The Queen (on the application of New London College Ltd) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Sumption,Lord Hope,LORD CARNWATH,Lord Reed,Lord Clarke
Judgment Date17 July 2013
Neutral Citation[2013] UKSC 51
Date17 July 2013
CourtSupreme Court
R (on the application of New London College Limited)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
R (on the application of West London Vocational Training College)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

[2013] UKSC 51

Before

Lord Hope, Deputy President

Lord Clarke

Lord Sumption

Lord Reed

Lord Carnwath

THE SUPREME COURT

Trinity Term

On appeal from: [2012] EWCA Civ 51; [2013] EWHC Civ 31 (Admin)

Appellant

Manjit Gill QC

Edward Nicholson

(Instructed by Chhokar &Co)

Intervener (Migrant's Rights Network and Joint Council for the Welfare of Immigrants)

Richard Drabble QC

Shahram Taghavi

Charles Banner

(Instructed by Charles Russell LLP)

Respondent

Jonathan Swift QC

Robert Palmer

(Instructed by Treasury Solicitors)

Appellant

Zane Malik

(Instructed by Mayfair Solicitors)

Respondent

Jonathan Swift QC

Cathryn McGahey

(Instructed by Treasury Solicitors)

Heard on 5 and 6 June 2013

Lord Sumption (with whom Lord Hope, Lord Clarke and Lord Reed agree)

Introduction
1

The Immigration Act 1971 is now more than forty years old, and it has not aged well. It is widely acknowledged to be ill-adapted to the mounting scale and complexity of the problems associated with immigration control. The present appeals are a striking illustration of the difficulties. They concern the system for licensing educational institutions to sponsor students from outside the European Economic Area under Tier 4 of the current points-based system of immigration control. The status of a licensed sponsor is central to the operation of the points-based system for international students. It is also of great economic importance to the institutions which possess it. It enables them to market themselves to international students on the basis that their acceptance of a student will in the ordinary course enable them to enter the United Kingdom for the duration of their studies. For institutions with a high proportion of non-EEA students, the status of licensed sponsor may be essential to enable them to operate as functioning businesses.

2

New London College was a licensed Tier 4 (General) sponsor until 18 December 2009, when its licence was suspended by the Secretary of State on the ground that it was in breach of its duties as sponsor. On 5 July 2010, the Secretary of State, after considering the College's representations, revoked the licence with immediate effect. Officials of the UK Border Agency subsequently agreed to review that decision, but in light of the review the Secretary of State decided on 19 August 2010 to maintain the revocation. These decisions are challenged by the New London College by way of judicial review. The grounds of challenge with which this court is concerned succeeded in part before Wyn Williams J, but failed in the Court of Appeal.

3

In April 2010, the Secretary of State introduced a new status for Tier 4 sponsoring institutions known as Highly Trusted Sponsor status. Highly Trusted Sponsors were allowed to offer a wider range of eligible courses, including some which comprised periods of work placements as well as study. They were also exempted from certain of the administrative requirements of the scheme. The importance of the new status was much increased after a review of the Tier 4 scheme in the summer of 2011 produced substantial evidence of abuse. As a result a number of changes were announced in March 2011. One of them was that Highly Trusted Sponsor status would become mandatory for all sponsoring educational institutions from April 2012. In the meantime there was to be a limit on the number of new students that sponsors could accept without Highly Trusted Sponsor status.

4

The West London Vocational College fell foul of this requirement. It had become a licensed sponsor on 9 March 2011, initially with a B-rating, which meant that it was a probationer licensee subject to an enhanced level of supervision. It acquired an A-rating on 13 October 2011. On 26 March 2012, it applied for Highly Trusted Sponsor status, but its application was rejected on 23 August 2012. The effect, under the recent changes, was that it could not be a licensed sponsor at all. That rejection is challenged by way of judicial review in these proceedings. The challenge failed before the Divisional Court on the ground that the main question of law at issue had been decided against it by the Court of Appeal in the New London College case. The matter comes to the Supreme Court as a leap-frog appeal under section 12 of the Administration of Justice Act 1969.

5

Much the most significant question in both cases, and the only one for which the Appellants have permission to appeal to this court, is the lawfulness of the Tier 4 Sponsor Guidance issued by the Secretary State, which sets out the conditions for the grant and retention of a sponsor licence and of Highly Trusted Sponsor status. The Appellants contend that so far as the Sponsor Guidance contained mandatory requirements for sponsors, it had to be laid before Parliament under section 3(2) of the Immigration Act 1971. It was not. It follows, say the Appellants, that the Secretary of State acted unlawfully in making decisions affecting them by reference to it. It is no longer disputed that the Secretary of State was entitled to conclude that the New London College was in breach of the sponsorship duties set out in the Guidance. Nor is it disputed that the West London Vocational Training College failed to qualify for Highly Trusted Status in accordance with the criteria stated in the Guidance.

The statutory framework
6

Section 1(2) of the Immigration Act 1971 provides that those not having the right of abode in the United Kingdom may live, work and settle there only "by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act." Under section 1(4),

"The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom."

Section 3 provides for the regulation and control of immigration by the Secretary of State. Section 3(1) provides that a person who is not a British citizen "shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of or made under this Act." Leave to enter or remain may be given for a limited or indefinite period and subject to any or all of a number of specified conditions, including "a condition restricting his studies in the United Kingdom". Under section 4(1), the power under the Act to give or refuse leave to enter the United Kingdom is exercisable by immigration officers, who at the relevant time were employees of the UK Border Agency, an executive agency of the Home Office. The power to give or to vary leave to remain for those who are already here is exercisable by the Secretary of State. At any one time, there is a substantial body of rules, discretions and practices laid down by the Secretary of State as the ultimate administrative authority responsible for the administration of the Act. Section 3(2) of the Act, provides:

"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances…"

They are then subject to approval under the negative resolution procedure.

7

In principle, the rules in question are contained in the Immigration Rules, which in successive editions and with frequent variations have invariably been laid before Parliament. But section 3(2) is not confined to the Immigration Rules formally so called. It extends to any instrument, direction or practice laid down by the Secretary of State which (i) contains or constitutes a "rule", and (ii) deals with the practice to be followed in the administration of the Act for regulating "the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter" or the period or conditions attaching to them. In R (Munir) v Secretary of State for the Home Department [2012] 1 WLR 2192, this court held that the power of the Secretary of State to make or vary rules falling within this description was not an exercise of prerogative power but was wholly statutory. Under the Immigration Act, the Secretary of State has a power and duty to make them, and once made they may be the source of legal rights. It followed that no rule falling within the description in section 3(2) was lawful unless it was laid before Parliament.

8

In R (Alvi) v Secretary of State for the Home Department [2012] 1 WLR 2208, which was heard with Munir and decided on the same day, this court considered in detail what constituted a rule dealing with the practice to be followed for regulating entry into and stay in the United Kingdom. The principal judgments were delivered by Lord Hope and Lord Dyson. They were agreed upon the basic requirement of section 3(2) and on the test for distinguishing a "rule" from something that was merely advisory or explanatory, although not on every aspect of its application to the facts of...

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