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

Judicial review of a decision to revoke a Tier 2 sponsor licence is not an appeal on the facts. The Secretary of State is the primary fact-finder, and a factual conclusion is unlawful for perversity only where no reasonable fact-finder could have reached it. A serious breach of sponsor duties will ordinarily justify revocation unless exceptional circumstances are shown. Where a sponsor has issued Certificates of Sponsorship for jobs that do not correspond with the work actually performed, revocation may be proportionate under Article 8 of the European Convention on Human Rights, even where closure of the business and disruption to residents are asserted.

The claimants challenged the Secretary of State’s decisions to revoke and maintain the revocation of a nursing home’s Tier 2 sponsor licence. The licence had been revoked after an inspection suggested that three workers sponsored as Public Relations Officers were in substance working as health care assistants or were not performing the sponsored roles. The claimants alleged factual and public-law errors, and contended that revocation would cause the nursing home to close, interfering with the second claimant’s private life under Article 8 of the European Convention on Human Rights. The central issues were whether the factual conclusion was legally flawed and, if Article 8 was engaged, whether revocation was proportionate.

1. Factual assessment. The Secretary of State was entitled to consider the staff rotas, interview records, criminal-record-check documentation, the director’s description of the work and the absence of reliable corroborating evidence. The fact that the workers were nominally appointed as Public Relations Officers, paid at an appropriate rate or described as such in individual records did not compel a different conclusion.
2. Intensity of review. Judicial review is not an appeal on the facts. The Secretary of State was the primary fact-finder, and the conclusion could be challenged for perversity only if no reasonable fact-finder could have reached it. That threshold was not met.
3. Sponsor guidance. The identified breach fell within the discretionary revocation provisions of the sponsor guidance. The guidance treated such a breach as serious and indicated that revocation should ordinarily follow unless the sponsor showed that it was not responsible, had promptly remedied the position or there was another special reason. No such circumstances were established.
4. Article 8. The continuing ability of a frail elderly resident to remain in a familiar nursing home could form part of private life. However, the claimants had not established that revocation would necessarily cause the home to close. In any event, assuming Article 8 was engaged, any interference pursued the legitimate aim of maintaining immigration control and was proportionate. The sponsor had issued Certificates of Sponsorship for three workers who were not performing the sponsored roles, undermining the trust on which the points-based sponsorship system depended.
5. Disposition. All grounds of challenge failed. The application for judicial review was dismissed.

Permission to apply for judicial review was granted by Collins J on 29 December 2014. Interim relief was granted by Cox J on 6 November 2014, so the revocation had not taken effect when this judgment was delivered. The claim was dismissed by the High Court (Administrative Court).