Prestwick Care & Ors, R (on the application of) v Secretary of State for the Home Department [2025] EWCA Civ 991

[2025] EWCA Civ 991Case No CA-2025-000673
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KING’S BENCH DIVISON
ADMINISTRATIVE COURT
DAVID PITTAWAY KC (sitting as a Judge of the High Court)
Venue The Royal Courts of Justice, Strand, London, WC2A 2LLDate 10 April 2025
Before
LORD JUSTICE SINGH
Between
THE KING (ON THE APPLICATION OF PRESTWICK CARE AND OTHERS)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendantTranscript of Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400 Email: civil@epiqglobal.co.uk (Official Shorthand Writers to the Court)This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.MR H SOUTHEY KC (instructed by Rhys Mardon) appeared for ApplicantMR D MANKWELL KC (instructed by Government Legal Department) appeared for RespondentHearing Hearing date: 10 April 2025Approved Judgment

Crown Copyright©

[1]This is an application for permission to appeal against the order of David Pittaway KC sitting as a deputy High Court judge in the Administrative Court, dated 21 March 2025, refusing interim relief in favour of the appellant that would prevent the Secretary of State determining any pending applications for leave to remain in the UK by the appellant's employees.[2]The application for permission to bring a claim for judicial review has not been yet been determined by the Administrative Court. The application for interim relief was made as a matter of urgency before that court so as to preserve the status quo until the application for permission had been determined.[3]The present application came before me as a matter of urgency on the afternoon of 24 March 2025. I did not consider it appropriate to determine the application on the papers without giving the respondent the opportunity to make any representations she would wish to, and I directed that an oral hearing should take place. Having regard to the court's availability in various jurisdictions, the earliest that could take place was today, 10 April 2025. Factual and procedural background: the appellant:[4]The appellant in fact comprises a group of three companies operating 15 care homes. It currently employees 729 staff, including 44 foreign nationals whose immigration status is dependent on a certificate of sponsorship. The appellant was empowered to issue such certificates, having been made a licensed sponsor under the visa sponsorship scheme on 27 November 2008. Initial suspension:[5]In the period 24th to 27 October 2022, the respondent's "sponsor compliance team" attended care homes operated by the appellant to assess their adherence to its guidance for sponsors. The appellant's licence was suspended on 6 December 2022 due to alleged failures to comply with the licence conditions. This was the suspension decision.[6]The appellant made representations at the respondent's request on 22 December 2022 but had its licence revoked on 3 February 2023. This was the revocation decision. First set of judicial review proceedings:[7]The appellant issued its first judicial review proceedings ("JR1") challenging that decision on 3 February 2023. This claim focused on the adverse impact of the decision on vulnerable individuals in the appellant's care. On 7 February 2023, Bryan J granted an injunction preventing the revocation decision from taking effect until a determination was made on permission in JR1. Fordham J granted permission to apply for judicial review in JR1 on 21 April 2023. The claim in JR1 was dismissed by His Honour Judge Kramer sitting as a judge of the High Court on 14 November 2023, but a 14-day injunction was granted preventing the revocation decision from taking effect.[8]On 22 November 2023, the appellant applied for permission to appeal against the dismissal of JR1. It was initially refused by Arnold LJ on 28 November 2023, but the decision was re-opened and permission was granted on 22 July 2024. Second set of judicial review proceedings:[9]On the same day, 21 April 2023, the appellant initiated a second set of judicial review proceedings ("JR2"), challenging the ongoing refusal to review the suspension and revocation decisions in light of fresh material. Permission was refused on JR2 on 18 December 2023. Third set of judicial review proceedings:[10]On 2 February 2024, the appellant applied for a new skilled worker licence and had this refused by the respondent on 20 March 2024. The appellant then initiated new proceedings on 12 April 2024 challenging that decision ("JR3"). His Honour Judge Klein, sitting as a judge of the High Court refused permission on 19 June 2024; the appellant renewed the JR3 application on 21 June 2024. My understanding is that that remains outstanding. In fact there was a hearing due to take place in the High Court today, but that has been adjourned because of the present hearing. Context of the fourth (current) set of judicial review proceedings:[11]The appellant made two further applications for sponsor licences on 23 September 2024, paying an additional fee to file those under a priority service. The respondent stated that sponsorship licence applications are excluded from the priority service. An informal agreement between the parties was set out in an email on behalf of the Government Legal Department on 7 November 2024.