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

A finding that delegated legislation is unlawful should normally lead to a quashing order, but relief remains discretionary. The court must evaluate all relevant circumstances between the legislation taking effect and the hearing. The same approach applies to Immigration Rules, whose status is akin to subordinate legislation. Relevant considerations include the continuing practical effects of the unlawful measure, the legitimacy and rationality of its substantive policy, the consequences of quashing, and the public interest in lawful administration. A decision to introduce changes without making rational inquiries into whether designated bodies could perform their immediate accreditation functions may be irrational, even where the resulting rules themselves are rational.

The claimant, a provider and assessor of English-language qualifications, challenged changes to the Immigration Rules and the British Nationality (General) Regulations 2003. The changes required relevant ESOL courses to be undertaken at an accredited college and imposed progress and qualification requirements.

The claimant initially alleged a failure to consult and irrationality. By the hearing it pursued irrationality alone. The Secretary of State accepted that implementing the changes without first consulting the proposed accrediting bodies about their ability to undertake accreditation immediately was irrational. The central issue was whether the claimant should receive a quashing order notwithstanding the passage of time and subsequent developments.

1. The claim succeeded on illegality, but relief was refused. The Secretary of State accepted that the decision to implement the changes without making adequate inquiries of the proposed accrediting bodies was irrational. The rules and regulations themselves were not irrational; the defect lay in the decision-making process.
2. In R (C (a minor)) v Secretary of State for Justice [2009] QB 657, the Court of Appeal established that subordinate legislation has no specially protected status. A finding that it is unlawful should normally lead to quashing. The court nevertheless retains discretion to withhold relief where the circumstances justify that course. The correct approach is to evaluate the circumstances prevailing between the legislation taking effect and the hearing.
3. Although Immigration Rules are not technically subordinate legislation, their status is akin to subordinate legislation: Pankina v Secretary of State for the Home Department [2010] 3 WLR 1526. The same principles therefore applied to the challenged parts of the Rules.
4. The court considered the practical evidence. There had been serious disruption immediately after implementation, but the evidence did not establish continuing widespread difficulty. The accrediting bodies were capable of providing accreditation, although the process was costly and time-consuming. The changes pursued a legitimate and desirable purpose, while quashing might create further confusion and disruption.
5. The case was distinguishable from R (MD) (China) & others v Secretary of State for the Home Department [2011] EWCA Civ 453. These proceedings retained a live and legitimate purpose because quashing could confer a significant benefit on the claimant. Nevertheless, balancing all competing considerations, it was not appropriate to quash the Rules or Regulations. Declaratory relief was also unnecessary because the Secretary of State had acknowledged the unlawfulness and the judgment recorded it clearly.

Not stated in the judgment.