Immigration Law Update: R (on the application of St Mary Magdalene Academy) v The Secretary of State for the Home Department [20

Read the full judgment here.

C the Academy, is a Church of England state funded mainstream secondary school in Islington, North London. It wished to enter into an exchange arrangement by which up to 10 Chinese students aged 16 to 18 would be admitted into its sixth form to spend up to a year studying an International Baccalaureate Diploma course. To achieve this aim it would be necessary for the Academy to become a "Tier 4 sponsor" under the Immigration Rules, and in that capacity to issue the students with valid Confirmations of Acceptance for Studies (CAS). The Academy therefore applied on 4 July 2013 to the defendant Secretary of State, via the UK Border Agency (UKBA), for a Tier 4 sponsor licence. State schools, including those with sixth forms, cannot admit students who come to the UK under Tier 4.

The challenge brought was an Alvi point, this was dismissed as the Guidance, wholly concerned with the position of the sponsor. It is an exclusionary rule (in the ordinary sense of the word), concerned with the entitlement of a particular category of institution to obtain a sponsor's licence, and to admit students from outside the EEA. It reflects a policy as to who may be admitted to a state-funded school, rather than a policy as to who may be admitted to the UK to study. Individuals such as the Chinese exchange students envisaged in this case are not thereby prevented from entering the country. They are required to obtain a valid CAS. That can only be issued by a licensed sponsor. But a fee-paying institution can be a sponsor (and whether it actually charges the student is a matter between them). However, a challenge brought on failure to address the application of her policy to the particular circumstances of the Academy's case with flexibility, fairness and good sense (pursuant to Pankina) that the law requires of her was upheld. The SSHD applied her policy too rigidly.

 


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