Neutral Citation Number: [2011] EWHC 1484 (Admin)
Case No: CO/11611/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13 June 2011

Before:

THE HONOURABLE MR JUSTICE SILBER
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Between:

	R (on the application of WESTECH COLLEGE)	Claimant	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Defendant	

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Faisal Saifee (instructed directly) by the Claimant
Sasha Blackmore (instructed by Treasury Solicitor) for the Defendant

Hearing date: 13 May 2011
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Judgment

MR JUSTICE SILBER: 

I. Introduction
1.	On 15 October 2009, Westech College (“the claimant”) was granted a Tier 4 sponsor licence by the UK Border Agency (“the UKBA”), which is an agency of the Secretary of State for Home Department (“the Secretary of State“) and the claimant’s name was included on the Sponsors’ Register (“the Register”). This enabled the claimant to issue letters, which would thereby enable non-EU nationals, who so wished to enter and remain in the United Kingdom so as to be able to study at the claimant’s institution.  By a letter dated 2 July 2010 (“the Zero Allocation decision”), the UKBA reduced the Confirmation of Acceptance for Studies (“CAS”) allocation limit for the claimant to zero, which meant that it could not issue any more CAS’s but its name still appeared on the Register.  By a further decision dated 27 September 2010 (“the Suspension decision”), the UKBA suspended the claimant’s licence with immediate effect while giving the claimant the opportunity to explain various discrepancies before the UKBA began revocation action.  By a further letter dated 2 November 2010 (“the Revocation decision”), UKBA having considered the representations made by the claimant revoked its licence and removed the name of the claimant from the Register with immediate effect. 
2.	By these proceedings the claimant originally sought to quash only the Revocation decision but by an amendment, the claimant is also challenging the Zero Allocation and the Suspension decisions. On 8 December 2010, Mr. John Randall QC (sitting as a Deputy High Court Judge) granted the claimant interim relief.
3.	A rolled-up hearing was ordered, and at the outset of that hearing I gave permission to the claimant to challenge each of the three decisions and to seek orders to be reinstated to the sponsorship register as well as to recover damages in the sum of £248,700.  It is agreed that if I find for the claimant, I should then adjourn the hearing for the assessment of damages.  The claimant has been represented in these proceedings by Mr. Faisal Saifee, while the defendant has been represented by Miss Sasha Blackmore.
II. The Factual Background
4.	The claimant’s educational establishment is located at 191/191A, Ballam Street, Plaistow and it has been trading from those premises since 2003.  When the claimant’s premises were inspected in July 2010, it had 155 enrolled students, all of whom originated from outside the EEA.  The claimant was prior to the revocation order on the Register, which had been 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).
5.	This regime was described by Sullivan LJ in R (Bhatti, Middlesex College and others) v Croydon Magistrates' Court and Secretary of State for the Home Department [2009] EWHC 3004 (Admin) in this way:-
"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.”
6.	To obtain entrance clearance or leave to remain, a student from outside the EU required 30 points, which could be obtained by holding a visa letter or a CAS document. Pursuant to paragraph 116(d), that document would only be valid if "if it was issued by an institution with a Tier 4 (General) Student Sponsor License”, such as the claimant.
7.	The rules of the regime relevant to the claimant’s application were set out in a document produced by UKBA entitled “Tier 4 of the Points Based System – Sponsor Guidance” (“the Guidance”), which came into effect on 1 October 2010. Paragraph 1 of it describes the two fundamental principles of sponsorship, which were and are that:- 
"(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.”
8.	Paragraph 7 describes "How the Sponsorship works". It explains that:-
"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.”
	
9. 	To be licensed, an establishment must also have achieved an accreditation from an accreditation body. Sullivan LJ explained in Bhatti that:-
"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).”
10.	Once licensed under Tier 4:-
"..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).
11.	Establishing a college and achieving both accreditation and licensing was a substantial undertaking for an establishment and it would require very substantial financial commitments.  Not surprisingly, the loss of a licence would have most serious professional and financial consequences for a licensed and accredited body and its proprietors as well as having a serious impact on its students and prospective students because the students’ immigration status would be undermined if they did not have a visa letter or a CAS document from a licensed college, such as the claimant. I will bear this in mind when considering this application.
III. The Role of UKBA in the Sponsorship Regime.
12.	The background to the sponsorship regime was described in a Joint Report by UKBA and the Department for Business Innovation and Skills, which conducted a joint review of student visas in December 2009. It explained that this review was:
“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).
