Stanley College London UK Ltd, R (On the Application Of) v Secretary of State for the Home Department

A mandatory refusal-rate criterion for highly trusted sponsor status is lawful. A 20% threshold does not unlawfully fetter discretion merely because some refusals may be outside a college’s control. The policy may permit exceptional cases to be considered, but an applicant must show circumstances that are sufficiently compelling to justify departing from the mandatory requirement. Individual refusals need not generally be re-examined, since that would undermine the administrative purpose of a fixed threshold. Patent errors, such as a miscalculation or an overturned refusal, may justify discounting a refusal. Alleged errors requiring substantive reconsideration of individual visa applications do not ordinarily create such a duty.

The claimant, an education provider with an A-rated Tier 4 licence, applied for highly trusted sponsor status. The Secretary of State refused the application because 8 of 33 relevant applications had been refused, producing a refusal rate of 24.24%, above the 20% mandatory threshold.

The claimant argued that several refusals resulted from matters outside its control or errors by entry-clearance officers. It also relied on its relatively low CAS usage, a positive inspection report and the asserted administrative ease of re-examining the refusals. Following reconsideration, the Secretary of State maintained the decision. Permission for judicial review was granted on amended grounds concerning the alleged duty to exercise discretion and examine individual cases. The central issue was whether the circumstances required an exception to the lawful refusal-rate policy.

The claim for judicial review was dismissed. The decision was made in accordance with the lawful policy requiring a refusal rate below 20%.

1. Lawfulness of the threshold. The authorities established that a refusal-rate criterion, and specifically a 20% threshold, was lawful. The threshold made allowance for refusals not attributable to the sponsor. The policy did not unlawfully fetter discretion because exceptional cases could, in principle, justify departure from a mandatory requirement.
2. No duty to conduct a general re-examination. The principal rationale for a fixed threshold was to avoid the administrative burden of investigating the circumstances of every individual refusal. A duty to undertake substantive reconsideration whenever a sponsor alleged error would undermine that rationale. Refusals might be discounted where the error was patent and readily ascertainable, for example where a refusal had been overturned on appeal or review, or where the refusal had been miscalculated. The alleged errors here required detailed inquiry and re-determination of individual visa applications.
3. No exceptional circumstances. Thirty-three CASs was a significant number, and seven refusals would have been needed to exceed the threshold. The positive inspection report demonstrated educational standards and commitment, but did not establish compliance with the refusal-rate requirement. Neither the relatively small number of CASs nor restricted rights of appeal was unusual or exceptional.
4. Alleged errors. The entry-clearance officers were reasonably entitled to reject the bank statements and CASs on the stated grounds. The evidence did not establish any error, still less an obvious error. Even if individual examination had been required, two erroneous refusals would have been necessary to bring the rate below 20%, and that had not been shown. The Secretary of State had reconsidered the representations and was entitled to refuse the application.