Tendercare Management Limited, R (on the application of) v Secretary of State for the Home Department

A sponsor-licence revocation decision is reviewed for legal error and rationality, not on its merits. The sponsor bears the evidential burden of showing compliance with the Guidance. A sponsor supplying workers to third parties must show that it retains responsibility for the workers’ duties and that the work is specific, time-limited and non-routine. Mandatory revocation provisions in the Guidance operate as rules, not merely flexible policies. Where a mandatory ground is established, the Secretary of State need not investigate or give detailed reasons for discretionary submissions, although a residual discretion to refrain from revocation may remain for cogent reasons. A sponsor’s absence-recording system must permit both the amount and reasons for absences to be identified.

The claimant operated a care home and supplied sponsored care workers to other care providers. Its sponsor licence was revoked after an investigation raised concerns about third-party labour, the genuineness and character of sponsored roles, and records of migrant absences.

The claimant sought judicial review on nine grounds, alleging irrationality, misdirection, procedural unfairness, misapplication of the Guidance and failure properly to exercise discretion. The central issues were whether the arrangements amounted to prohibited agency or routine third-party labour, whether the absence records were adequate, and whether the Secretary of State had lawfully approached revocation.

1. The claim was dismissed. The court’s role was supervisory. It was not permitted to substitute its own assessment of the evidence or the merits of the revocation decision. The claimant bore the burden of demonstrating compliance with the sponsor regime.
2. The Secretary of State rationally concluded that the claimant had not shown that work undertaken at third-party care homes was non-routine and time-limited. Evidence that the claimant supervised the workers addressed only one aspect of the Guidance. It did not establish a specific service or project with an end date. The evidential burden remained undischarged.
3. The decision letter was to be read in a straightforward and practical manner. The reference to contractual differences rather than differences in relationships was immaterial. The claimant had a fair opportunity to address the substance of the concern. The absence of separate scopes of work was not a new reason for revocation within C9.12; it formed part of the existing concern about third-party labour.
4. Minster Care Management Ltd concerned the misapplication of an employment-agency provision to a business that was not an employment agency. It did not establish that retaining supervision and control was by itself sufficient to satisfy the Guidance. The Secretary of State relied on the applicable provision concerning a business acting as an employment agency and was entitled to do so.
5. The Guidance required an absence-recording system capable of identifying both the duration and reasons for absences. That followed from S4.20–S4.29, including the duty to cease sponsorship after the specified period unless a valid reason applied. The finding that the claimant’s records were inadequate was neither irrational nor ultra vires.
6. The Guidance lawfully contained mandatory rules. Where a C1 mandatory ground was established, the Secretary of State was not required to conduct a separate reasoned assessment of the claimant’s commercial, social or other discretionary submissions. A residual discretion to refrain from revocation could remain, but there was no obligation to exercise or explain it absent a cogent reason. The mandatory breach also made it unnecessary to conduct a separate analysis of the C2 ground.
7. The reasons given were adequate in context. The application for judicial review was refused and the claim dismissed.