West London Vocational Training College Ltd, R (on the application of) v Secretary of State for the Home Department

A refusal-rate requirement in sponsorship guidance was not invalid merely because it had not been laid before Parliament. The guidance regulated sponsorship, an indirect influence on a migrant’s eligibility, rather than altering the substantive requirements for leave to enter or remain. A later Supreme Court decision had not clearly overruled the binding Court of Appeal authority. The refusal-rate provision was unambiguous, rational and proportionate to the objective of identifying robust recruitment procedures. The Secretary of State had not unlawfully fettered her discretion, since exceptional cases could justify departing from the mandatory requirement.

The claimant, an education provider, sought judicial review of the refusal of its application for Highly Trusted Sponsor status and the reduction of its allocation of Confirmations of Acceptance for Studies to zero. The decision relied on a refusal rate exceeding 20 per cent.

The claimant argued that the relevant sponsorship guidance was invalid, had been misconstrued, imposed an irrational requirement and unlawfully fettered the Secretary of State’s discretion. The central issues were the statutory status and construction of the guidance, the rationality of using a refusal rate, and the availability of discretion in exceptional cases.

1. The application was dismissed. The claimant’s four grounds of challenge failed.
2. The Court of Appeal’s decision in R (New London College Ltd) v Secretary of State for the Home Department [2012] EWCA Civ 51 remained binding. Although the Supreme Court’s reasoning in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33 disapproved reliance on “substantive” as a universal test, it did not necessarily invalidate the actual ruling in New London College. The Supreme Court had expressly refrained from deciding whether that case was rightly decided. The Administrative Court therefore could not treat it as overruled.
3. The refusal-rate paragraph in the sponsorship guidance was unambiguous. It required all relevant refusals within the specified 12-month period to be counted. It was not open to the court to discount refusals on the basis that they did not result from a breach of the sponsor’s duties.
4. Using the refusal rate as an indicator of the robustness of recruitment procedures was rational. A materially higher rate than the general average could suggest inadequate scrutiny, while the 20 per cent threshold allowed a reasonable margin for refusals which a sponsor could not anticipate. The court adopted the reasoning of Thirlwall J in R (WGGS) v Secretary of State for the Home Department [2012] EWHC 2076 (Admin).
5. The discretion challenge also failed. The evidence showed that exceptional and compelling cases could justify departure from the mandatory requirement. The claimant’s highlighted refusals, largely involving failure to meet maintenance criteria, disclosed no special circumstances requiring such a departure.