England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 October 2010

Neil Garnham QC :

Introduction

1. By letter dated 28 October 2009, the UK Border Agency ("the UKBA") informed Mr Sowmik Rayhan of the London Reading College ("the LRC") that the College had been removed from the "sponsor register" maintained by the UKBA. By these proceedings, brought with permission of Stadlen J. granted on 8^th July 2010, the LRC challenges that decision. The College seeks a quashing of the decision and damages under section 8 of the Human Rights Act.
2. The LRC is represented in these proceedings by Mr Charles Banner; the Defendant by Mr Jonathan Hall. It is agreed between counsel that if I find for the Claimants I should adjourn the hearing for the assessment of damages.

The Scheme

3. To understand the decision and the challenge it is necessary to know something of the background to the Sponsor's Register. The Register was devised by the UKBA as part of a "points based scheme" introduced by paragraph 113 of Appendix A to the Immigration Rules HC395 (as amended). A non-EU applicant for entry clearance or leave to remain as a Tier 4 (General) Student requires "30 points" which may be obtained by holding a visa letter or a "Confirmation of Acceptance for Studies" document. Pursuant to paragraph 116(d), that document is only valid if by "if it was issued by an institution with a Tier 4 (General) Student Sponsor License".
4. That requirement was described by the Divisional Court in R on the application of Bhatti, Middlesex College and others v Croydon Magistrates' Court and Secretary of State for the Home Department [2009] EWHC 3004 (Admin) at [5] as follows:

"5….Following the introduction of a new points-based system by the United Kingdom Border UKBA (UKBA), those educational establishments, such as the College, wishing to be a Tier 4 sponsor were required, after 31st March 2009, to be included in the register of licensed sponsors maintained by the Sponsor Licensing Unit (SLU). SLU is part of UKBA, but it is operationally separate from the other parts of UKBA, including those parts of UKBA which are responsible for investigating alleged breaches of the Immigration Rules."

5. The SLU has published Guidance for sponsor applicants. The relevant version at the time of the decision was that issued in October 2009; the version relevant during the investigation which led up to the decision was that issued on 31 March 2009. Paragraph 8 of the latter edition describes the two fundamental principles of sponsorship namely:

"(i) those who benefit most directly from migration (that is, the employers, education providers or other bodies who are bringing in migrants) should play their part in ensuring that the system is not abused;

(ii) we need to be sure that those applying to come to the United Kingdom to do a job or to study are eligible to do so and that a reputable employer or education provider genuinely wishes to take them on."

6. Paragraph 9 describes "how the system works". It explains that:

"To obtain a licence, a prospective employer must apply to us, supplying specified documents (listed in Appendix A) to show that it is eligible. We will carry out appropriate checks before deciding whether to grant the licence."

7. To be licensed, an establishment must also have achieved an accreditation from an accreditation body. This "key feature" of the licensing system was explained in Bhatti:

"12. A key feature of SLU's new licensing system is the need for any applicant applying to be included on its register as a Tier 4 sponsor to have accreditation from a specified independent body. The guidance for applicants makes it clear that such accreditation is a prerequisite for inclusion in SLU's register. In the present case the relevant accrediting body is the Accreditation Service for International colleges (ASIC)."

8. Once licensed under Tier 4;

"the sponsor will be able to issue visa letters to migrants who wish to come to the UK to study" (paragraph 10 of the Guidance).

9. It should be understood that establishing a college and achieving both accreditation and licensing is a substantial undertaking for an establishment. Having achieved this status and opened for business teaching students, the college will inevitably have made substantial financial commitments. The loss of a license would have the most serious professional and financial consequence for the college and its proprietors. It would also have a serious impact upon both its students and its prospective students because, without a visa letter or a "Confirmation of Acceptance for Studies" document from a licensed college, the students' immigration status is undermined. It follows that a license is a very valuable thing.
10. During the currency of the license, the sponsor college is ascribed various duties in the Guidance. Paragraph 427 identifies the four "objectives of these duties", namely preventing abuse of assessment procedures, capturing early patterns of migrant behaviour that may cause concern, addressing weaknesses in process which can cause those patterns and monitoring compliance with immigration rules. There are then set out various "generic duties" including record keeping duties and reporting duties. It is plain from the Guidance that the scheme operates by imposing on the sponsor colleges serious and onerous duties in return for the grant of what for the college is a valuable license.