[12]This agreement had the effect of ensuring that all pending applications for leave to remain by the appellant's employees would be placed on hold pending determination of the appeal which was then pending in relation to JR1. The agreement also stipulated that if that appeal was unsuccessful, the appellant's employees would need to vary their applications and/or regularise their position within 14 days of that date.[13]The respondent had scheduled an inspection visit for 17 December 2024 but this was cancelled on 16 December. On 20 January, the respondent notified the appellant that the visit would take place on 11 March 2025. I understand this was again cancelled, the inspection visit I am told has now taken place on 2 April 2025. Substantive judgment on the appeal in JR1:[14]The appeal in JR1 was heard by a court comprising Baker LJ, Jeremy Baker LJ and me in the chair on 11th and 12 December 2024. This was linked to another appeal in which Supporting Care Ltd was the appellant; case numbers CA-2023-002296 and CA-2024-000284. The judgment in those appeals was handed on 11 March 2025. The appeal by this appellant was dismissed. Fourth (current) set of judicial review proceedings:[15]The appellant had, prior to judgment in JR1, sought a 7 or 14-day extension to the 14-day period in which its employees could vary their applications for leave in accordance with the informal agreement. The respondent made clear on 11 March 2025, following this court's decision dismissing the appeal in JR1, that she would not extend the informal agreement. The appellant also sought the rescheduling of the respondent's inspection visit to within seven days thereafter.[16]The appellant made an application to this court for permission to appeal to the Supreme Court on 12 March 2025. That application was refused by this court, along with an application for interim relief in an order dated 13 March 2025. This court gave the following reasons for refusing interim relief in that case: 1. It was not convinced that it had the power to grant such an order; 2. In any event, it was not convinced that it would be appropriate to grant the order; 3. The appellant was able to seek an interim order from the Supreme Court; 4. The appellant had other remedies open to it as detailed in paragraph 7 of its counsel's submissions for interim relief dated 11 March 2025.[17]On 18 March 2025, the appellant filed a fourth claim for judicial review ("JR4"), specifically concerning the respondent's refusal to continue the informal agreement. This challenge in essence contends that the decision to discontinue the informal agreement was firstly, contrary to the respondent's own policy; and secondly, irrational.[18]The appellant also applied for interim relief suspending the determination of leave to remain applications from its employees until such time as permission has been granted on JR4 or earlier order. This is the subject of the present application to this court. Decision under appeal:[19]The decision which is the subject of the present application for permission to appeal is the order of the judge dated 21 March 2025 which refused the appellant's application for interim relief in the context of JR4. Applying the test in American Cyanamid v Ethicon Ltd [1975] AC 396, as modified for public law cases (see for example R (Detention Action) v SSHD [2020] EWHC 732 (Admin), the judge found first that there was no real prospect of success at trial; and secondly, in any event, the balance of convenience did not lie with the appellant.[20]The order also noted that the appellant had had over two years to adjust to the consequences of losing his sponsor licence and has reduced its visa dependent workforce in the meantime from 219 to 44. Ground of appeal:[21]The appellant seeks to advance one ground of appeal which is that the judge erred in taking account of a number of irrelevant considerations and overlooking a number of relevant considerations. The appellant's position is that had the judge not erred in this way, he would have granted interim relief. In its substantive challenge under JR4 on which permission has not yet been granted by the Administrative Court, the appellant alleges that the respondent's refusal to continue the informal agreement is both irrational and in breach of the respondent's own policy.[22]The appellant seeks to set aside the order made by the judge and have it varied so that an injunction is ordered preventing the defendant from determining any pending applications for interim relief from its employees until a decision has been made on permission in its judicial review claim. The appellant's submissions:[23]The appellant's core submission is that there is a serious issue to be tried in this case. Damages would not be an adequate remedy, given the impact on vulnerable care home residents, and the balance of convenience favours the grant of interim relief. The appellant underlines that the judge's judgment was made following late submissions by the respondent, first in its written submissions, and then its updated written submissions. The appellant had filed a short reply, but it is not clear that the judge had this before him and there is nothing to indicate that he took it into account in his written reasons.