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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

28 AUG 2013

R (on the application of New London College Ltd) v Secretary of State for the Home Department [2013] UKSC 51; (2013) PLLR 095

Immigration - Education - Sponsor Status - Tier 4

The Sponsor Guidance issued by the Secretary of State was not required to be laid before Parliament due to it concerning the sponsor status of institutions and not the individual rights of a person to enter or remain in the UK.

17 July 2013

Supreme Court

Lord Hope, Deputy President, Lord Clarke, Lord Sumption, Lord Reed and Lord Carnwath

(1)        These appeals concerned the system for licensing educational institutions to sponsor students from outside the European Economic Area under Tier 4 of the points-based system of immigration control.

(2)        On 18 December 2009, the first Appellant (New London College) had its Tier 4 (General) sponsor licence suspended on the basis that it breached its sponsor duties.

(3)        In April 2010, the Secretary of State introduced a new status for Tier 4 sponsoring institutions. This was called Highly Trusted Sponsor status, and was mandatory for all sponsoring institutions from April 2012. Without this status, there was a limit on how many students sponsors could accept. The second Appellant, West London Vocational College, had its application for Highly Trusted Sponsor status rejected on 23 August 2012.

(4)        The primary issue of significance in this case concerned the lawfulness of the Tier 4 Sponsor Guidance, which set out the conditions for the grant and retention of sponsor licences and Highly Trusted Sponsor status. The Appellants contended that because the Sponsor Guidance contained mandatory requirements for sponsors, it was required to be laid before Parliament under section 3(2) of the Immigration Act 1971. As this had not been done, the Appellants argued that the Secretary of State had unlawfully made decisions affecting them.

(5)        Section 3(2) of the Immigration Rules provided that ‘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...'

(6)        Thus, no rule falling within the description set out in section 3(2) was lawful unless laid before parliament.

(7)        The Appellants further contended that paragraphs 245ZV and 245ZX of the Immigration Rules (which set out criteria to be fulfilled by candidates) amounted to an unlawful delegation of the powers of the Secretary of State to control entry into or stay in the UK.

(8)        The Defendant submitted that the Sponsor Guidance did not fall within section 3(2) of the Act, because it did not regulate the grant of leave to enter or remain in the UK, but applied to the licensing and regulation of the sponsoring institutions.

(9)        HELD: In relation to unlawful delegation, the Court held that the final word as to entry or leave to stay in the UK remained with the Secretary of State.

(10)     The granting of a Certificate of Acceptance to Studies by an institution was held not to be tantamount to leave to enter or remain. The Court accepted that the mandatory criteria were rules, but held that they did not call for compliance by a migrant as a condition of his obtaining leave to enter or remain, and were wholly concerned with the position of the sponsoring institution. The Court accepted that the criteria set out in the Guidance did not fall within section 3(2) and were therefore not required to be laid before Parliament.

(11)     The Court then turned to the submission that if the criteria for sponsor licencing did not fall within section 3(2) there was no power to have such a system at all. The Court rejected this submission, identifying it to be unsupported by both authority and principle. It was a long recognised principle that the Crown had some general administrative powers, not the result of royal prerogative and without statutory authority. The Immigration Act did not prescribe the method of immigration control to be adopted. This was left to the Secretary of State. The Secretary of State was entitled to take administrative measures for identifying sponsors who were suitable, so long as these measures were not coercive or infringements of the legal rights of individuals. The system operated by the Secretary of State regarding Tier 4 sponsors did not exceed any of these limitations.

(12)     The Court thus concluded that the appeals ought to be dismissed.

Appeals dismissed

Key paragraphs

[7] - Section 3(2).

[19] - No unlawful delegation.

[24] - Scope section 3(2).

[26] - Not within section 3(2).

[28] - General administrative powers.

[29] - System not breach constraints.

[31]-[32] - Conclusion.

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