R West London Vocational Training College Ltd v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson,Mr Justice Simon |
| Judgment Date | 16 January 2013 |
| Neutral Citation | [2013] EWHC 31 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/9435/2012 |
| Date | 16 January 2013 |
[2013] EWHC 31 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Toulson
Mr Justice Simon
Case No: CO/9435/2012
Zane Malik (instructed by Mayfair Solicitors) for the Claimant
Cathryn Mcgahey (instructed by Treasury Solicitors) for the Defendant
Hearing Dates: 19 December 2012
The claimant applies for judicial review of a decision of the Home Secretary, acting through the UK Border Agency (UKBA), to refuse an application by the claimant for Highly Trusted Sponsor (HTS) status and to reduce its allocation of Confirmations of Acceptance for Studies (CAS) to zero. The decision letter, dated 23 August 2012, gave the following reason:
"For a sponsor to be considered for HTS status they must first meet all the mandatory requirements as detailed in the sponsor guidance.
We have been unable to approve your application for the following reason(s): -
Our records indicate that your refusal rate is greater than 20%.
We have identified from our checks that 40 Confirmation of Acceptance of Studies (CAS) issued by your institution were used in an application for entry clearance/leave to remain during 12 months prior to the date your application was received, this being from 27 March 2011 until 26 March 2012. Of these applications 11 were refused which equates to a refusal rate of 27.5%, which exceeds the current mandatory requirements to achieve HTS. "
The letter identified the 11 refusals by their CAS numbers.
On 28 August 2012 solicitors for the claimant sent a pre-action letter to the defendant drawing particular attention to 6 of the refused applications.
On 27 September 2012 UKBA's head of sponsorship, Mr George Shirley, replied stating that the claimant's HTS application had been reconsidered and the 11 refused CAS had been reviewed. The decision to refuse the HTS application was maintained.
There are 4 grounds of challenge to the decision:
1. the decision was based on policy guidance which was invalid;
2. if the relevant policy guidance was valid, it was misconstrued;
3. if the relevant policy guidance was neither invalid nor misconstrued, the requirement in the guidance which led to the refusal of the claimant's application was irrational;
4. the defendant fettered her discretion in applying the guidance.
The policy guidance
The criteria for determining an application by a non-European Economic Area national, aged over 16, who wishes to enter or remain in the UK for purposes of education are contained in Tier 4 of a points-based immigration system. An application will be granted only if it is supported by an education provider who is authorised by the defendant to sponsor the application.
The scheme for authorising sponsors has changed from time to time. Applications for authorisation to act as a sponsor are currently dealt with in accordance with a published policy guidance entitled "Tier 4 of the Points Based System – Policy Guideline", which came into force on 9 July 2012. The background to the introduction of the current policy guidance is described in a witness statement of Mr Shirley.
Under the heading "Eligibility requirements for highly trusted sponsor (HTS) status", the guidance provides:
"301. You must meet all of the requirements set out in this section. If you do not meet all of the requirements, you will, in some circumstances be allowed to apply again. In some circumstances your licence will be revoked.
…
306. There are two stages in considering your application.
307. At the first stage we assess you against the mandatory requirements set out in table (iii). We base our assessment only on students sponsored under Tier 4 and whose application to come to, or stay in the UK was supported by a CAS assigned by you."
Table (iii) sets out a number of requirements, one of which relates to the past rate of refusal of entry to holders of CAS issued by the applicant. The relevant paragraph states:
"Your refusal rate must be less than 20 per cent.
This means that of all the CAS you have assigned which students have used to support an application for a visa or permission to stay, the total number of applications we refused must be less than 20 per cent. We will assess this using CAS data from the SMS [Sponsorship Management System] for the 12 month period immediately before you apply. We will take into account all CASs that students have used and applications we refused during this 12 month period."
The general nature of the scheme and duties of a sponsor appear from other paragraphs of the guidance:
"20. Sponsorship is based on two basic principles. They are that:
(a) those who benefit most directly from migration (employers, education providers or other bodies that bring in migrants) help to prevent the system being abused; and
(b) those applying to come to the UK to work or study are eligible to do so and a reputable employer or education provider genuinely wishes to take them on.
…
25. As a licensed sponsor you must comply with certain duties, including a duty to inform us if:
(a) students do not arrive for their course either following a refusal of entry clearance or leave to remain, or where leave is granted the student fails to enrol;
(b) students are absent without permission for a significant period;
(c) they leave their course earlier than expected; or
(d) you ask them to leave the course.
26. You must keep proper records of the students you sponsor, including contact details and a copy of their biometric residence permit (BRP) (previously known as the identity card for foreign nationals (ICFN)), and give them to us when we ask for them.
27. You have a duty act honestly in any dealings you have with us. For example, you must not make false statements and you must ensure you disclose all essential information when you apply for a sponsor licence or assign a CAS.
…
29. If we consider that you have not been complying with your duties, have been dishonest in your dealings with us or you are a threat to immigration control in some other way, we will take action against you. This action may be to:
(a) revoke or suspend your licence; or
(b) reduce the number of CAS's you can assign.
…
32. Highly trusted sponsor status (which we call HTS) is designed to ensure that all education providers are taking their obligations on immigration compliance seriously. It recognises sponsors who show a good history of compliance with their sponsor duties and whose students meet the standards of compliance with the terms of their visa for permission to stay in the UK (known as "leave to remain").
…
35. A confirmation of acceptance for studies (CAS) is your way of confirming, as a licensed sponsor, that:
(a) you wish to bring an overseas student to the UK to study; and
(b) to the best of your knowledge, that student meets the requirements of the rules for a valid CAS and will be able to make a successful application for leave to come to or stay in the UK."
Validity
Section 1(4) of the Immigration Act 1971 provides:
"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(2) 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…"
The same subsection goes on to provide that such rules are subject to disapproval by a negative resolution of either House of Parliament within 40 days.
The Immigration Rules laid before Parliament under section 3(2) stipulate the requirements for leave to enter or remain in the UK as a Tier 4 (General) student. It is a points based system and points are awarded for having a CAS.
The Immigration Rules also deal with the effect on a student's permission to enter or remain in the UK if the sponsor which issued their CAS loses its sponsorship licence before the completion of the student's course. The outcome will vary according to the stage which the student has reached. If the student has yet to enter the UK, leave to enter will be refused. If the student has entered the UK and the course has less than 6 months to run, the Home Secretary will take no action. If the student has entered the UK and the course has longer than 6 months to run, the student will be given 60 days to find an alternative sponsor or face removal.
The claimant argues that the requirements in table (iii) of the sponsor guidance amount to "statements of rules laid down by the Secretary of State as to the practice to be followed in the administration of immigration control" within the meaning of section 1(4). Because the...
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