JUDGMENT
R (on the application of New London College
Limited) (Appellant) v Secretary of State for the
Home Department (Respondent)
R (on the application of West London Vocational
Training College) (Appellant) v Secretary of State
for the Home Department (Respondent)
before
Lord Hope, Deputy President
Lord Clarke
Lord Sumption
Lord Reed
Lord Carnwath
JUDGMENT GIVEN ON
17 July 2013
Heard on 5 and 6 June 2013
Appellant Respondent
Manjit Gill QC Jonathan Swift QC
Edward Nicholson Robert Palmer
(Instructed by Chhokar & (Instructed by Treasury
Co) Solicitors)
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)
Appellant Respondent
Zane Malik Jonathan Swift QC
Cathryn McGahey
(Instructed by Mayfair (Instructed by Treasury
Solicitors) Solicitors)
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 pointsbased 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
Page 2
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
Page 3
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
Page 4
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 that case. Lord Walker of Gestinghorpe, Lord
Clarke of Stone-cum-Ebony and Lord Wilson delivered concurring judgments
agreeing with both of them on the points on which they were agreed. Lord Hope
put the point in this way at para 41:
“The content of the rules is prescribed by sections 1(4) and 3(2) of
the 1971 Act in a way that leaves matters other than those to which
they refer to her discretion. The scope of the duty that then follows
depends on the meaning that is to be given to the provisions of the
statute. What section 3(2) requires is that there must be laid before
Parliament statements of the rules, and of any changes to the rules, as
to the practice to be followed in the administration of the Act for
regulating the control of entry into and stay in the United Kingdom
of persons who require leave to enter. The Secretary of State’s duty is
expressed in the broadest terms. A contrast may be drawn between
the rules and the instructions (not inconsistent with the rules) which
the Secretary may give to immigration officers under paragraph 1(3)
of Schedule 2 to the 1971 Act. As Sedley LJ said in ZH
(Bangladesh) v Secretary of State for the Home Department [2009]
Imm AR 450, para 32, the instructions do not have, and cannot be
treated as if they possessed, the force of law. The Act does not
require those instructions or documents which give guidance of
various kinds to caseworkers, of which there are very many, to be
laid before Parliament. But the rules must be. So everything which is
in the nature of a rule as to the practice to be followed in the
administration of the Act is subject to this requirement.”
At para 94, Lord Dyson, in a conclusion expressly endorsed by Lord Hope, at para
57, said:
“a rule is any requirement which a migrant must satisfy as a
condition of being given leave to enter or leave to remain, as well as
any provision ‘as to the period for which leave is to be given and the
Page 5
conditions to be attached in different circumstances’ (there can be no
doubt about the latter since it is expressly provided for in section
3(2)). I would exclude from the definition any procedural
requirements which do not have to be satisfied as a condition of the
grant of leave to enter or remain. But it seems to me that any
requirement which, if not satisfied by the migrant, will lead to an
application for leave to enter or remain being refused is a rule within
the meaning of section 3(2). That is what Parliament was interested
in when it enacted section 3(2). It wanted to have a say in the rules
which set out the basis on which these applications were to be
determined.”
The points-based system: Tier 4 sponsorship
9. In its original form, the points-based system of immigration control came
into force in November 2008. It introduced a requirement that migrants intending
to enter the United Kingdom should achieve a specified minimum number of
points, broadly reflecting the migrant’s qualifications for admission in the relevant
category (or “Tier”). Tier 4 (General), which comprised migrants aged over 16
coming to the United Kingdom for study, was implemented in March 2009. Before
that, the Immigration Rules had provided that all migrants seeking to enter or
remain in the United Kingdom for the purpose of study had to have been accepted
for a course at an institution appearing on a Register of Education and Training
Providers maintained by the Department of Education. The essential requirement
of the new Tier 4 system was that the migrant should have been sponsored by an
educational institution holding a sponsor’s licence. The scheme was described in
two documents. The first was Part 6A of the Immigration Rules, which deals with
the requirements to be satisfied by migrants applying for leave to enter or remain.
The second was the Tier 4 Sponsor Guidance, which dealt with the requirements to
be satisfied by educational institutions seeking to qualify for a sponsor’s licence.
The former were laid before Parliament under section 3(2), but the latter were not.
It is the absence of tacit Parliamentary approval for the Guidance which lies at the
heart of these appeals.
Part 6A of the Immigration Rules
10. For present purposes the relevant versions of the Immigration Rules are
those which came into force on 30 March 2009 and 5 July 2010, and applied at the
time of the decisions which the Appellants challenge. They are in the same terms
in every relevant respect. Paragraphs 245ZT to 245ZY relate to Tier 4 (General)
migrants.
