Genuine Job Vacancy Requirement for Sponsoring Care Workers: An Administrative Review Comes to the Fore for the High Court in UK

Table Of Contents

1. What is the Case
2. The Background of the Case
3. The Decision by the High Court
4. Implication for the Sponsors and Home Office

A care home operator company, Hartford Care Group Ltd., received the decision in its favor by the deputy judge of the High Court in the Hartford Care Group Ltd., R (On the Application Of) v. Secretary of State for the Home Department [2024 EWHC 3308(Admin)] case, where the care home operator’s application for a defined certificate of sponsorship was refused in 2024 by the Home Office. The Home Office denied issuing the COS because the jobs offered by the care home operator were not genuine. After all, it could not provide official contracts demonstrating immediate requirements for the workers and guaranteed hours of work. The court decided that the Home Office’s approach while determining the genuineness of the jobs was unlawful.

What is the Case?

This is a case between a care home operator in the UK and the Secretary of State for the Home Department. In January 2024, the care operator had applied for defined COS to sponsor 70 overseas care workers. After assessing the application, the Home Office demanded that the care operator show copies of official contracts with local authorities for guaranteed hours of work to demonstrate that there was a genuine vacancy required to be filled.
The company provided contracts with three local councils. In these contracts, the local councils had not provided a guarantee for the number of users and staff required which is a normal scenario in the social care sector in the UK. However, the Home Office denied issuing COS to the care operator due to the following:

• The contract did not mention the immediate requirement of staff and
• There were no guaranteed hours of work in the contract

This did not satisfy the Home Office, and they concluded there were no genuine vacancies to fill, and the COS application was made by the care operator in anticipation of future demand for care staff.
The care operator instead of reapplying for COS went for a judicial review in the High Court against the Home Office’s decision.

The Background of the Case

Hartford Care Group Ltd. is a UK-based company that provides a range of care services, including residential, nursing, dementia, and respite care across the south of England. The care operator has held a sponsor license since 30 April 2019. During 2023, it sponsored and applied for defined COS for recruiting 93 workers from overseas to work for a group of companies successfully. A defined COS is a mandatory requirement for sponsoring overseas care workers. This is assigned to the care worker to obtain leave to enter the United Kingdom to work for a sponsoring employer. Since October 2023, the Home Office has started asking the care worker sponsors to prove that they needed additional staff from overseas to fill genuine vacancies. The Home Office started asking for official copies of contracts from the sponsors to demonstrate the genuine requirements
of the staff.
Effective from 11 March 2024, there was a change in the rule from the Home Office. Now, care workers coming to the UK cannot bring their family members with them anymore. The care operator in this case thus applied for COS to recruit 70 overseas care workers in January 2024 when the rule was not effective.
In the case of hiring care workers, it was not mandatory to show that there was an immediate requirement for the staff to be sponsored. Sponsors could apply based on potential demand in the future.
However, the Home Office denied the application, citing there was no immediate requirement for the staff, and thus there was no genuine job vacancy on the part of the care operator.

The Decision by the High Court

The High Court ruled in favor of the care operator. It stated that the Home Office’s interpretation of genuine job vacancies was unlawful. It also said that in case of hiring care workers an expected future demand can be considered as a genuine job vacancy.

Implication for the Sponsors and Home Office

This judgment comes as a positive signal for care sector sponsors. Now sponsors who were previously denied COS due to contract guarantees can reapply, and vacancies based on expected future demands may still meet the genuine vacancy requirement.
It will be interesting to see the Home Office’s future approach while assessing genuine job vacancies.

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