Lessons from Prestwick Care – The greater public good does not save a non-compliant businesses from losing their immigration sponsor licence

This article was originally published on Caring Times.

There have been many news items in the media recently about the UK health and care sector and its reliance on international employees who require UK work visas.

It is generally accepted that these international workers and their employers make a valuable contribution to the UK’s care industry, which, as is frequently reported, is in urgent need of more workers. However, even this valuable contribution does not save employers who breach their sponsor duties from having their sponsor licence revoked by the Home Office.

Prestwick Care Ltd’s story is a timely reminder of the Home Office’s approach to immigration sponsor compliance in care homes. Prestwick Care is reported to have had over 200 employees who held a Skilled Worker visa in the Health and Care Worker visa sub-category. All of them were sponsored via the business’ sponsor licence granted by the Home Office previously.

Over time, visa compliance requirements have transferred from sitting directly with the Home Office to delegation on to employers via the sponsor licence regime . There is now a long list of duties that  employers who have been granted a sponsor licence need to fulfil. The majority of these duties revolves around running genuine recruitment processes, reporting changes to the organisation and sponsored employees’ circumstances, complying with minimum skill and salary requirements, and general compliance with other UK laws, for example employment and tax.

In Prestwick Care’s case the Home Office identified shortcomings in several areas of sponsor compliance, such as:

• Some employees were not undertaking the duties declared to the Home Office on their Certificate of Sponsorship (COS), making them question whether there was ever a genuine vacancy to start with;
• Salaries paid were lower than those declared on employees’ COSs, and no explanation as to why was provided (bearing in mind that salaries must not drop below a certain prescribed level);
• Insufficient sick pay being paid;
• Clawing back of immigration costs which must not be passed onto the employee (such as the COS fee and Immigration Skills Charge);
• Lack of processes to effectively monitor sponsored migrants and their circumstances;
• Shortfalls in the record keeping requirements in relation to each employee.

In combination they were sufficient for the Home Office to decide that Prestwick Care could not manage its sponsor duties adequately, and therefore should have its sponsor licence revoked.

The care home asked the High Court to consider the consequences to society if it was to lose its sponsor licence and over 200 employees were to lose their right to work and ability to look after vulnerable residents with next to no warning or time to adjust care arrangements. Of course, 200+ employees who generally had no part in the non-compliance would also lose their sponsorship and livelihood and would either have to try and find a new Health and Care Worker visa sponsor, switch to another visa category, or leave the UK within a very short period of time (usually 60 days).

However, the High Court was not swayed by the ‘greater good’ argument, or any argument advanced in relation to the impact on the business and its employees. It decided that the Home Office’s duty was to ensure that sponsors complied with their responsibilities, and where they did not, that they accepted the consequences of their actions.

It is estimated that well over 100 social care employers lost their sponsor licences in 2022 and 2023 due to non-compliance with their sponsor duties, resulting in nearly 3,000 workers losing their immediate sponsorship. All of these issues have resulted in the Home Office now requiring health and care providers in England to register with the Quality Care Commission before they can obtain a sponsor licence and/or sponsor new migrants for a Health and Care Worker visa.

It is prudent to remember that the various sponsor duties apply to every business holding a sponsor licence, regardless of size or industry. Businesses, and those responsible for the proper administration of the sponsor licence (such as the Authorising Officers, for example), need to ensure they are fully versed in their responsibilities and how they are actually being discharged within the organisation. If there is doubt that all bases are adequately covered it is always a good idea to ask an immigration services provider to undertake a mock audit. That way issues can be identified and rectified before the Home Office discovers them out during an audit.