13.	On 10 February 2010, the Home Secretary said that this review “highlighted concerns about the number of individuals who were not serious about studying in the UK but who were primarily using Tier 4 as a route to work”. Indeed my experience of sitting in the Administrative Court for many years and that of my colleagues with similar experience is that both before and after the Tier 4 regime came into force, a substantial number of those immigrants, who are now in this country having initially entered lawfully on student visas and then having started working illegally either during the period covered by their student visa or when it had expired. Finding these overstayers and illegal workers is exceedingly difficult unless those people come to the attention of the authorities usually by committing an offence. The persistent misuse of the immigration system by those who initially enter as students is a factor of importance in ascertaining if UKBA and the Secretary of State have acted in breach of their public law duties.
14.	As is set out in paragraph 1 of the Guidance (which is set out in paragraph 7 above), a fundamental principle of the sponsorship system requires the UKBA to trust the sponsor to a very substantial extent. The reason is that those who are sponsors are entrusted with enabling a student to come to and remain in the UK for the purpose of studying first by providing evidence that he or she will study for an approved qualification (paragraph 2 of the Guidance); second by pledging that that it will accept the duties of sponsoring the student (paragraph 2 of the Guidance); third by ensuring that proper records are kept (paragraphs 13 and 296 of the Guidance); and fourth by reporting to UKBA if any student does not turn up for his or her course or is absent without permission for a significant period or if he or she does not comply with the appropriate obligations (paragraphs 13 and 296 of the Guidance). This information is required for UKBA to take enforcement action against defaulting students. In essence, the Secretary of State and UKBA entrust to sponsors such as the claimant  the vital function of monitoring  compliance of it students with immigration law.
15.	These duties which are entrusted by UKBA to the sponsor in the case of any sponsored student last during the currency of the sponsor licence from the issue of the sponsor licence until a number of specified events occur,  such as, for example, when  the sponsor notified UKBA that the student has ceased to be on his or her course of study or had left the United Kingdom and his or her leave lapses or the student had been granted further leave with another sponsor or in another immigration category (paragraph 295 of the Guidance).
16.	A significant reason why the trust imposed on the sponsor is considerable is the wish and determination of many students to act in breach of their leave conditions by seeking work or using the permit granted by the sponsor as a ruse to enter this country and then to disappear as is shown by the Report which I quoted in paragraph 12 above. In return for this trust imposed in the sponsor, UKBA has to monitor the performance of the sponsor with great care as any failures by the sponsor could lead to interference with immigration control if, for example, the sponsored student disappeared or started to work illegally. Indeed in this connection and bearing in mind the risk of migrants seeking to avoid immigration control, it is only right that first UKBA should have stringent powers to suspend a sponsor or prevent it from taking more students or terminating their sponsorship if it became concerned that a sponsor was not complying with its obligations and second that UKBA has to be sensitive to any factors which might suggest the possibility of any breaches of immigration control having occurred or being about to occur because of lapses or omissions committed by a sponsor.
17.	In my view, there is no need for UKBA to wait until there has been breach of immigration control caused by the acts or omission of a sponsor before suspending or revoking the sponsorship, but it can, and indeed should, take such steps if it has reasonable grounds for suspecting that a breach of immigration control might occur, provided of course that UKBA complies with its public law duties.
18.	There is therefore a clear need in some circumstances for UKBA to invoke its powers where there is a risk that the sponsor might not be complying with its duties provided of course that UKBA complies with its public law duties. The expertise and experience of the UKBA in being able to detect the possibility that a sponsor might not be or be at risk of not complying with its duties is something that the courts must and does respect because, unlike UKBA, courts do not have this critically important experience or expertise.
19.	An entity which holds, as the claimant did before the events which led to this application being brought, the power to grant visa letters and CASs has substantial duties to ensure that the rules relating to immigration control are adhered to strictly and properly.  Indeed the importance of the role performed by sponsors means that if UKBA were concerned that a sponsor is not complying with those duties, it would entitle, if not oblige, UKBA to prevent that sponsor from either granting more CASs or revoking its licence. My approach is similar to that recently expressed in (R (The London Reading College Ltd) v Secretary of State for the Home Department [2010] EWHC 2561 (Admin)) by Mr Neil Garnham QC sitting as a Deputy High Court Judge, who said that:-
“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
20.	The issues raised on this application relate to the lawfulness of first the Zero Allocation decision, the Suspension decision and the Revocation decision and each of the challenges raise different issues. Before dealing with them, it is appropriate to mention three matters and to set out how these claims should be approached.
21.	First, there have been some significant disputes in the evidence on this application relating to issues such as whether the claimant responded to a  letter from UKBA of 18 June 2010 by 23 June 2010 and whether the contents of the claimant’s letter of 20 October 2010 was taken into account by UKBA before terminating the claimant’s sponsorship. The claimant submitted that where there is a dispute on evidence, I should prefer the evidence of the claimant or disbelieve the evidence of the defendant. I then drew the attention of the claimant’s counsel to the analysis of the authorities on this issue in R (McVey) v Secretary of State for Health [2010] EWHC Admin 437, which Mr Saifee did not challenge.