[24]The appellant submits that as a result, the analysis under American Cyanamid was defective, in particular that the judge failed to take into account of relevant considerations and took account of irrelevant considerations. The appellant, through Mr Southey KC, developed those submissions in the following way. Factors not taken into account:[25]The appellant submits that the following were not taken into account: 1. The appellant's arguments do not rehash those made in JR1. In those proceedings, the relevant issue was whether there was an obligation to consider the impact of revocation of a sponsor licence. In this case, however, the issue was whether that impact should be mitigated. The appellant relies on this court's reference in its judgment on the appeal in JR1 to mitigation and the possibility of pausing visa cancellation action to allow continuity of care until alternative sources of care are arranged, see this court's judgment at paragraph 101. 2. The respondent was wrong to argue, and therefore the judge was wrong to accept, the point that the appellant should have been aware of the potential loss of its licence sponsor status. 3. The respondent was wrong to say that the appellant has been able to cope with the loss of employees and, in the same vein, the judge was wrong to suggest that the appellant had taken steps to accommodate this. The respondent insists that the loss of staff was gradual. 4. The judge failed to take into account the ongoing and unreasonable delay in the respondent's decision on the current sponsorship application which remains outstanding. Some six months or more have elapsed. 5. The appellant had submitted clear evidence of the devastating impact of the failure to grant interim relief. 6. Failure to grant interim relief risks rendering the substantive claim under JR4 academic.

Irrelevant considerations taken into account:

[26]The appellant also highlights the following factors which it submits were taken into account by the judge but were irrelevant. 1. The respondent had yet to make a decision on the outstanding leave to remain applications. The appellant argues that the purpose of the application for interim relief was to maintain that status quo. 2. The respondent had been clear and consistent in explaining that it would not continue the existing informal agreement if JR1 failed. 3. Relief was sought for a reasonably short period of time. The appellant's application for interim relief is made on the basis that it is sought for a relatively short period. If interim relief is not granted, substantive relief quashing the decision to discontinue the existing informal agreement may be rendered academic, and the impact on the appellant and its employees is likely to be severe. This in turn will have an impact on vulnerable members of the public who reside in care homes.

The respondent's submissions:

[27]The respondent notes that the appellant's most recent application for a sponsor licence (23 September 2024) remains under review and a visit to the appellant, as I have mentioned, has now in fact taken place on 5 April 2025. The respondent considers the refusal to be relevant to the application for interim relief, but not the delay in determining the pending applications. It argues that at paragraph 3 of its judgment, this court considered 14 days to have been sufficient to allow employees to regularise their positions. The respondent emphasised this that by the date of this hearing, 10 April, the appellant will in fact have had 30 days to achieve this.[28]The respondent argues that the judge made no error of principle as he accurately summarised the facts, correctly described the interim relief principles applicable, found there was no real prospect of success at trial; but, in any event, that the balance of convenience fell in favour of refusing interim relief.[29]The respondent acknowledges that a "strong prima facie case" is not a gateway or threshold, but submits it will be a significant factor weighing in favour of granting interim relief, citing the decision of this court in R (X) v Ofsted [2020] EWCA Civ 594, [2020] EMLR 22, paragraph 66. The respondent contends that the judge was correct to find that the appellant had failed to demonstrate this.[30]The respondent also submits that the jurisdiction of this court on an application for permission to appeal or on an appeal is narrower still, citing the X case at paragraph 80. There, Lindblom LJ summarised that only if the lower court's conclusions are irrational or otherwise plainly incorrect in law can its decision be reversed.[31]On the refusal to continue the suspension of the revocation decision, the respondent submits that this is neither in breach of its own policy, nor irrational. Jurisdiction:[32]The first issue which I must address is whether this court has jurisdiction to entertain this application; or whether it should have been renewed at an oral hearing before the High Court, having been refused on the papers. As things have turned out, there is in fact no dispute about this. It appeared to be a live issue in consequence of what had been said in the skeleton arguments, but I have been assisted by brief oral submissions.[33]Although jurisdiction cannot be conferred on a court by consent, I am satisfied that this court does have jurisdiction to consider and determine the application now before it. The starting point is to be found in section 16 of the Senior Courts Act 1981 which so far as material provides in subsection (1):
" ... the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court."
