WGGS Ltd (t/a Western Governors Graduate School), R (on the application of) v Secretary of State for the Home Department

Guidance requiring an educational sponsor to report every sponsored student who fails to enrol applies whether the student abandons the course or is refused entry clearance or leave to remain. The authority may reasonably regard compliance as evidence that an institution merits highly trusted sponsor status, even where it already knows why enrolment was impossible.

A published obligation to minimise visa refusals may lawfully be assessed by an unpublished numerical benchmark where knowledge of the precise figure would not alter the sponsor’s duty or legitimate conduct. An aggregate refusal-rate threshold is rational where examining responsibility for every refusal would be impracticable and the threshold makes reasonable allowance for unsuitable applicants whom rigorous admissions procedures cannot identify.

WGGS Ltd operated a college for overseas students and was licensed to issue confirmations of acceptance for studies. The UK Border Agency refused its application for highly trusted sponsor status because 92 sponsored students had failed to enrol without being reported and because applications supported by its confirmations had a refusal rate exceeding 20%.

Mrs Justice Thirlwall dismissed WGGS’s judicial review claim. WGGS appealed, contending that students refused entry clearance or leave to remain did not have to be reported, or that non-reporting was too minor to justify refusal. It also argued that the agency had unlawfully applied an unpublished and unduly rigid 20% refusal-rate benchmark. The central issue was whether either assessment rendered the refusal of highly trusted status unlawful.

1. The appeal was dismissed unanimously. The published guidance clearly required colleges to report every sponsored student who failed to enrol within the prescribed period. It contained no express or implied exception for a student refused entry clearance or leave to remain. The court agreed with the interpretation adopted in R (CNM Ltd) v Secretary of State for the Home Department [2012] EWHC 1851 (Admin), R (London College Management Ltd) v Secretary of State for the Home Department [2012] EWHC 1029 (Admin) and R (West End College, London) v Secretary of State for the Home Department.

2. The agency could reasonably require reporting even where its own records disclosed that enrolment was impossible. Reports enabled it to maintain clear records and to verify that a college seeking highly trusted status performed its obligations. Colleges exercised functions formerly undertaken by immigration officials and had to demonstrate that they deserved the trust placed in them. The agency considered WGGS’s representations and reasonably concluded that the failure to report 92 students justified refusal.

3. Use of a 20% benchmark before its public announcement was not unlawful or prejudicial. WGGS knew that its refusal rate would be compared with the relevant norm. A sponsor’s obligation was to operate robust procedures and minimise refusals, rather than to aim at a permitted failure rate. Knowledge of the precise benchmark should not have affected the rigour of its checks.

4. The aggregate 20% threshold was rational. It would have been impracticable for the agency, which regulated about 2,100 institutions, to investigate every refusal and decide whether the sponsor should have foreseen its cause. The threshold reasonably allowed for bogus or unsuitable applicants who might evade rigorous selection and for unforeseen changes in genuine applicants’ circumstances. The correspondence also showed that the agency considered WGGS’s individual representations rather than applying the threshold inflexibly. Its method might be capable of refinement, but it was lawful.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court upheld both grounds on which the UK Border Agency had refused highly trusted sponsor status: failure to report non-enrolments and a refusal rate exceeding 20%. [2013] EWCA Civ 177

2. High Court, Administrative Court: Mrs Justice Thirlwall dismissed the judicial review claim on 15 June 2012, rejecting both challenges to the agency’s decision. No neutral citation is stated in the judgment.