R St Mary Magdalene Academy v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 18 March 2015 |
| Neutral Citation | [2015] EWHC 725 (Admin) |
| Docket Number | Case No: CO/162017/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 March 2015 |
[2015] EWHC 725 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case No: CO/162017/2013
David Wolfe QC (instructed by Wilsons Solicitors LLP) for the Claimant
Matthew Barnes (instructed by Treasury Solicitor) for the Defendant
Hearing date: 24 February 2015
The claimant, St Mary Magdalene Academy (the Academy), is a Church of England state funded mainstream secondary school in Islington, North London. It wishes to enter into an exchange arrangement by which up to 10 Chinese students aged 16 to 18 would be admitted into its sixth form to spend up to a year studying an International Baccalaureate Diploma course. To achieve this aim it would be necessary for the Academy to become a "Tier 4 sponsor" under the Immigration Rules, and in that capacity to issue the students with valid Confirmations of Acceptance for Studies (CAS). The Academy therefore applied on 4 July 2013 to the defendant Secretary of State, via the UK Border Agency (UKBA), for a Tier 4 sponsor licence.
By a letter of 26 July 2013 the defendant rejected the Academy's application and returned the fee, stating that "In line with the published guidance, we have rejected your application for the following reason/s: As stated in the Tier 4 sponsor guidance at paragraph 12, State schools, including those with sixth forms, cannot admit students who come to the UK under Tier 4. If we receive an application for a Tier 4 sponsor licence from a state school, we will reject it and return the fee."
In this judicial review the Academy challenges that decision on two grounds:
i) the guidance relied on is unlawful because it impermissibly introduces restrictions on migration which go beyond those contained in the Immigration Rules, without having been approved by Parliament pursuant to s 3(2) of the Immigration Act 1971; alternatively
ii) the defendant has applied the guidance in a rigid manner, without consideration of the circumstances of the Academy's particular application, or their impact on the policy considerations underpinning the guidance, in such a way as unlawfully to fetter her discretion.
The first ground calls for examination of whether paragraph 12 of the Tier 4 sponsor guidance amounts to a rule within the meaning of s 3(2) of the 1971 Act. The scope and application of that subsection have been considered by the Supreme Court in R (Alvi) v Secretary of State for the Home Department (Joint Council for the Welfare of Immigrants intervening) [2012] UKSC 33, [2012] 1 WLR 2208 (" Alvi") and again in R (New London College Ltd) v Secretary of State for the Home Department (Migrants Rights Network & another intervening) [2013] UKSC 51, [2013] 1 WLR 2358 (" New London College"). The claimant's principal submission is that the guidance falls within s 3(2) as interpreted in Alvi: it lays down requirements which, if not satisfied by the migrant, will lead to their application for leave to enter being refused. The defendant submits that paragraph 12 is, like the guidance considered in New London College, wholly concerned with the position of the sponsor, and for that reason falls outside the ambit of s 3(2).
The alternative ground engages familiar principles. The Academy submits that there is no indication of any consideration by the defendant of the particular circumstances of its case; the guidance (if that is all it is) has been unlawfully treated as "a blanket policy admitting of no possibility of exceptions" ( ( Lumba) v Secretary of State for the Home Department (Justice and another intervening) R [2012] 2 AC 245, [20]). The defendant relies on the principle that policy must be applied consistently, and maintains that nothing was put before her at the time of the decision or in the Academy's protocol letter that could have justified a departure from the guidance. The defendant also suggests, as I understand the argument, that the matters that the Academy has now put forward would not alter the decision.
The Academy in its legal context
The Academy is a school for students aged 4–18, which is not maintained by a local authority. For that reason it is in law an "independent school" within the meaning of s 463 of the Education Act 1996, the statute which provides the framework for schools generally. Academies are however not independent of the state, nor are they fee-paying institutions. Their costs are met by the Secretary of State for Education, and they are not permitted to charge fees. For these reasons they are sometimes referred to as "state funded independent schools". In everyday language they can fairly be described as "state schools", though that is not a legal term of art.
