[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> The Koppers, R (on the application of) v The Secretary of State for the Home Department [2015] EWHC 1071 (Admin) (21 April 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/1071.html Cite as: [2015] EWHC 1071 (Admin)

[New search] [Printable RTF version] [Help]

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st April 2015

Judge Grubb :

Introduction

1. The claimant ("The Koppers") is a residential care home for the elderly in Kilminston, Axminster, Devon. In these proceedings the claimant challenges the Secretary of State's decision taken on 26 March 2014 to remove the claimant from the Tier 2 Register of Licensed Sponsors. The effect of removing the claimant, which was an 'A-rated' sponsor is that the claimant is no longer able lawfully to employ non-EEA migrants.

The Tier 2 Scheme

2. The context in which this claim arises is as follows. In 2009, the Tier 2 route for entry and leave as a non-EEA worker came into effect under the "points-based system" (PBS) contained within the Immigration Rules (introduced by amendment to Statement of Changes in Immigration Rules, HC 395 by HC 1113). This replaced the previous 'work permit' scheme. The aim of the scheme as set out in the Explanatory Notes to HC 1113 is:

"to enable UK employers to recruit individuals from outside the EEA to fill a particular skilled job that cannot be filled by a British or EEA worker"

3. A central part of the Tier 2 scheme is the role of the UK sponsor/employer. As a prerequisite to obtaining leave to enter or remain under the PBS Tier 2 route, an individual must obtain a Certificate of Sponsorship (CoS) from a licensed sponsor, namely his prospective employer. Employers can only issue a CoS if they are a licensed sponsor, namely they have been placed by the defendant upon the Register of Licensed Sponsors.
4. The CoS confirms, inter alia, that the individual has been offered employment within an eligible category and sets out, for example a summary job description and the relevant Standard Occupational Classification (SOC) Code for the particular job contained in the applicable UKBA's Codes of Practice for Skilled Workers. The eligible categories of employment must be in a role at "skill level S/NVQ3" or above or a role which is listed on the shortage occupation list. When a CoS is issued, that together with any other information, is provided by an individual in their application for leave to enter or remain. In fact, as I understand it, the CoS is created and held electronically on what is called the 'sponsorship management system ("SMS") and accessed by UKBA electronically. Under the PBS rules an individual will be required to obtain the requisite points set out in the Rules, including those derived from being in possession of a valid CoS.
5. Guidance on the PBS system, and in particular in relation to the Tier 2 route, is provided by the UKBA in "Guidance For Sponsors: Tier 2 and 5 of the points-based system". The relevant guidance, to which I was referred, took effect on 13 December 2012 (see pp.149-273 of the trial bundle ("TB")). Under the heading "What is Sponsorship?" at para 1 (p.158 TB) the Guidance provides as follows:

"1. Sponsorship is based on two fundamental principles:

a) those who benefit most directly from migration (that is, the employers, education providers or other bodies who are bringing in migrants) should play their part in ensuring that the system is not abused; and

b) we need to be sure that those applying to come to the UK to do a job or to study are eligible to do so and that a reputable employer or education provider genuinely wishes to take them on"

6. At paragraph 2 the Guidance continues:

"2. Before a migrant can apply to come to, or remain in the UK to work or study, they must have a sponsor. The sponsor will be an organisation in the UK that wishes to employ, or provide education to a migrant. Sponsorship plays two main roles in the migrant's application process:

a) it provides evidence that the migrant will fill a genuine vacancy in the UK that cannot be filled with a suitably qualified or skilled settled worker, or that they will be studying for an approved qualification; and

b) it involves a pledge from the sponsor that it accepts all of the duties we expect them to fulfil when sponsoring the migrant"

7. The Guidance sets out the process and criteria for the grant of a sponsorship licence (see paras 6-86 at pp.159-170 TB). The Guidance sets out duties of the sponsor (see, e.g. paras 577-607 at pp.245-249 TB). These duties include record-keeping, reporting information to UKBA, complying with the law and co-operating with UKBA. There is a duty to act honestly in dealings with UKBA including ensuring that all essential information is disclosed when applying for a sponsor licence or when assigning a CoS. The underlying aims of these duties include ensuring that the PBS system is not abused. Sponsors may be rated "A" or "B" according to UKBA's assessment of the organisation's ability to fulfil the sponsorship duties. Greater trust is reposed in "A" rated sponsors including assigning CoS's to prospective employees.
8. Monitoring including compliance checks by UKBA form part of the sponsorship scheme (see, e.g. para 608 at p.250 TB). One purpose of those checks is to ensure that a sponsor is complying with its sponsorship duties which would include providing accurate information that a job complies with the relevant SOC Code and that the employee is working in accordance with the applicable Code for the job and the job description in the CoS.
9. The Guidance provides a process and a number of potential consequences for a breach of sponsorship duties including, suspension from the Register , down grading to "B" rated and revocation of the Sponsorship Licence (see, in particular paras 660-675, pp.260-1 TB; 654-559, p.259 TB; paras 633-639, pp253-4 TB; 646-651, pp.255653, pp.255-259 TB respectively). The process for suspension is set out at paras 660 et seq provides, for example, for notification to a sponsor and an opportunity for a sponsor to respond to a potential suspension of its licence and its revocation. It is not necessary for me to set out these provisions in detail as it is not suggested by the claimant that the defendant failed properly to apply the procedure set out in the policy.
10. For the purposes of this appeal the relevant provisions relate to the revocation of the sponsor's licence. The Guidance provides for circumstances when a licence "will be" revoked (para 648, pp.256-257 TB) and where the licence "may" be revoked (para 650, p.258 TB). The latter only is relevant to this case. As one of the circumstances in which the Guidance provides that a licence "may" be revoked, para 650(m) states that:

"We may revoke your licence if:

….

m) The role undertaken by a migrant you have sponsored does not meet:

I. the job description in the Code of Practice containing the SOC code stated on the CoS you assigned to them; and/or

II. the job description on the CoS that you assigned to them"

The Background Facts

11. The claimant was, at all relevant times, a registered Tier 2 sponsor. On 15 August 2013, the claimant assigned to Mr Anand Kurian a CoS on the SMS in accordance with the defendant's procedure with a view to him being employed as a "Public Relations Officer" (SOC Code 2472 – "Public relations professional") by the claimant. On 2 November 2013 Mr Kurian began employment with the claimant.
12. On 5 November 2013 UK, Visa and Immigration (UKVI) carried out a site inspection of the claimant. During that visit, a number of individuals were interviewed, including Mr Kurian and Ms Vivian Baksh, a Manager and co-owner of the claimant. At the conclusion of their interviews both Mr Kurian and Ms Baksh signed the notes of their interviews provided by the inspector, Mr Paul Thompson.
13. During the course of their interviews, as recorded in the interviewer's notes, a number of recorded answers led the Secretary of State to conclude that Mr Kurian was not being employed as a Public Relations Officer (as set out in his CoS) but rather in a role akin to a "Senior Carer" (SOC Code 6146) and, in accordance with the defendant's policy in relation to Tier 2 sponsors, this was a ground for revoking its licence.
14. On 14 January 2014, UKVI wrote to Ms Baksh, informing her that the claimant's sponsor licence would be suspended and revocation action begun but providing for 28 days in order to make representations (pp.18-19 TB). The correspondence, in fact, dealt not only with the position of Mr Kurian but also of another employee but that matter is no longer relied upon and has no relevance to these proceedings. UKVI set out the position in relation to Mr Kurian (and in relation to the now irrelevant situation of another employee, Mr [V]) at paras 2-3 as follows:

"2. You sponsor Mr Anand Kurian, DOB 05/04/1986, to work as a public relations officer under Tier 2 (General). You also assigned a Certificate of Sponsorship for the same role to Mr [V], DOB 23/05/1979, who has not commenced employment. Although the certificates of sponsorship for both sponsored workers provide job descriptions which fit the role of public relations officer, you informed our compliance officer that Mr Kurian is training as a senior care worker. You stated that your intention was that both Mr Kurian and Mr [V] would take on senior care worker roles. Paragraph 656 (p) (II) of the Tier 2 & 5 Sponsor Guidance states that we may revoke your licence if:

p) The role undertaken by a migrant you have sponsored does not meet:

II. The job description on the CoS that you assigned to them.

3. Further to this, the senior care worker role (SOC code 6146) is level 3 of the National Qualification Framework (NQF) and does not therefore meet the minimum skill level required for sponsorship under Tier 2. Any role undertaken by a sponsored worker under Tier 2 must be at least NQF level 6. The fact that you have sponsored workers to undertake a role which does not meet the minimum skill level required contravenes paragraph 193 of the Tier 2 & 5 Sponsor Guidance which states:

Apart from the exceptions listed in paragraph 194 below, migrants sponsored under Tier 2 (General) and Tier 2 (ICT) can only work in a skilled occupation at or above National Qualifications Framework (NQF) level 6 (or the equivalent in Scotland). This does not mean that the person employed to fill the job must be educated to that level, it means that the work that person will do is pitched at that level."

15. The reference in that letter to para 656(p) of the defendant's Guidance is the same as para 650(m) of the December 2012 Guidance which I set out above and which it was common ground was the applicable Guidance to the claimant.
16. As will be clear, the UKVI took the view that the evidence, in particular arising from the interviews, demonstrated that Mr Kurian was not being employed in his stated role as a Public Relations Officer but rather as a "Senior Care Worker". That was not in accordance with his job description as set out in the relevant CoS and was not at the "minimum skill level" of at least NQF level 6.
17. In response, Ms Baksh replied in a letter dated 3 February 2014 raising with UKVI that there had been a misunderstanding as to the role Mr Kurian performed (pp.20-21 TB). The letter includes the following:

"We would like to submit the following in response to the concerns raised in your letter:

You have stated in your letter that we informed the Compliance Officer that Mr Anand Kurian is training as a Senior Care Worker. However your statement is incorrect. We informed the Compliance Officer Mr Kurian is in training with a Senior Care Worker and not in training to become a Senior Care Worker. As part of his employment Mr Kurian is required to enhance the image of our organisation and help our team improve work performance and monitor residents' health and wellbeing. This is only possible if he fully understands how our organisation functions. Therefore he was shadowing a Senior Care Worker to familiarise himself with the services we provide to our residents. The certificate of sponsorship for Mr Kurian showing his job description is enclosed for your perusal. The Home Office had a sight of his duties and responsibilities before he was granted a visa to work for us. Mr Kurian was still on his induction period during the visit of the Compliance Officer which was notified to the Compliance Officer at that time. We would like to confirm that Mr Anand Kurian is employed as a Public Relations Officer and not as a Senior Care Worker. We also enclose herewith the payslips, certificate of sponsorship, job offer letter and job contract of Mr Anand Kurian which confirms that he is employed as a Public Relations Officer. The Compliance Officer did verify his job offer letter and job contract during the compliance check. Therefore it is clear that there was no violation from our side of Paragraph 656 (p) (II) of the Tier 2 & 5 Sponsor Guidance.

