Minster Care Management Ltd v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Neil Cameron |
| Judgment Date | 05 June 2015 |
| Neutral Citation | [2015] EWHC 1593 (Admin) |
| Date | 05 June 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6100/2014 |
[2015] EWHC 1593 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Neil Cameron QC
(Sitting as a Deputy High Court Judge)
Case No: CO/6100/2014
Mr Michael Biggs (instructed by Fernandes Vaz) for the Claimant
Ms Cathryn McGahey (instructed by The Government Legal Department) for the Defendant
Hearing date: 21 st April 2015
The Deputy Judge ( Neil CameronQC):
Introduction
This is an application for judicial review to quash a decision made by the Secretary of State for the Home Department, communicated by letter dated 25 th November 2014 ("the Decision Letter") to revoke a Tier 2 sponsor licence held by Minster Care Management Limited.
The application came before the Court as a 'rolled up' hearing pursuant to an order made by Green J. At the hearing I gave directions allowing the parties to make further written submissions on one issue, namely the approach to be taken by the Court when considering the appropriate remedy. I made that ruling in the light of the fact that the Defendant had conceded that ground 4 of the claim was made out. The Claimant made written submissions, to which the Defendant replied. The Claimant made no response to the Defendant's reply. I understand from the observations made on the draft of this judgment that that the Claimant made no response as the Defendant's reply was not served on it. I am satisfied that the Claimant has suffered no prejudice as a result of being denied the opportunity to respond.
The Claimant did not confine its submission to the one issue on which I gave permission for further submissions to be made. In its written submissions the Claimant made further submissions on grounds 2 and 3 of its claim.
Background
The Secretary of State operates a points based system under the Immigration Rules. Under the points based system migrants intending to enter the UK are required to achieve a specified minimum number of points broadly reflecting the migrant's qualifications for admission in the relevant category or Tier. The Tier 2 'route' enables UK employers to recruit workers from outside the EEA to fill a particular vacancy that cannot be filled by a British or EEA worker.
A company or other organisation is permitted to apply to the Secretary of State for a sponsor licence. Under the scheme a migrant must have a sponsor before he or she can apply to come to, or remain in, the UK for work. Prospective sponsors can apply for a licence to employ migrants under a number of different categories, including Tier 2 for skilled sponsored workers.
The Secretary of State has issued guidance for sponsors. The guidance under consideration in this case is the Tier 2 and 5 of the Points Based System Guidance for Sponsors version 11/14 ("the Tier 2 and 5 Guidance"). The Tier 2 and 5 Guidance does not form part of the Immigration Rules, but is issued under the Secretary of State's ancillary and administrative powers which are not spelt out in the Immigration Act 1971 ( R (oao New London College Limited) v. Secretary of State for the Home Department [2013] UKSC 51 at paragraphs 28–29).
The introduction to the Tier 2 and 5 Guidance explains the concept of sponsorship:
"1.1 Sponsorship is based on two principles:
a) Those who benefit most directly from migration (employers, education providers or other bodies who are bringing in migrants) should play their part in ensuring the system is not abused.
b) We need to make sure that those applying to come to the UK for work or to study are eligible and that a reputable employer or education provider genuinely wishes to take them on.
1.2 A migrant must have a sponsor before they can apply to come to, or remain in the UK for work or study. The same applies where a Croatian national who is already in the UK needs to apply for worker authorisation in the form of a Purple Registration Certificate. The sponsor will be an organisation in the UK that wishes to employ, or provide education to a migrant. More information on Croatian nationals applying for worker authorisation is available on our pages on the GOV.UK website at: www.gov.uk/croatian-national.
1.3 Sponsorship plays two main roles in a migrant's application for permission to come to, or remain in the UK to work or study:
a) It provides evidence that the migrant will fill a genuine vacancy that can't be filled with a suitably qualified or skilled settled worker, or that they will be studying for an approved qualification.
b) It involves a pledge from the sponsor that it accepts all of the duties expected when sponsoring the migrant."
