English UK Ltd, R (on the application of) v Secretary of State for the Home Department

A material or substantive change to immigration policy cannot be made through extrinsic guidance where section 3(2) of the Immigration Act 1971 requires the change to be laid before Parliament under the negative-resolution procedure. A rule may refer to guidance, but that does not authorise guidance to alter the substantive effect of the rule or the guidance existing when it was promulgated. Guidance remains generally available for administrative implementation and proof of compliance. A policy challenge on Wednesbury grounds faces a high threshold, particularly where the decision involves competing immigration and economic considerations. Allocating responsibility to educational sponsors to issue confirmations of acceptance does not, without more, unlawfully delegate the Secretary of State’s powers or oust the court’s jurisdiction.

English UK Ltd, an association representing English-language teaching institutions, sought judicial review of the Secretary of State’s decision to raise the minimum English proficiency for non-EEA students wishing to study English in the United Kingdom from CEFR level A2 to level B2, with effect from 3 March 2010.

The change was made through revised UK Border Agency sponsor guidance under paragraph 120(a) of Appendix A to HC 395, rather than through a further change to the Immigration Rules. The claimant argued that this was unlawful under [2010] EWCA Civ 719, irrational, and an unlawful delegation or ouster of jurisdiction. The central issue was whether the revised substantive threshold could lawfully be introduced by guidance.

1. Claim succeeded in part. The revised minimum educational requirement for English-language students was declared unlawful. The irrationality and unlawful delegation or ouster challenges failed.
2. Following Pankina [2010] EWCA Civ 719, a substantive eligibility criterion for entry or leave to remain must be introduced through a process involving genuine Parliamentary scrutiny under section 3(2) of the Immigration Act 1971. The revised B2 threshold materially altered the existing substantive criterion and could not be introduced solely through sponsor guidance.
3. The fact that paragraph 120(a) referred to UKBA guidance did not authorise an ambulatory power to make material changes without Parliamentary scrutiny. The original guidance remained operative until lawfully changed. Guidance could still regulate administration and proof of compliance.
4. The rationality challenge failed. The evidence of abuse, the rise in applications from areas associated with illegal migration, the Student Visitor route and the stated exemptions provided a decision reasonably open to the Secretary of State. The court was not the proper forum for balancing the competing policy considerations.
5. Allowing licensed educational institutions to assess courses and issue confirmations of acceptance did not constitute an unlawful delegation of immigration powers or an unlawful ouster of the court’s jurisdiction. The declaration was confined to the changed minimum educational requirement.

First-instance judicial review. The judgment records that permission was granted by Collins J on 24 March 2010. No prior appellate decision in the same litigation is stated.