...and they can be asked to leave school if they are not performing well academically, typically when they have completed Year 12 and are asked not to return for Year 13. The St Olave's case did not change the rules, it simply highlighted the existing legal position.
Once a pupil's name is included in the Admission Register, it can only be deleted if one of the conditions contained in the Pupil Registration Regulations is met. In the case of sixth form pupils, these can be summarised as when the pupil has:
This means that the only way to remove a sixth form pupil involuntarily is to permanently exclude them. This can only be done on disciplinary grounds where the pupil has seriously or persistently breached the school's Behaviour Policy and allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in your school.
As with all sanctions, the permanent exclusion must be a fair, reasonable and proportionate response to the misbehaviour involved, comply with equality law, and the procedure set out in the DfE's statutory guidance on exclusions must be followed.
The School Admissions Code 2014 does permit schools to set minimum academic entry requirements for the sixth form in their admission arrangements. However, this only applies at the point of transfer from Year 11 (current pupils) or admission to Year 12 (external candidates).
It does not permit schools to set further academic criteria for transfer from Year 12 to Year 13, as the pupil's name is already included in the Admission Register at that stage and one of the above conditions must be met to delete it.
Permanently excluding a pupil because of poor academic performance is unlawful, because this would not be on disciplinary grounds.
Putting pressure on a pupil to leave when it is clear they do not want to may be regarded as an informal permanent exclusion (ie one not dealt with in accordance with the statutory procedure) which is unlawful.
Discussions can, of course, take place with a pupil who is not performing well, and an agreement can be reached with the pupil that they will change courses or leave the school. However, this must be by mutual consent between you and the pupil (rather than their parents, although on most occasions it is likely to be beneficial to involve the parents in the discussion) with no pressure having been applied.
There is a thin line between poor academic performance and the type of behaviour which leads to it. In cases where the pupil is clearly trying hard (or at least to an acceptable standard), but is just not getting high enough marks, it is difficult to see how this could be viewed as sanctionable misbehaviour.
However, where a pupil is late, misses lessons, fails to complete course work and/or fails to meet deadlines, this will inevitably impact upon academic performance. It can also be regarded as misbehaviour for which sanctions may be imposed, escalating in severity until the pupil has reached the stage of persistently breaching the Behaviour Policy and causing serious harm to their own education (thereby satisfying the two limbed test for permanent exclusion).
You must, however, consider whether this type of behaviour is indicative of an unmet need, something going on in the pupil's home life or caused by a disability (as defined by the Equality Act 2010), and put the appropriate support/reasonable adjustments (as appropriate) in place before resorting to sanctions.
Following these recommendations will not only provide a foundation to take early action in relation to under-performers, which might pave the way for later permanent exclusion, but should also reduce the risk of successful challenge on the grounds that there was no serious breach (or series of persistent breaches) of the Behaviour Policy.