimant accepted that share codes (the means by which a migrant’s right to work is proven) had been reported late to the Secretary of State.

The Claimant also accepted that its workers’ events had also not been reported on time but that compliance had improved. It also accepted that reporting of its workers’ “situation” had also been reported late.

Finally, in relation to three specific workers, the Claimant accepted the Secretary of State’s findings that their work start date had not been reported on time.

It provided a range of documents to the Secretary of State at her request. When considering whether a sponsor has complied with para. C1.34 of the Guidance, the Secretary of State must conduct a “global assessment” of the documentation. An inadvertent omission of a document from an extensive list of sought-for material does not amount to an automatic breach of para. C1.34.

In any event, the Secretary of State has not explained how the missing payslips were relevant to assessing the Claimant’s compliance with its sponsor duties. As the Secretary of State had all the other documents relevant to the workers, it was not open to her to find a breach of para. C1.34. Also, the Secretary of State failed to give the Claimant notice of a suspected breach of para. C1.34 and to consider the evidence of Mr Adeboye and other workers on this point.

Specific documents (P60 forms; three months’ pay slips and bank statements) were requested, but not provided, in relation to four identified workers. There was no reference to these documents in Mr Adeboye’s pre-decision statement but some explanation was provided in his post-decision statement.

There is no authority to support the Claimant’s suggested requirement of a “global assessment” which is inconsistent with the clear terms of para. C1.34 of the Guidance. There is also no evidence that the omission of the payslips was inadvertent; there is no requirement on the Secretary of State to explain the relevance of the missing payslips to her consideration of the Claimant’s compliance; there is no obligation to give the Claimant notice of a suspected breach of para. C1.34; and only one statement addressed the question of the missing payslips but that post-dated the decision.

The Secretary of State conceded that information about Mr Daniel Adeneye and Ms Juliet Oteng was available, it was not obvious and did not come in the form of a direct explanation from the Claimant. In any event, no information was provided to the Secretary of State before the decision in relation to Amaka Jimoh and Clement Agbarusim. In oral submissions, the Secretary of State further conceded that the Claimant’s representations had offered an explanation for the failure to provide the documents which had not been addressed in the decision.

This breach required revocation of the Claimant’s sponsor licence irrespective of any other matters.

It is said that the Secretary of State should have carried out what is described as a “global assessment” of the documents provided. The short point is that the allegation is inconsistent with para. C1.34 which requires the sponsor to give the Secretary of State “any documents relating to your sponsored worker”. Here, she sought documents that were relevant to verifying whether the Claimant was paying its workers the salary stated on the certificates of sponsorship. There is no submission that the request was burdensome to answer. Although a satisfactory explanation was provided in relation to documents concerning Ms Jimoh and Ms Oteng, no documents concerning Mr Agbarusim or Mr Adeneye were provided. To that extent, there was a breach of para. C1.34.

As to the submission that an inadvertent omission should not result in an automatic breach of para. C1.34, there is no evidence that the Claimant’s failure to comply with the request in relation to Mr Agbarusim or Mr Adeneye was inadvertent.

It is alleged that the Secretary of State failed to give it notice of the suspected breach of para. C1.34. If the Secretary of State were under an obligation to do so (which is not clear from the Guidance), she discharged it. The suspension letter cited para. C1.34 and set out the consequences of a failure to comply with the document request.

It is said that the Secretary of State failed to explain the relevance of the missing payslips to her assessment of the Claimant’s compliance with its sponsor duties. However, the Secretary of State is not required to do so. Para. C1.34 places the burden on the licence-holder to comply with a request for documents which were sought to make sure that the Claimant was paying its workers what was stated on the certificates of sponsorship.

Having regard to para. 100 of the Prestwick decision, the Secretary of State considered her discretion and the option of downgrading the Claimant’s licence in paras. 104-107 of her decision but that exercise was vitiated by public law errors. In particular, the Secretary of State failed to take into account or engage with Mr Adeboye’s evidence on why alternatives to revocation should be considered. In that regard, it was not open to the Secretary of State to suggest that there was no scope to rectify shortcomings and omissions without engaging with the evidence.

It is tolerably clear that the Secretary of State concluded that downgrading was not appropriate because of the findings in relation to annexes C1(s) and (aa), C2(a) and (b) and C3(f). If those findings were unlawful, the Secretary of State’s conclusion on the exercise of her discretion cannot stand.

The Claimant had abandoned ground 7 following the Court of Appeal’s conclusion in Prestwick that the Secretary of State was under no obligation to carry out a “global assessment” of whether revocation was reasonable and proportionate. Instead, the Claimant is advancing an unparticularised argument that the Secretary of State committed various public law errors in not engaging with Mr Adeboye’s evidence. That is no more than an attempt to resurrect the “global assessment” argument by other means.

Mr Adeboye’s evidence on the factors which pointed against revocation were the very things that the Court of Appeal rejected in Prestwick: the impact of revocation of employees and their families; on service users; on health service and care commissioners.