The facts

11. The Claimant College was established in 2005 and provides educational courses primarily to students from abroad, many from the Indian sub-continent. A Tier 4 license was essential for its business. On 29^th January 2009 it was granted a Tier 4 license.
12. On 1^st July 2009, officers of the UKBA including a Mr Rogers visited the Claimant. There is a report of his visit at [7/23] in the papers. Amongst other matters, Mr Rodgers noted that the library was very small and contained general fiction rather than "books of learning". He noted that the entrance to the fourth floor of the building, which was apparently used for LLB classes, was locked at the time of the visit.
13. Of greater relevance, he recorded having asked four members of staff how many students were registered at the college and received estimates ranging from 400 to 600. He asked for a print out of those currently registered. That took a long time to produce and there were varying excuses for the delay. After a 5 hour wait, Mr Rodgers discovered that the administration department was creating a list for the purpose, then and there. He was told again that the number registered was between 400 and 600. He responded by pointing out that the Home Office had granted leave to remain to 1076 of their students. The explanation for the discrepancy was that "there must have been a lot of drop outs".
14. The SLU's officers also inspected student files. They found 11 files were not up to date. They were also told how student attendance was registered. On closer examination it was discovered that there were discrepancies between what lecturers recoded about student attendance and what a "health and safety signing in book" revealed.
15. The conclusion of the visiting officers was a recommendation that the College have its license revoked. The author of the report said he was not satisfied that the college currently met the licensing requirements.
16. Mr Roger raised his concerns during the course of the visit. The Claimant College sought to address them in a letter dated 3^rd July 2009 from Mr Rayhan, their Chief Executive Officer. The letter enclosed a list of students and talked about LRC's "honest efforts towards compliance with our sponsorship duties". The letter explained how they proposed improving their tracking and reporting by the use of a biometric attendance system. The letter concluded with the statement "should you require any further assistance, please do not hesitate to contact us".
17. The UKBA's response was contained in its letter of 20^th August 2009. It referred to the various deficiencies unearthed by Mr Rogers, describing them as "potentially serious breaches of your sponsorship obligations". The letter indicated concerns regarding the maintenance of student files, the Claimant's ability to provide sufficient records of its students or staff and the ability accurately to ascertain from LRC's attendance registers whether students at the college were completing the required 15 hours per week of daytime study. The letter concluded by stating that the Claimant would be provided with an opportunity to make representations in response and that the Defendant would aim to decide what action to take within 14 days of receipt of those representations.
18. The Claimant took the opportunity offered to make representations. In their letter of 1 September 2009, they addressed the points raised in the UKBA's letter. The letter set out the relevant paragraphs of the 20 August letter under the headings, "HR procedure", "attendance system" and "tracking and monitoring". It is worthy of note that the Claimants did not dispute the findings set out in the August letter but attempted to explain how the Colleges systems had improved. It accepted (and apologised for) the fact that "some records were not updated in the system". It did not deny the assertion in the UKBA letter that the inaccurate completion of the attendance registers "could be construed as a deliberate attempt to falsify records". On the contrary these concerns were "acknowledged with regret".
19. An internal UKBA memo following these representations compiled by an unidentified officer of UKBA recommended that the College's license should be reinstated. That recommendation was not accepted and instead a further visit was arranged for 30 September.
20. During that visit improvements were noted. But, according to Roxanna Cram, a senior executive officer in the UKBA, there was still a lack of adequate record keeping including a particular concern regarding the recording of English language testing. During the visit, she asserts, LRC made contradictory claims that were not substantiated when documents were examined.
21. The UKBA officers who conducted the 30^th September visit wrote an internal "Suspension Visit Report" dated 15^th October 2009. In relation to the two points raised in the Suspension Letter, the report stated:

"The college now have good admin systems in place to monitor and record immigration status, maintain migrant contact details and record attendance. The installation of a fingerprint scanning device which is linked to the college's database accurately records students' attendance at college and at each study class the student enters…The college was able to provide a full list of all visa letters issued by them in the UK and out of the country…"the college appears to be well run with systems in place to record student immigration status, contact details and attendance"

22. The report concluded that whilst there was nonetheless "a potential for abuse in terms of the issuance of visa letters and student suitability tests" owing to the way in which language proficiency was tested, there was "little evidence to support such abuse" in fact occurring. The report did not recommend that the Claimant's licence should be revoked.
23. That report, however, was considered by the Defendant internally and the papers include (at [22/283] in the bundle) an unsigned memo detailing the information received in the visit and making a recommendation that the Claimant's license be revoked.
24. By letter dated 28^th October 2009 the Defendant informed the Claimant that it's Tier 4 Sponsor Licence was to be revoked with immediate effect. The author wrote:

"We have received your representation, dated 01 September 2009, which suitably addressed some of the issues raised. However, not all issues could be resolved and we have serious concerns regarding the level of English language abilities of some migrant students. No evidence could be provided to demonstrate that London Reading College carries out any testing of English language skills prior to them taking up their place with the college. This is in breach of the Tier 4 Sponsor Obligations as per the Published Guidance."