22.	The authorities set out in that judgment show that an appropriate starting point for determining this issue is the statement of Lane LJ (as he then was) when sitting in the Divisional Court in the case of R v Board of Visitors of Hull Prison ex p St Germain (No 2) [1979] 1 WLR 1401 at 1410 when he explained that:-
"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”.
23.	McCullough J adopted a similar approach in R (Cran & Others) v Camden London Borough Council [1995] RTR 346 when he stated in relation to a factual dispute on a judicial review application in which there had been no application to cross-examine any opponent: -
"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”.
24.	McCullough J repeated the principle that disputed matters must be resolved in favour of the defendants, but he then added a proviso, which was “unless documents enable the court to say otherwise” (page 400).
25.	More recently in the case of S v Airedale NHS Trust [2002] All ER (D) 79, Stanley Burnton J (as he then was) expressed similar view when he said that:-
“19.. I think I should adhere to the general rule except where the contemporaneous documents dictate that a witness statement must be incorrect”.
26.	The courts will make orders for the cross-examination of witnesses where necessary in judicial review claims (see, for example, R (Al-Sweady and others) v Secretary of State for the Defence [2009] EWHC 2387 Admin [15]-[21]). No such application was made in this case for the cross-examination of any of the Secretary of State's witnesses and there are no documents, which show that the defendant’s evidence cannot be correct.
27.	I did not understand counsel to disagree with the view, which I stated in the McVey case [35], which was that the proper approach to disputed evidence on a judicial review application is that:-
“(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”.
28.	Second, it is necessary to bear in mind that the role of this court on a judicial review application, such as the present one, as was explained by Richards J (as he then was) in Bradley v The Jockey Club  [2004] EWHC 2164 QB in passages which were expressly approved on appeal in that case by Lord Phillips MR [2005] EWCA Civ 1056 [17] when giving the judgment of the Court of Appeal that on a judicial review application:- 
“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”.
29.	Third, the claimant challenges each of the three decisions and it is appropriate to look at each of them in turn but before doing so, I must bring my points together, which are that:-
(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 [1992] 2 AC, 182,197E. 
V. The Zero Allocation Decision
30.	The background to the investigation of the claimant was that it had formed part of an enforcement operation carried out by UKBA and called Operation Golding, which took place between July and October 2010.  It was part of a nationwide summer campaign to tackle illegal working, sham marriages, bogus colleges and organised immigration crime.  Operation Golding entailed UKBA considering with care whether sponsors have been complying with their obligations. It led to over 800 arrests although nobody connected with the claimant was arrested.
31.	Mr Roger Grace of the Executive Office within the Sponsor Management in UKBA has explained in his witness statement that the sponsorship investigations teams of UKBA carried out a variety of investigations into a range of matters related to sponsors.  As part of this work, the claimant was requested by a letter of 18 June 2010 to provide UKBA with the details of visa letters and CASs issued to all Tier 4 students between 31 March 2009 and 18 June 2010. The information sought included details of work placements.  It was explained in the letter from UKBA of 18 June 2010 that this information, which the claimant was obliged to supply pursuant to paragraph 281 of the Guidance, was required by Wednesday 23 June 2010, but that UKBA would be unable to give an extension to this deadline.  
32.	The short time period specified in the letter was given in order to analyse the student roll call before a planned but unannounced visit to the claimant’s premises and to highlight any areas and/or students of concern for the investigating team.  The claimant did not provide the information by 23 June 2010 although the claimant contends that it had. As I have explained in paragraph 27 above, I must accept the defendant’s account as there has been no request to cross-examine Mr. Grace and there are no documents, which show that the defendant's evidence cannot be correct. Indeed on the contrary, Mr. Grace has explained that he made inquiries as to what could have happened to the claimant’s e-mail if it had been sent tot UKBA and if it could have been deleted in error. His evidence relating to UKBA’s system is that in his experience, he does not know of any other occasion on his team when an email received from a sponsor has been deleted in error. 
33.	The failure of the claimant to ensure that this information was received in time by UKBA was a source of substantial concern to UKBA, as this failures could have indicated a failure on the part of the claimant  to maintain accurate record keeping processes. . This was a matter of concern to UKBA as the purpose of having accurate records was because in Mr. Grace’s words “it enables early capture of any patterns of student behaviour that may cause concern and enables compliance with the immigration rules …to be monitored”. For that reason, the decision was made by UKBA to reduce the CAS allocation of the claimant to zero rather than to suspend it because reducing the CAS allocation of the claimant would preclude further visas being granted while at the same time allowing the claimant to continue in business. 