We are aware that the role of Senior Care Worker (SOC Code: 6146) is at level 3 of the NQF. However as we have explained in detail above, Mr Anand Kurian does not work as a Senior Care Worker and therefore it is evident that there is no contravention of Paragraph 193 of Tier 2 & 5 Sponsor Guidance.

You have mentioned that a sponsor licence may be revoked in accordance with Paragraph 656 (a) of the Tier 2 & 5 Sponsor Guidance. However we have neither been dishonest in any way nor failed to disclose any essential information while applying for our licence. We have also not failed to disclose any essential information while assigning a CoS either. Therefore we have not been in violation of Paragraph 656 (a) of the Tier 2 & 5 Sponsor Guidance so it would be very unjust to us if our licence is revoked due to this reason.

.....

We would like to inform you that we take all responsibilities attached to our sponsor licence very seriously and we are confident that if there is another visit from the UK Border Agency we would be able to prove this to you. We can confirm that all our HR systems and records are up to date and maintained in accordance with the Tier 2 & 5 Sponsor Guidance.

It is therefore evident that the decision to revoke our licence is harsh and very unfair to us as we are a genuine organisation that fully complies with all the conditions of our sponsor licence.

Our business is already facing difficulties in the current adverse economic climate. If our licence is not reinstated immediately the migrant workers who are currently under our sponsorship will be forced to leave our organisation which would certainly lead to the closure of our business.

Under these circumstances we request you to kindly reinstate our licence"

18. Despite those representations, UKVI revoked the claimant's sponsorship licence, informing Ms Baksh of that in its letter of 26 March 2014 (pp.22-23 TB). Setting out only those matters which now remain relevant to the claimant's challenge to that decision, the letter is in the following terms:

"1. I refer to previous correspondence of 14 January informing you that your sponsor licence has been suspended as a result of issues identified during a visit to your premises on 5 November.

2. We allowed you 28 days to make representations against this decision, which you did in your letter of 7 February.

3. After consideration of these in response to the issues highlighted in our letter, your licence has been revoked with immediate effect.

4. …..

5. You say that you informed our compliance officer that Mr Anand Kurian was training with a senior care worker, not training as a senior care worker. However when asked about how the deputy care manager role differs you said 'they take on the responsibility but do senior carer role as well'.

6. When asked for copies of the job descriptions for the deputy care manager and the public relations roles, you provided copies for deputy care manager and senior carer/team leader; indicating that there was not a job description for the public relations role and said 'we are training them to be senior carers, that is the ultimate aim'. This is reflected in the interview record that you signed as a true account of the interview.

7. Also when interviewed Mr Kurian said that he worked on the floor, checked if there were any problems and liaised with families but his main role was 'care plans, meeting with care staff, activities with residents' and that he was 'also being trained as a senior carer to look after residents, feeding, hygiene'. He confirmed that he currently manages a carer.

8. The role described by both yourself and Mr Kurian is therefore more akin to that of senior carer than the public relations role for which his CoS was assigned.

9. In the light of the above, I am not satisfied that your sponsored employees are undertaking the role for which their CoS were assigned. Annex 6 of the sponsor guidance provides details of circumstances in which we may revoke a sponsor licence and includes

p) The role undertaken by a migrant you have sponsored does not meet:

the job description in the codes of practice containing the SOC code stated on the CoS you assigned to them (unless this is solely due to the transition from SOC 2000 to SOC 2010); and/or

the job description on the CoS that you assigned to them.

10. There is no right of appeal against this decision.

11. Please note that from the date of this letter you are no longer licensed to continue to sponsor employees or issue further CoS. Section 3 paragraphs 19.9-19.14 of the Sponsor Guidance provide information relating to your existing sponsored employees.

12. You may not apply to re-join the Register of Licensed Sponsors for a period of six months from the date of this letter, as outlined in Section 3 paragraphs 19.15-19.16 of the sponsor guidance. After this time you may re-apply, however, any such application will be treated as a fresh application and you will be required to pay the appropriate fee and produce all relevant documentation."

19. There then followed a pre-action protocol letter dated 25 April 2014 (pp.27-30 TB).
20. On 8 May 2014, the defendant maintained her original decision to revoke the claimant's Tier 2 sponsorship licence (pp.32-33 TB). In that letter, addressed to the claimant's legal representatives, UKVI dealt with the claimant's challenge to the revocation decision including a witness statement provided by Ms Baksh as follows:

"2. I note the representations made an additional evidence provided in the form of a witness statement from Mrs Vivian Baksh co-owner of the Koppers and designated key contact. After consideration of these in response to our letter of 26 March, I can confirm that the decision to revoke your clients licence is maintained.

3. You have stated that the decision to revoke was flawed on the basis of:

a. UKVI failure to maintain an accurate record of inspection;

b. UKVI failure to consider relevant matters;

c. UKVI failed to give adequate reasons why discretion was exercised in favour of removal from the register, than be downgraded.

4. In relation to point a), you state that Mrs Baksh 'accepts that she signed the interview notes but they were not read to or by Mrs Baksh prior to her signature, and in any event, are disputed as to accuracy and completeness'.

5. Within that interview record, Mrs Baksh confirmed on two separate occasions during the interview that the PR role would bridge the gap between carers and senior carers and would involve tasks that are normally conducted by senior carers.

