The Supreme Court has ruled today that the controversial sponsor licence system is lawful.
The judgment, R (New London College Ltd) v Secretary of State for the Home Department; & anor case  UKSC 51, can be found here.
Appeals from two colleges relating to different types of sponsor licence enforcement action were dismissed and whilst the judgment relates specifically to Tier 4 sponsors, the implications of it also apply to Tier 2 and 5 sponsors.
Lord Sumption, delivering the most important judgment yet in relation to the sponsorship system, said:
“…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. Different methods of immigration control may call for more or less elaborate administrative infrastructure. It cannot have been Parliament’s intention that the Secretary of State should be limited to those methods of immigration control which required no other administrative measures apart from the regulation of entry into or stay in the United Kingdom. If the Secretary of State is entitled (as she plainly is) to prescribe and lay before Parliament rules for the grant of leave to enter or remain in the United Kingdom which depend upon the migrant having a suitable sponsor, then she must be entitled to take administrative measures for identifying sponsors who are and remain suitable, even if these measures do not themselves fall within section 3(2) of the Act”.
A warning was given to the Secretary of State that 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”.
The judgment however set out that the Secretary of State:
“…has not transgressed any of these limitations by operating a system of approved Tier 4 sponsors. There are substantial advantages for sponsors in participating, but they are not obliged to do so. The rules contained in the Tier 4 Guidance….are in reality conditions of participation, and sponsors seeking the advantages of a licence cannot complain if they are required to adhere to them”.
Clarity for sponsors
Whilst the actual decision may not be welcome by the many sponsors that have faced or will face negative decisions in relation to their sponsor licences, many other sponsors will appreciate the clarity and certainty this judgment provides in this important and economically valuable area of policy.
The Sponsor Guidance has been held to be lawful in its own right and should be treated as such.
Despite recognising that the Sponsor Guidance is amended with ‘bewildering frequency,’ overall this judgment gives the Secretary of State a green light to continue using it to regulate large chunks of immigration control.
Sponsors that adhere to it, but who are then subjected to decisions that are unlawful under it, will be in a much stronger position to mount challenges to those decisions, protect their reputations and businesses and seek their costs in doing so.
Protecting international students
Appearing to recognise the impact that such an unstable system of immigration control has had on international students, Lord Sumption made a point of stating:
“One would assume that the Secretary of State would respond with reasonable sensitivity to the difficulties faced by international students in a situation which is not necessarily of their own making”.
This is an important decision for all sponsors and Nichola Carter will be covering these and other issues at Westminster Higher Education Forum.