11. Paragraph 245ZV of the Rules provides:
Page 6
“To qualify for entry clearance as a Tier 4 (General) Student, an
applicant must meet the requirements listed below. If the applicant
meets these requirements, entry clearance will be granted. If the
applicant does not meet these requirements, the application will be
refused.”
Paragraph 245ZX contains corresponding provisions relating to applications for
leave to remain by those who have already gained entry clearance.
12. In each case, the requirements in question include at least 30 points under
paragraphs 113 to 120 of Appendix A. These paragraphs provide that the 30 points
are scored if (and only if) a “visa letter” or a “Confirmation of Acceptance for
Studies” (or “CAS”) has been issued in respect of a course of study satisfying the
academic requirements set out in paragraph 120. A visa letter was an unconditional
offer letter from an educational institution for the relevant course of study. In the
course of 2010, the visa letter was superseded by the CAS, which performed the
same function on-line. A CAS is not a physical document. It is an entry made by
the sponsor in an electronic database to which the sponsor and the UK Border
Agency’s staff both have access. What the migrant receives is a unique reference
number, which he supplies to the Border Agency on applying for leave to enter or
remain in the United Kingdom, and which enables the agency to access the
electronic file relating to him.
13. Paragraphs 116-117 of the Appendix A lay down conditions for the validity
of a CAS. They provide, so far as relevant,
“116. A Confirmation of Acceptance for Studies will only be
considered to be valid if:
…
(d) it was issued by an institution with a Tier 4 (General) Student
Sponsor Licence,
(e) the institution must still hold such a licence at the time the
application for entry clearance or leave to remain is determined
(f) it contains such information as is specified as mandatory in
guidance published by the United Kingdom Border Agency.
Page 7
…
117. A Confirmation of Acceptance for Studies reference number
will only be considered to be valid if:
(a) the number supplied links to a Confirmation of Acceptance for
Studies Checking Service entry that names the applicant as the
migrant and confirms that the Sponsor is sponsoring him in the Tier
4 category indicated by the migrant in his application for leave to
remain (that is, as a Tier 4 (General) Student or a Tier 4 (Child)
Student), and
(b) that reference number must not have been cancelled by the
Sponsor or by the United Kingdom Border Agency since it was
assigned.”
14. It should be noted that the issue of a valid CAS and the scoring of the thirty
points associated with it, are not the only “requirement listed below” which
paragraphs 245ZV and 245ZX require to be satisfied. It is not, therefore, in itself a
guarantee of entry. In the first place, the other requirements of Rule 245ZV include
a requirement that the student should not fall for refusal under the general grounds
of refusal. These grounds, which are set out at paragraph 320 of the Immigration
Rules, include refusal on the ground of the applicant’s failure to produce specified
documentation or information, or on the ground of the applicant’s past convictions
or breaches of immigration law, or on the ground that for some other reasons the
applicant has been or should be excluded for the public good or, more generally,
on the ground (see para 320(1)) that “entry is being sought for a purpose not
covered by these Rules.” All of these are matters for decision (subject to appeal)
by an immigration officer. Secondly, Appendix A, paragraph 118 of the
Immigration Rules, requires the applicant as a condition of being awarded his 30
points, to supply any documentary evidence of his or her previous qualifications
which he used to obtain the offer of a place on a course offered by the sponsoring
educational institution. Broadly summarised, the effect of these provisions is that a
migrant with a CAS may still be required to satisfy an immigration officer upon
applying to enter that he is genuinely entering for the purpose of study, that there
was a proper basis for his application for a place from the sponsor, and that there
are no character issues which require his exclusion. Certain of these requirements
also apply under paragraph 322 to applications for leave to remain.
The Tier 4 Sponsor Guidance
Page 8
15. The Sponsor Guidance is a large and detailed document issued on behalf of
the Secretary of State, which may be amended at any time and has in fact been
amended with bewildering frequency. The relevant editions of the Guidance are
those applying from 5 October 2009, 3 March 2010, 6 April 2010 and 5 September
2010. They differ in detail, but not in their broad lines. In what follows, I shall
refer (unless otherwise stated) to the paragraph numbers of the Guidance which
came into force on 6 April 2010.
16. Their tenor and purpose is conveyed by the opening paragraphs (in all three
relevant editions):
“WHAT IS SPONSORSHIP?
1. Sponsorship is based on two fundamental principles:
• those who benefit most directly from migration (that is, the
employers, education providers or other bodies who are bringing in
migrants) should play their part in ensuring that the system is not
abused; and
• we need to be sure that those applying to come to the United
Kingdom to do a job or to study are eligible to do so and that a
reputable employer or education provider genuinely wishes to take
them on.