6. The level of the PR Role was further confirmed in the interview with Anand Kurian in which he stated that his duties were 'mainly care plans, meeting with care staff, and training as a senior carer to look after residents, feeding and hygiene.' When questioned about the PR role Mr Kurian confirmed that 'he would walk the floor, check if there were any problems and talk to families'.

7. These duties are not ones associated with the role of Public Relations Officer as specified in the codes of practice or indeed the CoS that your client issued for this particular post.

8. In relation to point b). You have stated that UKVI failed to take into account that as a PR officer, there is a requirement to undertake 'healthcare assistance induction' and the visit was conducted during this induction period.

9. Whilst it is acknowledge that the post may require a period of induction, during both interviews it was confirmed that the PR post actually involves duties normally undertaken by senior carers such as care planning, feeding, hygiene, meeting with care staff and activities with residents. At no point during either interview, neither Mrs Baksh as owner of the Koppers or Mr Kurian as the post holder mentioned any additional duties indicative of a PR role as specified in the CoS. It would be reasonable to expect either of these individuals to have described the full range of the PR duties as you have stated this is a predominantly PR role.

10. In relation to point c). You have questioned why downgrading your client's licence to B was not considered.

11. Appendix 5 o) of the Tiers 2 & 5 Guidance for Sponsors version 02/14 clearly states that a licence maybe revoked if 'employ a migrant in a job that does not meet the skill level requirements as set out in this guidance'. The lack of a genuine vacancy meant that downgrading the licence was not appropriate in this case.

12. Based on the information provided there is no reason to believe the decision to revoke your clients (sic) licence was either incorrect or unlawful."

21. Paragraph 11 of the letter deals with a challenge, initially made in these proceedings, that the defendant failed to exercise her discretion lawfully to consider downgrading the claimant's licence rather than revoking it. Mr Gilbert, who represented the claimant, did not pursue that challenge before me and I need say no more about it.
22. On 22 May 2014 these proceedings were filed challenging the defendant's revocation decision of 26 March 2014.
23. On 21 May 2014, Collins J granted interim relief preventing the revocation decision taking effect.
24. On 28 July 2014 permission was refused on the papers by Geraldine Clark (sitting as a Deputy High Court Judge.
25. On 30 September 2014, following an oral renewal, I granted permission.

The Claimant's Case

26. The claimant's case is set out in the claim form and grounds, in Mr Gilbert's written skeleton argument dated 5 February 2014 and in his oral submissions. That case may be summarised as follows.
27. The defendant acted unlawfully in revoking the claimant's licence because she took into account irrelevant matters and failed to take into account relevant matters in concluding that Mr Kurian was working as a "Senior Care Worker" rather than in accordance with the relevant SOC Code and job description for a "Public Relations Officer".
28. First, it is said that the defendant could not properly rely upon the interviews which contain inaccuracies. Properly understood, there was nothing inconsistent in what was said in the interviews with Mr Kurian being employed and actually working as a Public Relations Officer. Even though both Mr Kurian and Ms Baksh had signed their interview notes attesting that they were an accurate reflection of what was said, that was not a 'carte blanche' to treat everything in them as accurate. Mr Gilbert submitted that the interview records were obviously not a verbatim account involving a mixture of statements attributed to the interviewees and comment by the writer. In particular, Mr Gilbert referred to an answer attributed to Ms Baksh that Mr Kurian was training "as" a Senior Carer as inaccurately reflecting her answer that he was training "with" a Senior Carer as part of his induction. Further, the defendant wrongly relied upon what was said about the role of a "Deputy Care Manager" in Ms Baksh's interview when that had no relevance to Mr Kurian who was employed as a Public Relations Officer.
29. Whilst Mr Gilbert's skeleton argument referred to the defendant failing to keep a "reasonably accurate record of inspection", I did not understand from his oral submissions that to be a freestanding challenge but rather to be an aspect of the challenge based upon the interview records being unreliable.
30. Secondly, the defendant failed to consider a number of relevant matters when considering the answers given in the interview, namely that Mr Kurian was at the time being inducted and was, in effect, "shadowing" a Senior Care Worker and training with that person. Also, the defendant failed to take into account the practical context of a Public Relations Officer whose role required an understanding of the carer's role in order to perform the public relations job. Mr Gilbert drew attention to the content of Mr Kurian's interview which, he submitted, did not suggest he would carry out any "medical care activity". The effect, Mr Gilbert submitted, was that Mr Kurian's role was entirely consistent with that of a Public Relations Officer.
31. Mr Gilbert relied, inter alia, upon the explanation of the inaccuracies and as to Mr Kurian's role contained in Ms Baksh's letter of 3 February 2014; her written statements dated 18 April 2014 (at paras 4 and 6) (pp.24-26 TB) and 4 February 2015 (pp.146-148 TB); Mr Kurian's statement dated 29 September 2014 (at paras 1-3) (p.70 TB) and an extract from a US publication, The Handbook of Public Relations (at pp.133-145 TB).
32. Mr Gilbert submitted that the defendant's decision should be quashed as unlawful and the defendant should be ordered to retake the decision.

