Midlands Business Management College Ltd & Ors , R (on the application of) v Secretary of State for the Home Department

A published policy does not unlawfully fetter a statutory discretion merely because it is expressed in firm terms. The critical question is how the policy operates. A consistent rule may be lawful where exceptional departures remain available in compelling cases, even if that flexibility is not expressly stated. At the permission stage, a claim based on unlawful fettering must have a realistic prospect of success. The court may discharge permission previously granted where later authorities show that a ground should not have proceeded. Any interim relief dependent on that permission falls away.

Four judicial review claims concerned the Secretary of State’s scheme for highly trusted sponsor status. The first ground had been disposed of by the Supreme Court’s decision in the New London College case. The remaining issue concerned a requirement that fewer than 20 per cent of student applicants issued with a confirmation of acceptance for studies should be refused entry clearance or leave to enter for study.

Permission had been refused or left open in three cases and granted generally in the fourth. The claimants argued that the refusal-rate requirement was an unlawful fetter on the Secretary of State’s discretion. The court considered whether the policy permitted exceptions in practice and whether the proceedings should continue.

1. The renewed applications for permission were refused. The court held that the refusal-rate policy had no realistic prospect of being shown unlawful on the basis of fettering discretion.
2. A decision-maker may adopt a detailed policy governing the generality of cases. The policy becomes unlawful if it prevents consideration of circumstances in which the underlying discretion or statutory duty requires an individual judgment. The court distinguished the contexts discussed in Venables and Tilley, where the policies conflicted with statutory powers or duties.
3. The evidence in West London Vocational Training College showed that, although the refusal-rate requirement was framed as mandatory, discretion could be exercised in a small number of compelling cases. The court was entitled, at the permission stage, to proceed on the basis that the policy operated in that way. Exceptional flexibility was sufficient to prevent the policy from constituting an unlawful fetter.
4. The policy’s aim of maintaining consistency between compliant institutions while protecting the public from students with dubious entry qualifications justified reluctance to depart from it except exceptionally. The court also noted the Secretary of State’s power to formulate such a policy, recognised in the Supreme Court’s New London College decision.
5. In the Kimberly College claim, the court discharged permission previously granted. The court had an inherent jurisdiction to do so in appropriate and exceptional circumstances, and the recent authorities showed that permission would not have been granted on the second ground. The interim relief order dependent on that permission consequently fell away.

The judgment records earlier procedural decisions in the four claims:

• Administrative Court: Cranston J refused permission on the papers in the St Stephens College and Jamea Al Kauther claims; the applications were renewed orally.
• Administrative Court: permission on the second ground was left open in the Midlands Business Management College claim and treated as a renewed oral application.
• Administrative Court: His Honour Judge Anthony Thornton QC had granted general permission in the Kimberly College claim; that permission was discharged by this judgment.