QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of WESTECH COLLEGE)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Sasha Blackmore (instructed by Treasury Solicitor) for the Defendant
Hearing date: 13 May 2011
Crown Copyright ©
MR JUSTICE SILBER:
II. The Factual Background
"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."
"(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."
"To obtain a Standard Tier 4 licence, a prospective sponsor must apply to us, supplying specified documents to show that it is eligible. We will carry out appropriate checks before deciding whether to grant the licence."
"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)."
"..the sponsor will be able to assign confirmation of acceptance for studies to students who wish to come to the UK to study" (paragraph 10 of the Guidance).
III. The Role of UKBA in the Sponsorship Regime.
"prompted because of concern about the unprecedented rise in adult student applications being seen in some parts of the world following the launch of the new Tier 4 route for students on 31 March 2009.
During 2009/2010 UKBA had experienced a global increase of student applications of approximately 18% despite the fact that the number of institutions bringing students into the UK under Tier 4 has halved. Much bigger increases have been experienced in China (up by over 100% in South China) and India, and with Nepal and Bangladesh also now adding to the surge (up to 250%).
This is clear evidence that the student route is being used as a route to illegal migration and the back door to low skilled economic migration. This may be adding 40,000 each year to the illegal population of the UK. It is not possible to take enforcement action against all of those and to do so would cost in the region of £440m per year." (Executive Summary page 1).
"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."
IV. The Issues and Three Preliminary Points
"Since we have had to decide this matter on affidavit evidence without the benefit of cross-examination, we are obliged to take the facts where they are in issue as they are deposed to on behalf of the Board".
"the court must, in those circumstances, fall back on the principle that where a relevant dispute cannot be resolved on the written material alone the facts must be assumed to be those which favour the respondent".
"19.. I think I should adhere to the general rule except where the contemporaneous documents dictate that a witness statement must be incorrect".
"(i) The basic rule is that where there is a dispute on evidence in a judicial review application, then in the absence of cross-examination, the facts in the defendants' evidence must be assumed to be correct;
(ii) An exception to this rule arises where the documents show that the defendant's evidence cannot be correct; and that
(iii) The proper course for a claimant who wishes to challenge the correctness of an important aspect of the defendant's evidence relating to a factual matter on which the judge will have to make a critical factual finding is to apply to cross-examine the maker of the witness statement on which the defendant relies".
"37 ... The function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits…the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker, and so forth . . ..
43. The decision is unlawful only if it falls outside the limits of that discretionary area of judgment. Another way of expressing it is that the decision is unlawful only if it falls outside the range of reasonable responses to the question of where a fair balance lies between the conflicting interests".
(a) Both before and after the Tier 4 regime came into force, a substantial number of those immigrants who are in this country illegally came in first on student visas and then started working illegally either during the period covered by their student visa or when it had expired;
(b) A fundamental principle of the sponsorship system requires the UKBA to trust a sponsor to a very substantial extent because sponsors play a crucial role in ensuring that those granted student visas comply with their obligations and in particular they should ensure that unless students obtain permission, they do not work during or after the period covered by their visa and that leave when their visa has expired;
(c) UKBA has the difficult and crucial task of carrying out inquiries to ensure not only that the sponsors have complied with their obligations but also that they will comply with them in the future. The importance of their policing role cannot be overstated;
(d) The courts should respect the experience and expertise of UKBA (which the courts do not have) when it reached conclusions relating to the issue of whether any acts or omissions of sponsor might suggest that it has not complied with its obligations or that it might not comply with its obligations set out in the Guidance, which is vitally necessary to ensure that there is effective immigration control;
(e) The function of the courts is as Richards J explained in the passage set out in paragraph 28 above in the Bradley case "not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits…the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker, and so forth";
(f) As explained in paragraph 27 above, the basic rule is that where there is a dispute on evidence in a judicial review application, then in the absence of cross-examination, the facts in the defendants' evidence must be assumed to be correct. An exception to this rule arises where the documents show that the defendant's evidence cannot be correct. The proper course for a claimant who wishes to challenge the correctness of an important aspect of the defendant's evidence relating to a factual matter on which the judge will have to make a critical factual finding is to apply to cross-examine the maker of the witness statement on which the defendant relies; and that
(g) "It is essential that in exercising the very important jurisdiction to grant judicial review, the court should not intervene just because the reasons given, if strictly construed, may disclose an error of law. The jurisdiction to quash a decision only exists when there has in fact been an error of law. Moreover, the court should not approach decisions and reasons given by committees of laymen expecting the same accuracy in the use of language which a lawyer might be expected to adopt." per Lord Browne-Wilkinson (with emphasis added) giving the only reasoned speech in Reg. v. Bishop Challoner School, Ex p. Choudhury  2 AC, 182,197E.
