3D Morden College v Secretary of State for the Home Department

The Highly Trusted Sponsor policy required the refusal rate to be assessed over the 12 months immediately preceding the application where that was the prescribed period. The fact that a college issued confirmations of acceptance for studies (CASs) during only part of that period did not require a shorter assessment period. A sponsor aware of the criterion, but considering the resulting rate unrepresentative, could explain that position when applying, including by accompanying the prescribed form with a letter. Where the policy was clear and no explanation was provided, a judicial-review challenge to the calculation had no real prospect of success.

3D Morden College challenged the Secretary of State’s refusal dated 20 September 2012 to award it Highly Trusted Sponsor status. The refusal rate for its CAS students exceeded the 20 per cent threshold, being 31.74 per cent. Stuart-Smith J refused the College’s renewed application for permission to apply for judicial review in an order dated 20 March 2013: [2013] EWHC 2022 (Admin).

On the renewed application for permission to appeal, the College argued that the policy’s 12-month assessment period should not apply because the UKBA had allowed it to issue CASs for only four months. The central issue was whether that circumstance changed the prescribed assessment period or made the refusal rate legally unrepresentative.

Lord Justice Sullivan refused the renewed application for permission to appeal.

1. Assessment period. The policy and guidance were clear that the relevant data were those for the 12-month period immediately before the application for Highly Trusted Sponsor status. The College had issued CASs for only four months because an interim limit had been imposed on CAS allocations. That operational restriction did not alter the period over which the refusal rate had to be calculated.
2. Opportunity to explain. The College knew the 12-month criterion when it applied. If it considered the rate unrepresentative because CASs had been issued during only four months, it could have explained that at the application stage. The prescribed form did not prevent it from sending an accompanying letter or otherwise drawing the matter to the UKBA’s attention.
3. Permission. The refusal rate was materially above the 20 per cent threshold, and the College had not raised its explanatory point when applying. In all the circumstances, there was no real prospect that a judicial-review claim would succeed. The renewed application was therefore refused.

• Court of Appeal (Civil Division) refused the renewed application for permission to appeal.
• High Court of Justice, Queen’s Bench Division (Stuart-Smith J) refused the College’s renewed application for permission to apply for judicial review by order dated 20 March 2013: [2013] EWHC 2022 (Admin).