Academies, like other state schools, will be aware of the government policy that, unlike independent fee charging schools, they should not admit international students. However, the application of this policy was reviewed by the courts in the recent case of R (on the application of St Mary Magdalene Academy) v Secretary of State for the Home Department.
The Claimant, a state funded academy, sought judicial review of the refusal by the Secretary of State to grant it a Tier 4 sponsor licence. Such a licence would have allowed it to teach 10 Chinese exchange students on the International Baccalaureate diploma course.
The Secretary of State rejected the application, relying on the Tier 4 Sponsor Guidance (“the Guidance”), which provides that state schools, including those with sixth forms, cannot admit international students. The Guidance was put in place to support the policy that UK taxpayers should not be funding the education of children from outside the EEA and school places in the UK were in demand and should not go to children from outside the EEA.
The Academy challenged the Guidance by explaining that the addition of 10 places a year had zero marginal costs for the Academy and it was under subscribed, therefore students within the EEA would not be prevented from gaining a place at the Academy. The Academy asked the Court to overturn the Secretary of State’s decision on two grounds:
- the Guidance was unlawful because it introduced restrictions on migration which go beyond those contained in the Immigration Rules; and
- the Secretary of State had applied the Guidance in a rigid manner, without consideration of the Academy’s circumstances, or their impact on policy consideration underpinning the Guidance, in such a way as unlawfully to fetter her discretion.
The first ground was not accepted as the judge found that the Guidance, was just that - guidance and not a rule. The Guidance did not impose restrictions on migration as it is wholly concerned with the position of the sponsor, not the migrant.
The Academy's second ground of challenge was accepted. The Judge held that the Secretary of State had failed to properly consider and apply the Guidance to the particular circumstances of the Academy's case. The law required the Secretary of State to make the decision applying flexibility, fairness and good sense and in this case, the Guidance had been applied too rigidly.
It is not for the Court to decide what decision it would have reached or it would reach if it were to give consideration to all the relevant factors. The decision was a matter for the Secretary of State and involved a discretion which the Secretary of State was obliged to go back and reconsider. In doing so she should exercise the discretion alongside the facts of the Academy’s case and their inter-relationship with the policy behind the Guidance.
While it will be unusual for an academy to be able to satisfy the Secretary of State that the policy against admitting international students should be departed from, the courts have now indicated that this is a possibility in a suitable case.