You will be surprised by how poor or unfair, if not unlawful, some decisions are being made by the Home Office regarding sponsorship.
Yesterday, our client, a care home in Wales, received a letter from the Home Office rejecting the defined certificate of allocation request we submitted on their behalf on 01 December 2023.
The reason given is this:
We note that the job description you have provided on your SMS application is incomplete. There is no information regarding tasks and duties required by the position of Care Assistant x2. Please provide more detailed job description in your future applications and ensure that job description is in line with the occupation code you have selected.
The decision-maker relied on Paragraph SK11.18 of the Rules that states: It must confirm the main duties of the role for which the worker is being sponsored (enter these in the 'Summary of job description' box)
The letter also referred to paragraph SK12.19, which states:
We will reject your application for a Defined CoS if:
the job is not in an eligible skilled occupation
we have good reason to believe you have chosen an inappropriate occupation code for the role
the application would not be eligible for 20 tradeable points for salary
we have reasonable grounds to believe the job is not genuine or amounts to the hire of the worker to a third party
the application otherwise does not meet the requirements of the Skilled Worker route
we have reasonable grounds to believe the role does not comply with UK employment law
The problems with this decision are too many for me to count, but I will list two here.
First, the reason given for rejecting the DCoS application is not one of the circumstances expressly described under paragraph SK12.19 above. Therefore, the rejection decision is not according to the Home Office's published guidance. In other words, the decision was unlawful.
Second, paragraph SK11.18 is not prescriptive but rather descriptive. The job description we provided reads like this:
To support senior staff in delivering an extremely high standard of care to our service users who are living independently in their own home or in supported accommodation. A care assistant that is compassionate, caring individual, treating service users with dignity, respect, working with them as an individual, maintaining their choices, providing general care and more specialised care.
This job description is a summary and meets the requirements of paragraph SK11.18, which says the description must confirm the main duties of the role for which the worker is being sponsored. It did not say it must confirm a more detailed job description.
What's even more mind-boggling with this type of unlawful decision-making in the Home Office is this - We've used this job summary wording for this client and the thousands of clients we support for ages, and not one rejection was made on the same basis that this decision did.
The full job description is a requirement under Appendix D keeping records of sponsored workers and not at this stage.
But what frustrates me the most, especially our clients, when we see this type of decision being made is the unnecessary delay it adds to the process that really should be a straightforward one.
Note the date we assisted our client to request the DCoS? It was on 01/12/2023 and the rejection came after 15 days. Unbelievable! It does say they can submit another application at any time but really?
So, if a care provider does not have sufficient legal understanding of how these things work, they are left at the mercy of this type of wrong decisions. The biggest losers, of course, are the elderly requiring carers or nurses who are made to wait simply because there's a lack of competence on the part of the decision-makers to carry out the published sponsor guidance in matters like this.
Anyway, I'm sure you'll be interested in how we will respond to this decision. First, we will write a letter before action (LBA) and ask the Home Office to correct this decision. Such action will be dealt with by the legal team of the Home Office and more often than not, our client's remedy is received here. We can get a decision within 14 days under the protocols.
Second, we will submit another DCoS application, providing more information in the job description with a letter stating that we are challenging the rejection of the previous application.
In doing both actions, we will ensure that our client gets their DCoS requests granted to progress the carers they need to support their residents.
By the way, the Home Office has been requesting more information that is new in the last four weeks or so for Undefined and Defined CoS applications and has been rejecting a lot. It is causing a lot of unnecessary delays.
If you are experiencing this and need advice and help, don't hesitate to contact us here.
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