St Mary Magdalene Academy, R (on the application of) v The Secretary of State for the Home Department

Guidance governing the eligibility of educational institutions to obtain a Tier 4 sponsor licence is not necessarily a rule regulating migrants’ entry or stay for the purposes of section 3(2) of the Immigration Act 1971. The question depends on substance, not the document’s form. Guidance directed to the sponsor may therefore operate alongside the Immigration Rules without Parliamentary approval. However, a lawful policy must remain a policy. The decision-maker must retain the ability to consider relevant individual circumstances and depart from the policy where fairness and good sense require it. Applying a policy automatically, without considering the particular facts or whether its underlying objectives are engaged, unlawfully fetters the discretion.

The claimant was a state-funded Academy seeking a Tier 4 sponsor licence so that up to ten Chinese students aged 16 to 18 could study in its sixth form for up to one year. The Secretary of State rejected the application under paragraph 12 of the Tier 4 sponsor guidance, which stated that state schools, including those with sixth forms, could not admit Tier 4 students.

The Academy sought judicial review. It argued that paragraph 12 introduced an immigration restriction requiring Parliamentary approval under section 3(2) of the Immigration Act 1971. Alternatively, it argued that the Secretary of State had applied the guidance rigidly and had unlawfully fettered her discretion. The central issues were whether paragraph 12 was a statutory rule and whether the decision-maker had lawfully applied the underlying policy.

1. The claim succeeded on the second ground and failed on the first. Paragraph 12 of the guidance was lawful and did not require Parliamentary approval, but the Secretary of State’s decision was unlawful because the policy had been applied rigidly.

2. Section 3(2) of the Immigration Act 1971 concerns rules regulating the migrant’s entry into or stay in the United Kingdom. Following R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, a requirement which a migrant must satisfy as a condition of leave, or which may determine the application, is a rule for that purpose. However, R (New London College Ltd) v Secretary of State for the Home Department [2013] UKSC 51 establishes that requirements directed wholly to the sponsor, including sponsor-licensing criteria, are outside section 3(2).

3. Paragraph 12 was, in substance and form, concerned with the entitlement of a category of educational institution to obtain a sponsor licence and admit students. It did not impose an additional requirement on the migrant. The students could still enter the United Kingdom if they obtained a valid Confirmation of Acceptance for Studies from a licensed sponsor. Paragraph 12 was therefore complementary to, rather than inconsistent with, paragraph 124(a) of Appendix A to the Immigration Rules.

4. A public authority may adopt and apply a general policy, but it must not treat that policy as inflexible. As explained in R v Secretary of State ex p Venables [1998] AC 407 and Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719, relevant circumstances must be considered and the policy must be used with flexibility, fairness and good sense.

5. The Secretary of State had not considered the Academy’s individual circumstances or whether the policy’s stated objectives applied. Litigation submissions about possible costs did not establish that the decision would inevitably have been the same. The decision was quashed or otherwise required reconsideration, with the Secretary of State to decide the application by reference to the relevant facts and policy aims.

First-instance judicial review. No prior decision is stated in the judgment.