25. As a result of the revocation decision the Claimant has had to refund all its students the fees for the 2009-10 academic year, since it was no longer able to sponsor their visas.

The Challenge

26. Mr Banner advances four grounds of challenge. He says first and foremost that there has been a failure to meet standards of procedural fairness, as required both by common law and by the Defendant's own guidance. Second, he complains of a failure to consider alternative and less drastic sanctions than revocation of the license, or alternatively a failure to explain why the alternatives were not adopted. Third, he says that the decision to revoke the license was irrational or disproportionate. Finally, he says these failures put the UK government in breach of article 1 to Protocol 1 ECHR.
27. I deal with each point in turn, but, as emerged in argument, it is the first ground that is at the heart of this challenge.

(i) Procedural fairness

28. It is common ground that public law decisions, particularly those that affect an individual's rights, are subject to common law requirements of procedural fairness. Mr Banner relies on the well-known observation of Lord Diplock in O'Reilly v. Mackman [1983] 2 AC 237, at 279F-G that:

"the two fundamental rights accorded [to an affected individual] by the rules of natural justice of fairness [include] to have afforded to him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it".

29. He says that the requirement for procedural fairness is all the more important in cases like the present where the public authority's decision has the effect of depriving a company of its business and where there is no right of appeal. The more draconian the consequences of a decision are, the greater the need to ensure it is taken fairly and that the person(s) affected are given a full opportunity to address the points alleged against him/them.
30. Mr Banner goes on to point to the terms of the Guidance itself where he says the common law principles are reiterated. Para. 337 states:

"Following any action a visiting officer may take that leads to recommendations to withdraw a sponsor's licence or downgrade a sponsor, we will write to the sponsor to tell it what action we propose to take and why".

Para 338 provides for the sponsor to make representations in response to the allegations that have been put to it. Reflecting this, the Defendant's standard form of letter in such situations specifically provides an opportunity to respond to the points that have been made.