34.	In reaching that decision, UKBA considered that the failure by the claimant to respond to the initial roll call request could well have indicated a failure to maintain accurate record keeping processes, which was a very important feature as it enabled compliance with immigration rules and related legislation and applicable guidance to be monitored.  One of the areas of concern for UKBA was that a failure to provide records might show that a student has gone “missing” and that he or she has not enrolled and continued with his studies for which she was granted entry into the UK.  This would mean that he or she would have used their visa to facilitate entry into the United Kingdom for studying but then gone missing and would thereafter be difficult to trace. The claimant would have been aware that the objectives of the duties imposed on sponsors to keep records was in the words of paragraph 278 of the Guidance to:-
“capture early, any patterns of behaviour that may cause concern [and] monitor compliance with the immigration rules”.
35.	The importance of keeping records is also shown by paragraph 316 of the Guidance, which provides that: -
“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”.
36.	As I have explained in paragraph 12 above, there is much evidence that a large number of migrants, who have been granted entry as students use it in the words of the joint report “as a route to illegal migration and the back door to low skilled economic migration”. Indeed the Zero allocation letter to the claimant dated 2 July 2010 referred to the need for further investigations and stated that “until we have investigated these issues and we are satisfied your institution or your students do not pose a threat to immigration control or security of the UK border your CAS limit will remain at zero”.  It was then pointed out correctly, as I have explained, that the claimant as a sponsor had an obligation to provide such documents and that the objective of those duties was to capture any pattern of student behaviour which might cause concern and to monitor compliance with the rules.
37.	In my view, the UKBA was entitled to be concerned by the fact that it had not received the information. After all, the claimant had a clear duty to make the information sought available upon request (paragraph 281 of the Guidance) as was stated in UKBA’s letter of 18 June 2010 requesting the relevant information. Furthermore, paragraph 2(v) of the skeleton of the claimant accepts correctly that UKBA had power to reduce the CAS to zero if a sponsor had not been complying with its duties (see paragraph 16 and 316 of the Guidance).
38.	Turning to the zero allocation decision, Mr Grace, who had drafted the letter of 2 July 2010, explained first that the reason for this letter being sent was that no response had been received to the initial roll call request of 18 June 2010 and second that this was a matter of particular concern because it could indicate a failure on the part of the claimant to maintain accurate record keeping processes.  Such a duty was, as explained in the letter of 2 July 2010, very important because it enabled UKBA to discover at an early stage, patterns of student behaviour that might cause concern and which might require monitoring to ensure particular compliance with immigration rules and related legislation. The reason for this is that the absence of such records might indicate first that a student had gone “missing”, and second that he or she was not enrolled and had continued with his or her studies in an educational institution for which he or she had not been granted entry into the United Kingdom.
39.	Mr Grace explains that this absence of records might therefore indicate that the student had used his or her CAS or visa letter to facilitate entry into the United Kingdom for means other than that of studying at the institution for which the application had been made.  He was quite entitled to reach that conclusion and also that there was “a very real risk” that students could go missing if they are not adequately monitored and that “it becomes harder to trace individuals as time passes”. I should repeat that UKBA, unlike the courts have knowledge and expertise relating to the significance of acts and omissions of a sponsor in relation to UKBA’s duties to ensure immigration control and so courts should grant latitude to UKBA before interfering with its decisions.
40.	A. I do not consider that there is any justification for the claimant’s criticism that there was some form of common law procedural unfairness in the decision of UKBA because in the words of the claimant’s skeleton, it  “suddenly and without warning reducing Westech College’s CAS to zero on the assumption that [the claimant] did not send the email”. This complaint fails to appreciate first that the communication of 18 June 2010 requesting the information specified the requirement on the part of the claimant to give that information as set out in paragraph 281 of the Guidance and second the right of UKBA under the Guidance to reduce the CAS to zero if a sponsor failed to comply with any of its duties. Indeed paragraph 2(v) of the claimant’s skeleton acknowledges these powers, which are set out in paragraph 16 and 316 of the Guidance. 
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.
41.	Furthermore, in so far as the claimant has sought to rely on the decision in the London Reading College case, the position in that case was very different from that prevailing in the present case because as the judge explained in that case: -
“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
(i) Introduction
42.	The claimant challenges the suspension letter essentially because it contends first that it should have been consulted or warned before the defendant took the step of suspending the licence; second that it should have been allowed to make representations; third there was no urgency requiring the licence to be suspended with immediate effect; and fourth that the claimant had a legitimate expectation that there was no need for it to have planning permission for the use of its premises as an educational establishment.