2. Before a migrant can apply to come to, or remain in the United
Kingdom to study, he/she must have a sponsor. The sponsor will be
an education provider in the United Kingdom that wishes to provide
education to a migrant. Sponsorship plays two main roles in the
application process:
• it provides evidence that the migrant will study for an approved
qualification; and
• it involves a pledge from the sponsor that it will accept the duties of
sponsoring the migrant.”
17. I need not set out the substantive provisions in detail. For present purposes
it is enough to note that the Guidance lays down mandatory requirements
Page 9
governing (i) the criteria for the award of a sponsor’s licence, (ii) the obligations of
those to whom a license has been awarded, (iii) the criteria to be applied by a
licensed sponsor in issuing a CAS, and (iv) the procedure and criteria for
suspending, downgrading or withdrawing a sponsor’s licence. In the first category,
there are provisions relating to the academic standards of the sponsor’s courses,
the qualifications to which they lead, the adequacy of its facilities and key staff,
and its general efficiency. In the second category come provisions relating to the
duties of sponsors, including their duties to monitor student attendance, report
significant absences, and maintain proper records of these matters. Para 163 sets
out a number of specific tests which must also be satisfied. In particular, it imposes
a maximum acceptable proportion of enrolled migrant students who have
abandoned their studies at specified stages of the course. In the third category
come requirements to assess and report upon migrant students’ command of
English, their ability to follow their chosen course, and their possession of
sufficient resources to maintain themselves in the United Kingdom during their
studies. In the fourth category, the provisions regarding the withdrawal of a licence
distinguish between cases in which a sponsor’s licence “will” be withdrawn
(paragraphs 344-345), cases in which it “will normally” be withdrawn (paragraphs
346-9), and cases in which it “may” be withdrawn (paragraphs 350-352). These
corresponded to breaches of greater or lesser gravity of the institution’s obligations
as a sponsor or its failure to satisfy the licence criteria on a continuing basis.
18. In 2011, after the announcement that Highly Trusted Status was to become
mandatory, the criteria for granting it were tightened up. The new criteria were
included in the edition of the Tier 4 Sponsor Guidance which came into force on 5
September 2011. One of the more significant changes was the introduction of an
additional test, namely that where an institution had been licensed for twelve
months, not more than 20 per cent of Tier 4 (General) migrants to whom it had
given a CAS should have been refused leave to enter or remain when in due course
they applied. The West London College’s failure to satisfy this test was the ground
on which it was refused Highly Trusted Status.
Unlawful delegation
19. The Appellants’ first argument is that paragraphs 245ZV and 245ZX of the
Immigration Rules constituted an unlawful delegation to the sponsoring
institutions of the Secretary of State’s powers to control entry into or stay the
United Kingdom. It is correct that when the points-based system was introduced
for Tier 4 migrants, a number of matters on which students had previously been
required to satisfy immigration officers or the Secretary of State, such as a bona
fide intention to study, were now to be examined by the sponsoring institution as a
condition of being entitled to issue a CAS. But the short answer to the suggestion
that this involved an unlawful delegation is that leave to enter or remain continues
to be the responsibility of immigration officers and the Secretary of State, who
Page 10
retain the last word in each individual case by virtue of the general grounds of
refusal. These include a right to refuse on the ground that the Immigration Officer
or the Secretary of State is not satisfied with the material used by the migrant to
obtain his offer of a place on the sponsor’s course, or on the ground that
notwithstanding the CAS the migrant is not seeking to enter or remain for a
purpose (i.e. study at an appropriate institution) which is covered by the Rules. I
have summarised the relevant provisions at paragraph 14 above. The evidence
shows that a significant number of Tier 4 (General) migrants with a CAS are in
fact refused leave to enter or remain on these grounds. The upshot is that the grant
of a CAS by an educational institution is not tantamount to leave to enter or
remain. It is strong but not conclusive evidence of some of the matters which are
relevant upon the migrant’s application for leave to enter or remain.
Absence of statutory power
20. This, although placed second in the order of argument, was really the
Appellants’ main point and was the focus of the decisions of the courts below.
Under the points-based system, the control of immigration under Tier 2 (skilled
workers), Tier 4 (students) and Tier 5 (temporary workers) depends critically on
the sponsorship of migrants by licensed sponsors. The requirement that a migrant
in the relevant category should be sponsored by an institution with a sponsor
licence is laid down in the Immigration Rules, in the case of Tier 4 (General) by
Appendix A, paragraph 116 (d) and (e). A “Sponsor Licence” is defined in
paragraph 6 of the Rules as “a licence granted by the Secretary of State to a person
who, by virtue of such a grant, is licensed as a Sponsor under Tiers 2, 4 or 5 of the
Points Based System.” But there are no provisions in the Rules dealing with the
qualifications and obligations of a licensed sponsor. The system for licensing
sponsors is wholly governed by the Guidance issued for the relevant tier on behalf
of the Secretary of State. This includes, it is said, mandatory requirements for
obtaining and retaining a sponsor licence which qualify as “rules” and determine
whether the migrant will obtain leave to enter or remain in the United Kingdom.