31. Accordingly, says Mr Banner, both as a matter of common law and under the Defendant's policy, "prior to revoking the Claimant's licence the Defendant ought to have provided the Claimant with a fair and transparent opportunity to address the prospective reasons for revocation."
32. For the Defendant, Mr Hall relies on the principles enunciated in CCSU v Minister for Civil Service [1985] AC 374, in particular by Lord Diplock at 411H. Procedural propriety depends on the subject matter of the decision, the executive functions of the decision-maker, and the particular circumstances in which the decision is made. Mr Hall also relies on the review of the authorities by Dyson LJ (as he then was) in The Queen (on the application of Easyjet) v Civil Aviation Authority and others [2009] EWCA Civ 1361 to the effect that what fairness requires depends on the character of the decision making-body, the kind of decision it has to make, and the statutory or other framework in which it operates (cf. Lloyd v McMahon [1987] AC 625 at 720H) and that what fairness required was "essentially an intuitive judgment" (cf. R v SSHD, ex p. Doody [1994] 1 AC 531 at 560D). I accept those submissions.
33. I interpose to indicate that in considering the competing arguments on this issue, I feel able to place very little weight on the internal documents of the UKBA in this context. Organisations like the Defendants are hierarchical and depend for their efficient functioning on reports and recommendations from more junior staff being considered by those with executive powers. The more senior staff are not, and should not be, bound by the views of their more junior colleagues. What matters is the public interaction of the parties and the rationality of the Defendants actions, viewed objectively. It follows that the fact that the Suspension Visit Report made clear that the UKBA officers considered that the concerns raised in the Suspension Letter had been adequately addressed, does not establish the Claimant's case.
34. Mr Banner says that the Claimant addressed the concerns raised in the Defendant's 20^th August Suspension Letter, both in its 1^st September written representations and at the 30^th September visit by UKBA officers. He says that if any further points were to be taken against the Claimant, procedural fairness dictated that the Claimant ought to have been granted an opportunity to comment on them and no such opportunity was provided. Instead the Defendant issued the Revocation Decision citing a new point that had not previously been put – "serious concerns regarding the level of English language abilities of some migrant students".
35. Had the Claimant been given an opportunity to make representations about the language point, argues Mr Banner, it would have given a satisfactory explanation: namely that its policy is not to enrol any students unless they have either obtained an IELTS (International English Language Teaching System) score of 5.5 (a threshold used by many universities) or have originated from a Commonwealth country where education is provided in English. If these answers did not satisfy the Defendant, the Claimant would have been able to take on board any suggestions by the Defendant for improving its language testing system.
36. At the heart of Mr Hall's response on this issue are two contentions. First he contends that the claimant is wrong to break the UKBA's actions in this case into two discrete procedures each of which attract the obligation to provide an opportunity to respond to the perceived criticism. Second, he says that the criticisms which motivated the decision to revoke were of a piece with those articulated in the August letter; the Claimants knew that their record keeping and honesty were being scrutinised and criticised and it was in response to of such failures that the UKBA decided to act.
37. In my judgment, on the facts of this case, it does not much matter whether the procedures adopted by the Defendants are seen as two separate procedures or a single complete whole. What matters is whether, before taking their decision, the Claimant's had been given fair notice of what was concerning the Defendants so that the Claimants could attempt to deal with the points. That was necessary both as a matter of fairness but also to ensure that the Defendants were in a position to take a rational decision, a decision based on a proper appreciation of all the facts.
38. It is right to say that the letter of 20 August gave detailed descriptions of failures of record keeping. It is also right to say that it is self-evident that maintaining proper records is critical to the proper operation of the licensed sponsors system, so that a failure to comply with record keeping obligations might well justify serious action by the UKBA. But if a college is to be able to deal properly with perceived criticism it needs to know a little detail of the nature of the alleged failure of record keeping.
39. Similarly, it is true that a lack of straight dealing with the UKBA could properly be regarded as of critical importance to the proper operation of the scheme and that was flagged up in the 20 August letter. There is a reference to the fact that students are recorded as attending on the attendance register when in fact they are three hours late. And it is right that that failing is admitted in the College's response. But, in my judgment, allegations of dishonesty, in this as in any other context, have to be spelt out with sufficient particularity to enable the subject to know in what ways he is said to have been dishonest. There would not be fair notice if one incident of alleged dishonesty was referred to but a wholly different type or incident of dishonesty prompted the decision.
40. Mr Hall is right to say that what procedural fairness demands varies with the circumstances. The subject matter, the character of the decision-maker, the framework in which he operates and the kind of decision to be made, are all relevant. In my judgment, at least as important as the commercial consequences for the license holder of losing his license are the risks to proper immigration control of permitting an unscrupulous or ineffective or inefficient college to continue to hold a license. But nonetheless there is an irreducible minimum of information which a license-holder must be told if he is to have a proper chance to respond in these circumstances.
41. If he is told that minimum, responds and there is a further inspection of his premises, it does not necessarily follow that there must be a second chance to make representations. If the essence of the complaint had been revealed in the first letter giving notice of the concern, there would be no need to write again inviting further representations before making a decision. Mr Hall is right to say that in such circumstances, the second inspection can properly be seen as part of the mechanism by which the decision is made which in itself triggers no obligation to consult further.
42. The critical question therefore is whether the Claimants were or were not told at any time prior to the decision of the criticisms regarded as material in the decision to revoke. In my judgment they were not.
