Prestige Social Care Services Ltd (R on the application of) v The Secretary of State for the Home Department

A finding that a sponsored role is not genuine under Annex C1 ground (z) does not invariably require dishonesty or reprehensible conduct. The listed examples in ground (z) and paras C1.46–C1.47 of the Sponsor Guidance do entail such conduct and attract enhanced procedural safeguards. Outside those examples, a role may be non-genuine where reasonable grounds show that it lacks one of the three characteristics in para C1.44, provided the focus remains on the vacancy rather than the worker and the defect is materially connected with genuineness. Poor recruitment may instead establish breaches of sponsor duties under Annex C2. An irrational finding under ground (z) did not require relief where it was highly likely that revocation would have occurred under independently rational Annex C2 grounds.

The claimant, a specialist care provider, challenged the revocation of its sponsorship licence. The defendant relied on high staff turnover, the recruitment of a worker whose visa application failed, and the recruitment of a worker who could not drive despite the role requiring driving. The decision relied both on Annex C1 ground (z), concerning non-genuine roles, and on Annex C2 grounds (a) and (b), concerning breach of sponsor duties and inadequate compliance processes.

Permission was refused on the claimant’s challenge to the absence of a wider impact assessment following R(Prestwick Care). The remaining issues were the meaning of genuine vacancy, the rationality of the defendant’s factual and legal conclusions, and whether relief should be refused under section 31(2A) of the Senior Courts Act 1981.

1. Meaning of ground (z). The Court of Appeal had not settled whether a non-genuine role always required dishonesty or reprehensible conduct. The examples in ground (z) and paras C1.46–C1.47, including a sham, deliberate exaggeration, a role created mainly to facilitate immigration, and a role that does not actually exist in the sense of being fake or bogus, do involve such conduct. Revocation on those bases therefore requires the procedural safeguards identified in R(Supporting Care Ltd).
2. Paragraph C1.44 sets out a closed, definitional set of characteristics of a genuine vacancy: the job must require the specific duties and meet the route requirements; it must not contain dissimilar or predominantly lower-skilled duties; and it must be appropriate to the business’s model, plan and scale. A role may lack one of those characteristics without dishonesty or reprehensible conduct. The inquiry concerns the vacancy or role, not merely the worker’s ability to perform it. Ground (z) must not be stretched so far that other Annex C1 or Annex C2 grounds become redundant.
3. The defendant rationally found that the claimant’s staff turnover was unusually high and raised a threat to immigration control. It rationally found that the recruitment of the worker whose visa application failed was a failure of recruitment practice. It also rationally found that the recruitment of the worker unable to drive was a clear failure of recruitment practice.
4. However, the conclusion that the latter worker’s role was non-genuine was irrational. The decision treated the worker’s inability to drive as itself demonstrating that the role was not genuine, rather than asking whether the role required driving and whether there were reasonable grounds to believe it was not genuine. The claimant’s prompt withdrawal of sponsorship was potentially inconsistent with the role being non-genuine.
5. The same findings rationally established Annex C2 grounds (a) and (b): breach of sponsor duties and failure to use processes necessary for compliance. The defendant’s decision expressly treated those grounds as independent bases for revocation.
6. Under section 31(2A) of the Senior Courts Act 1981, relief was refused. It was highly likely that the outcome would not have been substantially different without the ground (z) error. The decision’s alternative Annex C2 reasoning was untainted, rational, and inconsistent with any exceptional circumstances justifying a different outcome. The claim was dismissed, permission to appeal was refused, and the claimant was ordered to pay £18,000 in costs within three months.

First-instance judicial review. Permission to appeal was refused.