Procedural Fairness and Section 31(2A) in Sponsor Licence Revocations: “Genuine Vacancy” and “Threat to Immigration Control” under Home Office Sponsor Guidance
Case: J's Supermarket Ltd, R (On the Application Of) v Secretary of State for the Home Department and
R (on the application of) Prestige Social Care Services Ltd v Secretary of State for the Home Department
Citation: [2026] EWCA Civ 1147 (CA-2025-002087 & CA-2025-003140)
Court: England and Wales Court of Appeal (Civil Division)
Date: 4 September 2026
Judges: Lord Justice Peter Jackson, Lady Justice Asplin, Lord Justice Dingemans (Senior President of Tribunals)
1. Introduction
This joined Court of Appeal decision concerns the revocation of sponsor licences held by two employers under the Skilled Worker route:
(i) a retail grocery business (“the supermarket sponsor”), and (ii) a care provider (“the care sponsor”).
Both challenged the Secretary of State’s revocation decisions by judicial review and both claims were dismissed below.
The appeals required the Court of Appeal to address:
- Procedural fairness when the Home Office alleges (expressly or by implication) that a sponsor assigned Certificates of Sponsorship (“CoS”) for roles that were not “genuine vacancies”.
- The construction and application of key terms in the Home Office’s “Workers and Temporary Workers: guidance for Sponsors” (“the sponsor guidance”), including “genuine vacancy”, “threat to immigration control”, and Annex grounds for revocation.
- The operation of section 31(2A) of the Senior Courts Act 1981 (“s.31(2A)”) where one ground for revocation is unlawful but other grounds were stated in the decision letter.
The Court treated Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673; [2019 1 WLR 46 and
R(Prestwick Care Ltd) v Secretary of State for the Home Department [2025] EWCA Civ 184; [2025] 1 WLR 4761
as the central authorities on fairness where dishonesty or reprehensible conduct is in play.
2. Summary of the Judgment
2.1 The supermarket sponsor appeal: dismissed
The Court upheld the Home Office’s conclusion that two sponsored roles were not “genuine vacancies” within Annex C1(z) of the sponsor guidance.
The sponsor had been told (in suspension and revocation correspondence) the CoS job descriptions, what the workers said they actually did, and the Home Office’s conclusion that the roles were created to facilitate leave to remain.
On the facts, the discrepancies were “stark” and the process was procedurally fair.
2.2 The care sponsor appeal: dismissed; cross-appeal (Respondent’s Notice) dismissed
The Court agreed with the judge below that it was irrational to treat the case of “Ms K” (recruited into a driving-required role while unable to drive) as establishing that the vacancy itself was non-genuine under Annex C1(z): that episode pointed to poor recruitment, not necessarily a fictitious or sham job.
However, the revocation still stood because the judge was entitled to refuse relief under s.31(2A): it was “highly likely” the licence would have been revoked anyway under Annex C2(a)–(b) (failure to comply with sponsor duties / inadequate processes), which were expressly relied on in the decision letter.
2.3 Key holdings (principle level)
- Fair notice is context-specific: where the Home Office’s letters plainly set out the discrepancies and state that roles were “created” to facilitate immigration status, fairness may be satisfied without additional formalism.
- “Threat to immigration control” in guidance is construed by ordinary meaning; recruiting plainly unsuitable sponsored workers and unusually high turnover can rationally amount to such a threat.
- s.31(2A) can “save” the outcome despite an unlawful ground (here Annex C1(z) for one vacancy), where the decision letter independently and clearly relies on other sustainable grounds (here Annex C2(a)–(b)) and the court can properly conclude the outcome would not be substantially different.
3. Analysis
3.1 The sponsor guidance framework: why Annex classification matters
The sponsor guidance emphasises that “sponsorship is a privilege not a right” (C1.3) and imposes duties including not assigning a CoS where there is no “genuine vacancy” (C1.38).
It defines a “genuine vacancy” (C1.44) as one requiring the specific duties and responsibilities of the job, not predominantly lower-skilled duties, and appropriate to the business model and scale.
The revocation architecture is driven by the Annexes:
- Annex C1 (“we will revoke”): mandatory revocation circumstances, including C1(z) (reasonable grounds to believe the role for which a CoS was assigned is not genuine).
- Annex C2 (“we will normally revoke”): typically engaged by failure to comply with sponsor duties (C2(a)) or inadequate processes/procedures to comply (C2(b)).
- Annex C3 (“we may revoke”): discretionary.
A recurring theme in sponsor-licence litigation is that Annex C1 allegations may shade into implicit allegations of “sham” roles or deliberate facilitation of immigration status.
That triggers heightened sensitivity to procedural fairness (see below), even though not every “non-genuine vacancy” finding necessarily equates to dishonesty.
