Manchester Trinity College Ltd, R (On the Application Of) v Secretary of State for the Home Department

A public authority must assess a sanction for past conduct by reference to the policy guidance in force when the relevant obligation arose, particularly where the later guidance creates or substantially expands the obligation or sanction. A sponsor’s duty under the applicable guidance to report a takeover included the acquisition of a majority shareholding, but the guidance gave the Secretary of State a discretion to revoke the licence rather than making revocation mandatory. Fairness ordinarily required notice and an opportunity to make representations before revocation where the decision carried serious consequences and the alleged breach did not threaten immigration control.

The claimant operated an educational institution holding a Tier 4 sponsor licence. After an individual acquired all its shares, the Secretary of State revoked the licence in November 2013, relying on the October 2013 sponsor guidance. The claimant sought judicial review on grounds including retrospective application of policy, failure to notify, unfairness, unreasonableness and interference with Convention rights.

The court considered which guidance applied to the November 2012 transfer, whether the July 2012 guidance required notification, whether revocation was mandatory or discretionary, and whether the claimant should have been given an opportunity to make representations.

1. Retrospective policy. The relevant event was the completed transfer of ownership in November 2012. The claimant’s obligations, and any sanction for breach, had to be assessed under the July 2012 guidance. The October 2013 guidance introduced material additions, including that a sponsor licence was non-transferable and that a change in ownership could require revocation and a fresh application. Applying it to impose a sanction for earlier conduct was unlawful.
2. Duty to notify. Paragraph 524 of the July 2012 guidance required the claimant company to notify the Secretary of State within 28 days of a takeover. “Takeover” included the purchase of a majority shareholding. Paragraphs 603 onwards concerned organisational takeovers and mergers, while paragraphs 611 onwards depended on sponsored migrants transferring to another organisation. Neither applied to the facts. The guidance imposed the duty on the sponsor organisation, not automatically on each relevant individual.
3. Available sanction. The claimant had not proved that notification was made through the SMS system. Nevertheless, paragraph 570 did not apply, and paragraph 574D made revocation discretionary where the sponsor failed to comply with a duty. The Secretary of State unlawfully treated revocation as mandatory and failed to exercise the discretion required by the correct guidance.
4. Fairness and reasonableness. Given the serious consequences of revocation, the absence of demonstrated immigration-control concerns, the claimant’s compliance history and the absence of concealment, fairness required at least a warning and an opportunity to make representations. The failure was a procedural irregularity sufficient to set aside the decision. The decision was also unreasonable for the cumulative reasons identified.
5. Convention rights. The Article 8 challenge failed for lack of evidence concerning the individual rights of students, staff or the owner. A Tier 4 sponsor licence was not itself a possession for the purposes of Article 1 of the First Protocol. The claimant had not shown an adverse effect on goodwill, as distinct from loss of future income.
6. The revocation decision was quashed. The defendant was required to restore the claimant to its position on the sponsor register immediately before 19 November 2013. The costs order was made subject to detailed assessment, without prejudice to the earlier interim-relief costs order.

First-instance judicial review. The judgment records that permission was granted on 31 January 2014 and that interim relief had previously been granted and continued. No appellate decision is stated.