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Home Secretary’s application of policy on Tier 4 visa sponsorship too rigid

R (St Mary Magdalene Academy) v Secretary of State for the Home Department [2015] EWHC 725 (Admin)

Related Member(s):
David Wolfe QC
Related Practice Area(s):
Education Law, Immigration, Asylum and Free Movement

The claimant was a state funded mainstream secondary school. It wanted 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 school 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 claimant made an application to the defendant to be listed as a Tier-4 sponsor, however, the defendant informed the claimant that “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”

The claimant sought a judicial review of the defendant’s decision to refuse to consider its application to be a Tier 4 sponsor.

The claimant relied on 2 grounds, i) the Tier 4 sponsor guidance amounted to “rules” and therefore ought to have been laid before Parliament in accordance with the Immigration Act 1971, s 3 ii) the defendant applied the guidance in a rigid manner, without consideration of the circumstances of the school’s particular application.

Held: the Court found in favour of the claimant on the second ground and granted its application for judicial review.

With regard to the first ground, the Court relied on the authority of R (New London College) v Secretary of State for the Home Department [2013] UKSC 51 and noted that the Tier-4 sponsor guidance “wholly concerned the position of the sponsor” and so amounted to guidance and not a rule, and therefore did not need to be laid before Parliament.

With regard to the second ground, the Court noted that it was a well-established principle of public law that a policy should not be so rigid in its formulation or its application as to amount to a fetter on the discretion of decision-maker. With regard to this case, the Court noted that the defendant failed to consider the individual circumstances of the claimant, either at the time of the original application, nor in response to the claimant’s pre-action protocol letter.

David Wolfe QC was involved in this case.