ON APPEAL FROM THE QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE BEHRENS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE DAVIS
| San Michael College Ltd
|- and -
|Secretary of State for the Home Department
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Jonathan Swift QC and Vikram Sachdeva (instructed by Treasury Solicitor) for the Respondent
Hearing date : 26 October 2011
Crown Copyright ©
LORD JUSTICE PILL:
"A B-rating is a transitional rating. This means that we expect a B-rated sponsor to have improved its performance enough to be upgraded to an A-rating within a relatively short time. If it does not, it risks having its licence withdrawn."
"a. It fails to comply with any of its duties;
b. As a result of information available to our visiting officers, we are not satisfied that the sponsor is using the processes or procedures necessary to fully comply with its duties.
d. We find that students that it has sponsored have not complied with the conditions of their permission to stay in the United Kingdom and the sponsor has not been following good practice guidance set out by us or a sector body."
"Whilst your representations have addressed some concerns, there are still outstanding issues which need to be addressed and evidenced.
As a result we have decided to lift the suspension of your licence and to reinstate you as a B-rated sponsor. The B-rating will remain in place for 1 month, after which time we will expect you to demonstrate that the processes you now have in place work effectively and fully meet PBS requirements. Should you fail to demonstrate that you have implemented the Action Plan within this time frame, your licence will be revoked."
"Accurate record keeping of students ľ full details of attending students, non-attending students, warning letters and withdrawal of sponsorship to be kept as per paragraph 257 and Appendix D of the Tier 4 Sponsor Guidance."
The College vacation began on 14 June 2010, the date on which the Action Plan was due to commence, and lasted until 6 September 2010.
"In addition to the above issues identified during the visit, we have conducted an analysis of the attendance information provided by you for the period of 31 March 2009 to 31 July 2010. This information has identified further issues which support our conclusions that the college poses a threat to immigration control;
1. According to the spreadsheet that you submitted you have issued 326 students with either visa letters or CAS. We are aware, however, that in fact 952 students presented applications to the UK Boarder Agency with either visa letters or CAS issued by San Michael College. You have therefore failed to declare 526 students.
[The arithmetic in that paragraph is plainly incorrect but in the event nothing turns on that.]
2. From the information it is evident that you have a non-attendance rate of 22.9% which is above the acceptable levels.
3. 51% of your students are failing to attend for at least 80% of the time. Again, this raises concerns about the intentions and credibility of your students, and therefore the robustness of your recruitment and assessments procedures. Please note that we will also be sharing these attendance findings with your accrediting body.
4. Assessing the intentions and credibility of prospective students is a core sponsor obligation. Given the fact that 22.9% of your students are not attending, a further 51% are failing to attend for at least 80% of the time and that 222 students applying for your institution have been refused leave from entry clearance posts abroad we are not satisfied that you have robust procedures in place."
"The results of both the student attendance information and the visit have lead us to conclude that San Michael College continues to pose a threat to immigration control by failing to meet their sponsor obligations, particularly in relation to areas of recruitment, monitoring and record keeping. Despite being a B-rated sponsor since June 2009 you have consistently failed to address the issues identified by UKBA or follow published guidance and best practice.
In order to give you the opportunity to explain these discrepancies before we begin revocation action, we have suspended your licence with immediate effect. You have 28 days to make representations including, submitting evidence, in response to this letter. If you fail to make representations, or to adequately address this issue, within this time, your licence will be revoked and you will no longer be able to sponsor migrants."
"The fact that you reinstated the licence in June 2010 and imposed an Action Plan suggests that UKBA was prepared to allow the College to demonstrate change in management of immigration procedures and meet the Action Plan."
Mr Taylor stated that the assessment in the letter of 24 September "reflects the position of the College prior to the initial suspension and bears no reflection to the current position of the College." It was stated that action had been taken by way of a biometric system, warnings and reports. Attendance of students was now to be monitored. In relation to the tracking of work placements, MráTaylor stated that summer holidays "are notoriously difficult to track" but correct procedures were now in place.
"Accredited by the British Accreditation Council for Independent Further and Higher Education."
"When we visited you on 27 August 2010 it was evident that you had failed to meet the conditions of the Action Plan by:
1. Failure to notify UKBA in a timely manner of non-attendance;
2. Inadequate tracking of students on work placements;
3. Inconsistent record keeping".
That was a summary of the points made in the letter of 24 September. A summary of representations made by the College on those detailed points, involving a handful of students, was provided. Commenting on the representations, UKBA stated, in relation to work placements, that the College "had very recently sent out letters to students" and that "this is information that the College would be expected to already have."
"1. Failure to declare 526 visa letters issued by the College
2. 222 students refused entry clearance at posts abroad
3. Non-attendance rate of 22.9% - which is above acceptable levels.
4. 51% of students failing to attend for at least 80% of the time."
In relation to point 1, it had been claimed by the College that "some level of visa letter fraud may have occurred." Reference was made to a small number of cases in which fraud had been investigated and it was added:
"Therefore we do not accept that your example of 9 non-genuine students in India demonstrates that all 526 letters your client failed to declare were instances of visa letter fraud or that the 222 individuals refused entry clearance held non-genuine visa letters."
"You state that UKBA has chosen to use historic information to re-suspend the College without acknowledging the changes that have occurred. We do not accept this is the case. UKBA have suspended the College based on recent attendance analysis, failure to provide accurate figures in relation to visa letters issued and a failure to adequately implement the Action Plan despite introducing new procedures."
