A Tale Of Two Colleges: Supreme Court Upholds Sponsorship Guidance But Questions The Immigration Act’s Efficacy

New London College Ltd, R (on the application of) v Secretary of State for the Home Department [2013] UKSC 51 (17 July 2013) 

Only a year sets the R (Alvi) v SSHD [2012] UKSC 33 and R (New London College Ltd), R (West London Vocational Training College) v SSHD [2013] UKSC 51 cases apart. In Alvi – arguably the biggest case on the Immigration Act 1971 along with R (Munir) v SSHD [2012] UKSC 32 – Lord Hope DPSC, as he then was, “wondered” whether the 1971 Act “is still fit for purpose today” (para 65). Similarly, in the present cases, Lord Sumption JSC began his judgment by noting that the four-decade old statute “has not aged well” and is “ill-adapted to the mounting scale and complexity of the problems associated with immigration control (para 1). From that perspective, perhaps more than just a tale of two colleges, the Supreme Court’s judgment is also quite revealing about the 1971 Act.

The 1971 Act’s pitfalls are reflected in the copious litigation that its provisions have consistently produced since Pankina v SSHD [2010] EWCA Civ 719 created the wrangle in relation to seemingly trivial issues to which Sedley LJ ascribed “constitutional importance and real difficulty” (para 1).

In the instant cases, perhaps to put an end to it all, dismissing the colleges’ appeals Lord Sumption – with whom Lords Hope, Clarke and Reed JJSC concurred – held that on proper analysis the requirements for sponsoring students under Tier 4 of the points-based system (PBS) are rules but did not need to be laid before Parliament under section 3(2) of the 1971 Act because the provision only applies to migrants seeking leave to enter or remain in the UK. Although some practitioners reckon that the judgment is somewhat strident, others – especially those on the SSHD side of the equation – doubtless consider it to be a good example of whipping the law into shape.

Background

These two appeals involved the arrangements stipulated in policy guidance in respect of educational organisations sponsoring “international” students (from outside the European Economic Area) under Tier 4 of Part 6A of the Immigration Rules. Centrally, Tier 4 students need sponsorship by a place of education possessing a sponsorship licence. Although the student side of the equation was set out in the rules, the requirements for sponsorship licences and sponsors’ duties were not: instead, the SSHD’s policy guidance prescribed the latter criteria. Under section 3(2), the 1971 Act requires the SSHD to lay before Parliament her rules as to practice to be followed in controlling the entry and stay in the UK of persons requiring leave to enter, i.e. a visa. Part 6A of the Immigration Rules was therefore laid before Parliament but the sponsor guidance was not.

New College London had its sponsorship licence suspended, and subsequently revoked, because it breached its sponsorship duties. West London Vocational Training College’s application for Highly Trusted Sponsor status was refused and therefore it could not sponsor “international” students. In both cases, the High Court and Court of Appeal dismissed challenges based on grounds that the Tier 4 sponsorship guidance prescribed mandatory requirements which had to be laid before Parliament to be lawful.

The Supreme Court

Lord Sumption recalled (para 8) that in Alvi the Supreme Court treated a rule as being something more than advisory and explanatory. In Alvi, Lord Hope agreed (para 41) with Sedley LJ’s ZH (Bangladesh) [2009] EWCA Civ 8 analysis that instructions did not have the force of law and did not need to be laid but the Immigration Rules did and anything rule like in “nature” in the practice to be followed in administering the 1971 Act was subject to laying. Lord Sumption referred to agreement between Lord Hope (para 57) and Lord Dyson (para 94) that any procedural requirements which do not have to be satisfied as a condition of the grant of leave to enter or remain are not rules. However, any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule within the meaning of section 3(2).

Much of the judgment is devoted (paras 9 – 18) to analysing the two-sided nature of the sponsorship system under which students can obtain sponsorship and the Supreme Court noted that although part 6A of the Immigration Rules had been approved by Parliament, the Tier 4 Sponsorship Guidance had not.

The appellants advanced their arguments on the basis of (a) unlawful delegation and (b) absence of statutory power.

First, that paragraphs 245ZV and 245ZX of the Immigration Rules constituted an unlawful delegation to the sponsoring institutions of the SSHD’s powers to control entry into or stay the UK. On this point the “short answer” (para 19) is that leave to enter or remain is the responsibility of immigration officers and the SSHD, who retain the last word in each individual case by virtue of the general grounds for refusal.

