Hartford Care Group Limited, R (on the application of) v The Secretary of State for the Home Department

A decision-maker assessing whether a sponsored vacancy is genuine may request relevant evidence, but must apply the statutory and policy test rationally. It is unlawful to require care providers to produce service contracts guaranteeing specified hours, users or staffing levels where such contracts do not ordinarily exist and the evidence has little bearing on whether the proposed employment is genuine.

Recruitment may be based on expected demand and need not await a binding local-authority commitment. A public authority must make sufficient inquiry into relevant sector circumstances before relying on an artificial evidential requirement. Judicial review relief should not be refused merely because the claimant could have reapplied where reapplication would probably have repeated the unlawful approach and exposed the sponsor to compliance action.

Hartford Care Group, a care-home operator and licensed sponsor, applied for 70 Defined Certificates of Sponsorship for overseas care workers before immigration-rule changes prevented those workers from bringing family members.

The Secretary of State requested service contracts demonstrating guaranteed work, specified users and staffing levels. Hartford supplied framework and spot contracts, employment information, organisational charts and rotas. The applications were rejected because the contracts did not guarantee the required work.

Hartford sought judicial review, alleging breach of the Immigration Rules, reliance on an unpublished policy, irrationality and inadequate inquiry. It also sought declarations governing any certificates issued after reconsideration.

1. Claim allowed in part. The refusal of the 70 Defined Certificates of Sponsorship was quashed and declared unlawful. The additional declaration concerning the later immigration status of potential recruits was refused.
2. The core requirement in paragraph SW5.5 of the Immigration Rules was that the decision-maker must have reasonable grounds to believe that the sponsored job did not exist, was a sham or had been created mainly to facilitate immigration. The Secretary of State was entitled to develop an evolving procedural approach to testing that requirement and was not confined to the checks listed in the guidance.
3. However, the approach adopted was irrational and Wednesbury unreasonable. It treated service contracts containing guaranteed hours, specified users and specified staffing levels as necessary evidence, although such provisions did not ordinarily exist in the care sector. The approach had little or no bearing on whether genuine vacancies existed and wrongly assumed that local authorities would guarantee demand.
4. The policy required assessment in light of the sponsor’s business model, business plan and scale. Genuine vacancies could be recruited prospectively to meet expected demand, support higher staffing levels or expand the business. Relevant evidence included the organisational charts, rotas, employment contracts, existing local-authority contracts, and the provider’s statutory and regulatory duty to deploy sufficient staff.
5. The approach was not an unpublished policy because it had not been formally adopted or disseminated as a policy and its requirements were disclosed in the information request. Nevertheless, the Secretary of State failed to make sufficient inquiry. Proper inquiry into the care sector would have shown that guaranteed-hours service contracts were not a rational measure of genuine vacancies.
6. Section 31(2A) of the Senior Courts Act 1981 did not require refusal of relief. It was not highly likely that the same decision would have been reached lawfully. Reapplication was not an adequate alternative because the same requirement would probably have been imposed and the sponsor had been warned of possible compliance action.
7. The court declined to compel treatment of future applications under superseded Immigration Rules. Any historic unfairness could be considered by the Secretary of State when exercising future discretion, but the circumstances were not exceptional gross maladministration or conspicuous unfairness warranting the requested declaration.

First-instance judicial review. The refusal decision was quashed and declared unlawful. The application for additional declaratory relief was refused.