The College of Naturopathic Medicine Ltd (CNM), R (on the application of) v Secretary of State for the Home Department (Rev 1)

Highly trusted sponsor status may be refused without proof of actual harm to immigration control. The relevant question is whether the sponsor’s past conduct indicates inadequate processes or a capacity to cause future harm to immigration control. A refusal-rate policy using a fixed threshold is not irrational merely because a student later succeeds on a fresh application. The decision-maker must nevertheless consider whether the circumstances justify an exception and must not apply the policy rigidly. Counting an earlier refusal remains rational where it may indicate insufficiently robust student-vetting procedures, unless the refusal has been overturned on appeal or administrative review.

The claimant, an education provider licensed under Tier 4 of the points-based immigration system, sought judicial review of the Secretary of State’s refusal of its application for highly trusted sponsor status. The refusal relied on a refusal rate above the 20 per cent threshold and alleged failures to report students who did not enrol.

The claimant argued that the decision was irrational because the relevant refusals caused no actual harm to immigration control, because the Secretary of State had fettered her discretion, and because later successful applications should have displaced the earlier refusals. During submissions, the Secretary of State indicated that the reporting issue would not alone have determined the application. The central issue was whether the refusal-rate policy had been lawfully applied.

1. The claim was dismissed. The Secretary of State was entitled to refuse highly trusted sponsor status where the claimant’s refusal rate exceeded 20 per cent.
2. The purpose of the highly trusted sponsor criteria was not confined to excluding providers that had caused actual harm to immigration control. The criteria also addressed whether past conduct indicated that a provider might cause future damage or lacked the processes required to comply with sponsorship duties.
3. The policy applied equally to prospective students refused entry clearance and to students already in the United Kingdom. Although an entry-clearance refusal caused no actual harm in the former case, it could still evidence inadequate sponsor processes. The Secretary of State was therefore not required to disregard such refusals.
4. The policy was not applied as an inflexible rule. The decision-maker considered the claimant’s submissions, discounted one refusal that was accepted to have been wrongly made, considered the three later successful applications, and considered whether a holistic approach or other exception was justified.
5. It was rational to count a refusal where the student later succeeded using a different CAS. A later grant did not establish that the original refusal was wrong, and the earlier refusal could indicate insufficiently robust vetting by the sponsor. The policy of discounting refusals only where overturned on appeal or administrative review was therefore lawful.
6. The reporting-duty ground did not require determination because the Secretary of State accepted that, if it had been the claimant’s only failure, it would not necessarily have resulted in refusal.