3.2 Precedents cited (and how they shaped the outcome)
(a) R(Osborn) v Parole Board [2014] AC 115
The Court reiterated that procedural fairness is an objective question for the court (not mere Wednesbury review of the decision-maker’s view of fairness).
This underpinned the Court’s willingness to examine, for each appellant, whether the Home Office correspondence provided a fair opportunity to respond.
These authorities framed fairness as context-dependent and flexible.
The Court used this to distinguish situations like Prestwick (where suspicion of dishonesty was not clearly put) from the supermarket sponsor case (where, on the Court’s reading, the allegation that roles were created to facilitate immigration status was stated expressly and early).
(c) Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673; [2019 1 WLR 46
Balajigari established that where the Secretary of State is minded to decide against an applicant based on dishonesty or reprehensible conduct, fairness requires:
(i) clear indication of that suspicion, (ii) an opportunity to respond, and (iii) consideration of the response before concluding dishonesty.
In this appeal, the Court treated Balajigari as a general fairness template capable of applying beyond individual immigration applications to sponsor licensing decisions, depending on the nature of the allegation and its consequences.
(d) R(Prestwick Care Ltd) v Secretary of State for the Home Department [2025] EWCA Civ 184; [2025] 1 WLR 4761
Prestwick was the sponsor-licence analogue of Balajigari for cases where the Home Office relies on dishonesty as the explanation for discrepancies between the CoS job description and the work actually performed.
The Court in the present case applied Prestwick in two ways:
- Supermarket sponsor: distinguished on facts—here, the Home Office letters were said to make the allegation clear (“created in order to facilitate” leave to remain), giving a fair opportunity to answer.
- Care sponsor (Ms K): the “minded to find” process was criticised because the Home Office withdrew reliance on Annex C1(z) but later resurrected it in the decision without warning; that procedural flaw could not be cured by s.31(2A) in relation to Annex C1(z).
(e) s.31(2A) authorities: R(Public and Commercial Services Union) v Minister for the Cabinet Office [2017] EWHC 1787 (Admin); [2018] ICR 269 and R(Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489; [2025] 4 WLR 58
These cases emphasise:
- “Highly likely” is a high threshold.
- The court must avoid drifting into merits substitution; the task is to evaluate whether the error was significant to the decision-making process and outcome.
The Court used this framework to uphold the refusal of relief for the care sponsor: although one Annex C1(z) strand was irrational, the decision letter expressly treated Annex C2(a)–(b) as independently sufficient, enabling the court to conclude—without impermissible merits reassessment—that revocation was still highly likely.
(f) BUJ v Bromley LBC [2026] EWCA Civ 888
This was cited for the caution that s.31(2A) cannot always be applied where doing so would force the court to become the decision-maker.
The Court acknowledged that danger, but held it did not arise in relation to Annex C2 because the Secretary of State had already relied on Annex C2(a)–(b) as distinct bases for revocation.
3.3 Legal reasoning
3.3.1 Supermarket sponsor: “stark discrepancy” as adequate notice and rational basis
The Court’s fairness analysis turned on the content of the suspension letter and revocation letter.
The correspondence:
- set out the CoS job descriptions (managerial duties),
- recorded the workers’ descriptions of their day-to-day tasks (shop-floor activities), and
- stated the Home Office belief that the roles were not genuine and were created to facilitate immigration status.
On that basis, the Court rejected the contention that the sponsor only learned of a dishonesty-type allegation at the final stage (as in Prestwick).
The Court also rejected the argument that the decision-maker failed to consider representations: even if witness statements were not expressly cited in the reconsideration letter, the decision stated it had considered the pre-action protocol representations and it substantively addressed them.
The reasoning point is important: the Court treated the “genuine vacancy” question as one of substance over label.
If the actual duties are consistently low-skilled and there is no reliable evidence of performance of the skilled role described on the CoS, it is lawful to conclude the vacancy was not genuine under Annex C1(z).
3.3.2 Care sponsor: distinguishing “non-genuine vacancy” from “incompetent recruitment”
For Ms K, the Court endorsed the judge’s conclusion that it was irrational to infer “non-genuine vacancy” merely because the recruit could not drive:
the role could exist and be genuine, while the sponsor’s recruitment decision was simply poor.
The Court pointed to evidence that sponsorship was withdrawn after two months, which could support the view that the driving requirement was real (not a pretext).
However, the Court upheld the overall revocation because Annex C2(a)–(b) concerns were independently made out:
- recruiting a person plainly unsuitable for the role (Ms K),
- recruitment issues in relation to Mr F (English language test failure and lack of basis to expect a pass), and
- exceptionally high staff turnover compared with sector average (with no “good reason” accepted by the decision-maker).
The Court linked this to the sponsor guidance’s “privilege not a right” principle: recruiting workers who cannot do the role undermines confidence in the sponsorship system and can rationally be treated as a “threat to immigration control” and/or as demonstrating inadequate processes to comply with sponsor duties.