43.	The suspension letter explains that UKBA had visited the claimant on 5 July 2010 in order to review its ability to comply with its duties as a specified sponsor.  The letter continued by identifying three areas of concern and which I will consider below. They relate first to the absence of D1 planning permission, which meant that the claimant was “trading as an unauthorised College”, second to the claimant’s records relating to work placement at Sunnymeade Residential Home, and finally to the claimant’s records relating to work placements at Aspray House Care Home.
44.	The letter finished by stating that:-
“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
45.	In respect of the planning permission for the claimant’s premises, Mr Grace has explained that he made enquiries to establish if the claimant had obtained the appropriate D1 planning permission for their premises because for a sponsor to be granted and to continue to hold a Tier 4 sponsor licence, that company must, in the words of paragraph 324 of the Guidance be liable to checks by a visiting officer of UKBA that it:-
“…is trading or operating  lawfully in the United Kingdom”.
46.	Although the Guidance does not specifically refer to a sponsor being required to have the appropriate D1 planning permission, UKBA was entitled to request any documents that it deems necessary to ensure the sponsor is operating or trading lawfully, which must mean that the appropriate planning permission has been granted. UKBA considered planning permission to be important because without it, a sponsor, such as the claimant, would be acting in contravention of the Town and Country Planning Act 1990 (“the 1900 Act”) and therefore would not be operating lawfully. 
47.	The significance of that is local authorities have, according to Mr Grace, in the past “confirmed that enforcement action will be taken against establishments that lack the correct permission, although clearly this can vary on a case by case basis. Institutions can thus be shut down at short notice increasing the risk that students could go missing” (paragraph 40 of his witness statement).  For that reason in the light of a particular issue, Mr Grace said UKBA now routinely checks for planning permission on all Tier 4 cases.
48.	As a result of a request made by Mr Grace to Newham Borough Council on 26 August 2010, UKBA were told that on that day and on the following day that no planning permission was in place for the premises occupied by the claimant and that an investigation would take place.
49.	The case for the claimant is that the lack of planning permission does not mean that the land development is unlawful but that it merely shows that it is unauthorised but that, as Miss Blackmore points out, is incorrect as section 57 of the 1990 Act states that a development (such as the claimant’s premises) should not be carried out except with planning permission.  
50.	By section 171A of the 1990 Act, the act of carrying out a development without the required planning permission is “a breach of planning control”.  DI planning permission is required when the use of premises is changed to provide education (section 55(1) of the 1990 Act and Part D (c) of the Town and Country Planning (Uses Classes) Order 1987 (SI/1987/764)). This is a matter of significance as a civil remedy such as an injunction could be sought by the appropriate local authority to restrain a breach of planning control: section 187B of the 1990 Act.  Furthermore a breach of planning control can also become a matter of direct criminal sanctions but only after enforcement action has been taken under Part VII of the 1990 Act.
51.	The claimant seeks to place reliance on the decision in Hughes v Doncaster Metropolitan Borough [1991] 1 AC 382 which was a case concerning the compensation provisions for compulsory acquisition of land where immunity had been gained because of the passage of time, but that case is not inconsistent with the general principles to which I have just referred.  To my mind, the correct position is that set out in the Encyclopaedia of Planning Law and Practice P55.06, which states that:-
“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.”
52.	It therefore follows that if a change of use for which planning permission is required is made without such permission as occurred in this case, such conduct constitutes an unlawful change of use and its continued use is therefore unlawful. That means that without planning permission, the claimant was operating unlawfully and I have already explained the significance of that.
53.	I must now explain why I cannot accept the claimant’s contention that any requirement that the claimant should have planning permission is inconsistent with its legitimate expectation under the Guidance, which was that there was no requirement to prove planning permission either at the time of the application or at any time during the currency of the sponsor licence (see R (Bapio Action Ltd and another) v Secretary of State for the Home Department [2008] 1 AC 1003, 1026 [60] per Lord Mance).  The basis of this contention is that such expectation arises as there was no express requirement for planning permission in the Guidance and the general paragraphs of the Guidance merely set out objectives rather than imposing specific duties. It is contended therefore that the claimant had a “legitimate expectation” that merely by presenting the documents specified in Appendix A (which did not include any document showing that planning permission had been obtained), its activities would be regarded as lawful and acceptable to UKBA.
