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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

13 MAR 2014

R (on the Application of Warnborough College Ltd) v Secretary of State for the Home Department

The refusal of the Defendant to grant the Claimant Highly Trusted Sponsor status when it failed to fulfil the criterion set out in the Immigration Rules arose from a reasonable and rational application of that criterion. The Defendant's refusal to exercise discretion to grant the Claimant the status was not irrational.

13 December 2013

Administrative Court

Baker J

(1)       On 1 October 2011, the college applied to be appointed as a Highly Trusted Sponsor (‘HTS') under the Tier 4 (General) points based system. The application was refused on 1 November 2012. It is that decision which is challenged by these proceedings.

(2)       In order to become an HTS the institution must fulfil certain mandatory requirements provided in paragraphs 268 - 275 of the Immigration Rules. One of these requirements is that the number of students to have been refused leave to enter or remain by the Defendant following the grant of a confirmation of acceptance for studies (‘CAS') by the institution must not exceed 20% of the total number of individuals that the institution granted CAS to over the previous 12 months.

(3)       The Defendant refused the Claimant's application on the basis that the refusal rate was 26.39%, therefore exceeding this maximum. The decision letter issued by the Defendant identified 76 out of 288 individuals who had been refused leave.

(4)       The Claimant challenged that decision on the basis that 20 of the refusals of leave were made for reasons outside the Claimant's control. Were these 20 removed from the calculation, the refusal rate dropped to 19.44%. The Defendant maintained her decision, stating that 16 of the refusals had been because the correct maintenance requirements had not been shown at the time of the application. The Court noted that there had been a number of similar cases during the last year which had authoritatively addressed and extinguished the prospects of any challenges on the basis of a 20% threshold being irrational or an unlawful fetter upon the Defendant's discretion.

(5)       In these proceedings, the Claimant relied upon evidence that suggested that there was a difference in treatment in the handling of applications from what the Claimant described as the ‘Indian market'. The Claimant firstly alleged that the 20% refusal threshold was unlawful and/or irrational when the refusal rate for entry clearance centres in certain parts of the world greatly exceeded 20%, and was significantly greater than the global refusal rate of 15.3%. It was submitted that higher evidential requirements were demanded from applicants in Pakistan when compared to applicants from Gulf States. Furthermore, the Claimant pointed out that there were particular difficulties with false documentation in New Delhi, and this could not be readily identified by a college.

(6)       Secondly, it was argued that the discretion to grant HTS to colleges whose refusal rate was greater than the threshold was unlawfully fettered by only operating in relation to cases which were found to be exceptional and/or compelling.

(7)       HELD: The Court stated that given the large number of entry clearance centres, it was inevitable that there would be a range of refusal rates from which an average was extracted. It was a reasonable inference that if the 20% refusal rate threshold was exceeded, then the college had failed to fulfil their responsibilities. Where a particular region proved problematic, the Defendant could reasonably expect that the Claimant would adopt a careful approach to applications. The Court placed limited weight on a report that suggested that there were inconsistencies between decision-making at centres, noting that evidence had mainly been obtained from an inspection only at the Abu Dhabi centre. Some inconsistencies were inevitable, but it was only a degree of inconsistency that undermined reliance upon the decision making system that might found the basis of a challenge to the 20% rate.

(8)       The Claimant failed to demonstrate that the evidence it submitted was relevant to this case, as the figures concerned a period between 2007 and 2009, whilst this case concerned cases between October 2010 and 2011.

(9)       As to the complaint about the fettering of the Defendant's discretion. The Court recognised that it was essentially a complaint that discretion had not been exercised in this case. The Court held that there was no justifiable reason to discount refusals from countries throughout Asia, and the Defendant had been entitled to consider that the Claimant would carefully tailor its recruitment responsibilities to the circumstances in the areas from which it recruited students. The Defendant could not be criticised for refusing not to apply the 20% threshold and refusing to exercise her discretion. The Court thus concluded that threshold criterion for granting HTS status was rational and reasonable. There was insufficient evidence that the system was not appropriately operated by the Defendant, or that the Defendant should have exercised her discretion to grant HTS in this case.

Claim dismissed

Key paragraphs

[30] - Average.

[31] - Reasonable inference.

[32] - Careful approach.

[33] - Relevance of evidence.

[36] - Refusal exercise discretion.

[37] - Conclusion.

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