[34]As is made clear by this court in MD (Afghanistan) v SSHD (Practice Note) [2012] EWCA Civ 194 [2012] 1 WLR 2422 at paragraphs 16 and 21, in a judgment of the court given by Stanley Burnton LJ, this is a question of discretion and practice rather than jurisdiction as such.[35]In those passages, the court made it clear that the normal position is that a refusal on the papers by the High Court of an interim application should be the subject of a renewal to an oral hearing before at court. If there has been no oral renewal in the High Court, the judge of the Court of Appeal may well refuse permission to appeal to this court. But this court also made it clear that this is not an issue about whether the Court of Appeal has jurisdiction, but a matter of discretion and practice.[36]Before me today, counsel raised interesting arguments as to the effect of the Civil Procedure Rules, in particular rule 3.3, rule 23.8, and the practice direction 23A, and also the decision of this court in R (on the application of Nolson) v Stevenage Borough Council [2020] EWCA Civ 379, [2021] HLR 2, at paragraphs 14 to 15 in the judgment of Hickinbottom LJ. Finally my attention was drawn to changes to the Civil Procedure Rules which have very recently been made with effect only four days ago on 6 April 2025.[37]But I did not hear full argument on these issues, which are far from straightforward. Since it is unnecessary to resolve them in this case and they may be important in other cases in the future, I intend to say no more about them here, suffice to say that I endorse the agreement of both parties before me that this court does have jurisdiction to consider the present application, even if an application could have been renewed before the High Court but was not. The application for appeal against the refusal of interim relief:[38]The applicable principles are well established both as to the exercise to be performed by the first instance court, and by this court on appeal against a decision on interim relief. Those principles were summarised by me giving the judgment of this court in R (Public and Commercial Services Union) and others v SSHD [2022] EWCA Civ 840. The principles on interim relief in the court of first instance are summarised at paragraphs 74 and 79. These include a citation from the judgment of Lindblom in X at paragraph 66, which is quoted by me at paragraph 77:
"There is support at first instance with the proposition that, in a public law claim, the court will generally be reluctant to grant interim relief in the absence of a 'strong prima facie case' to justify the granting of an interim injunction ... this is not to say the relevant case law at first instance supports the concept of a 'strong prima facie case' being deployed as a 'threshold' or 'gateway' test in such cases, but rather that the underlying strength of the substantive challenge is likely to be a significant factor in the balance of considerations weighing for or against the granting of an injunction."