The Defendant's Case

33. The defendant's case is set out in the detailed grounds of defence, and in Mr Waite's skeleton argument dated 25 November 2014 and his oral submissions.
34. First, Mr Waite submitted that the defendant was entitled to conclude that the role Mr Kurian was performing was substantially that of a Senior Care Worker and not that of a Public Relations Officer.
35. Mr Waite submitted that the defendant was entitled to rely upon the records of Mr Kurian and Ms Baksh's interviews which they had signed. He submitted that it was not irrational of the defendant to consider what was said there as being accurate. He relied upon the witness statement of the Compliance Officer, Mr Paul Thompson dated 12 December 2014 in which he stated that the record was accurate (defendant's bundle ("DB") under cover of letter dated 19 February 2015). He submitted that the evidence of Mr Thompson had not been challenged by the claimant. There had been no application to cross-examine him. It had, therefore, to be accepted by the court.
36. Secondly, in respect of the argument that the defendant had failed to consider that Mr Kurian was undertaking induction, Mr Waite submitted that the defendant had specifically taken into account in the reconsideration letter of 8 May 2014 that Mr Kurian was interviewed at a time when he was undertaking induction. Further, it was plain that answers given in the interviews concerning the role to be undertaken by Mr Kurian were not restricted to the induction period. His evidence was clear that he was being trained to look after residents including giving them medication, even though he would not actually do so.
37. Thirdly, in relation to the challenge based upon the defendant relying on evidence concerning the role of a "Deputy Care Manager" which was not that of Mr Kurian, Mr Waite submitted that this had never been raised before the hearing and it was now too late for the claimant to rely upon it. In any event, even if it was a matter which should not have been considered, looking at the totality of the evidence it could not be said that this was a significant matter which undermined the legality of the defendant's decision.
38. Mr Waite relied upon the decision of Silber J in R(Westech College) v SSHD [2011] EWHC 1484 (Admin) (especially at [16]-[19] and [29]), in particular that the defendant enjoyed a "wide discretion" in deciding whether to revoke the claimant's licence in the light of the "level of trust" placed in employers under the Tier 2 scheme in the same way as trust was placed in Tier 4 sponsors in student cases as Silber J had recognised.
39. Mr Waite submitted that the defendant was entitled as a matter of law to reach the conclusion based upon the interview records that Mr Kurian's role was not compliant with that set out in the job description in the CoS and with that of a Public Relations Officer.

Discussion

40. The issue in this case put straightforwardly is whether the defendant was entitled to reach the conclusion that the role undertaken by Mr Kurian was not in substance or centrally that of a Public Relations Officer consistent with the SOC Code 2472 and his job description as set out in the CoS but rather entailed substantially working as a "Senior Care Worker".
41. As regards the SOC Codes, the Codes of Practice for Skilled Workers: Standard Occupational Classification (SOC) Codes (6 April 2013) includes a description for "Public relations professionals" (a NQF level 6 occupation) under Code 2472 by way of example job tasks as follows (at p.83):

"Example job tasks:

discusses issues of business strategy, products, services and target client base with senior colleagues to identify public relations requirements;

writes, edits and arranges for the effective distribution of press releases, newsletters and other public relations material;

addresses individuals, clients and other target groups through meetings, presentations, the media and other events to enhance the public image of an organisation;

develops and implements tools to monitor and evaluate the effectiveness of public relations exercises."

42. Albeit that these are "example" job tasks, there is no reference to the provision of healthcare to patients or, in this context, residents of a care home.
43. As regards the job description set out in CoS applicable to Mr Kurian, that is in the following terms (at p.72 TB):

"Summary of job description:

PUBLIC RELATIONS OFFICER

2472 Public relations professionals

We are looking for applicants with a qualification in nursing and must hold either Bachelor degree or Master degree in health sector from the UK. The job entails discussing issues of business strategy, products, services and target client base with senior managers, to identify the public relations required. Arrange effective distribution of news letters and other materials. Arrange meetings, media events and presentations to enhance the public image of the company. Develop and implement tools to monitor and evaluate the effect of the public relations exercises. You will do health care assistance induction and ensure they are competent and confident to fulfil their roles. You will be expected to work on the floor and help the team to improve work performance also monitoring resident7s (sic) health and wellbeing. You will be able to draw action plans and discuss these with the senior manager and to follow implementation and review."

44. That summary job description of a public relations professional, perhaps because it is specifically focused on an individual working in the healthcare sector, does refer to healthcare matters, including the individual undergoing healthcare assistance induction in order to be competent to fulfil their role. It also refers to monitoring of "resident7s (sic) health and wellbeing". That part of the job description cannot, of course, refer to carrying out the role of a senior healthcare worker which, as was accepted before me, falls within a different coding and (lower) level of qualification.
45. In reaching her decision, the defendant relied upon a number of answers given in interview with the Compliance Officer (Mr Thompson) by Ms Baksh and Mr Kurian himself. The records of those interviews are at pages 105-125 and 128-132 respectively of the trial bundle.
46. I deal first with Ms Baksh's interview. At page 11 of the interview record (p.113 TB), Ms Baksh was asked about the public relations role and she replied:

"They bridge the role between care assistant and senior carer. On the job training."

47. She was then asked how this was "public relations". She replied:

"They will explain to the relative the type of care the resident is receiving, taking this away from the senior carer. They will also undertake activities for the residents. ... Activities weren't really covered until Kurian started. We want carers to concentrate on care side. The aim is to get public relations officers into the role of s/carer."

48. At page 17 of the interview record (p.119 TB), it is recorded that copies of job descriptions were provided by Ms Baksh for the Deputy Care Manager and Senior Carer/Team Leader roles. The record continues:

""There is no job [description] for public relations. Why is this? Because we are training them to be senior carers. That's the ultimate aim."

