Warnborough College Ltd., R (on the application of) v Secretary of State for the Home Department

At the permission stage of a judicial review, an applicant may proceed where the challenge has good prospects of success, even though earlier authorities have upheld the relevant policy. The court may scrutinise whether the assumptions underlying those authorities apply to the particular facts. A refusal-rate policy may be arguable as unlawful or unfair where it uses raw figures that do not provide a like-for-like comparison, includes refusals outside the sponsor’s control, or applies an inflexible threshold without a sufficiently clear review mechanism.

Warnborough College Ltd sought permission to challenge the Secretary of State’s refusal of its application for a Highly Trusted Sponsor licence under the Tier 4 points-based immigration system. The refusal relied on a policy requirement that the sponsor’s visa refusal rate be below 20 per cent.

The claimant argued that the policy and its application were unlawful, unfair, irrational and incompatible with property rights. It also challenged the inclusion of refusals arising from matters outside its control and the absence of a proper review of exceptional circumstances. Permission had previously been refused, but the claimant renewed its oral application.

1. Permission granted. The claimant had good prospects of success and permission was granted on all grounds.
2. The argument that the policy guidance was unlawful because it lacked parliamentary approval appeared untenable in light of New London College v Secretary of State for the Home Department [2012] EWCA Civ 51. However, the pending Supreme Court appeals and additional arguments concerning the delegation of non-educational functions to educational bodies meant that the issue could not be treated as conclusively resolved at this stage.
3. Earlier decisions had upheld the mandatory 20 per cent refusal-rate requirement, but they appeared to have proceeded on factual and legal assumptions which had not been challenged by evidence. The claimant was entitled to argue that those assumptions did not apply in its case.
4. There was an arguable case that the refusal rate was statistically and factually unreliable. The relevant data combined institutions, courses, countries and visa reception centres with materially different characteristics. It also included alleged errors in visa processing, refusals based on information outside the sponsor’s control, and data gathered at different stages of the two application processes.
5. It was arguable that the policy should be construed as referring only to refusals on grounds that the sponsor could reasonably have identified when considering the corresponding CAS application. It was also arguable that the policy required a meaningful review of challenged refusals and did not impose an inflexible rule without regard to the circumstances.
6. The claimant also had arguable grounds concerning unlawful vetting practices, the possible operation of the Race Relations Act 1976, Article 1 of Protocol 1 to the ECHR, and the alleged failure to exercise a discretion fairly.

The court did not finally determine the merits. Directions for the substantive hearing and continuation of interim relief were reserved.

The claimant renewed an oral application for permission after permission had previously been refused.

• Administrative Court: Mr Ockelton granted interim relief on 7 January 2013. Mr Goudie QC refused permission and discharged the injunction on 14 February 2013.
• High Court (Administrative Court): Permission was granted on all grounds by [2013] EWHC 1510 (Admin). The substantive judicial review remained to be determined.