Second, and more crucially, that in the absence of tacit Parliamentary approval, the SSHD is not entitled to have regard to mandatory requirements – which qualify as “rules” and determine whether the migrant will obtain leave to enter or remain in the UK – for obtaining and retaining a sponsor licence in making decisions about the status of sponsors. The Supreme Court noted that “sponsorship license” was a defined term in paragraph 6 of the Immigration Rules but the system for licensing sponsors was set out entirely in policy guidance. From Lord Sumption’s perspective, the weakness in the colleges’ argument was that if, without being laid before Parliament, the policy guidance was unlawful then surely the SSHD “was not entitled to grant licences in accordance with it” (para 21). Since Tier 4 (General) students under the PBS need a valid Confirmation of Acceptance of Studies (CAS), Lord Sumption explained if the system of sponsor licensing is unlawful, that leave cannot be granted to the colleges’ accepted students “except possibly on the footing of an administrative relaxation of the relevant parts of the Immigration Rules” (para 22).

For Lord Sumption, “none of” the appellants’ “ingenuity” to escape the “dilemma” was “realistic” because no “half-way house” existed (para 22). “In its purest and most radical form”, as canvassed by Mr Drabble QC, the case was that the sponsorship guidance – directed only to the licensing of sponsoring institutions – was not caught by section 1(4) or  section 3(2) of the Act because it is not aimed at regulating the grant of leave to enter or remain in the UK but to the licensing and regulation of the sponsoring institutions themselves (para 23). Thus, the guidance did not need to be laid before Parliament (para 26).

For Lord Sumption, if the provisions of the 1971 Act do not apply, it does not follow that there is no power to have such a system at all (paras 23 & 27). The Supreme Court explained (para 24) that under Alvi any requirement “if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused” was a rule and needed to be laid. But the Tier 4 sponsorship guidance is “wholly concerned with the position of the sponsor” and on the migrant side of the equation applicants needed a CAS from a licensed sponsor – as reflected by the Immigration Rules. Thus, the sponsor’s licensing was not a requirement falling to be satisfied by the migrant and could have formed no part of a ground of refusal which could be appealed under section 84(1) of the Nationality, Immigration and Asylum Act 2002: that the decision is not in accordance with the Immigration Rules. That is, after all, the key point made by Lord Hope in Alvi where the refusal of a Tier 2 (General) migrant’s application by reference to the list of skilled occupations – which was liable to be changed by the SSHD and was not part of the Immigration Rules laid before Parliament – was unlawful.

The skilled occupations’ list’s “critical feature” remained that the list formed part of the migrant side of the question. Because it formed the requirements that the migrant had to meet in order to obtain leave to enter or remain, the list determined the fate of his application. Lord Sumption explained that “[t]his is not true of the criteria for sponsor licensing” and that the distinction “is not … technical or adventitious” but instead “logically coherent, entirely consistent with the purpose of the Immigration Rules and dictated by the language of section 3(2) of the Act” (para 24).

Lord Sumption, however, also said that in addition to being unsupported by authority, Mr Drabble’s submission – that there is no power to operate a system of sponsorship licensing at all – was wrong in principle (para 28). His lordship noted that the Supreme Court did not need to decide the question about the Crown’s “controversial” – neither prerogative nor statutory – powers as decided in the case law of the Court of Appeal and House of Lords and therefore Lord Sumption held (para 28) that the statutory power of the SSHD to administer the system of immigration control must necessarily extend to a range of ancillary and incidental administrative powers not expressly spelt out in the Act, including the vetting of sponsors. It was noted (para 29) that the 1971 Act does not prescribe the method of immigration control to be adopted. Lord Sumption rejected (para 27) Mr Drabble’s submission – in reliance of Munir and Alvi – that there is no power to have such a system to vet sponsors at all because the criteria for sponsor licensing do not fall within sections 1(4) and 3(2). For Lord Sumption, Lord Hope’s para 33 Alvi observation – that the SSHD’s duty under section 3(2) excludes the possibility of exercising prerogative powers to restrict or control immigration in ways that are not disclosed by the Immigration Rules – did not go quite as far as was argued and Munir and Alvi “had no … legal basis” other than the proposition that the power of the SSHD “to make rules relating to the practice to be followed for regulating the entry into and stay in the UK is implicit in the obligation imposed on her by section 3(2) to lay such rules before Parliament.” Thus, in Alvi and Munir the Supreme Court was not concerned with the existence or extent of any power that the SSHD might have to do something which was not within the scope of section 3(2).

Dismissing both appeals (para 31), Lord Sumption also explained (para 29) that since the SSHD is entitled to prescribe and lay before Parliament rules for grant of leave to enter or remain in the UK which depend upon the migrant having a suitable sponsor, then she must also be entitled to take administrative measure for identifying sponsors who are and remain suitable, even if these measures do not themselves fall within section 3(2) of the 1971 Act.