Therefore, they must be laid before Parliament under section 3(2) of the Act. In the
absence of tacit Parliamentary approval, the Secretary of State is not entitled to
have regard to them in making decisions about the status of sponsors.
21. There is a conceptual difficulty for the Appellants in this argument. Their
objective in this litigation is to recover the sponsor licence (in the case of the New
London College) and to obtain Highly Trusted Status (in the case of the West
London Vocational Training College). If the sponsor licensing scheme is unlawful
for want of tacit Parliamentary approval, it must follow that the Secretary of State
was not entitled to grant licences in accordance with it. On that footing, the
Secretary of State cannot be bound to confer a licence under it on the West London
Vocational Training College, or to allow the New London College to retain a
licence once granted. Moreover, since under Part 6A of the Immigration Rules
Page 11
migrants in Tier 4 require a CAS from a licensed sponsor as a condition of
obtaining leave to enter or remain, it must follow, if the system of sponsor
licensing is unlawful, that leave to enter or remain in the United Kingdom cannot
be granted to students whom they have accepted, except possibly on the footing of
an administrative relaxation of the relevant parts of the Immigration Rules.
22. The Appellants brought a fair amount of ingenuity to the task of escaping
this dilemma. New London College argued that the grant of a sponsor license was
lawful, whereas its withdrawal was not. Both Appellants argued that the sponsor
licensing scheme could remain valid on the footing that the mandatory
requirements for the grant or retention of sponsor licences or Highly Trusted
Sponsor status were excised, leaving only those parts of the criteria which were
discretionary or advisory. But none of this is realistic. The criteria under
paragraphs 344-345 of the Guidance are mandatory in exactly the same way as the
criteria for granting it is in the first place. The mandatory requirements, whether
they relate to the grant or the withdrawal of a license or of Highly Trusted Sponsor
status, cannot be severed from the rest of the licensing scheme, because they are
fundamental to its whole operation. It follows that either the sponsor licensing
scheme is wholly unlawful by reason of its inclusion of mandatory requirements
for sponsors, or it is lawful notwithstanding those requirements. Neither alternative
will result in these Appellants being licensed. There is no half-way house.
23. Mr Drabble QC, who appeared for the Interveners (the Migrants’ Rights
Network and the Joint Council for the Welfare of Immigrants), was understandably
concerned not with the position of these Appellants but with the state of English
law and the general operation of the system of immigration control. So while
recognising the Appellants’ problem, he had no reason to be inhibited by it, and
put the case in its purest and most radical form. Mr Drabble submitted that the
Sponsor Guidance does not fall within sections 1(4) or 3(2) of the Act, because it
is not directed to regulating the grant of leave to enter or remain in the United
Kingdom but to the licensing and regulation of the sponsoring institutions
themselves. It did not therefore need to be laid before Parliament. But, he says,
because the control of immigration is wholly statutory and there is no power to
control it otherwise than by rules falling within section 3(2), there is no power to
operate a system of sponsor licensing at all. Only on the footing that (contrary to
this submission) the requirements for sponsors did fall within sections 1(4) and
3(2) of the Act, was he able by way of alternative to give at least partial support to
the Appellants’ argument.
Absence of statutory authority
24. The first question is accordingly the scope of section 3(2) of the Act. It does
not apply to all “rules”, but only to those which relate to “the practice to be
Page 12
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.” Alvi
is authority for the proposition that it extends only to requirements which “if not
satisfied by the migrant, will lead to an application for leave to enter or remain
being refused”: see para 94 (Lord Dyson). I would readily accept that the
mandatory criteria for the award and retention of a sponsor licence are rules. But,
subject to one reservation (considered below), they are not rules calling for
compliance by the migrant as a condition of his obtaining leave to enter or remain.
