Educational Providers

July 9th, 2012 by James Goudie QC

In R (CNM) v SSHD [2012] EWHC 1851 (Admin) the Claimant College challenged the Home Secretary’s decision to refuse their application for highly trusted sponsor (“HTS”) status under Tier 4 of the points-based system of the Immigration Rules. The requirements for Tier 4 Sponsors and HTS status are set out in Guidance, provided by SSHD, which has changed from time to time. The material Guidance came into force on 5 September 2011.  It provided that all Tier 4 sponsors who had held licences for 12 months or more had to apply for HTS status by 9 October 2011.

Tier 4 of the points-based system of the Immigration Rules lays down criteria for the entry and stay of students in the UK. Since 22 February 2010, all potential international students have required a CAS (Confirmation of Acceptance for Studies) issued by a licensed sponsor in order to obtain leave to enter or remain under Tier 4. All education providers wishing to take students from outside the European Economic Area for over 26 weeks (or over 11 months in the case of English language providers by way of a temporary concession from the Rules announced by the Minister on 13 December 2010) must be licensed sponsors. Education providers have been able to apply to join the Register of Tier 4 Sponsors since 28 July 2008. From 31 March 2009, any education provider who wishes to recruit international students has been required to obtain a Tier 4 licence and to be registered as a sponsor with the UKBA.

The eligibility criteria for HTS status include the requirement that the total number of CASs assigned by a sponsor and refused should not exceed 20 per cent.  CNM’s HTS status was refused on the basis that its refusal rate was greater than 20 per cent.  They submitted that in the absence of harm to immigration control, it was irrational for SSHD to refuse HTS status.  They argued that SSHD ought rationally to have discounted three students from its assessment of their refusal rate as those students were later successful in their applications and that should have brought the refusal rate to below 20 per cent.

However, Supperstone J held that the purpose of the criteria for HTS status is not just to exclude educational providers who have in fact harmed immigration control, but also to exclude those providers whose past behaviour indicates they may cause damage to immigration control in the future.  In essence, the SSHD and UKBA entrust to sponsors the vital function of monitoring compliance of its students with immigration law.  The policy applies equally to prospective students who are refused entry to the UK and to those who have already entered the country. In the case of the former there will be no actual harm to immigration control. However their cases may suggest that the sponsoring education providers do not have the processes they need to comply with their sponsorship duties. SSHD is not required to ignore such evidence when considering an application for HTS status. There is no justification for requiring SSHD to demonstrate that the sponsor has caused actual harm to immigration control in order lawfully to refuse their application for HTS status.