England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		12 March 2014

MR JUSTICE FOSKETT:

1. A number of cases concerning colleges providing education courses and their status as HTSs were stayed behind what I will call the 'New London College' case. That eventually went to the Supreme Court and was decided last year. The judgments were handed down on 17 July 2013. That case, it is common ground, disposed of the first ground relied upon in each of the stayed cases that are listed before me today.
2. Four of those cases have been withdrawn, either in light of the decision of the Supreme Court or for other reasons, and the issue before me is what should happen to the remaining four.
3. In each of those four cases, there was a second ground upon which permission to apply for judicial review was sought, namely, that the requirement under the scheme promulgated by the Secretary of State that less than 20 per cent of cases of student applicants issued with a CAS by a particular institution should be rejected as legitimate immigrants for the purposes of study. In other words, if the proportion of those who were issued with CASs whose applications for entry to the UK to study were rejected exceeded 20 per cent, the college would be denied HTS status or its existing HTS status would be revoked.
4. The ground as formulated by Mr Malik, who represents each institution, was in the same terms in each case and is as follows:

"The refusal rate requirement in T4 guidance is an unlawful fetter on the discretion of the Secretary of State and therefore the decisions under the challenge in these cases are unlawful."

5. In two cases before me today, which I will call the 'St Stephens College' case and the 'Jamea Al Kauther' case, Cranston J has refused permission to apply for judicial review on the papers on that ground and the applications are renewed orally today.
6. The other two cases, which are listed for mention or directions are 'Kimberly College' and 'Midlands Business Management College'. So far as the status of those two cases is concerned, in the Midlands Business Management College case, Mr Philip Mott QC, who dealt with an oral application for permission to apply for judicial review, did not grant permission to apply for judicial review on this second ground but Mr Malik tells me -- and I have no reason to doubt -- that he left it open for further consideration. That decision was made on 23 November 2012 and I am proposing to treat that as a full-blown oral application for permission to apply for judicial review.
7. In the Kimberly College case, His Honour Judge Anthony Thornton QC granted a general permission to apply for judicial review, which would have embraced both grounds advanced in that case including, of course, the ground sought to be relied upon today in the other cases. However, that was granted very shortly after the proceedings were issued and well before the decision in the Supreme Court case and the other cases that have reflected on this overall issue.
8. Those cases include the case in the Divisional Court, which I will call the West London Vocational Training College case [2013] EWHC 31 Admin, the Warnborough College case [2013] EWHC 3915 Admin and the Global Vision College case [2014] EWHC 205 Admin
9. The ground upon which Mr Malik relies today was developed in oral argument and what he argues is that the policy as stated in relation to the 20 per cent requirement, as I will call it for present purposes, is expressed in a way that permits of no exceptions and accordingly he argues falls foul of principle which he says can be deduced from the cases of Venables and Tilley, to which I will refer further in a moment, that such a policy is unlawful.
10. I need not extend this ruling by quoting the passages in those cases upon which he relied, but in Venables it was the speech of Lord Browne-Wilkinson between pages 496G and 497G that he referred to specifically and, in Tilley, the judgment of Templeman LJ, as he then was, at pages 8578 to 858H in particular.
11. Miss McGahey says that these statements of principle need to be looked at in the context in which they were stated. In Tilley she says that the local authority were fettering a power conferred upon them by statute by specifying certain circumstances in which they would not exercise that statutory power. That, she submits, is very different from the position in the present case. I will return to that shortly.
12. So far as Venables is concerned, she submits that the same approach is to be discerned. In that case the Secretary of State was effectively committing himself not to consider the welfare of the two boys in question at any stage until they were into their early 20s and that conflicted with the statutory requirement set out in the Children and Young Persons Act 1969 to have regard to the welfare of the child or the young person.
13. She drew attention, as indeed did Mr Malik, to the paragraph of Lord Browne-Wilkinson's speech in Venables at page 497A to C, which reflects the accepted position that the law does not preclude a person on whom the power to make a policy is conferred from developing a policy as to the approach to be adopted in the generality of cases. She submits that that is what the Secretary of State has done in the situation concerning HTS status and that her power to do so has been recognised by the Supreme Court in the New London Colleges case and in that connection she cites paragraph 29 of Lord Sumption's judgment, which I need not set out for the purposes of this ruling.
14. What she argues is that the policy, which may appear to be expressed to be one to which exceptions are not permitted (a) does not in fact conflict with any underlying statutory provision and (b) in any event it is not a policy that, as it is operated, does not permit of exceptions. She cites in support of the second of these matters two paragraphs, paragraphs 42 and 43, towards the end of the judgment of Toulson LJ, as he then was, in the London Vocational Training Colleges case.
15. I will quote those two paragraphs. Paragraph 42:

"It is alleged that the defendant unlawfully fettered her discretion. I am not persuaded of that on the evidence. according to Mr Shirley's statement [Mr Shirley, I should interpose, is a senior official with the Home Office] UKBA recognised that there may be instances where the circumstances of the case are so compelling that rigid application of the mandatory requirement may be disproportionate to the overall aim. In such cases UKBA would consider applying some form of discretion but those instances would be limited to a small number of cases where the application of discretion can be clearly justified."

Mr Shirley had given the example of one such case where the applicant did not strictly meet the terms of the policy, but discretion was exercised in its favour because the numbers involved were very low.

16. Paragraph 43:

"In the present case UKBA reviewed its decision after receiving the claimant's pre-action letter and can see no reason for not applying a policy. Five out of the six refusals highlighted in the pre-action letter were ones where the applicant failed to meet the maintenance criteria. The claimant did not seek to persuade the defendant there was anything special about them (by way of example in the case of the first refusal highlighted in the pre-action letter the applicant submitted a bank statement which was undated - an obvious deficiency). It is not unreasonable to expect a sponsor to satisfy itself that an applicant will be able to meet the maintenance criteria before issuing a CAS."

17. Since the cases before me are effectively permission at the permission stage, no evidence on behalf of the Secretary of State has yet been submitted, but it would be unrealistic to suppose that the position has changed since the evidence to which I have just referred in that case was formulated. It seems to me that I should proceed for today's purposes on the basis that that is the way in which the policy is exercised.
18. Against that background, it does seem to me to be unarguable that this policy can be said to offend any principle relating to the fettering of any discretion. Not infrequently the court is faced with assertions that the Secretary of State is operating an unstated and unpublished policy. Here the argument is that a fully articulated, detailed and published policy, which has been held in other cases generally to be lawful and rational, is too tightly articulated such that it permits no flexibility. The policy is plainly designed to be of assistance to educational institutions, as well as affording protection for the public generally from large numbers of students with dubious entry qualifications entering the country.
19. A good degree of consistency of approach is only fair to those institutions which comply with the relevant requirements and one can see the reluctance to permit, except in exceptional circumstances, a deviation from adopting a consistent approach. However, since in practice deviations are permitted, if only exceptionally, even if not stated expressly in the policy, that in my judgment is sufficient to make if unarguable that this policy is unlawful. The passages Miss McGahey cited from de Smith, at paragraphs 901, 901(3) and 901(7) have a resonance in this context.
20. For those reasons, briefly expressed, I do not consider that the argument that Mr Malik has advanced, albeit with his characteristic persuasive quality, has any realistic prospect of success. It follows that I refuse the renewed applications for permission to apply for judicial review in the cases of St Stephens College and Jamea Al Kauther. I also refuse permission which, as I have indicated, was kept open by Mr Mott QC, in the Midlands Business Management College case.
21. In the Kimberly College case, as I have indicated, Judge Thornton had given a general permission to apply for judicial review, embracing both grounds relied upon, that permission, as I have said, having been given on the papers. Although there is no right for any party to apply to the court to set aside permission already granted, the court does have an inherent jurisdiction to do so in appropriate and doubtless exceptional circumstances. I think it is clear that, had Judge Thornton been considering this case after the recent run of authorities to which I have already referred, he would not have granted permission on the second ground. In those circumstances I think I am entitled and indeed should discharge that permission.
22. Had I been considering this as a substantive application I would have dismissed it and so the net effect would have been the same. There would have been other reasons for doing that in that particular case because there are matters which have occurred which would suggest that it is academic in any event, but for consistency's sake I make the order discharging the permission previously granted and it follows that an interim relief order dependent upon the existence of that permission also falls away with the discharge of that order.
23. That is my ruling.