V. The Zero Allocation Decision
"capture early, any patterns of behaviour that may cause concern [and] monitor compliance with the immigration rules".
"If a sponsor fails to comply with any of its duties its licence may be downgraded, suspended or withdrawn, or we may reduce the number of confirmation of acceptance for studies it is allowed to assign".
B. I should add that a further reason why I reject this complaint of the claimant is that if they had provided promptly the information sought in the letter of 18 June 2010, it would have shown the serious errors in the claimant's records in relation to work placements which I describe in paragraphs 60 to 63 below and which would definitely have justified a decision to reduce the claimant's ability to issue further CASs to zero.
"37…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.
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."
In this case, the position was totally different, as the claimants knew full well from the terms of the correspondence the nature of the concern of UKBA relating to the claimant. Thus I must reject the challenges to the Zero Allocation decision.
VI. The Suspension Issue
"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."
(ii) Absence of Planning Permission
"…is trading or operating lawfully in the United Kingdom".
"Any development carried out without planning permission is unlawful, and may be the subject of enforcement action taking by the local planning authority under s172."
"…is trading or operating lawfully in the United Kingdom".
That widely-worded provision would have meant that a sponsor would be required to have the requisite planning permission and that runs contrary to any notion that there was a representation which was "clear, unambiguous and devoid of legitimate qualification" that a sponsor only needed the documents specified in Appendix A.
"43….an alleged representation must be construed in the context in which it is made. The question is not whether it would have founded an estoppel in private law but the broader question of whether… acting contrary to the representation would be acting "with conspicuous unfairness" and in that sense abusing its power."
(iii) The Work Placement Discrepancy at Sunnymeade Residential Home
(iv) The Work Placement Discrepancies at Aspray Care Home
(v) Fairness of Decision to Suspend the Claimant
"if we have reason to believe a Standard Sponsor is breaching its duties and/or poses a threat to immigration control.. to the extent that we may need to consider withdrawing its licence, we may suspend its licence while we make further enquiries".
"44... because it failed to take account of material other than [1 email], and it must be quashed also because the defendant has failed to implement its own policy, which was a policy that required, in the circumstances of this case prior consultation before the suspension was imposed. Had that step been taken all the matters to which I have referred would have been rapidly resolved and in my judgment it is highly unlikely in those circumstances that the suspension would have been imposed".
VII. The Revocation Decision
"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."
"In this case we are satisfied that the above evidence demonstrates a failure to meet your responsibilities as a sponsor and that your actions have resulted in a risk to immigration control. In particular:
- You do not hold the appropriate planning permission.
- There are clear errors and discrepancies in regard to your monitoring of students, particularly while at work placements as part of your representations you have demonstrated that the student information provided to us on 5 July 2010 was incorrect."
(a) UKBA failed to take into account the representations which were set out in the letter from the claimant of 20 October 2010;
(b) Lesser sanctions should have been imposed;
(c) No initial warning that records need to be maintained or the licences might be revoked and UKBA went to straight to the sanction of revocation;
(d) The lack of planning permission does not mean that the land development is unlawful merely that it is unauthorised;
(e) The work placement error relating to Sunnymeade Care Home; and
(f) The records relating to Aspray Care Home.
(ii) The failure to take into account the representations in the claimant's letter of 20 October 2010.
"… must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on 'the principal important and controversial issues,' disclosing how any issue of law was resolved…The reasons need refer only to the major issues in the dispute, not to every material consideration….a reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision".
What is important is that the reasons for a decision especially when given especially by non-lawyers do not have to deal with every representation made to the decision-maker but merely the conclusions but that is precisely what is stated in the revocation letter. It explains that the reason for revocation of the licence was the failure on the part of the claimant to meet its responsibilities as a sponsor and that its actions have resulted in a risk to immigration control because it did not hold the appropriate planning permission and that there are "clear errors and discrepancies in relation to your monitoring of students particularly while at work placements". These discrepancies had been clearly defined, as I have explained in paragraph 75 above and so adequate reasons have been given. Furthermore, the claimant has been unable to argue that in Lord Brown's words in the Porter case, it "has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision".
(iii) Imposition of Lesser Sanctions
(iv) No Warning
"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".
(v). Planning Permission
(vi) The Incorrect Information about the Two Care Homes
"Due to the contradictions in where students were placed and attendance at these work placements, we do not consider [the claimants] has complied with their sponsor duties in regard to these placements"