Having reviewed all the available evidence in the form of the visit report, your representations (including supporting documentation) the attendance analysis from August 2010 and information from the British High Commission in New Delhi we have reached a decision.
Considering the case in its entirety we are not satisfied that extending the Action Plan period and maintaining a B-rating is appropriate in the circumstances because of the following:
1. The failure to provide any adequate explanation or evidence relating to the failure to declare the actual number of visa letters issued
2. The fact that a large number of individuals entered the UK on the basis of the visa letters and did not attend the college, thereby contributing to the 22.9% non attendance rate at the college and to UK immigration control problems relating to the number of students not meeting the conditions of their leave.
3. That the college were given the opportunity to make improvements when they were B-rated in June but despite implementing new processes and procedures still had issues with data accuracy, monitoring students on their work placements etc.
On balance, the representations provided do not adequately address the reasons for suspension, nor do they persuade us that implementing new processes and procedures at the college have improved your client's ability to operate effectively as a sponsor of genuine migrant students."
"The UK Border Agency found that following the representations from your client they appeared to be partially compliant with their sponsorship duties and were issued with a 1 month Action Plan to ensure that your client continued to improve to become fully compliant their sponsorship duties."
In response to the request for all visa letters and CAS issued to Tier 4 students between 31 March 2009 and 31 July 2010, it was stated:
"On analysis of the information provided by your client it was determined that your client's tracking and monitoring of visa letters and CAS was not sufficiently robust as they had failed to declare 526 students within the information they provided. . . these checks demonstrated that your client did not hold full and accurate records for all visa letters and CAS issued by them. . .
We note that your client has now taken steps to correct this however, as this is a mandatory part of their sponsorship obligations this should have been in place before any suspension or revocation action was taken against your client and therefore we do not concede this point."
"This is not historical information, this analysis consisted of assessing your clients' attendance monitoring for the period of 31 March 2009 and 31 July 2010. Your client was given one month to ensure that this information matched that held by the UK Border Agency and was made aware in the letter dated 14 June that if they failed to demonstrate that they had implemented the Action Plan their licence would be revoked."
"The UK Border Agency have not used historic evidence to suspend your clients sponsor licence. The visit report and the attendance analysis are relevant, accurate and up to date pieces of evidence that demonstrate that your client is unable to fulfil their sponsorship obligations."
(a) The College was given an opportunity, by the lifting of the suspension on 14 June, to remedy the position. In the letter specifying the Action Plan, it was stated that the College was expected to demonstrate "that the processes you now have in place work effectively." (my emphasis) The Action Plan was forward looking requiring records to be kept (paragraphs 7 and 8 above).
(b) Revocation would follow, it was stated, "if you fail to demonstrate that you have implemented the Action Plan" (paragraph 7). That is consistent with paragraph 138 of the Guidelines (paragraph 5 above).
(c) The necessary demonstration could not fully be given during the period of the summer vacation and the extension requested on behalf of the College to include the autumn term was not accepted (paragraphs 9 and 12).
(d) Notwithstanding the opportunity given to the College to remedy matters for the future, which must be assumed to have been a genuine offer, the suspension and revocation decisions relied very substantially on defaults which had occurred prior to the period of the Action Plan (paragraph 21). The response to the pre-action protocol letter expressly relied on the allegation that records "should have been in place before any suspension or revocation action was taken" (paragraph 22). Had the Action Plan required the College to justify past failures, the situation might have been different, but the Action Plan was not devised or presented in that way.
(e) While reason numbered 3 in the revocation letter does relate to events during the currency of the Action Plan, it was not suggested in the letter that reason 3 alone would have justified suspension and revocation. The emphasis of the letter was quite different (paragraphs 19 and 21).
(f) Even if it had so suggested, the allegations relate to a handful of alleged defaults on a scale entirely different from the historic allegations, and were a doubtful basis for suspension (paragraph 18).
(g) In some of those few cases, adverse comment is made upon the very action taken by the College, pursuant to the Action Plan, to remedy defects about which complaints had been made. Action had been taken to notify the expiry of visas and to obtain work placement contact details (paragraphs 13 and 18).
(h) The revocation letter persists in the misconceived notion that because attendance figures go up to 31 July 2010, even though the entire period of the Action Plan was in the summer vacation, the analysis was not historic (paragraph 23).
(i) When considering the decision making process, in the context of the Action Plan, it is difficult to reconcile the encouraging statements of UKBA's Sponsor Manager, Ms Hargreaves, on 27 August 2010 that "the record keeping in respect of the student and staff files was significantly better," and that the College "have what appears to be an appropriate system in place," with the action taken or with the terms of the suspension letter of 24 September, emanating from the UKBA Suspension & Revocation Team (paragraphs 12 and 13).
(j) The progress made under the Action Plan, supported by the re-accreditation by BAC, was not taken into account (paragraphs 12 and 17).
(k) The revocation letter is itself confusing in that the complaint about the attendance rate of 80%, an historic complaint, appears in the body of the letter but not in the reasons for decision. UKBA's perception of it and its relevance are not made clear (paragraphs 19 and 21).
(l) No explanation is given of the relevance of the 222 individuals said in the revocation letter to have been refused entry clearance. Given the broad duties of ECOs and the criteria they apply, that of itself proves little (paragraphs 14 and 19).
LORD JUSTICE RICHARDS :
LORD JUSTICE DAVIS :