54.	The first reason why I cannot accept this contention is that the basis of a legitimate expectation must be a representation which is “clear, unambiguous and devoid of legitimate qualification” (per Bingham LJ in R v IRC ex parte NFK Underwriting Agencies Ltd [1991] 1 WLR 1545, 1569 G which was cited with approval by Lord Hoffmann in R (Bancult) v Secretary of State for the Home Department (No. 2) [2009] 1 AC 453 at 488 [60]).  It is clear that the documents listed in Appendix A are only a minimum list required by UKBA and must be read in the light of the duty imposed upon the claimant to ensure that it operates in accordance with the law.  It is not said in the Guidance that the documents, which had to be supplied were a comprehensive list of UKBA’ s requirements. Indeed, as I have explained, for a sponsor to be granted and to continue to hold a Tier 4 sponsor licence, that company must, in the words of paragraph 324 of the Guidance be liable to checks by a visiting officer of UKBA that it : -
“…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.
55. 	A second reason why I reject this contention is that any condition, such as the one contended for by the claimant, which was that the documents which had to be supplied were a comprehensive list of UKBA’s requirements, must be construed in the context of other conditions.  Lord Hoffmann explained in R (Zequiri) v Secretary of State [2002] UKHL 3 that:-
“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.”
56	The list of documents set out in Appendix A does not fetter the discretion of UKBA to carry out other checks in order to ascertain if a business is trading and operating lawfully in compliance with UK legislation which might be in force at any time.  There can be no question whatsoever of UKBA acting “with conspicuous unfairness” by taking into account the absence of planning permission, especially as it make the use of the claimant’s premises unlawful and because, as I have explained, a sponsor must, in the words of paragraph 324 of the Guidance be liable to checks by a visiting officer of UKBA that it: -“…is trading or operating lawfully in the United Kingdom”.
57	The stark fact is that UKBA is and was entitled, and indeed obliged, to ensure that a sponsor is trading and operating lawfully in compliance with UK legislation if it is to be trusted with ensuring students’ compliance with immigration law.  After all, an organisation, which lacks planning permission, is exposed to enforcement action by a local authority including a temporary stop notice and/or an enforcement notice prohibiting the continuation of the prohibited use.  Clearly such measures would interfere with the operation of the sponsor in a crucial manner and compromise its abilities to comply with its duties.  Very significantly the absence of planning permission is very relevant to the critical issue for UKBA of deciding whether an organisation such as the claimant, was taking its responsibilities seriously and it was therefore an appropriate organisation to be entrusted by UKBA with such responsibilities. 
58	Translated into terms of the Guidance the fact that the claimant did not have planning permission was a sufficient reason in itself for suspending it because it would not have been trading lawfully contrary to the criteria of obtaining a licence which is that it is operating lawfully (paragraph 64 of the guidance). Bearing in mind the dangers of immigration control being infringed and the consequences of it, UKBA was entitled to conclude that the claimant was not taking its responsibilities seriously and that its licence should be suspended at once especially as the claimant could not and indeed it has not made any representations to excuse that absence of the relevant planning permission. The mere fact that the claimant has belatedly applied for planning permission is not relevant to the earlier decision to suspend the claimant.  
59	To sum up in answer to the claimant’s complaints, the stark fact is that the claimant was using its premises unlawfully and there were no representations which the claimant could make in respect of this undisputed fact which could have shown that the claimant was using its premises lawfully. There was urgency required of UKBA because of this unauthorised use by the claimant of its premises. The claimant’s contention that it had a legitimate expectation that there was no need for it to have planning permission of its premises is misconceived.  Thus the claimant’s complaint about UKBA’s reliance on the lack of planning permission has to be rejected.
(iii) The Work Placement Discrepancy at Sunnymeade Residential Home
60	On 21 July 2010 an initial analysis was carried out by the UKBA of the roll call information provided by the claimant, which included the names and addresses for where all its students were undertaking work placements.  One of the individuals referred to was Ms Corrinne Gail Mones a Filipino student, who was according to the claimant gaining work experience at Sunnymeade Care Home in Plymouth, which had the postcode PL6 8AE.  UKBA sent a letter to the manager of this Home on 6 August 2010 asking if Ms Mones was currently in their employ.  The proprietor of that Care Home replied that they had had no dealings with the claimant or with any of its students.   I will return later when dealing with the question of termination to explain subsequent developments. 
(iv) The Work Placement Discrepancies at Aspray Care Home
61	The information provided by the claimant showed that Mr Hosenally Akram Ollite and Mr Ally Ollite were both gaining work experience at the Aspray Care Home, which had its postcode of E10 7EB.  UKBA wrote to the manager of that Care Home requesting information relating to these students and on 11 August 2010 an email was received from Aspray House, which said that neither of the two individuals had undertaken work placements with them, but it did state that it had recently received a letter from the claimant asking for completion of the time sheet for the named individuals along with a work placement agreement letter.  