43. The Defendant's decision letter referred to the results of the July visit and the inability of the college to provide human relations records of staff and students, the inadequate or misleading attendance registers and the Defendants' inability to provide an accurate record of the number of students registered at the college. However, the letter makes clear that the representations provided by the College addressed some of these issues, as they plainly did. The letter fails to specify which issues remained unresolved. That deficiency of reasoning might have mattered were it not for the fact that the letter goes onto make it clear that the remaining, unidentified concerns arising out of the July visit were, at most, only part of the factors that led to the decision to revoke.
44. The letter goes on to refer to "the serious concern regarding the level of language abilities of some migrant students. No evidence could be provided to demonstrate that LRC carries out any testing of English language skills prior to them taking up their place within the college. This is a breach of Tier 4 Sponsor Obligations as per the published Guidance". I confess that that reads to me as a substantive complaint about the lack of students' language skills rather than a complaint about record-keeping and the need to retain evidence of such skills. As such it would be relevant to the requirement in paragraph 436 that visa letters can only be issued if the sponsor is satisfied that the migrant is able to follow the course of study. If that were the true reading of the decision letter then this is plainly a fresh allegation of which the College had no prior notice. But even if, as Mr Hall suggests, it was really a complaint about record keeping, it is of a wholly different nature from that which featured in the August letter. That letter referred to the need to keep records of the identity and attendance of students. The reference to keeping records of scholastic or linguistic achievement does not feature at all before the decision letter.
45. And that mattered because, in fact, the Claimant says that had it been given an opportunity to make representations about the language point, it would have given a satisfactory explanation: namely that its policy is not to enrol any students unless they have either obtained an IELTS (International English Language Teaching System) score of 5.5 (a threshold used by many universities) or have originated from a Commonwealth country where education is provided in English. The competing cases about these matters were explored to some degree in argument, but it is not for the Court to make the primary judgement about the adequacy of those responses. What matters here is they are not self-evidently nonsense and the Claimants were denied the chance to advance them and the Defendant the chance to consider them.
46. Mr Hall suggests that a further justification for the revocation lay in the pattern of alleged dishonesty (or, to use his word, "deceptiveness") in the Claimant's conduct towards the Defendants. He points to the reference in the decision letter to the fact that the attendance register did not correspond to the signing in book, something which was said in the July letter could be "construed as a deliberate attempt to falsify records". He invited comparison between that and the suggestion in the statement of David Kirkland (21/194A) that staff at the College made contradictory statements about whether students were interviewed to discover if their English was adequate.
47. There are a number of problems with this argument. First, nowhere in the October decision letter is there any suggestion of dishonesty about the language records. It is the absence of records or perhaps of language skills that is the point of complaint. Second, although the October letter refers back to the August letter, it does not adopt the construction of the discrepancy between the attendance records and the signing in book as dishonesty which was suggested in the August letter. And third, as noted above, allegations of dishonesty in this context ought to be properly and plainly alleged, not hinted at in the manner suggested.
48. That being so, in my judgment, the complaint about procedural unfairness is made out.
49. Mr Hall sought to advance an alternative defence to this challenge. It was to the effect that, if the Court were with the Claimants on their primary grounds of challenge, then the Court should decline to exercise its discretion to quash the October decision. The argument proceeded as follows.
50. Mr Hall said that "on three separate occasions it has been concluded by two bodies which are independent of each other, SLU and ASIC, that the Claimant is not fit to run an educational establishment for overseas students". He refers first to the SLU visit of 1 July 2009 and second to the visit on 30 September 2009.
51. The third occasion to which he refers is a visit by ASIC on 21 May 2010 at which, he argues, ASIC discovered serious irregularities which led ASIC to withdraw the Claimant's accreditation. ASIC, it will be recalled, is the Accreditation Service for International Colleges, whose functions are described in Bhatti (at paragraph 7 above). He refers to the alleged fact that ASIC had difficulty in communicating with the college to obtain information, that Sowmik Rayham did not inform UKBA or ASIC when he relinquished his posts as CEO and Principal as required, that his replacement Sakib Kabir was "unable to convince the Inspectors that he had any knowledge of his duties and responsibilities in the College", that the staff were unable to access the information system and was unable to produce basic staff details including staff files, evidence of PAYE and passports, and that Sowmik Rayham had been unavailable without proper explanation. Mr Hall points to the conclusions of ASIC, that they are "now convinced that the College officers and staff are unable to operate effectively to manage an operation responsible for the well-being of international students and that the College is no longer worthy of ASIC accreditation".
52. Mr Hall argues that since ASIC accreditation is a necessary pre-condition for Tier 4 licensing, SLU would have no alternative but to revoke the Claimant's license again, even if its October 2009 decision were set aside.
53. That argument seems to me, with respect, hopeless. It is perfectly plain that the origin of the Claimant's difficulties is the revocation of its license by the Defendants. There is nothing to justify a conclusion that any of the difficulties to which ASIC refer would necessarily have occurred if the license had continued. It seems to me wrong in principle that the Defendants should be permitted to say that because the consequences of their own action, which on the present premise must be regarded as unlawful, mean that a third part withdraws its accreditation, the court should decline to provide relief against that unlawful action. How ASIC act now is a matter for them, not the Court, but doubtless ASIC will consider any fresh application for accreditation properly in the light of their own policies.
54. That is enough to dispose of this application. The making of a decision without giving the chance to address the principle matters of complaint is a breach of the requirements of procedural fairness and it must lead to the quashing of the decision.
55. I heard argument on the other heads of challenge and ought to deal with them. I do so briefly.

