London St. Andrews College v Secretary of State for the Home Department

A Tier 4 sponsor’s licence is conditional on rigorous compliance with sponsor duties. Those duties include checking prospective students’ ability and intention to study, assessing academic progression, maintaining records and supporting immigration control. The relevant guidance is not confined to duties listed in an index. The Secretary of State may act preventively where there are reasonable grounds for concern and may rely on her specialist expertise. Judicial review remains supervisory: the court does not determine the facts or substitute its own judgment unless the decision is unlawful, irrational or unreasonable. Academic progression involves a judgment which must be exercised robustly and cautiously. Revocation will ordinarily follow multiple or systemic failures, since the discretion not to revoke is reserved for exceptional circumstances.

The claimant, an educational institution holding a Tier 4 sponsor licence and Highly Trusted Status, challenged the Secretary of State’s decisions of 3 September and 17 October 2014 revoking its licence. The decisions relied on concerns including sponsoring students who had cheated in English-language testing, inadequate assessment of students’ ability and intention to study, failures concerning academic progression, student compliance and record keeping, and the provision of approved courses.

The claim followed an earlier suspension, an abandoned or stayed judicial review process, and refusal of interim relief. The central issues were whether the court should determine precedent facts, the scope of the sponsor’s duties, the meaning of academic progression, the exercise of the discretion not to revoke, and the fairness of supplementary decision-making during the proceedings.

1. Judicial review and precedent fact. The court refused to extend the principle in R (Khawaja) v Secretary of State for the Home Department [1984] 1 AC 74 to this licensing decision. Unlike cases concerning fundamental rights, the court’s role was supervisory. It was not the fact-finder or primary decision-maker and would not substitute its judgment for that of the Secretary of State.
2. Scope of sponsor duties. The grant of Highly Trusted Status places substantial responsibility on the sponsor. Its duties include checking applicants’ credentials, ability and intention to study, ensuring compliance with immigration requirements, assessing academic progression, maintaining records and reporting relevant matters. The index to the guidance was not a closed list of duties. The Secretary of State was entitled to act where she reasonably feared that sponsor duties might be breached, consistently with the approach in R (Westech College) v Secretary of State for the Home Department [2011] EWCH 1484 (Admin).
3. Academic progression. Academic progression usually involves increasingly difficult or demanding qualifications, but may sometimes involve a related course at the same level or, exceptionally, a lower-level supplementary course. The sponsor must make the assessment robustly and cautiously. The Secretary of State was entitled to disagree with the sponsor’s assessment and to question the care taken in approving suspect progression.
4. Exceptional circumstances and supplementary decisions. The Secretary of State had considered, but declined to exercise, the discretion not to revoke the licence. The guidance’s examples of exceptional circumstances did not readily extend to numerous and varied failings forming part of the institution’s ordinary system. The supplementary decision-making process was fair because the claimant had adequate opportunity to respond, and flexibility avoided parallel litigation.
5. Outcome. The individual concerns had to be considered in combination. Subsequent evidence reducing the force of one concern did not necessarily make the overall decision irrational. The Secretary of State was entitled to conclude that the claimant had failed to meet its duties. The claim was refused.

First-instance judicial review. Permission was granted by Green J; interim relief was refused. The Administrative Court refused the substantive claim.