Goldsmith International Business School, R (on the application of) v Secretary of State for the Home Department

Under Tier 4 guidance, a recognised qualification requires completion of the relevant course or stage and acceptance by the appropriate public or professional authorities. A partial stage leading towards a qualification is not itself a recognised qualification. A recognised qualification is not necessarily an approved qualification for immigration purposes.

A decision applying guidance on the basis of an erroneous understanding of its meaning is Wednesbury unreasonable. Although fixed thresholds generally need not be reconsidered case by case, applying such a threshold on the basis of mistaken or ambiguous guidance may be unlawful. In assessing Highly Trusted Sponsor status, historic non-compliance is relevant, but the decision-maker must address the sponsor’s current processes and capacity.

The claimant, an educational institution, sought judicial review of the Secretary of State’s refusal of its application for Highly Trusted Sponsor status under Tier 4 of the Points-Based System.

The refusal relied principally on a refusal rate exceeding the 20 per cent threshold. It also relied on the claimant’s historic failure to report students who did not enrol. The claimant argued that refusals relating to a combined ACCA and Oxford Brookes University course wrongly treated the course as requiring two confirmations of acceptance for studies, and that insufficient regard had been paid to its current reporting systems and performance.

1. Construction of the guidance. The reasonable and literate individual would understand “qualification” to mean completion of a course or training programme conferring a relevant status. Completing only part of a course does not produce the qualification, even if the completed examinations are essential ingredients of it. “Recognised” adds a requirement of acceptance by relevant public or professional bodies. A recognised qualification and an approved qualification are distinct concepts.
2. Refusal-rate calculation. The Secretary of State’s reasoning treated completion of ACCA papers F1–F9, and the conditional ability to proceed to the degree, as sufficient to require separate confirmations of acceptance. The proper question was whether completion of those papers constituted a recognised qualification. The evidence, including the relevant professional body’s later treatment of the Advanced Diploma as a recognised qualification, showed that the earlier Fundamental Level Certificate was not such a qualification. The refusals therefore rested on an erroneous understanding of the guidance and were unlawful.
3. Fixed thresholds. The issue whether a rational but non-exclusive interpretation of ambiguous guidance could lawfully be applied did not arise for decision. The court nevertheless observed that a fixed criterion cannot be immune from reconsideration where it is applied across cases on the basis of a mistaken view of the guidance. An attentive person who has acted on a rational interpretation of ambiguous guidance may be unlawfully disadvantaged.
4. Reporting failures and current capacity. Historic failure to report non-enrolled students was relevant to the assessment of future compliance and trust. However, the relevant question under the guidance was whether information suggested that the sponsor lacked the processes needed to comply with its duties. The Secretary of State did not sufficiently focus on current capacity and performance, and the reporting failure had resulted from ignorance of the obligation rather than demonstrated inability to operate the necessary processes.
5. The decision refusing Highly Trusted Sponsor status was quashed.