Under the Tier 2 arrangements a person granted a licence as a sponsor is able to assign certificates of sponsorship ("CoS") to migrants who wish to work for them (paragraph 2.6 of the Tier 2 and 5 Guidance). Such assignment of CoS is carried out using the online Sponsor Management System ("SMS").
The Tier 2 and 5 Guidance emphasises the duties imposed upon sponsors and that sponsors will be monitored:
"2.7 As a licensed sponsor you must meet certain duties such as informing us if migrants do not turn up for work or are absent without permission for a significant period. You must keep records on the migrants you sponsor, including up-to-date contact details and a copy of their biometric residence permit (BRP). You must also give any documents to us on request. For more information on biometric residence permits, please see after admission to the UK — the biometric residence permit.
2.8 We will monitor your ability and willingness to always comply with your duties. We will:
a) set a limit on the number of CoS you can assign;
b) visit you, to check you are complying with your duties;
c) refer cases for civil penalty action, or possible prosecution if we find evidence that you may have employed migrants illegally.
For more information on sponsor duties, please see sponsor duties."
The Tier 2 and 5 Guidance states that a failure to comply with sponsor duties may lead to suspension or revocation of the licence (paragraph 2.12).
Annex 5 of the Tier 2 and 5 Guidance sets out the circumstances in which a licence will be revoked and Annex 6 sets out circumstances in which a licence may be revoked.
A similar system applies in the case of education colleges who can apply to be entered on the Register of Tier 4 Sponsors. A Tier 4 sponsor can issue a 'Confirmation of Acceptance for Studies', which can in turn be relied upon by a migrant seeking entry under the points based system. In R (oao The London Reading College Limited) v. Secretary of State for the Home Department [2010] EWHC 2561 (Admin) Neil Garnham QC sitting as a Deputy High Court Judge considered an application for judicial review to quash the Secretary of State's decision to remove the applicant college from the sponsor register. At paragraph 60 of the judgment he stated:
"It has to be remembered that the primary judgment about the response to breaches of a College's duty is the Defendant's, and the Court's role is simply supervisory. It has also to be remembered that the underlying principle behind this scheme is that the UKBA entrusts to Colleges the power to grant visa letters on the understanding, and with their agreement, that they will act in a manner that maintains proper immigration control. The capacity for damage to the national interest in the maintenance of proper immigration control is substantial if Colleges are not assiduous in meeting their responsibilities. In those circumstances, it seems to me that the Defendants are entitled to maintain a fairly high index of suspicion as they go about overseeing colleges and a light trigger in deciding when and with what level of firmness they should act."
The principle which underlies the Tier 2 scheme, which is similar to the Tier 4 scheme, is that the Defendant entrusts to sponsors the power to grant CoS on the understanding, and with their agreement, that they will act in a manner which maintains proper immigration control. The potential for damage to the maintenance of proper immigration control is substantial if sponsors are not assiduous in fulfilling their responsibilities.
The Facts
The Claimant is a business which owns and runs care homes and forms part of the wider Minster Care Group. The Minster Care Group is a group of companies which are linked by the fact that their shares are held by the Patel family trusts. There are two main companies in the group, the Claimant, whose primary function is to run care homes for the elderly, and Pathways Care Group Limited, whose primary function is to run care homes for people with learning disabilities. Pathways Care Group Limited was, until 4 th August 2010, known as Minster Pathways Limited. Both the Claimant and Pathways Care Group Limited have a number of subsidiary companies. The link between the Claimant and Pathways Care Group Limited is that the two companies are both owned by the Patel family trusts and that Mr Surendra Patel and/or Mr Manesh Patel are directors of the companies and their subsidiaries. The Patel family trusts also own two other companies, Daimler Green Care Home Ltd and Minster Haverhill Limited.
The Minster Care Group runs approximately 80 care homes in England and Wales and employs approximately 2,500 staff.
The Claimant applied for Tier 2 sponsor licence in December 2008 and it was subsequently entered on the register of Tier 2 sponsors.
The Minster Care Group employs 29 Tier 2 migrant...
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