The Sponsor Guidance is wholly concerned with the position of the sponsor. The
point may be illustrated by imagining an appeal by the migrant under section 84(1)
of the Nationality, Immigration and Asylum Act 2002 on the statutory ground that
his application to enter or remain was refused on a ground “not in accordance with
immigration rules”. This provision is the main reason why the Rules have been
treated as giving rise to legal rights, which in turn was a significant part of the
analysis in Alvi: see paras 9, 38, 39, 42 (per Lord Hope); cf. MO (Nigeria) v
Secretary of State for the Home Department [2009] 1 WLR 1230 at para 6 (per
Lord Hoffmann). As far as the migrant is concerned, the only relevant rule is that
to obtain leave to enter or remain he must have received a CAS from a licensed
sponsor. That rule is contained in the Immigration Rules. If the issue on a
hypothetical appeal under section 84(1) was whether the migrant had a CAS from
a licensed sponsor, that would fall within the proper scope of the appeal, because
the requirement to have a CAS from a licensed sponsor was laid down by the
Rules. But if the issue was whether the course-provider ought to have been
licensed, it would plainly not fall within the proper scope of the appeal, for that
was not a requirement falling to be satisfied by the migrant and could have formed
no part of the ground of refusal. Compare the situation in Alvi, a Tier 2 case in
which the applicant was refused leave to remain because his occupation was not
included in a list of skilled occupations. Because the list of skilled occupations was
liable to be changed by the Secretary of State and was not part of the Immigration
Rules laid before Parliament, it was not lawful to make a decision by reference to
it. An appeal under section 84(1) of the Act of 2002 would therefore have been
competent. For this purpose, the critical feature of the list of skilled occupations
was that it was part of the criteria for granting leave to enter or remain which the
migrant had to satisfy and which determined the fate of his application. This is not
true of the criteria for sponsor licensing. This is not a technical or adventitious
distinction. It is logically coherent, entirely consistent with the purpose of the
Immigration Rules and dictated by the language of section 3(2) of the Act.
25. The reservation arises out of the cross-references to the Sponsor Guidance
in the Rules. Since the Guidance is liable to be changed without Parliamentary
scrutiny at the discretion of the Secretary of State, the Rules cannot lawfully
incorporate by reference from the Guidance anything which constitutes a rule that
if not satisfied will lead to the migrant being refused leave to enter or remain: see
Alvi, at para 39 (per Lord Hope). The relevant cross-references are concerned with
documentation. Appendix A, paragraph 116(f) of the Rules requires the CAS to
Page 13
contain, as a condition of its validity, “such information as is specified as
mandatory in guidance published by the United Kingdom Border Agency”. This is
a reference to the information specified at paragraphs 170 of the Guidance.
Paragraph 170 provides that when assigning a CAS the sponsor “must complete all
of the relevant details within the sponsorship management system, for example the
student’s personal details, course level and information about fees, etc.” It goes on
to draw attention to the importance of completing in detail the “evidence provided”
section stating, for example, how it has assessed the student’s command of English
and his ability to follow the course. Paragraph 245AA(a) of the Rules provides that
where Appendix A requires specified documents to be provided, this means
documents specified by the Secretary of State in the Sponsor Guidance. Paragraph
245AA(a) provided that “if the specified documents are not provided, the applicant
will not meet the requirement for which the specified documents are required as
evidence.” Paragraph 245AA(c) (in effect from 5 July 2010) provided that “if the
Sponsor or applicant does not satisfy the requirements set out in guidance and
referred to in these Rules, the applicant will not meet the related requirement in
these Rules.” The effect of these provisions is simply to require the sponsor to
enter on the migrant’s electronic file information which the migrant will himself
have had to produce to obtain the offer of a place on the sponsor’s course.
Appendix A, paragraph 118 of the Rules, requires the migrant to produce the same
material in support of his application for leave to enter or remain. It follows that
none of the sections of the Guidance incorporated by reference in the Rules raises
the bar against migrants any higher than the Rules themselves do.
26. For these reasons I accept Mr. Drabble’s starting point, that the criteria for
sponsor licensing contained in the Guidance did not fall within sections 1(4) or
3(2) and did not therefore fall to be laid before Parliament. This disposes of the
Appellants’ argument.
27. I turn therefore to Mr Drabble’s principal submission, namely that on the
footing that the criteria for sponsor licensing do not fall within sections 1(4) and
3(2), there is no power to have such a system at all. He submitted that this was
implicit in the decisions of this court in Munir and Alvi. In particular, he relied on
Lord Hope’s observation in Alvi, at para 33, that the obligation under section 3(2)
to lay statements of the rules and any changes in the rules before Parliament
“excludes the possibility of exercising prerogative powers to restrict or control
immigration in ways that are not disclosed by the rules.” I do not accept that Munir
and Alvi go that far. The only mode of restricting or controlling immigration which
was in issue in those cases was the regulation of entry into and stay in the United
Kingdom. The decisions are authority for the proposition that the power of the
Secretary of State to make rules relating to the practice to be followed for
regulating the entry into and stay in the United Kingdom is implicit in the
obligation imposed on her by section 3(2) to lay such rules before Parliament. It
has no other legal basis. Section 3(2) is concerned only with rules of that
Page 14
description, and it was only with the control of immigration by the grant or refusal
of leave to enter or remain that Lord Hope, like the rest of the court, was
concerned. The court was not concerned with the existence or extent of any power
that the Secretary of State might have to do something which was not within the
scope of section 3(2).