[39]This court also pointed out at paragraph 78 that although the language of balance of convenience is well established, the court is concerned not with convenience at such, but balancing the risk of prejudice or, as it has been expressed in some of the authorities, the balance of justice or the relative risk of injustice.[40]The risk arises from the inevitable fact that a court cannot deal with the final merits of litigation early on, yet it may be necessary to grant a remedy in the meantime while the parties prepare their cases. It may turn out at the end of the day that the court has granted or refused a remedy which a party was or was not entitled to.[41]The principles which govern an appeal, or an application for permission to appeal to this court in such cases, are set out by me at paragraphs 80 to 84. The judgment of this court cited the well-known textbook by Sir David Bean and Andrew Burns on Injunctions, then in its 14th edition, at paragraph 6-021, and from the well-known passage in the judgment of Lewison LJ in Frank Industries Pty UK v Nike Retail BV [2018] EWCA Civ 497, applying Re D's application for judicial review, [2017] UKSC 7, [2017] NI 301.[42]As Lewison LJ said in Frank Industries in paragraph 17:
"We are not hearing an application for an interim injunction but an appeal. The question is not whether we would have made the same order as the judge, but whether the judge was wrong to make the order that he did. I do not consider that these alleged failings and the judge's treatment of the evidence as such would entitle an appeal court to intervene. Even where a trial judge evaluates evidence given in writing without the benefit of live evidence an appeal court should generally respect his evaluation."
[43]He cited DB for that proposition. Continuing with the quotation:
"This applies all the more strongly where the remedy that the judge has granted is a discretionary remedy."
[44]Finally, it is important to note what Lindblom LJ has said in X at paragraph 80:
"Only if the lower courts' conclusions are irrational or otherwise plainly incorrect in law will its decision be reversed. As Sir James [ Eadie KC] rightly reminded us, the grant of interim relief is discretionary and the exercise of discretion by a judge should be afforded appropriate deference by the appellate court."
[45]Mr Southey KC, who appears for the appellant before me today, does not take issue with those well established principles. He does submit, however, that context is everything and the principles have to be applied in a flexible way. He emphasises in particular that the judge in the present case did not have the benefit of oral submissions, and he had to perform the exercise which he did as a matter of great urgency. He also submits again that it is not apparent that the judge had had sight of the appellant's reply before him, although he acknowledges that there was no right to file such a reply in the Administrative Court.[46]Mr Southey places particular reliance on the judgment of Lord Carnwath JSC in R (AR) v Chief Constable of Greater Manchester Police [2018] UKSC 47, [2018] 1 WLR 4079. In particular, he cites two passages. The first is paragraph 60 where Lord Carnwath made reference to an earlier decision in Abela v Baadarani [2013] 1 WLR 2043, where Lord Clarke JSC had said at paragraph 23:
"In doing so, he was not exercising a discretion but was reaching a value judgment based on the evaluation of a number of different factors. In such case, the readiness of an appellate court to interfere with the evaluation of the judge will depend upon all the circumstances of the case. The greater number of factors to be taken into account, the more reluctant an appellate court should be to interfere with the decision of the judge. As I see it, in such circumstances an appellate court should only interfere with that decision if satisfied that the judge erred in principle or was wrong in reaching the conclusion which he did."
[47]I have to say, with great respect, that seems to me in substance entirely consistent with the approach generally taken by an appellate court when there is an appeal against a refusal of interim relief.[48]The second passage upon Mr Southey places emphasis in the judgment of Lord Carnwath is paragraph 64 where he said in the context of the particular issue which he was addressing in that case, which concerned proportionality in human rights cases:
"In conclusion, the references cited above show clearly in my view that to limit intervention to a 'significant error of principle' is too narrow an approach, at least if it is taken as implying that the appellate court has to point to a specific principle - whether of law, policy or practice - which has been infringed by the judgment of the court below. The decision may be wrong, not because of some specific error of principle in that narrow sense, but because of an identifiable flaw in the judge's reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion. However, it is equally clear that, for the decision to be 'wrong' under CPR rule 52.11(3), it is not enough that the appellate court might have arrived at a different evaluation. As Elias LJ said in R (C) v Secretary of State for Work and Pensions [2016] ... PTSR 1344 para 34: '... the appeal court does not second guess the first instance judge. It does not carry out the balancing task afresh as though it were rehearing the case but must adopt a traditional function of review, asking whether the decision of the judge below was wrong.'."
