In R (J’s Supermarket Ltd) v Secretary of State for the Home Department; R (Prestige Social Care Services Ltd) v Secretary of State for the Home Department [2026] EWCA Civ 1147, the Court of Appeal considered two joined appeals concerning the revocation of sponsor licences under the Skilled Worker route.
The appeals addressed the requirements of procedural fairness where the Secretary of State concludes that a sponsored role is not genuine, the meaning of a ‘threat to immigration control’, and the circumstances in which a court must refuse relief under section 31(2A) of the Senior Courts Act 1981.
The Court of Appeal dismissed both sponsors’ appeals. It also dismissed the Secretary of State’s cross-appeal in the Prestige proceedings.
Matthew Howarth represented the Secretary of State in both appeals. In the Prestige appeal, he led Thomas Yarrow of Deka Chambers. They were instructed by the Government Legal Department.
Facts
J’s Supermarket
J’s Supermarket operated a medium-sized supermarket in Tooting and held a sponsor licence permitting it to sponsor workers under the Skilled Worker route. It assigned certificates of sponsorship to two employees for roles described as retail manager and shopkeeper.
During a Home Office compliance visit, the employees described duties that differed markedly from those recorded on their certificates of sponsorship. The retail manager described cleaning and checking vegetables, serving customers at the till and checking deliveries. The shopkeeper described cleaning and replenishing vegetables and shelves, and telling the manager when stock was low.
The Secretary of State suspended the sponsor licence and identified the discrepancies, stating that the employees appeared to be undertaking lower-skilled work and that the roles had been created to facilitate their leave to remain. J’s Supermarket did not respond within the specified period and the licence was revoked. Following pre-action correspondence, the Secretary of State reconsidered the matter but maintained the revocation.
The High Court dismissed J’s Supermarket’s claim for judicial review. On appeal, the company argued that the finding of non-genuine vacancies was procedurally unfair, inadequately reasoned and irrational. It also challenged the judge’s approach to section 31(2A) of the Senior Courts Act 1981.
Prestige Social Care Services
Prestige was a care provider with a sponsor licence. The Home Office suspended its licence following concerns about its high rate of staff attrition and aspects of its recruitment practices.
Those concerns included the recruitment of ‘Ms K’ for a role requiring her to drive, despite her having stated on her application form that she could not drive. They also included the recruitment of ‘Mr F’, who failed the required English-language test without evidence that Prestige had a reasonable basis for believing that he would pass it.
The Secretary of State ultimately revoked Prestige’s licence. The decision relied on Annex C1(z) of the sponsor guidance, concerning non-genuine vacancies, and Annex C2(a) and (b), concerning failures to comply with sponsor duties and failures to use processes necessary to secure compliance. It also referred to staff turnover calculated at 60 per cent, compared with a sector average of 28.3 per cent.
The High Court held that it was irrational to treat Ms K’s role as non-genuine merely because she could not fulfil one of its requirements. That demonstrated a serious recruitment failure, but did not establish that the role did not exist. The court nevertheless refused relief under section 31(2A), finding that it was highly likely that the licence would still have been revoked under Annex C2(a) and (b). Prestige appealed, while the Secretary of State cross-appealed against the court’s conclusions concerning Annex C1(z).
The Findings
Procedural fairness and genuine vacancies
The Court of Appeal reaffirmed that procedural fairness is an objective question for the court and that its requirements depend on the circumstances. Where the Secretary of State proposes to rely on dishonesty or other reprehensible conduct, the substance of the allegation must ordinarily be put clearly to the affected person, who must have a fair opportunity to answer it before a final conclusion is reached (J’s Supermarket and Prestige at [55]–[58]). The principles in R (Balajigari) v Secretary of State for the Home Department[2019] EWCA Civ 673, [2019] 1 WLR 4647 and R (Prestwick Care Ltd) v Secretary of State for the Home Department [2025] EWCA Civ 184, [2025] 1 WLR 4761 therefore remain central to sponsor licence cases.
J’s Supermarket’s case was distinguishable from Prestwick Care. The suspension and revocation correspondence had identified the job descriptions, the duties described by the employees and the resulting discrepancies. It had also stated expressly that the roles were believed to have been created to facilitate the employees’ leave to remain. The company therefore knew the case it had to meet and had been given a proper opportunity to answer it (J’s Supermarket and Prestige at [63]–[64] and [68]–[71]).