49. Then, again at page 21 of the interview record under the heading "Concluding Questions" it is recorded that (p.123 TB):

"Public relations persons will be trained to senior carer role but with resident activities attached. All job roles involve nursing/caring. Very much a hands on home. It's very difficult to recruit this area."

50. That record is signed by Ms Baksh dated 5 November 2013 and includes the declaration (p.124 TB) that:

"5. The information noted by the Compliance Officer and contained in this document is a true and accurate description of the comments and responses I have given to the questions asked."

51. In his interview with Mr Thompson, Mr Kurian is recorded in response to the question, "What do you do in your job – what are your duties?" as follows (p.129 TB):

"Mainly care plans, meeting with care staff. Activities with residents. I am also being trained as a senior carer. Look after residents, feeding, hygiene. Being trained to give medication but won't actually give.

Public relations? Work on the floor, check if any problem, talking with families. " (emphasis added)

52. At the conclusion of the interview record, Mr Kurian signed the record with the following declaration (p.132 TB):

"I have understood the questions put to me and confirm that I have been given the opportunity to provide additional information and provide further comment"

53. Mr Gilbert submitted that there were inaccuracies recorded in the interview records. He relied upon Ms Baksh's response to the defendant when revocation proceedings were contemplated and also her statement of 4 February 2015 (at pp 146-148 TB). In particular, Ms Baksh did not recall that the Compliance Officer asked for a job description for the Public Relations Officer. She only recalls that he asked about job roles for the Deputy Care Manager and Senior Carer (see para 8). Further, Ms Baksh points out that Mr Kurian was undergoing training by a Senior Carer but not in order to become a Senior Carer. At para 7 she says this:

"Mr Kurian was being inducted with, and by, a senior carer. As part of the PR Officer role he had to be fully knowledgeable of the role of senior carer within The Koppers, but he was not be trained to become a senior carer. New Deputy Carers are also inducted the same way, even though they are more senior and have charge of the floor when they are fully trained."

54. At para 9 of her statement, Ms Baksh offers a possible explanation for the Compliance Officer's misunderstanding as follows:

"As a person who has migrated from Malaysia, I speak English with a strong Malaysian accent. I suspect that the compliance officer from the Home Office misinterpreted some of my statements during the interview"

55. Mr Gilbert submitted that Mr Kurian had not stated in his interview (at p.129 TB) that he was being trained "as" a Senior Carer, rather than he was being trained "with" a Senior Carer as part of his induction.
56. Mr Gilbert submitted that the interview records could not be treated as a verbatim account. Some of the contents are commentary and, in any event, the record of what was said was only a summary. He submitted that the fact that both Mr Kurian and Ms Baksh had signed the records did not allow the Secretary of State to treat everything in there as accurate and truthful. He pointed out only Ms Baksh's declaration attested to the accuracy of the contents. Further, Mr Gilbert submitted that Mr Thompson's statement that the contents of the interviews were accurately recorded had to be seen in the light of para 12 of his statement of 12 December 2014, where he had misstated or misunderstood Mr Kurian's recorded answer that he was being trained to give residents their medication when, in fact, it was recorded that he said he would not give medication.
57. As I will turn to deal with shortly, Mr Gilbert in fact relies upon some of the contents of the interview as supporting the claimant's case that Mr Kurian was not carrying out in substance or centrally the role of a Senior Carer inconsistently with that of a Public Relations Officer. Nevertheless, in relation to the matters I have referred to, Mr Gilbert maintained that simply because Mr Thompson had affirmed the accuracy of the records those answers could not be relied upon.
58. In my judgment, the defendant was entitled to rely upon the contents of the interview records.
59. First, it seems to me that Mr Waite was correct when he submitted that if a signed interview record could not in principle be relied upon by the Secretary of State that would run counter to an effective enforcement regime in monitoring the Tier 2 sponsor system under the Rules. Providing a fair opportunity to read and correct (or make comment upon) the interview record is provided, the compliance system would be difficult, if not impossible, to operate effectively if the interview record could not be relied upon.
60. Secondly, both Ms Baksh and Mr Kurian signed the records. Ms Baksh explicitly confirmed that the "information ... contained in this document is a true and accurate description of the comments and responses I have given to the questions asked". Although that specific declaration is not set out in Mr Kurian's record of interview he did nevertheless sign it including a declaration that he had understood the questions put to him and had been given an opportunity to provide further and additional information and comments.
61. In her witness statement dated 18 April 2014 (pp.24-26 TB), Ms Baksh denies that she read the interview notes before signing (para 5). Mr Kurian says the same in his witness statement of 29 September 2014 (p.70 TB). But that evidence post-dates the Defendant's decision to revoke the claimant's licence on 26 March 2014. It was, however, considered in the reconsideration decision of 8 May 2014 and rejected (p.32 TB).
62. In his witness statement Mr Thompson confirmed that the information recorded in Ms Baksh's interview was accurate and that (at para 18):

"Upon conclusion of the interview Ms Baksh was given an opportunity to read my notes and offer further clarification. Ms Baksh read the notes of the interview, and added nothing further. She then signed them as being a true and accurate reflection of the discussion which had taken place"

63. In relation to Mr Kurian, Mr Thompson again confirmed the information set out in the record of his interview and states (at para 14):

"At the conclusion of the interview, Mr Kurian was given the opportunity to read my notes and offer any further clarification if required. No amendments were made and he duly signed them as being an accurate reflection of the discussion that had occurred during the interview"

