New London College Ltd, R (On the Application Of) v The Secretary of State for the Home Department

Guidance may explain how immigration powers will be exercised without being included in the Immigration Rules, provided it does not introduce a material or substantive eligibility criterion. Procedural fairness normally requires a sponsor facing suspension to know the gist of the case and have an opportunity to make representations. Urgent suspension may occur first, but only where urgency justifies it and prompt representations can follow. A decision to withdraw a sponsor licence is reviewed on ordinary public-law grounds, including irrationality, material factual error, failure to consider relevant matters and disproportionality. A sponsor licence may engage Article 1 of Protocol 1, but interference is justified where withdrawal is lawful, reasonable and proportionate.

The claimant operated further-education colleges and held a Tier 4 sponsor licence. UKBA suspended the licence in December 2009, later withdrew it in July 2010 and maintained the withdrawal in August 2010. The claimant challenged each decision, the continuing suspension, the use of sponsor guidance rather than Immigration Rules, and alleged breaches of Articles 1 of Protocol 1 and 6 of the Convention.

The court considered whether the guidance unlawfully supplemented the Immigration Rules, whether the initial suspension was procedurally and substantively lawful, whether the later withdrawal decisions were rational and proportionate, and whether the licence constituted a possession.

1. Pankina ground. The Immigration Rules contained the requirements for Tier 4 entry clearance and leave to remain, including the need for a valid sponsor licence and the consequences if a sponsor ceased to hold one. The guidance explained how the powers to grant, suspend, downgrade or withdraw a licence would be exercised. It did not create a material or substantive immigration criterion requiring parliamentary scrutiny under section 3(2) of the Immigration Act 1971.
2. Initial suspension. Applying the fairness principles in R v Home Secretary, ex p Doody [1994] 1 AC 531, UKBA should ordinarily have notified the claimant of the gist of the case and invited representations before suspension. Suspension carried reputational, financial and student-related detriment. The month-long delay after the inspection meant that urgency did not justify dispensing with prior representations. The evidence also did not reasonably establish the stringent October 2009 guidance test of serious breach and major threat to immigration control. The suspension communicated on 18 December 2009 was therefore unlawful.
3. The procedural unfairness was cured by 5 February 2010 at the latest through the claimant’s representations and UKBA’s requests for further information. In any event, the later evidence and the March 2010 inquiries justified continuing the suspension. It became lawful by 26 March 2010.
4. Withdrawal decisions. The decisions of 5 July and 19 August 2010 were lawful. UKBA was entitled to consider poor attendance, inadequate monitoring of immigration status, high refusal rates, inaccurate records, failures concerning work placements and weaknesses in recruitment and agent oversight. The court’s role was supervisory; it could not substitute its own assessment unless the findings were irrational, unreasonable or materially mistaken. Withdrawal was reasonable and proportionate.
5. The sponsor licence constituted a possession for Article 1 of Protocol 1 purposes because it was integral to the claimant’s business. The lawful withdrawal was justified, although the initial unlawful suspension breached that Article. Judicial review provided an adequate remedy for any Article 6 issue.