The Court further held that the Secretary of State was entitled to conclude that the two roles were not genuine vacancies. The contrast between the skilled duties stated on the certificates of sponsorship and the shop-floor work described by the employees was stark. There was no proper evidence that the employees had ever performed the sponsored managerial roles. J’s Supermarket’s appeal was therefore dismissed without the Court needing to determine its separate ground concerning section 31(2A) (J’s Supermarket and Prestige at [66]–[73]).
Prestige and Annex C1(z)
The Court dismissed the Secretary of State’s cross-appeal concerning Ms K. Her inability to drive did not logically establish that the role itself did not exist. Her recruitment indicated very poor recruitment practice, but did not by itself establish a non-genuine vacancy. The later withdrawal of her sponsorship was also capable of supporting the conclusion that driving had been a genuine requirement of the role (J’s Supermarket and Prestige at [74]–[75]).
The Court also agreed that section 31(2A) could not preserve the Annex C1(z) finding. The Secretary of State had withdrawn reliance on Annex C1(z) in the intermediate ‘minded to find’ correspondence before resurrecting it without warning in the final decision. Although a properly framed minded-to-find letter would normally satisfy basic standards of fairness, Prestige had not been given a fair opportunity to address the particular case ultimately relied upon (J’s Supermarket and Prestige at [76]–[78]).
Section 31(2A) and Annex C2
The error concerning Annex C1(z) did not, however, entitle Prestige to relief. The decision letter had expressly identified Annex C2(a) and (b) as independent grounds for revocation. The relevant ‘outcome’ for the purposes of section 31(2A) was the removal of the sponsor licence. It was highly likely that the same outcome would have followed from the recruitment failures relating to Ms K and Mr F and the unexplained, unusually high staff turnover (J’s Supermarket and Prestige at [79]–[85]).
The Court stressed that section 31(2A) applies after an error of law has been established. Its threshold remains high, and a court must avoid substituting its own assessment of the merits. Nevertheless, where the decision-maker has already identified a separate lawful ground for the same outcome, refusing relief may be a proper application of the statutory test. In Prestige’s case, the Secretary of State had expressly treated Annex C2(a) and (b) as individual and sufficient grounds for revocation (J’s Supermarket and Prestige at [81]–[85]).
Threat to immigration control
The Court rejected Prestige’s proposed distinction between a ‘threat to immigration control’ and the threat of a breach of immigration control. The phrase in the non-statutory guidance was to be given its ordinary meaning.
Recruiting people who were plainly unsuitable for their roles, coupled with staff turnover substantially above the sector average and no adequate explanation for it, rationally supported the conclusion that Prestige’s practices posed a threat to immigration control and disclosed significant and systemic recruitment failings (J’s Supermarket and Prestige at [86]–[88]).
The same facts justified reliance on Annex C2(a) and (b). The Secretary of State was entitled to regard the errors concerning Ms K and Mr F, together with the turnover evidence, as demonstrating broader failures in Prestige’s recruitment processes rather than isolated mistakes (J’s Supermarket and Prestige at [89]–[90]).
Significance of the ruling
The judgment provides important appellate guidance in four areas.
First, procedural fairness in sponsor licence cases remains fact-sensitive. Where dishonesty or deliberate abuse is alleged, the sponsor must be told the substance of the allegation and given a fair opportunity to respond. There is, however, no requirement to use particular terminology if the correspondence, read fairly and as a whole, makes both the factual concern and the proposed adverse inference clear.
Secondly, a flawed recruitment decision does not necessarily establish that the underlying vacancy is non-genuine. The Court drew a distinction between the existence and genuineness of a role, on the one hand, and the sponsor’s competence in selecting a person capable of performing it, on the other. That distinction may determine both the applicable provision of the guidance and the procedural protections required.
Thirdly, the decision confirms that section 31(2A) can preserve the practical outcome of a revocation decision despite an unlawful finding under one ground, provided the decision-maker itself relied on an independent lawful basis and the court is satisfied, to the statutory high threshold, that the outcome would not have been substantially different. The court must still guard against stepping into the shoes of the decision-maker.
Finally, the judgment confirms that poor recruitment controls may amount to a threat to immigration control without a finding of dishonesty. Sponsors must operate effective systems for assessing whether candidates can satisfy the legal and practical requirements of sponsored roles. A pattern of unsuitable recruitment, unexplained attrition or other compliance failures may justify revocation under Annex C2 even where an allegation of a non-genuine vacancy cannot be sustained.
