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Supreme Court decisions on the application of UKBA Tier 4 guidance

<p class="MsoNormal">R (on the application of West London Vocational Training College) (Appellant) <em>v</em> Secretary of State for the Home…

R (on the application of New London College Limited) (Appellant) v Secretary of State for the Home Department (Respondent) . . .

R (on the application of West London Vocational Training College) (Appellant) v Secretary of State for the Home Department (Respondent)

For those readers that keep a close eye on developments in the immigration arena, the Supreme Court has recently handed down two  decisions in the appeals of New London College and West London Vocational Training College.   These appeals related to decisions made by the UK Border Agency ("UKBA") to revoke and reject respectively the colleges’ Tier 4 status.

Brief facts

On the 18 December 2009, New London College’s Tier 4 licence was suspended.  On the 5 July 2010, the licence was revoked. The UKBA then agreed to review that decision, however, on 19 August 2010 confirmed that the revocation would remain.

West London Vocational College (“WLVC”) become a licensed sponsor on 9 March 2011, initially with a B-rating, i.e. on ‘probation’ and subject to an enhanced level of supervision.  A-rating was granted on the 13 October 2011.  In March 2012, WLVC applied for HTS status, which was rejected in August 2012.  This rejection meant that WLVC could no longer be a licensed sponsor at all. 

The colleges both appealed against the respective decisions of the UKBA, with the appeals working their way through the system until they reached the Supreme Court.

Ground of appeal

The only ground of appeal permitted to be considered by the Supreme Court was the question of the lawfulness of the Tier 4 Sponsor Guidance issued by the Secretary State: did Section 3(2) of the Immigration Act 1971 require the Tier 4 sponsor guidance to be laid before Parliament in order to be effective?  If he answer was yes, then the decisions of the UKBA to remove or reject the colleges Tier 4 status had been unlawful.

By a majority decision of the Court, the appeals were rejected.  The Court confirmed that although rules relating to the ability of migrants to enter or remain in the UK are required to be placed before Parliament, the Home Secretary was entitled to undertake appropriate administrative measures (i.e. the guidance) to identify who should be licensed under the points based system as a sponsor, finding that “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”.

Interestingly, the judgement notes specifically that “the Immigration Act has not aged well”.  With the announcement during the Queen’s Speech of a proposed immigration bill, we will need to watch closely as to the development and impact of the bill once published.