The status of Academy was established by s 482 of the Education Act 1996, and it is under that statute that the claimant was created, but the relevant provisions were repealed and replaced by those of the Academies Act 2010 which is the current governing statute. Section 1 of the 2010 Act sets out the framework. It provides, so far as relevant, as follows:-
"(1) The Secretary of State may enter into Academy arrangements with any person ("the other party").
(2) "Academy arrangements" are arrangements that take the form of—
(a) an Academy agreement, or
…
(3) An Academy agreement is an agreement between the Secretary of State and the other party under which—
(a) the other party gives the undertakings in subsection (5), and
(b) the Secretary of State agrees to make payments to the other party in consideration of those undertakings.
…
(5) The undertakings are—
(a) to establish and maintain an educational institution in England which meets the requirements of any of the following—
(i) section 1A (Academy schools);
(ii) section 1B (16 to 19 Academies);
(iii) section 1C (alternative provision Academies);
(b) to carry on, or provide for the carrying on, of the institution.
…
(9) Academy arrangements must include terms imposed for the purpose of securing that no charge is made in respect of—
(a) admission to, or attendance at, the institution, or
(b) (subject to any exceptions specified in the terms) education provided at the institution.
(10) An educational institution to which Academy arrangements relate is to be known as an Academy."
An Academy agreement within s 1(2) is commonly referred to as a "funding agreement". The provisions of s 1(9) reflect a general prohibition in education law on state-funded schools charging for education.
The claimant Academy is an "Academy school" within the meaning of s 1A of the 2010 Act, which provides that:
"(1) An educational institution meets the requirements of this section if—
(a) it is an independent school,
(b) it has a curriculum satisfying the requirements of section 78 of EA 2002 (balanced and broadly based curriculum),
(c) it provides education for pupils of different abilities,
(d) it provides education for pupils who are wholly or mainly drawn from the area in which it is situated, and
(e) it is not an alternative provision Academy (see section 1C).
…
(3) An Academy which meets the requirements of this section is to be known as an Academy school."
The Academy was established on 21 March 2005, by the Diocese of London (Board for Schools) ("LDBS"), as a company limited by guarantee. Clause 3 of its Memorandum of Association provides that its objects are to "advance for the public benefit education in the United Kingdom … in accordance with the principles and practices of the Church of England", in particular by establishing and carrying on a Church of England school "offering a broad curriculum with a strong emphasis on, but in no way limited to, Humanities and Citizenship". To that end, the Academy has the power "to provide educational facilities to students of all ages and the wider community for the public benefit" and, by clause 4(j), "to provide educational facilities and services to children of all ages and the wider community for the public benefit". The Academy was registered as a charity on 6 May 2005, its activities being recorded by the Charity Commission as the "provision of education for pupils of all abilities between the ages of 4 to 18 with an emphasis on a Christian ethos which supports the specialism of humanities and global citizenship".
On 28 April 2006, the Academy entered into a Funding Agreement with the Secretary of State for Education pursuant to s 482 of the 1996 Act, which was executed as a Deed. By clause 7, in consideration of the Academy undertaking to establish and maintain, and to carry on or provide for the carrying on, of an independent school with certain specified characteristics, the Secretary of State agreed to make payments to the Academy in accordance with the Agreement. The specified characteristics were as laid down in s 482(2) of the 1996 Act: that the school "(a) has a broad curriculum with an emphasis on a particular subject area, or particular subject areas, specified in the agreement, and (b) provides education for pupils of different abilities and who are wholly or mainly drawn from the area in which the school is situated." These requirements are now reflected in s 1A(1) of the 2010 Act. Clause 9 of the Funding Agreement specifies conditions of grant, which include a requirement that there should be no charge in respect of admission to the school, and that it will charge pupils only where the law allows maintained schools to do so. Clause 31 deems various provisions of the 1996 Act to apply to the Academy, including provisions which prohibit the charging of fees.
By clause 41 the Funding Agreement provided for a contribution of £36.332m by the Secretary of State to the capital expenditure of £38.332m which...
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