62	This showed that the information supplied by the claimant to UKBA was incorrect in another respect.  Indeed on 29 August 2010 the claimant sent further representations containing two work placement agreements dated 2 June 2010 from the Manager of Care Elite in Croydon, which confirmed that these two individuals had been placed with them instead.  It is noteworthy that Aspray House confirmed on 16 August 2010 that the claimant had contacted them requesting completed time sheets and work placement agreements for the two individuals on the basis that they had arrived at the care home again after 2 June 2010 and requesting to be placed with them.
63	Mr Grace explained that there is a real risk that students will go missing if they are not properly monitored and it is clear that the claimant had no idea where the three students were doing work experience. This quite clearly was a matter of great importance to UKBA because of its duties to ensure that sponsors like the claimant complied with its duties to ensure that  its students were monitored.
(v) Fairness of Decision to Suspend the Claimant 
64	The case for the claimant is that the common law rules of fairness required that the claimant should have been consulted before the draconian step was taken by UKBA of suspending the claimant’s licence, bearing in mind first  that this decision had serious financial and professional implications for the claimant and second  that the immigration status of its existing students would be put in jeopardy by the suspension of the claimant’s sponsorship licence.  It was pointed out that although the UKBA consulted the claimant’s local authority and five Care Homes, the claimant itself was not consulted.
65	There is no doubt that the UKBA had power to suspend because paragraph 374 of the Guidance provides that:-
“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”. 
66	In this case, Mr Grace explains UKBA’s concern with regard to the accuracy of information provided with regard to students undertaking work placements and that the claimant was trading without planning permission.  He stressed that there was a real risk that students could go missing if they are not adequately monitored and then it thereafter becomes harder to trace them as time passes.  He explained that substantial responsibilities were entrusted to Tier 4 sponsors and that UKBA is concerned to ensure that such institutions are operating and trading lawfully in the United Kingdom.
67	He added in relation to the effect of the claimant not having planning permission that “if an educational institution was shut down at short notice this would increase the risk that students could go missing or increase the number of hours they are working in breach of immigration rules”.  In addition, the absence of planning permission is relevant to the crucial issue for UKBA, which is whether an organisation, which is and was entrusted with obligations as important as those imposed on a sponsor like the claimant, has complied, does comply and will comply with its legal obligations. I conclude that UKBA was entitled to suspend the claimant, especially as there is no basis for challenging the factual basis of that decision, as it is clear that first the claimant was conducting its business in breach of planning permission, and second the claimant had no idea where at least three of its students were doing their work experience and so it could not monitor them. 
68	In reaching that conclusion, I have not overlooked two further submissions made on behalf of the claimant.  The first was that assistance for its submissions can be derived from the decision of His Honour Judge Pelling QC in R (Manchester College of Higher Education and Media Technology Ltd) v Secretary of State [2010] EWHC 3496 (Admin) in which the licence of a sponsor had been suspended on the basis that it had attempted to obtain an increased CAS allocation based on false and misleading information. The judge quashed the decision as being irrational:-
“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”.
69	The facts in the present case are very different because first there was a right to suspend without notice and second even if further enquiries had been made, they would have then shown clearly, as I  have explained  a breach of planning permission and a failure on the part of the claimant to provide adequate information relating to the three students to whom I have referred.
70	The second matter relied on by the claimant, which I do not accept relates to the delay between the completion of the enquiries from Sunnymeade Manor Care Home on 10 August 2010 from Aspray on 16 August 2010 and from London Borough of Newham on 26 and 27 August 2010.  Mr Grace in his written statement explains that the enquiries relating to the claimant formed part of a substantial enforcement operation in Operation Golding and this was to be completed by a comparatively small number of staff on the part of UKBA. I fail to see that even if, which I do not believe to be the case, there was an unreasonable delay on UKBA’s part, this would entitle the claimant to a quashing order especially bearing in mind that they had previously been subject to the Zero Allocation decision. No prejudice relating to the delay has been shown. 
71	So I have to reject the challenges to the suspension decision because UKBA was entitled to take the decision to suspend the claimant because of the seriousness of the breaches, the potential damage to immigration control and the absence of any explanation or justification for the claimant’s failings. For the purpose of completeness, I should add that if the claimant had been given more time to respond to UKBA’s complaints, it would have made no difference as the claimant would have been unable to put forward any acceptable explanation and indeed it could not do so as was shown by what occurred in the period leading up to revocation.
VII. The Revocation Decision
(i) Introduction
72	As I have explained, the Suspension decision letter gave the claimant the opportunity to explain the discrepancies set out in that letter and this was to be done   “before we begin revocation action”.  The claimant was given 28 days to make representations, including submitting evidence in response to the matters set out in the suspension letter in which  it was pointed out that:-
“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.”