(ii) The failure to consider alternative sanctions

56. In his skeleton argument, Mr Banner treated this second and the third grounds as elements of the same complaint. In oral argument, however, he sought to treat them as discrete grounds of challenge. On analysis, it seems to me that the failure to consider alternative sanctions is a species of irrationality and I deal with the points together below.

(iii) Irrational and disproportionate

57. Mr Banner argues it was irrational for the Defendants to decide that the factors referred to in the decision letter left them with "no option" but to revoke the Claimant's licence given the provisions of the Policy. He refers in particular to paragraphs 345, 346 & 349 which set out the circumstances in which UKBA "will withdraw", "will normally withdraw" and "may withdraw" a sponsor's licence, to paragraphs 350 & 323 and the alternative step of down-grading a sponsor to a 'B rating' and to paragraphs 76-82 which provide that it is not necessary to meet all the 'suitability criteria' for Tier 4 Sponsors in order to obtain a licence.
58. These provide useful guidance to the range of sanctions open to the Defendants but it is Paragraph 336 which is most material here. It refers to the general principles to be applied in all cases (except where the withdrawal of the licence is mandatory, which was not the case here). Subparagraphs (a)-(d) provide that the factors that will be considered in deciding what action to take against a sponsor are: the seriousness of the sponsor's actions, whether the non-compliance is deliberate and/or sustained, whether the sponsor has taken steps to minimise the consequences of its actions once notified of UKBA's concerns, and any civil penalties the sponsor has been complied with.
59. Mr Banner says that there is no indication that the Defendant applied its mind at all to the principles set out in these paragraphs of the Policy. The Revocation Decision jumped from pointing out the purported "serious concerns" regarding language testing to concluding that the Defendant had "no option" but to revoke the Claimant's licence. That was not, he says, a rational application of the Policy.
60. It has to be remembered that the primary judgment about the response to breaches of a College's duty is the Defendant's, and the Court's role is simply supervisory. It has also to be remembered that the underlying principle behind this scheme is that the UKBA entrusts to Colleges the power to grant visa letters on the understanding, and with their agreement, that they will act in a manner that maintains proper immigration control. The capacity for damage to the national interest in the maintenance of proper immigration control is substantial if Colleges are not assiduous in meeting their responsibilities. In those circumstances, it seems to me that the Defendants are entitled to maintain a fairly high index of suspicion as they go about overseeing colleges and a light trigger in deciding when and with what level of firmness they should act.
61. My view would have been that any failure, after an initial warning, to maintain the records necessary to guarantee that the arrangements are not being abused might well justify revocation.
62. Accordingly, had I found that there had been no procedural impropriety, that LRC had had fair notice of the UKBA's concerns and that the response was not adequate, I would have ruled that the decision to revoke was neither irrational nor disproportionate. In my judgment, it is not for the Court to weigh with a finely calibrated scale just what response was justified. The Defendant have the responsibility of policing these arrangements and ensuring immigration control is not open to abuse by incompetent or dishonest sponsors and it is entitled to resort to revocation in circumstances as potentially serious as these.

(iv) Article 1 Protocol 1

63. I heard only the barest of submissions from either side on this final issue.
64. Article 1 of the First Protocol to the ECHR ("A1P1") provides that:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."

65. It is common ground that in order to be compliant with that article the revocation of the license had to be subject to the conditions provided for by law and in the public interest; and proportionate.
66. Mr Banner argued that the Defendant's deprivation of the Claimant's licence in the present case did not satisfy these criteria. Mr Hall accepted that a licence is capable of being a possession in certain circumstance (he referred to R (Countryside Alliance) v Attorney-General (2007) 3 WLR 922 at [21]), but argued that A1P1 permits of deprivation in the public interest, and contains no express procedural guarantees. He repeated his submissions as to why the decision to revoke was justified and fair.
67. I have found that the withdrawal of the licence was carried out in a manner that was procedurally unlawful. In my judgment it must follow that that revocation was not "subject to the conditions provided for by law" since those conditions include, as a matter of domestic law, procedural fairness.
68. It follows that there has been a breach of A1P1. I will hear argument from counsel as to the appropriate order in respect of the assessment of damages for that breach.