28. So in my opinion Mr. Drabble’s submission is unsupported by authority.
But is it right in principle? In my view it is not. It has long been recognised that the
Crown possesses some general administrative powers to carry on the ordinary
business of government which are not exercises of the royal prerogative and do not
require statutory authority: see B.V. Harris, “The ‘Third Source’ of Authority for
Government Action Revisited” (2007) 123 LQR 225. The extent of these powers
and their exact juridical basis are controversial. In R v Secretary of State for Health
Ex p C [2000] 1 FLR 627 and Shrewsbury and Atcham Borough Council v
Secretary of State for Communities and Local Government [2008] 3 All ER 548,
the Court of Appeal held that the basis of the power was the Crown’s status as a
common law corporation sole, with all the capacities and powers of a natural
person subject only to such particular limitations as were imposed by law.
Although in R (Hooper) v Secretary of State for Work and Pensions [2005] 1 WLR
1681, para 47 Lord Hoffmann thought that there was “a good deal of force” in this
analysis, it is open to question whether the analogy with a natural person is really
apt in the case of public or governmental action, as opposed to purely managerial
acts of a kind that any natural person could do, such as making contracts, acquiring
or disposing of property, hiring and firing staff and the like. But the question does
not need to be resolved on these appeals because the statutory power of the
Secretary of State to administer the system of immigration control must
necessarily extend to a range of ancillary and incidental administrative powers not
expressly spelt out in the Act, including the vetting of sponsors.
29. The Immigration Act does not prescribe the method of immigration control
to be adopted. It leaves the Secretary of State to do that, subject to her laying
before Parliament any rules that she prescribes as to the practice to be followed for
regulating entry into and stay in the United Kingdom. Different methods of
immigration control may call for more or less elaborate administrative
infrastructure. It cannot have been Parliament’s intention that the Secretary of
State should be limited to those methods of immigration control which required no
other administrative measures apart from the regulation of entry into or stay in the
United Kingdom. If the Secretary of State is entitled (as she plainly is) to prescribe
and lay before Parliament rules for the grant of leave to enter or remain in the
United Kingdom which depend upon the migrant having a suitable sponsor, then
she must be also be entitled to take administrative measures for identifying
sponsors who are and remain suitable, even if these measures do not themselves
fall within section 3(2) of the Act. This right is not of course unlimited. The
Secretary of State cannot adopt measures for identifying suitable sponsors which
Page 15
are inconsistent with the Act or the Immigration Rules. Without specific statutory
authority, she cannot adopt measures which are coercive; or which infringe the
legal rights of others (including their rights under the Human Rights Convention);
or which are irrational or unfair or otherwise conflict with the general constraints
on administrative action imposed by public law. However, she has not transgressed
any of these limitations by operating a system of approved Tier 4 sponsors. It is
not coercive. There are substantial advantages for sponsors in participating, but
they are not obliged to do so. The rules contained in the Tier 4 Guidance for
determining whether applicants are suitable to be sponsoring institutions, are in
reality conditions of participation, and sponsors seeking the advantages of a
licence cannot complain if they are required to adhere to them.
30. Brief submissions were addressed to us on the question whether the fee
charged by the Border Agency required and if so whether it had specific statutory
authority. Since the answer to that question cannot affect the lawfulness of the
principles on which a sponsor’s licence is refused, downgraded or withdrawn, I say
nothing about it one way or the other.
Conclusion
31. It follows, in my opinion, that both appeals should be dismissed.
32. Under paragraph 323A(a) of the Immigration Rules, if a migrant’s sponsor
ceases to hold a sponsor’s licence, his leave to enter or remain is not automatically
annulled but may be curtailed. One would assume that the Secretary of State would
respond with reasonable sensitivity to the difficulties faced by international
students in a situation which is not necessarily of their own making.
