R (on the application of New London College Limited) v Secretary of State for the Home Department

A rule must be laid before Parliament under section 3(2) of the Immigration Act 1971 where it prescribes a requirement which a migrant must satisfy to obtain leave to enter or remain. Mandatory criteria governing the licensing and conduct of sponsors fall outside that requirement because they regulate institutions rather than migrants.

The Secretary of State's statutory responsibility for immigration control carries incidental administrative power to identify and supervise suitable sponsors. Such measures must remain consistent with the Act and the Immigration Rules. Without specific statutory authority, they cannot be coercive, infringe legal rights, or contravene ordinary public law standards. A sponsor's acceptance is strong evidence supporting a migrant's application, but the statutory decision-maker retains the final decision.

New London College Limited v Secretary of State for the Home Department concerned the suspension and revocation of the College's Tier 4 sponsor licence for breaches of the Sponsor Guidance. Its material grounds of judicial review succeeded in part before Wyn Williams J but failed in the Court of Appeal: [2012] EWCA Civ 51.

The conjoined appeal by West London Vocational Training College v Secretary of State for the Home Department concerned the refusal of Highly Trusted Sponsor status, which prevented the College from continuing as a licensed sponsor. Its judicial review failed in the Divisional Court, [2013] EWHC 31 (Admin), because the principal issue had been decided by the Court of Appeal in the New London College proceedings. It reached the Supreme Court by a leap-frog appeal under section 12 of the Administration of Justice Act 1969.

The central question was whether mandatory sponsor-licensing requirements in the Tier 4 Sponsor Guidance were rules which had to be laid before Parliament under section 3(2) of the Immigration Act 1971, and whether the Secretary of State otherwise possessed power to operate the licensing system.

1. Both appeals were dismissed unanimously. Lord Sumption delivered the majority judgment, with which Lord Hope, Lord Clarke and Lord Reed agreed. Lord Carnwath agreed in the result, although he identified a more specific statutory source for the incidental power to operate the sponsor-licensing system.
2. Section 3(2) of the Immigration Act 1971 applies to a rule governing the practice to be followed in regulating entry into and stay in the United Kingdom. Applying R (Alvi) v Secretary of State for the Home Department [2012] 1 WLR 2208, this covers a requirement which, if not satisfied by the migrant, leads to refusal of leave. The mandatory sponsor-licensing criteria were rules in an ordinary sense, but they imposed requirements on sponsoring institutions. They were not conditions which migrants themselves had to satisfy and therefore did not require laying under section 3(2).
3. The Immigration Rules could not lawfully incorporate, from changeable guidance which had not been laid before Parliament, a requirement which a migrant had to satisfy to obtain leave. The documentary cross-references in the Rules caused no unlawfulness. They required sponsors to record information which migrants were independently required to provide under the Rules and therefore did not raise the substantive threshold for obtaining leave.
4. The scheme did not unlawfully delegate immigration control to educational institutions. A confirmation of acceptance for studies was strong but inconclusive evidence supporting an application. Immigration officers and the Secretary of State retained the final statutory decision, including power to refuse an applicant who was not genuinely seeking entry for study or who fell within the general grounds of refusal.
5. The statutory power to administer immigration control necessarily carried ancillary and incidental administrative powers, including power to identify and vet suitable sponsors. Those powers could not support measures inconsistent with the Act or the Immigration Rules, coercive measures, infringements of legal rights, irrationality, unfairness, or other breaches of public law. The sponsor scheme remained within those limits: participation was voluntary, and its requirements were conditions attached to the advantages of licensed status.
6. Lord Carnwath considered that the incidental power arose specifically from section 1(4), which required arrangements for admitting persons for study, rather than from the immigration system generally. He nevertheless accepted the majority's section 3(2) conclusion. Lord Sumption also considered the mandatory licensing requirements inseverable from the scheme. Lord Carnwath disagreed with his view of the hypothetical remedial consequences for New London College: had the revocation been unlawful, the existing licence would have remained effective until lawfully revoked.

1. United Kingdom Supreme Court: The conjoined appeals were dismissed unanimously. The Court upheld the decisions below on the principal issue concerning the Tier 4 Sponsor Guidance.
2. Court of Appeal: The material grounds advanced by New London College Limited v Secretary of State for the Home Department failed: [2012] EWCA Civ 51. The Supreme Court dismissed the appeal from that decision.
3. Divisional Court: The judicial review brought by West London Vocational Training College v Secretary of State for the Home Department failed because the principal issue had been decided by the Court of Appeal: [2013] EWHC 31 (Admin). The Supreme Court dismissed the leap-frog appeal.
4. High Court: New London College's material grounds of judicial review had succeeded in part before Wyn Williams J. The citation for that decision is not stated in the judgment.