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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> 3D Morden College v Secretary of State for the Home Department [2014] EWCA Civ 84 (21 January 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/84.html Cite as: [2014] EWCA Civ 84

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand,London WC2A 2LL
		21 January 2014

1. LORD JUSTICE SULLIVAN: This is a renewed application for permission to appeal against the order dated 20 March 2013 of Stuart-Smith J, refusing the applicant's renewed application for permission to apply for judicial review of the Secretary of State's decision dated 20 September 2012 not to award the claimant a Highly Trusted Sponsor ("HTS") status. The facts are set out in the judgment 2013 EWHC 2022 (Admin).
2. The claimant's application for HTS status was refused on the basis that the refusal rate for the claimant's CAS students was over 20 per cent. In fact the refusal rate was significantly over 20 per cent; it was 31.74 per cent.
3. The lawfulness of the that refusal was challenged by the claimant on various grounds. A number of those are no longer pursued, but in the grounds of appeal and in his oral submissions before me this morning Mr Ahmad has raised two grounds. The first is the proposition that the policy says that the application for HTS will be based on the college's performance over the previous 12 consecutive months and the position is that the UKBA allowed the college to issue CAS's for only 4 months out of that 12-month period. That is because an interim limit was placed on the number of CAS applications in April 2011. What happened then is that UKBA realised that a number of sponsors who were in a similar position to that of the applicant would not be able to receive a CAS application and the UKBA announced that sponsors could request a further CAS allocation via the sponsor management system. It seems that the claimant did so, and received a further allocation in December, but Mr Ahmad has explained to me that they did not choose to use that additional allocation because they were being very careful about the students that they recruited.
4. The difficulty with Mr Ahmad's submission is that while it is true that for the reasons that I have just given the college issued CASs for only four months before the application for HTS status had to be made, the guidance was perfectly clear; that is to say that the data would be looked at for the 12-month period immediately before the application. Thus, the fact that CASs had been issued by a particular college for only 4 months within that 12-month period did not mean that a different period of time would be analysed for the purpose of calculating the refusal rate.
5. When refusing permission on the papers Aikens LJ said that the policy was perfectly clear; that is to say that the figures for the 12-month period prior to the allocation would be looked at. But he made the further point which had been raised by the Secretary of State in her summary grounds of defence, that is to say that the claimant was aware of the criterion -- that is to say the 12-month criterion -- for assessment when its HTS application was made. It had the opportunity to explain the refusal rate when the application was made but it failed to do so. Mr Ahmad says that that simply was not possible; there was a form that you to fill in, but it seems to me that that would not have prevented the claimant at that stage from either accompanying the form with a letter, or simply sending a letter to UKBA explaining that in its view its refusal rate was unrepresentative, for example because only a 4-month period was being looked at.
6. It seems to me that that could have been done and it was not done and in all of the circumstances there is no real prospect that this application for permission to apply for judicial review would be successful.
7. For those reasons I refuse this renewed application but I thank Mr Ahmad for his very courteous submissions.