LORD CARNWATH
33. In agreement with Lord Sumption, but for rather different reasons, I would
reject Mr Drabble’s extreme submission that the establishment of the sponsor
licensing system is outside the scope of the 1971 Act altogether. It is clear
(following R (Munir) v Secretary of State for the Home Department [2012] 1 WLR
2192) that the Secretary of State’s powers of immigration control are confined to
those conferred expressly or impliedly by the 1971 Act. They may include both
powers expressly conferred and powers reasonably incidental to them (see Wade
and Forsyth, Administrative Law 10th Ed p 181; Bennion, Statutory Interpretation
5th Ed pp 494ff). The obvious source of such incidental powers in the present
context, in my view, is to be found in section 1(4), which imposes on the Secretary
of State the duty to establish arrangements which allow admissions for the
Page 16
purposes of study. Fairly incidental to that is the establishment of a system for
vetting educational institutions who may be permitted to participate. A useful
parallel can be found in R (Barry) v Liverpool Council [2001] EWCA Civ 384,
where it was held that a scheme for registering and vetting door-staff was
incidental to the council’s power for licensing places for public entertainment.
34. I cannot accept Mr Swift’s submission (if I understood it correctly) that
there is some alternative, unidentified source of such powers, derived neither from
the prerogative nor from any specific provision in the Act, but from the general
responsibilities of the Secretary of State in this field. No authority was cited for
that proposition and to my knowledge none exists. Mr Swift did not seek to rely on
a possible “third source” of powers, by reference to the “controversial” line of
authority mentioned by Lord Sumption (para 28). In my view he was wise not to
do so (for the reasons given in my judgment for the majority in the Shrewsbury
case [2008] 3 All ER 548, 562-4). (This sensitive issue has also been the subject of
recent consideration by the House of Lords Select Committee on the Constitution:
The pre-emption of Parliament HL Paper 165 – 1 May 2013).
35. Lord Sumption relies instead on a broader application of the incidental
powers approach, which appears to be a variant of Mr Swift’s main submission.
The Secretary of State’s power to administer the system of immigration control
must, it is said, extend to “a range of ancillary and incidental powers”, including
administrative measures for identifying suitable sponsors, “even if these measures
do not themselves fall within section 3(2) of the Act”. This formulation, as I
understand it, treats the licensing process as linked not to the specific provisions
for regulating entry under section 1(4), but to the general system of immigration
control under the Act. It thus takes it outside the scope of the section 3(2)
procedure altogether.
36. I find this more difficult to accept. In Hazell v Hammersmith LBC [1992] 2
AC 1, considering the analogous principle in section 111 of the Local Government
Act 1972, Lord Templeman extracted from the authorities, starting with AttorneyGeneral v Great Eastern Railway Co (1880) 5 App Cas 473 –
“… the general proposition that when a power is claimed to be
incidental, the provisions of the statute which confer and limit
functions must be considered and construed.” (p 31D)
In that case the alleged power to enter into swap transactions had to be considered
in the context of the specific provisions governing local authority borrowing.
Similarly, in Barry the scheme for vetting door-staff was incidental, not to the
council’s regulatory powers in general, but to the particular power for licensing
Page 17
places for public entertainment. In each case the source of the incidental power
was found in a specific provision conferring specific functions.
37. So in the present context, in my view the sponsorship licensing scheme is
an adjunct, not of the immigration control system in general, but of the specific
function of providing for entry for study under section 1(4). That is its only
purpose within the statutory scheme. Section 1(4) states that such provision is to be
“in such cases and subject to such restrictions as may be provided by the rules”.
On its face that leads back to section 3(2) which prescribes the procedure for
making the rules.
38. That view appears also to accord with the approach of those responsible for
drafting the relevant rules and regulations. They did not treat the licensing scheme
as falling outside the scope of the rules altogether. On the contrary the concept of
such a licence, as defined in the rules, is an essential feature of Appendix A to
which Lord Sumption has referred. They must therefore be taken as authorising the
Secretary of State to maintain arrangements for the grant of licences. They do not
as such provide for her to withdraw licences once given. However, it is apparent
from rule 323A that the grant of a licence is not permanent, so that a power to
revoke for good reason may not be difficult to imply (see eg R v Hillingdon LBC
Ex p LRT Times, 20.1.99, cited in Wade and Forsyth, op cit p 194). What are
missing from the rules are the detailed arrangements for the grant or review of
licences, or the criteria under which they are to be carried out.
39. Consistently with this approach, the fees regulations, in their earlier form,
defined “sponsor licence” as “a licence granted by the Secretary of State under the
immigration rules…” (Immigration and Nationality (Fees) Order 2011 SI 2011 No
445 art 2, emphasis added). It is true that the wording was not preserved in 2013
regulations (SI 2013 No 617), which refer simply to “a licence granted… to a
person who, by virtue of such a grant, is licensed as sponsor”; but this change may
itself have been a response to the potential problems highlighted by Pankina v
Secretary of State for the Home Department [2011] QB 376.