64. As Mr Waite submitted, the claimant did not make an application to cross-examine Mr Thompson and so challenge his evidence. In these proceedings, in the absence of cross-examination the court must accept the evidence from the defendant (see, e.g. R(McVey) v SSHD [2010] EWHC 437 (Admin) at [35] and Westech College at [29(f)]). I see no basis for rejecting Mr Thompson's evidence simply on the basis that, in his witness statement at para 12, he misread or misunderstood his own record whether Mr Kurian would actually give medication. That can have no impact on the general reliability of his evidence as to what was said at the interviews. It is only an irrelevant error subsequently made in reading the record.
65. Given their signatures and Mr Thompson's evidence that they individually read through the interview notes before signing the record, I am satisfied that the Secretary of State was entitled to rely upon the interview records as accurate statements of what was said by Ms Baksh and Mr Kurian and also that no job description for the Public Relations Officer post was produced at Ms Baksh's interview.
66. Mr Gilbert sought to challenge the Defendant's decision on the basis that it gave inadequate weight or failed to take into account all the evidence, in particular all the information recorded as having been given in interview by Ms Baksh and Mr Kurian. He submitted that in respect of the responses given to questions by Ms Baksh and Mr Kurian, the answers were consistent with Mr Kurian carrying out a public relations role. He relied upon Ms Baksh's statement of 18 April 2014. There she points out that the role is

"broader than simply dealing with the press – it also requires the development and management of client and stakeholder relationships at the home as well as staff relations: external and internal relations"

67. Ms Baksh goes on to point out that Mr Kurian could only properly carry out his role

"if he fully understands how our organisation functions. The role requires an induction period where the PR Officer shadows various staff to get a thorough understanding of the business. This requirement is included in the job description."

68. In her later statement of 4 February 2015 (pp.146-148 TB), Ms Baksh states that:

"3. Amongst other tasks, a health care public relations officer must be aware of the health and care needs/programmes for every individual resident on the floor to promote clear communication between residents, family members, visitors and staff in our busy residential home.

4. Also, as a Public Relations Officer, Mr Kurian is required to communicate information about The Koppers to the residents and their relatives, to staff members, and also more widely to the public ie. the media, the press the hospital commissioner team to promote the home reputation. With all these different groups of persons involved and the need to run a successful modern healthcare business, the PR Officer has an important role and must understand all core parts of our operations and be able to tailor the methods of communication appropriately"

69. Mr Gilbert relied also upon an extract from a US publication, The Handbook of Public Relations and, in particular, a chapter entitled "Public Relations in the Health Care Industry" (pp.137-144 TB). In particular he referred me to passages dealing with "managed care" and changes to the "traditional" approach to "healthcare public relations". He relied upon this to support his submission that the training and stated role of Mr Kurian, including dealing with patients, was consistent with a public relations role. For example, (p.143 TB) it is stated that:

"Specific knowledge of the health care and managed care context is critical to accomplish traditional public relations tasks"

70. I accept that some of the information given by Ms Baksh is consistent with Mr Kurian performing, at least in part, a public relations role. For example, she states that he will explain to relatives the type of care a resident is receiving (see page 113 of the bundle). Likewise, she also states that Mr Kurian's role was not really covered until he started and "we want carers to concentrate on care side". Nevertheless, Ms Baksh also states, when explaining why there was no job description provided for the Public Relations Officer at the interview:

"Because we are training them to be senior carers, that's the ultimate aim." (p.119 TB).

She also states that public relations persons:

"will be trained to s/carer role but with resident activities attached. All job roles involve nursing/caring. Very much a hands on home." (p.123 TB).

71. In similar vein, Mr Kurian states in his interview that he is being "trained as a senior carer" and that he is "look[ing] after residents, feeding, hygiene" and "[b]ing trained to give medication but won't actual give". I do not accept Mr Gilbert's submission that, at least in respect of the "looking after" part of the role, these are not "medical care" activities. They patently are health care or medically related activities.
72. As I have already concluded, the Defendant was entitled to rely on the interview records as representing a true record of what was said at the interviews.
73. I do not accept Mr Gilbert's submission that these, or at least some of these, answers should have, but were not, considered by the Secretary of State in the context that Mr Kurian was undergoing induction training with a Senior Carer at the time of the interviews. I see nothing in the evidence to suggest that Mr Thompson was not well aware that Mr Kurian was being trained in that way. In any event, the information given by Ms Baksh that the "ultimate aim" was to train Public Relations Officers as Senior Carers cannot be restricted to any training period. Indeed, the whole thrust of the information she provides is that everyone's role, including Public Relations Officers, involves "nursing/caring" in a "hands on home".
74. I readily accept that a public relations role requires an individual to understand the activities of the care home, including the nursing and other care provided. Even though the US publication is, perhaps, best understood in the context of their "managed care" system, the need for such understanding relates to the function of communicating, whether internally or externally, with patients, relatives and others. I am, however, wholly unpersuaded that a public relations role incorporates the provision of care or nursing itself.
75. The Code 2472 job description gives no indication of including as example tasks nursing or care provision by an individual with the job description of a "public relations professional".
76. Mr Kurian's own "summary of job description" does, on its face, entail at least some involvement with residents including "monitoring residents' health and wellbeing" and being able to "draw action plans and discuss these with Senior Manager and to follow implementation and review". I am prepared to accept that some dealings with residents and their care could properly fall within the job description of a "Public Relations Officer" at least when that entails elements of communication. That may be reflected in the summary of job description in the CoS for Mr Kurian consistent with a 'modern' public relations role. That, however, is not the limited role which both Ms Baksh and Mr Kurian state he is being trained for and will carry out, namely as a Senior Carer.
77. One final point raised by Mr Gilbert concerned para 5 of the defendant's letter of 26 March 2014 which I set out above but repeat here for ease of reference. There it is stated:

"5. You say that you informed our compliance officer that Mr Anand Kurian was training with a senior care worker, not training as a senior care worker. However when asked about how the deputy care manager role differs you said 'they take on the responsibility but do senior carer role as well'."

