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R (New London College Ltd) v Secretary of State for the Home Department [2013] 1 WLR 2358

DATE: 17 Jul 2013

This was a challenge to the legality of the Tier 4 Sponsor Guidance by which the UK Border Agency regulates educational organisations that sponsor applications for student visas by non-EEA citizens.

Delivering the lead judgment Lord Sumption (with whom Lords Hope, Clarke and Reed agreed) held that the sponsor guidance was not a “rule as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter” within the meaning of s.3(2) of the Immigration Act 1971 since it regulated the sponsor institutions and not persons subject to immigration control. Since it did not fall within s.3(2), it did not need to be laid before Parliament in accordance that provision. It did not also follow, however, that there was an absence of statutory authority for the Sponsor Guidance, because “the statutory power of the Secretary of State 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” (para. 28). At para. 29 Lord Sumption continued:

“This right is not of course unlimited. The Secretary of State 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 delivered a separate judgment concurring with the outcome but for different reasons.

The two judgments are of general interest for their discussion of the scope of the Government’s incidental powers under legislation and of its general administrative powers at common law, as well as its implications for the potential to create a regulatory regime without express statutory authority.

Richard Drabble QC and Charles Banner (instructed by Charles Russell LLP) acted for the Joint Council for the Welfare of Immigrants and the Migrants’ Rights Network, who intervened in the appeal by way of written and oral submissions.