Can framework agreements evidence a need for Certificates of Sponsorship? What we can learn from Hartford Care’s challenge of UKVI

Hartford Care have successfully challenged UKVI on their refusal to consider frameworks agreements as evidence of their need for overseas recruits. Here’s how they did it and what it mean for health and care providers.

A source of frustration for many of our clients currently is the struggle to obtain Certificates of Sponsorship (COS) from UKVI. 

Allocations of COS must be applied for and with each application, supporting evidence must now be provided explaining why the COS (and therefore the overseas workers) are needed.  Over the last couple of years, UKVI processes have become increasingly stringent, demanding more evidence of genuine vacancies which require overseas workers to fill them. 

As we wrote recently, this isn’t necessarily a bad thing but increasingly, UKVI have made demands which are not only difficult to comply with, but which often feel that they have little to do with proving genuine demand for services and from that, for overseas workers. 

A variety of evidence is routinely called for, including rotas, corporate structure and hierarchy charts and individual contracts for care. 

 The requirement to provide individual contracts is problematic for many reasons but 3 in particular stand out:

1.        Individual care contracts are evidence of demand but not necessarily evidence of genuine vacancies or the need for COS.  Generally, care providers also seek to staff in anticipation of demand rather than in response to it.

2.        Similarly, the absence of individual contracts is not evidence that there are no genuine vacancies – a brand-new nursing home for example, would require a certain level of staff to be in place in order to open.

3.        Individual contracts for care are not the norm – frameworks are.

 And it is frameworks that are the biggest challenge.  They may be the way the majority of care is commissioned but because they are designed to be flexible, containing no obligation to commission care from any given provider, they can never meet the UKVI requirement for, “contracts which demonstrate a guaranteed agreement to provide services,” creating a situation where many providers can never prove genuine demand for services or genuine vacancies, even if all other evidence submitted points to both.

 It is UKVI’s rejection of frameworks as evidence of demand that was successfully challenged Hartford Care Group in a recent judicial review.

Hartford Care Challenges UKVI

 Hartford Care challenged UKVI’s rejection of framework agreements on two main bases:

1.        they argued that UKVI had acted unlawfully by imposing new requirements on providers to submit evidence of a need for overseas workers,

2.        second, they argued that the new requirements in substance were unreasonable and irrational. 

The judge rejected the first argument, accepting UKVI’s claim that there was no new policy as such in requiring providers to submit evidence, but merely processes that were evolving to, “best assess genuine vacancies in the care sector.”   The distinction drawn between policy and process here feels like a very fine one but reflects the reality that UKVI exercise significant discretion in allocating COS. 

On the second argument, however, the judge found that UKVI had been “irrational and…unreasonable,” in demanding that only individual contracts for care could be submitted as evidence of genuine demand, and that they rendered the entire process in practice, “unworkable,” for many providers who could only provide framework agreements as evidence of genuine demand resulting in genuine vacancies. 

What does this mean for providers?

This is an important decision for providers.  While the judge was not persuaded to deliver the COS applied for, the finding that UKVI acted unreasonably and irrationally will mean that UKVI will need to fine tune their processes, ensuring evidence requested shows genuine demand for services and genuine vacancies, while also reflecting the realities of health and care commissioning. 

The decision is unlikely to mean that the requirements for an allocation of COS will be eased – meaningful evidence will still be required but a wider range of more appropriate evidence may be considered, including framework agreements. 

What can you do now?

·      Prepare for possible changes in the UKVI approach by gathering a wide range of evidence of demand for services.

·      Consider other evidence you may have within the organisation that could support COS requests. 

·      Ensure challenges in recruitment are well documented over a period of time.

·      Consider approaching commissioning bodies to provide additional supporting evidence to submit to UKVI

·      Include a clear and detailed narrative with any future COS request, explain what the evidence shows, assuming zero-knowledge of the part of            the UKVI decision maker about the evidence or the sector as a whole. 

Need help?

We have been helping clients navigate international recruitment for 25 years, if you need help or advice or want to find out how our comprehensive service can help you build or transform.  Just get in contact. 

BAHealthcare is the care sector’s first-choice partner for overseas personnel.  A British business, led by an Anglo-Filipino team, headquartered in Malaysia with bases in the UAE and Hong Kong, since founding in 2000, we have worked with some of the country’s largest providers and some of the smallest, including specialist services for children and young people.  We have deployed 10,000+ nurses, carers and other professionals – primarily from Filipino ex-pat communities across Asia – to the UK and beyond.  

We partner to provide committed, experienced, well-qualified nurses and carers that create thriving, sustainable workforces, and help organisations to strengthen and grow.