In respect of an application by a care sector sponsor for Defined Certificates of Sponsorship, the High Court has ruled that it was “irrational” for the Home Office to require evidence of guaranteed hours contracts.
When looking to hire overseas workers, sponsor organisations must first request a Defined Certificate of Sponsorship (DCoS) in respect of each such worker. When submitting this request, the sponsor must provide certain details of the role, to confirm that it is eligible for sponsorship. The Home Office will then consider the request, and may require further evidence from the sponsor to determine whether the role is appropriate for sponsorship and whether there is a genuine vacancy to be filled.
The care sector has come under particular scrutiny from the Home Office in recent months, due to a minority of unscrupulous employers exploiting vulnerable migrant workers. You can read more about that here. As a result, DCoS requests from care sector sponsors are comparatively more likely to be met with a Home Office request for further evidence than, for example, sponsors in the IT or retail sectors.
In R (Hartford Care Group Ltd) v Secretary of State for the Home Department, care sector sponsor Hartford Care Group Ltd (“Hartford”) requested 70 DCoS for care workers. The Home Office responded with a request of its own, for additional information and evidence to demonstrate genuine vacancies. In particular, the Home Office required Hartford to provide copies of contracts evidencing a “guaranteed agreement to provide services”. While Hartford provided copies of their contracts with local authorities, the Home Office ultimately rejected the DCoS request on the grounds that these contracts did not confirm guaranteed working hours.
Hartford sought judicial review of the Home Office’s decision. The sponsor argued that the Immigration Rules say nothing about guaranteed hours contracts being required to show a genuine vacancy. Further, such contracts are not typical in the care sector, as these agreements between care providers and local authorities are designed to be flexible, to ensure that the sector can meet changing demand.
In their judgment, the High Court concurred that it was “irrational” for the Home Office to require care sponsors to provide guaranteed hours contracts, as “such contracts simply did not exist as standard contracts in the care sector”. It was therefore impossible for Hartford to provide such evidence, much as it would be for any other care sponsor, and their inability to do so should not have been relevant to determining whether there were genuine vacancies. As such, the High Court concluded that a care sponsor can have genuine vacancies without such contracts being place.
Care sponsors should now no longer be required to provide evidence of guaranteed hours contracts when making DCoS requests. Indeed, care sponsors who have had previous DCoS requests rejected, on the basis that they were unable to provide guarantee hours contracts, may now want to consider resubmitting these requests, following this judgment.
However, the scrutiny on the care sector remains intense, and care sponsors’ DCoS requests will doubtless continue to be met by comprehensive demands for evidence from the Home Office.
If you need support with your DCoS requests, or with managing your sponsor licence more generally, please do get in touch at [email protected]