Yet the Court explained that this right is not unlimited and held that the SSHD:

29. … Cannot adopt measures for identifying suitable sponsors which are inconsistent with the Act or the Immigration Rules. Without specific statutory authority, she cannot adopt measures which are coercive; or which infringe the legal rights of others (including their rights under the Human Rights Convention); or which are irrational or unfair or otherwise conflict with the general constraints on administrative action imposed by public law. However, she has not transgressed any of these limitations by operating a system of approved Tier 4 sponsors. It is not coercive. There are substantial advantages for sponsors in participating, but they are not obliged to do so. The rules contained in the Tier 4 Guidance for determining whether applicants are suitable to be sponsoring institutions, are in reality conditions of participation, and sponsors seeking the advantages of a licence cannot complain if they are required to adhere to them.

Lord Carnwath JSC “agreed” with Lord Sumption and held (para 37) that the sponsor licensing scheme was an adjunct, not of the immigrant control system in general, but of the specific function of providing entry under section 1(4) of the 1971 Act which provides for the admission of persons without the right of abode for the purpose of study subject to the restrictions provided by the Immigration Rules. So ultimately, the section 3(2) rule making procedure within the meaning of the 1971 Act could not be ignored.

In fact, Lord Carnwath remained unimpressed (paras 33 – 34) with both Mr Drabble’s submission  (that the establishment of the sponsor licensing system is outside the scope of the 1971 Act altogether) and Mr Swift QC’s submission (that some alternative, unidentified source of powers, derived neither from the prerogative nor from any specific provision in the 1971 Act, but from the general responsibilities of the SSHD in this field). Equally, his lordship also found Lord Sumption’s treatment of the case “difficult to accept” (para 36). Lord Sumption’s reliance on “the incidental powers approach” was a “variant of Mr Swift’s main submission” and Lord Carnwath explained that the drafters of the rules and regulations did “not treat the licensing scheme as falling outside the scope of the rules altogether” (para 38).

Lord Carnwath (para 38) noted that the concept of a sponsorship licence is an “essential feature” of the rules and the drafters of the rules must “be taken as authorising” the SSHD “to maintain arrangements for the grant of licences”. His lordship, moreover, found:

What are missing from the rules are the detailed arrangements for the grant or review of licences, or the criteria under which they are to be carried out.

Piercing a bit deeper, Lord Carnwath also added (para 39) that article 2 of the Immigration and Nationality (Fees) Order 2011 described a “sponsorship licence” as “a licence … under the Immigration Rules” and that following Pankina the reference to the Immigration Rules was erased. In Alvi, Lord Clarke JSC explained (para 120) that a rule is mandatory whereas guidance is advisory but Lord Carnwath did not agree that “compulsion is an essential characteristic of rules”: rather some rules could “define the criteria governing the exercise of the discretion” (para 40).

tFor Lord Carnwath – rather than wrestling with the categorisation of a complete and self-contained regulatory code for sponsoring educational institutions as in the instant case – in Alvi the Supreme Court was concerned with provisions plainly within section 3(2)’s scope. But since the other members of the Supreme Court did not agree with Lord Carnwath’s suspicions, his lordship saw “no purpose in introducing a note of dissent on what should as far as possible be a clear-cut test” (para 41).

Success on the section 3(2) point did not bear fruit for West London College but if set aside the revocation of New London College’s licence “would simply leave the existing licence in place” (para 44).

In a philosophical mood, following Wade and Forsyth’s Administrative Law analysis – that the terms “nullity” and “void” have no absolute sense: their meaning is relative, depending upon the court’s willingness to grant relief in any particular situation and that the law can be made to operate justly and reasonably in most cases through the exercise of remedial discretion – Lord Carnwath said (para 46) this:

If the appellants had succeeded on the legal issue, the result would have been the setting aside of the SSHD’s decision revoking the licence. Neither New London College nor the SSHD (nor any other interested party) has sought to challenge the original licence. That in my view would have remained in effect unless and until the SSHD could put in place valid procedures for its revocation and exercise them accordingly. Until then, the College and its students would have been unaffected.

Comment

These were highly interesting appeals. Many people expected the Supreme Court to expand the approach it adopted in Alvi and require anything resembling a rule to be laid before Parliament. But alas it was not to be. Yet one thing is for certain. The Supreme Court is not impressed with the 1971 Act and has repeatedly questioned its efficacy.

Had the Supreme Court found in the appellants’ favour, the Immigration Rules would have become bulkier than they presently are. And with the floodgates wide open, the stage would be set for yet more litigation. Perhaps that is what the Supreme Court wanted to contain.

But we need not be disappointed because despite these dismissed appeals there is no shortage of very interesting cases, immigration or otherwise, for us to feed on.

Does the UK need a new Immigration Act? That is an interesting question … Until it is answered, the saga shall continue.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Education, Immigration Rules, Pankina, PBS, Sedley LJ, Tier 4 and tagged , , , , . Bookmark the permalink.

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