Operation Holdings Ltd (t/a Goldcare Homes), R (On the Application Of) v The Secretary of State for the Home Department

Revocation of a Tier 2 sponsor licence is reviewable principally on ordinary public-law grounds, with appropriate respect for the Secretary of State’s expertise and judgment. A sponsor’s failure to show that a migrant is performing work at the required skill level may independently justify revocation. That ground does not require proof of dishonesty.

However, where the Secretary of State relies on the separate concept of a non-genuine vacancy, the relevant guidance connotes deliberate deception in the examples it gives. An inference of dishonesty must itself be rationally supported by the circumstances. A sponsor must be given a fair opportunity to demonstrate compliance, but the demanding nature of the scheme may make relatively limited questioning procedurally sufficient.

Goldcare Homes sought judicial review of the Secretary of State’s decision of 30 November 2018 revoking its Tier 2 sponsor licence. The decision followed an unannounced compliance visit concerning the duties performed by a sponsored Business Analyst, Mr Tiwari.

The Secretary of State relied on three freestanding grounds: false information, a non-genuine vacancy, and employment in work below the required skill level. Goldcare argued that dishonesty was a precedent fact, that the decision was irrational and procedurally unfair, that the evidence requirements were unreasonable, and that Convention rights were engaged.

1. Claim dismissed. The Secretary of State’s decision was supported by three independent pillars. Any one of them could justify revocation under the Sponsor Guidance.
2. The sponsor licence scheme places substantial responsibility and trust on sponsors. The Secretary of State makes the primary judgment on the appropriate response to non-compliance. The court’s role is supervisory, and the decision is ordinarily reviewable on rationality grounds, allowing appropriate weight to the Secretary of State’s expertise.
3. The dishonesty finding was not a precedent fact within R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC 74. Sponsor-licence decisions involve judgment under guidance rather than the exercise of a statutory power dependent on objectively establishing dishonesty.
4. The Secretary of State was entitled to conclude that the evidence did not establish that Mr Tiwari performed the higher-level duties described in his Certificate of Sponsorship. Employment in a job below the required skill level constituted an independent breach of Annex 5(r), for which the Guidance stated that the licence would be revoked. Dishonesty was unnecessary to that conclusion.
5. There was no procedural unfairness. Goldcare and Mr Tiwari had an adequate opportunity to provide oral and documentary material. The shorter interview did not, in this context, make the process unfair. The Secretary of State had also considered whether a lesser sanction or action plan was appropriate.
6. As an additional, unnecessary conclusion, the court held that the genuine-vacancy concept in paragraph 15.13 of the Guidance connoted dishonesty in the relevant examples. The inference of dishonesty in this case was irrational, having regard to the sponsor’s business, reputation, limited number of sponsored workers, previous inspections and the apparent misunderstanding of the role. The dishonesty finding was therefore quashed, although the revocation decision remained unimpeachable.
7. The Convention arguments were unsupported and failed. On the facts, Article 8 and Article 1 of Protocol 1 did not provide a basis for relief; alternatively, any interference would have been proportionate.