[49]In my judgment, those passages do not assist the appellant because that was concerned with a different exercise, proportionality, and not the exercise of a discretion. In any event, I cannot detect any material difference of substance between what is said in those passages and what has been said many times in the context of appeals against the refusal of interim relief, as in the PCSU case. I have reached the conclusion that it is not arguable that the judge was wrong to refuse interim relief in this case. Far from it. If I had to perform the exercise again, in particular the balance of convenience issue, I would reach the same conclusion. The submissions put forward by the appellant do not show any arguable error by the judge.[50]But in any event, there is no indication that any error advanced or suggested by the appellant would have or ought to have altered the outcome of his analysis. In particular, I accept the submission of Mr Mankwell KC that weight must be given to the public interest in a case such as this when assessing the balance of convenience.[51]Here, there is a strong public interest in the licensing regime being lawfully, fairly and robustly applied. The reality of the matter is that as he submits, the appellant's licence was revoked over two years ago in February 2023. The appellant was entitled to pursue legal challenges to that revocation, which included an appeal to this court. But that appeal was dismissed on 11 March 2025. The legal consequence of that is the revocation was lawful in February 2023, and it should have been given effect at that time.[52]Justice required that it could not be given effect at that time. No complaint is made by Mr Mankwell about that, but other consequences should follow. It could not reasonably have been contemplated there would then be a lengthy period of time before real and practical effect would be given to that lawful revocation by the Secretary of State. One can readily understand that a brief period would be humane and otherwise reasonable to allow people, in particular employees, to rearrange their affairs. But that ought to be measured in days or perhaps weeks, not a delay extending to months or even longer.[53]I agree with the judge that the appellant has now had sufficient time to regularise the position of its employees. The appellant has now had over two years to mitigate the impact of the licence revocation on those in its care. The existing informal agreement provided a period of 14 days in which the appellant's employees would have time to rearrange their affairs, including to apply for leave to remain.[54]I agree that this was sufficient. The respondent rightly underlines that in effect, the consequence of the order, which I made in understandable circumstances on 24 March 2025, has been that the appellant will have had 30 days by the time of today's hearing.[55]There is some force in the appellant's argument that failure to grant interim relief may have unfortunate consequences when it is now envisaged that the Secretary of State will be able to reach a decision on the current application for a new licence in the next two to four weeks. But I accept Mr Mankwell's submission that there is no necessary link between the present situation, which has pertained, as it turns out lawfully, since February 2023 when the relevant licence was revoked and any new licence, even if one is granted.[56]Finally, and in any event, this is dealt with by addressing the application for interim relief should it be necessary to do so alongside the application for permission to bring the claim for judicial review. I remind myself that the application for permission to bring a claim for judicial review has not yet been determined. The procedural position, as I understand it, is that the defendant has now served its summary grounds of resistance, but the appellant has the opportunity to file a response to that before the Administrative Court determines the application for permission.[57]Before I finish, I should briefly address the application to adduce new evidence which was not before the judge. In particular, the appellant applies for permission to adduce the second witness statement of Mr Mardon. It does so in part owing to its own duty of candour to the court. It is in this witness statement that I find, for example, the reference to the prospect of a decision on a new application for a sponsored licence being reached within the next two to four weeks.[58]The test for the admission of new evidence is now to be found in the Civil Procedure Rules, rule 52.21(2)(b), although reference is often still made to the three criteria in Ladd v Marshall [1954] 1 WLR 1489: see Terluk v Berezovsky [2011] EWCA Civ 1534, and the commentary in the 2025 edition of the White Book, volume 1, page 1903.[59]Objection was taken to the admission of this evidence on behalf of the respondent. But I have had regard to it de bene esse. I have not found it to make any material difference to the outcome of this application for the reasons I have mentioned earlier. Conclusion:[60]For the reasons I have given, I refuse the application for permission to appeal against the refusal of interim relief. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: civil@epiqglobal.co.uk