3.3.3 “Threat to immigration control”: ordinary meaning in guidance, not a technical statutory test
The Court rejected an attempt to narrow “threat to immigration control” by contrasting it with other Immigration Rules safeguards.
Because the phrase appears in guidance (not legislation), the Court construed it according to its ordinary meaning in context:
conduct that predictably increases the risk of the sponsorship route being misused—such as sponsoring workers plainly unsuitable for the roles—can qualify as a threat.
3.3.4 Section 31(2A): outcome-focused, but constrained by legality and institutional role
The Court clarified several operational points about s.31(2A) in sponsor-licence cases:
- The relevant “outcome” is the practical result for the claimant (here, removal/revocation of the sponsor licence), not necessarily the precise label of the ground relied upon.
- Courts must not replace the decision-maker, but where the decision letter itself identifies alternative grounds as independently sufficient, the court may be able to conclude “highly likely” without straying into merits substitution.
- Procedural unfairness can block s.31(2A) for the specific impugned ground (here, Annex C1(z) for Ms K) where the sponsor was not fairly put on notice; but s.31(2A) may still apply to uphold the same outcome if other properly relied-on grounds would inevitably (or highly likely) have produced the same result.
3.4 Impact
3.4.1 For sponsors
- Documented role reality matters: sponsors must be able to evidence that sponsored workers actually perform the skilled duties described on the CoS, not predominantly lower-skilled work.
- Recruitment competence is a compliance issue: even absent dishonesty, serious recruitment failures (e.g., sponsoring workers plainly unable to perform essential job requirements) can justify revocation under Annex C2(a)–(b).
- Turnover can be probative: unusually high attrition may support an inference of systemic process deficiencies, particularly if not convincingly explained.
3.4.2 For the Home Office
- Clarity of allegation remains central: where the Home Office is (in substance) alleging sham roles or facilitation, correspondence must clearly put that suspicion so sponsors can respond (the Balajigari/Prestwick discipline).
- Consistency in “minded to find” processes: withdrawing a ground and resurrecting it in the final decision risks procedural unfairness that cannot readily be cured.
- Drafting of decision letters: expressly stating independent Annex grounds (as occurred for Annex C2) increases the likelihood that a decision survives judicial review via s.31(2A) if one ground fails.
3.4.3 For public law and judicial review
- This decision adds practical guidance on how s.31(2A) operates in multi-ground decisions, especially where one ground is unlawful but others were clearly relied upon.
- It reinforces that procedural fairness is granular: a defect may vitiate reliance on one allegation/ground but not necessarily the overall outcome if alternative grounds are sound and independently sufficient.
4. Complex Concepts Simplified
- Sponsor licence: Home Office permission for an employer to sponsor migrant workers. It can be suspended or revoked for non-compliance.
- Certificate of Sponsorship (CoS): an electronic certificate issued by a sponsor, enabling a worker to apply for a visa/permission under a work route.
- Genuine vacancy (C1.44): a real job requiring the stated duties; not mainly lower-skilled work; appropriate for the business. A mismatch between CoS description and actual duties can support a “non-genuine” finding.
- Annex C1 vs Annex C2: C1 is “we will revoke” (mandatory); C2 is “we will normally revoke” (strong presumption but conceptually allows evaluative judgment).
- Procedural fairness (Balajigari/Prestwick): if the state is effectively accusing a party of dishonesty or reprehensible conduct, it must clearly say so, allow a response, and consider it before deciding.
- s.31(2A) Senior Courts Act 1981: even if a decision is unlawful, the court must refuse relief if it is “highly likely” the outcome would not have been substantially different absent the error (subject to exceptional public interest).
- “Threat to immigration control”: in this guidance context, conduct that creates real risk to the integrity of sponsorship (e.g., sponsoring plainly unsuitable workers) can qualify, assessed in an ordinary-language way.
5. Conclusion
[2026] EWCA Civ 1147 consolidates and develops sponsor-licence public law in three practical respects:
- Fairness and clarity: where the Home Office asserts that roles were created to facilitate immigration status, fairness turns on whether that allegation is clearly communicated with the factual basis, allowing a meaningful response.
- Substance of “genuine vacancy”: stark divergence between CoS job descriptions and real duties can lawfully ground a non-genuine finding; conversely, a worker’s unsuitability may evidence poor recruitment rather than non-existence of the role.
- s.31(2A) in multi-ground revocations: an unlawful ground need not unravel the entire decision if other clearly-stated grounds independently justify the same outcome and the court can reach a “highly likely” conclusion without substituting its own merits view.
The decision therefore strengthens the operational link between sponsor governance (process, retention, and suitability checks) and immigration system integrity, while reaffirming that allegations with a dishonesty character must be fairly and clearly put.