40. The next question is whether, assuming that that the power to issue the
guidance is derived from section 1(4), it falls outside the scope of the rules which
are to be submitted to Parliament under section 3(2). It is not in dispute, as I
understand it (para 24), that parts at least of the guidance are of the nature of
“rules” in the ordinary meaning of that word. Lord Clarke said in Alvi:
“120. It seems to me that, as a matter of ordinary language, there is
a clear distinction between guidance and a rule. Guidance is advisory
in character; it assists the decision maker but does not compel a
Page 18
particular outcome. By contrast a rule is mandatory in nature; it
compels the decision maker to reach a particular result.”
By that test, there are parts of the guidance which are clearly “mandatory” in
nature, and so described in the document. I did not understand Mr Swift to argue
otherwise. However, I would not necessarily accept that such compulsion is an
essential characteristic of “rules” in the ordinary use of that word. For example,
rule 323A to which I have referred, providing for the circumstances in which leave
to enter “may be curtailed”, is properly included in the body of “rules”, even
though its effect is not to compel a particular result in any case, but rather to define
the criteria governing the exercise of the discretion.
41. The more difficult issue, to my mind, is whether, as Mr Swift has argued
and the majority accept, the term “rules” in the present context is to be read in a
more limited sense, defined by Lord Dyson in Alvi (para 94) confined to “any
requirement which, if not satisfied by the migrant, will lead to an application for
leave to enter or remain being refused…” (my emphasis). Left to myself, I would
have needed some convincing that Alvi was determinative of the present case, not
least because the issue was different. The court was concerned with a group of
provisions which were admittedly within the general scope of section 3(2), the
only issue being the proper categorisation of individual provisions within that
group. It was not concerned, as we are, with the categorisation of a complete and
self-contained regulatory code for sponsoring educational institutions. However,
the other members of the court, including two members of the majority in Alvi, do
not share my doubts on this point. Accordingly, I see no purpose in introducing a
note of dissent on what should as far as possible be a clear-cut test.
42. Finally, I would offer a brief comment on what would have been the
practical consequences of a successful appeal on this point. It was part of Mr
Swift’s case (echoed by Lord Sumption – para 21) that the appellants’ arguments
in effect proved too much for their own good. If the guidance is unlawful, then so
must be the licence originally issued to NLC in reliance on it. Similarly, in the
West London case, setting aside the present decision to refuse HT status cannot
turn it into a positive decision in their favour; nor can they pick and choose
between different parts of the guidance in support of a new application.
43. In respect of West London College, I agree that success on the section 3(2)
point would not have offered any obvious advantage. Setting aside the refusal of
HTS status would not in itself result in a more favourable outcome. Although the
concept of such status is in the rules, the criteria by which it is to be granted are in
the guidance. If the existing guidance, or material parts of it, were held to be
invalid, the Secretary of State would need the opportunity to validate it, with the
Page 19
assistance of Parliament if necessary. Until then, the status of the college may have
to remain undetermined.
44. In respect of New London College, in my view, the position is different.
The relevant decision in that case was not one to confer a status which they did not
have, but to revoke an existing licence. An order setting aside that decision, if it
goes no further, would simply leave the existing licence in place. There is nothing
unlawful in the concept of such a licence, as such, which as I have noted is created
by the rules. Nor, as I understand, is there anything on the face of the licence
(whether in paper or digital form) to undermine its validity. It may well be true, as
Mr Swift submits, that the grant of that licence was influenced by criteria in the
guidance. But that does not mean that the licence itself is now to be taken as
invalid, in circumstances where no interested party has sought to challenge it,
either at the time or since.
45. Taken to its logical conclusion, Mr Swift’s argument would extend not just
to the present guidance, but to all the previous versions since the points-based
system was introduced, and indeed to all licences issued under them. Happily,
however, that is not how public law remedies work. It is sufficient to refer to the
valuable discussion in Wade and Forsyth, previous versions of which have
themselves influenced the development of the case-law in this area. The general
principle which emerges is summarised as follows (under the heading “Nullity and
relativity”):
“The truth is that the court will invalidate an order only if the right
remedy is sought in the right proceedings and circumstances. The
order may be a ‘nullity’ and ‘void’ but these terms have no absolute
sense: their meaning is relative, depending upon the court’s
willingness to grant relief in any particular situation. If this principle
of legal relativity is borne in mind, the law can be made to operate
justly and reasonably in most cases through the exercise of remedial
discretion…” (p 253)
46. If the appellants had succeeded on the legal issue, the result would have
been the setting aside of the Secretary of State’s decision revoking the licence.
Neither NLC nor the Secretary of State (nor any other interested party) has sought
to challenge the original licence. That in my view would have remained in effect
unless and until the Secretary of State could put in place valid procedures for its
revocation and exercise them accordingly. Until then, the College and its students
would have been unaffected.
Page 20