78. Mr Gilbert submitted that the Secretary of State had plainly taken into account an irrelevant factor, namely that Deputy Care Managers carried out a senior care role unlike the Public Relations Officer.
79. Mr Waite submitted that this point had only been raised in the grounds or Mr Gilbert's skeleton argument and it was now too late to raise it. He accepted, however, that the sentence was difficult to understand but he had taken instructions that it had had no influence on the Secretary of State's decision.
80. There is, in my judgment, considerable merit in Mr Waite's submission that this point has been raised too late in the proceedings to be relied upon. Even if it could be relied upon, I am wholly unable to see how it could affect the legality of the defendant's decision based upon the information given by Ms Baksh and Mr Kurian at their interviews. It is far from clear that the claimant even asserts that the Deputy Care Manager's role includes a "Senior Carer's role" (see Ms Baksh's statement of 18 April 2014 at para 4). Put at its highest, what is said about the differing roles of the Deputy Care Manager and the Public Relations Officer in para 5 of the defendant's letter of 26 March 2014 adds a little more weight to statements consistent with the claimant's case as to Mr Kurian's role. Reading the defendant's decision as a whole, however, it could not in my judgment have made any difference to the defendant's conclusion and the view I have reached that the decision was not irrational and was properly based upon all the evidence, including the interviews.
81. The ultimate question which I must answer is whether, on the basis of the evidence available to the Secretary of State, she was lawfully entitled to form the view that Mr Kurian's role included a substantial non-public relations role inconsistent with the description of that role in the relevant Code 2472 and his own CoS.
82. Mr Waite relied upon the Westech College case as to the approach a court should take in dealing with challenges to decisions made against Tier 4 sponsors which, he submitted, was equally applicable to Tier 2 sponsors. He relied, in particular, upon [19] and [29] of Silber J's judgment. At [29] Silber J re-iterated the role of this court when reviewing such decisions:

"(b) A fundamental principle of the sponsorship system requires the UKBA to trust a sponsor to a very substantial extent because sponsors play a crucial role in ensuring that those granted student visas comply with their obligations and in particular they should ensure that unless students obtain permission, they do not work during or after the period covered by their visa and that leave when their visa has expired;

(c) UKBA has the difficult and crucial task of carrying out inquiries to ensure not only that the sponsors have complied with their obligations but also that they will comply with them in the future. The importance of their policing role cannot be overstated;

(d) The courts should respect the experience and expertise of UKBA (which the courts do not have) when it reached conclusions relating to the issue of whether any acts or omissions of sponsor might suggest that it has not complied with its obligations or that it might not comply with its obligations set out in the Guidance, which is vitally necessary to ensure that there is effective immigration control;

(e) The function of the courts is as Richards J explained in the passage set out in paragraph 28 above in the Bradley case "not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits…the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker, and so forth";

(f) ….

(g) "It is essential that in exercising the very important jurisdiction to grant judicial review, the court should not intervene just because the reasons given, if strictly construed, may disclose an error of law. The jurisdiction to quash a decision only exists when there has in fact been an error of law. Moreover, the court should not approach decisions and reasons given by committees of laymen expecting the same accuracy in the use of language which a lawyer might be expected to adopt." per Lord Browne-Wilkinson (with emphasis added) giving the only reasoned speech in Reg. v. Bishop Challoner School, Ex p. Choudhury [1992] 2 AC, 182,197E."

83. Mr Waite also relied upon a passage in R (London Reading College) v SSHD [2010] EWHC 2561 (Admin), cited with approval by Silber J at [19] that:

"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 without overseeing colleges and a light trigger in deciding when and with what level of firmness they should act."

84. I fully accept what was said by Silber J, including that: "A fundamental principle of the sponsorship scheme requires the UKBA to trust the sponsor to a very substantial extent." That applied in the circumstances of this case where the claimant is a Tier 2 sponsor to ensure that an employee's role actually conformed to the relevant SOC Code and job description in the CoS. I also accept that the approach of the Court should take into account the "experience and expertise" of the UKVI when applying its public law jurisdiction. The principles upon which a decision may be challenged remain, however, the same: illegality, procedural irregularity and irrationality.
85. In my judgment, the claimant's challenge fails to establish any such unlawfulness. For the reasons I have given:

(1) The Secretary of State was entitled to rely upon the interview records.

(2) The Secretary of State did not fail to consider all relevant factors and did not consider any irrelevant factors.

(3) Reading the interview records as a whole, the Secretary of State was entitled rationally to conclude that his role was substantially that of a Senior/Care Worker and not that of a Public Relations Officer.

(4) Thus, it was open to the Secretary of State to conclude that Mr Kurian's role was inconsistent both with the relevant SOC Code for his post and also his job description set out in the CoS.

Decision

86. Consequently, for the above reasons, the defendant's decision was not unlawful and the claim is dismissed.