New London College Ltd, R (on the application of) v Secretary of State for the Home Department

Factual and Procedural Background

Under the points-based immigration system, an educational institution must hold a Tier 4 sponsor licence before it may issue a Confirmation of Acceptance for Studies (“CAS”) to non-EEA students.

Company A held such a licence until 18 December 2009, when the Defendant suspended it for alleged breaches of sponsorship duties. After considering representations, the Defendant revoked the licence on 5 July 2010 and, following an internal review, confirmed that decision on 19 August 2010. Company A sought judicial review. It succeeded in part before Judge Williams but failed in the Court of Appeal, and now appeals to the Supreme Court.

Company B became a licensed sponsor on 9 March 2011. It progressed from a probationary “B-rating” to an “A-rating” but, after regulatory changes, all sponsors were required to obtain “Highly Trusted Sponsor” (“HTS”) status by April 2012. Company B’s application for HTS status was refused on 23 August 2012 because more than 20 % of its sponsored students had subsequently been refused leave. Its judicial review claim failed in the Divisional Court, but it obtained a leap-frog appeal to the Supreme Court under section 12 of the Administration of Justice Act 1969.

Both appeals focus on whether the Tier 4 Sponsor Guidance—containing mandatory licensing criteria—was lawfully issued without being laid before Parliament.

Legal Issues Presented

1. Whether the mandatory requirements in the Tier 4 Sponsor Guidance are “rules” within section 3(2) of the Immigration Act 1971 that had to be laid before Parliament, rendering decisions based on them unlawful if they were not.
2. Whether paragraphs 245ZV and 245ZX of the Immigration Rules unlawfully delegate immigration control to educational sponsors.
3. Whether the Defendant possessed statutory (or other) authority to operate a sponsor-licensing system at all if the Guidance fell outside section 3(2).

Arguments of the Parties

Appellants’ Arguments

• The Sponsor Guidance imposes mandatory conditions that determine whether a migrant will obtain leave; therefore it is a “rule” under section 3(2) and had to be laid before Parliament.
• Because it was not laid, the Defendant’s decisions revoking or refusing licences were ultra vires.
• Requiring sponsors to decide key matters (e.g., genuineness of study) amounted to an unlawful delegation of immigration control.
• If the Guidance is unlawful, Company A’s licence withdrawal and Company B’s refusal of HTS status should be quashed.

Defendant’s Arguments

• The Guidance regulates sponsors, not migrants; migrants need only hold a valid CAS from a licensed sponsor, a requirement already contained in the Immigration Rules.
• Accordingly, the Guidance is outside the scope of section 3(2) and need not be laid before Parliament.
• No unlawful delegation occurs because immigration officers retain power to refuse entry or leave even where a CAS has been issued.
• The Sponsor-licensing scheme is an incidental administrative power necessarily implied by the Immigration Act 1971.

Interveners’ Arguments (Companies C and D)

• Put a “radical” alternative: if the Guidance is outside section 3(2), there is no statutory authority at all for a sponsor-licensing system; consequently, every sponsor licence would be unlawful.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Unlawful Delegation Argument. The court held that immigration officers retain the final decision on entry or stay through general grounds of refusal. A CAS is persuasive but not conclusive; therefore, no unlawful delegation occurs.

2. Whether the Sponsor Guidance Is a “Rule” Under Section 3(2). Applying Alvi, Judge Sumption reasoned that section 3(2) covers only requirements that, if unmet by the migrant, cause refusal of leave. The Guidance regulates sponsors, not migrants; thus it falls outside section 3(2) and need not be laid before Parliament.

3. Statutory Authority to Operate the Licensing System. Even if the Guidance is outside section 3(2), the Defendant possesses implied administrative powers ancillary to her statutory duty under section 1(4) to arrange for student admissions. Licensing and vetting of educational institutions are reasonable, non-coercive conditions of participation and are neither irrational nor inconsistent with the Act or the Rules.

4. Concurring Analysis. Judge Carnwath agreed in the result but located the implied power more narrowly within section 1(4) rather than the “general system of immigration control.” He emphasised that parts of the Guidance are clearly “rules” in the ordinary sense but accepted that, per Alvi, only migrant-facing rules must be laid before Parliament.

Holding and Implications

Holding: APPEALS DISMISSED.

Both Company A and Company B failed. The Supreme Court upheld the validity of the Tier 4 Sponsor Guidance notwithstanding its not having been laid before Parliament, and confirmed that the Defendant acted lawfully in revoking Company A’s licence and refusing Company B’s HTS status.

Implications: The decision secures the legal foundation of the sponsor-licensing regime critical to Tier 4 immigration control. Educational institutions must continue to comply with the Guidance; migrants remain unaffected provided they obtain a CAS from a licensed sponsor. No new precedent was set on parliamentary procedure, but the Court clarified the boundary between migrant-facing “rules” and sponsor-facing administrative measures.