Central College of London Ltd, R (on the application of) v Secretary of State for the Home Department (Rev 2)

In domestic public law, disproportionality is not a free-standing ground of judicial review. A disproportionate response may nevertheless be unlawful if it satisfies a recognised ground, such as irrationality or breach of a legitimate expectation. In a regulatory scheme, the court must respect the regulator’s specialist assessment and wide discretion. Intervention is justified only where the sanction is so disproportionate that no reasonable authority could impose it, or where another public-law error is established.

A legitimate expectation requires a representation, promise or practice that is clear, unambiguous and devoid of relevant qualification. Immigration policy or guidance ordinarily applies to pending applications and incomplete processes unless the new policy shows a contrary intention.

The claimant operated a college providing courses to non-European Union students under a Tier 4 sponsor licence. UKBA suspended and later revoked the licence after identifying several failures, including password-sharing, inadequate reporting and monitoring systems, and the sponsorship of a student without valid leave.

Permission to seek judicial review was granted only on an Article 1 of Protocol 1 ground. Following the Court of Appeal’s decision in R (New London College) v Secretary of State for the Home Department [2012] EWCA Civ 51, that ground was conceded. The claimant sought to amend to add legitimate-expectation, irrationality, policy-transition and procedural-fairness grounds.

1. Disposition. The application to amend was refused. The substantive application for judicial review was formally refused.
2. Legitimate expectation and proportionality. Disproportionality is not a discrete domestic ground of review, following R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696. It may form part of a recognised ground, but the April 2011 guidance did not promise a proportionate response. It indicated that revocation was likely for breaches, subject only to exceptional circumstances, and reserved a wide discretion to UKBA.
3. A legitimate expectation requires a commitment generated by a representation, promise or practice that is clear, unambiguous and devoid of relevant qualification, as stated in R v Inland Revenue Commissioners ex parte MRK Underwriting Agents Ltd [1991] WLR 1545. No such commitment arose.
4. Irrationality. The court would be cautious before substituting its assessment for UKBA’s specialist assessment of the appropriate sanction. The multiple failures, including unauthorised use of a level 1 password and failures affecting immigration control, fell far short of the high Wednesbury threshold. The revocation was harsh but not irrational.
5. Applicable guidance. Under Odelola v Secretary of State for the Home Department [2009] UKHL 25 and R (New London College) v Secretary of State for the Home Department [2012] EWCA Civ 51, a new policy ordinarily applies to pending applications and incomplete processes unless a contrary intention appears. The September 2011 guidance applied because no prior downgrade to B-rating had occurred and its transitional provisions did not preserve the April procedure.
6. There was no evidence that UKBA had deliberately delayed its decision. The claimant was obliged to keep abreast of changes to the guidance and could have made further representations after September 2011. The decision therefore involved no arguable procedural unfairness or abuse of power.

• High Court (Administrative Court): Permission was refused on the papers, and on renewal permission was granted only on the Article 1 of Protocol 1 ground. That ground was later abandoned as no longer arguable in light of R (New London College) v Secretary of State for the Home Department [2012] EWCA Civ 51. The present court refused amendment and formally refused judicial review.