73	The claimant responded in a letter dated 29 September 2010 giving information to which I will refer shortly. 
74	UKBA reached the conclusion that it should revoke the claimant’s licence and remove it from the Register of Licensed Sponsors.  The revocation letter sets out the representations in the letter of 30 September 2010 and duly summarised them but, as I will explain, the revocation letter did not specifically refer to the claimant’s letter of 20 October 2010, which is a matter to which I will have to return in paragraph 78 and 79 below.
75	The revocation letter from UKBA had referred to the failure of the claimant to have the appropriate planning permission and the discrepancies relating to the monitoring of students particularly while at work placements.  The revocation  letter from UKBA continued:-
“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.”
76	There was then reference to paragraph 316 and 371 of the Guidance, which set out the right of UKBA to withdraw a sponsor’s licence if it were to fail to comply with any of its duties or if UKBA is not satisfied that the sponsor had been using the processes or procedures necessary to fully comply with the duties.
77	The claimant has contended that there are six reasons why the decision to revoke the licence was unlawful and they are that:-
(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.
78	It is correct that the revocation letter does not expressly refer to this letter, which seeks to explain why the claimant’s register incorrectly stated that Ms Mones’ work placement was at Sunnymeade Residential Home in Plymouth when it should have been at Sunnymeade Manor Care Home in Bristol. Nevertheless Mr Grace confirms that in making the recommendations to revoke the claimant’s licence and in drafting the letter, which was ultimately sent on 2 November 2010 revoking the licence, he had regard to these representations on 20 October 2010.  Mr Steve Lamb, the Regional Operations Director of UKBA, explained that the revocation decision had been authorised by him and that before taking that decision, he had considered the letter of the claimant of 20 October 2010. He also stated that he had considered the draft of the revocation letter with Mr Lee Bartlett, the Deputy Director of UKBA, who has also explained that he confirmed that he agreed with Mr Grace’s account which was that the claimant’s letter of 20 October 2010 had been considered before deciding to revoke the claimant’s licence.
79	The case for the claimant is that this is incorrect and it sought to prove this point by looking at a series of internal emails of the claimant.  I have already explained the principles of law, which apply, and they show that in the absence of clear evidence to the contrary, a court should accept the version of the defendant especially where no application has been made to cross-examine the maker of the witness statement.  No such application has been made in this case and there is no clear evidence to show what Mr Grace said was not correct.  
80	When the decision in McVey to which I have referred in paragraph 27 above was considered by the claimant’s counsel, it was then contended by him that the defendant had not given adequate reasons for the decision to revoke the licence because it had not expressly referred to the letter of 20 October 2010. This contention cannot be accepted, as it is unnecessary in a decision letter to set out all the factors taken into account for reaching a decision but merely the important conclusions on the controversial issues. It is appropriate to remember that the reasons for all decisions in the words of Lord Brown in South Bucks DC v Porter[2004] 1 WLR 1953[36]:-
"… 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”.
81	I should add that there is nothing in the claimant’s letter of 20 October 2010 to undermine the fact that UKBA was entitled to reach that conclusion and that an application for judicial review cannot be used for an appeal on the facts. This letter did not add anything to the material already before UKBA other than to explain why the record keeping was incorrect and that was because the records were inadequate and the staff surprisingly used “Google” to fill in the gaps. The claimant seeks to argue incorrectly in the letter of 20 October210 that planning permission was not a prerequisite for the claimant to continue to be a sponsor.  This material merely showed that the claimants were not complying with its duties as a sponsor.  Thus I reject this complaint.
(iii) Imposition of Lesser Sanctions
82	The basis of this complaint of the claimant is that after the imposition of zero allocation and suspension on the claimant’s licence, UKBA then wrongly concluded that it was appropriate to impose the most severe sanction of revocation.  This submission fails to appreciate the licence was not revoked as a consequence of earlier errors referred to in those early letters but, as was explained in the suspension letter, the claimant had been given 28 days to make representations in response to the warnings in the suspension letter first that UKBA had discovered discrepancies and second that if the claimant had failed to make representations or to adequately address these issues, then its licence would be revoked.  
83	Indeed the licence was revoked (as both the revocation letter and the witness statement of Mr Grace makes clear) because of the claimant’s failure to give an adequate explanation of the discrepancies and the information uncovered as a result of UKBA’s investigation and also because the claimant did not have the necessary planning permission.  
84	As I have explained, the court appreciates that UKBA has expertise, which the court does not have, and in the light of the important issues to which I referred in paragraph 29 (a)–(d) above, it was entitled to terminate the claimant’s sponsorship licence. There is no error of public law in that decision. This ground must be rejected.
(iv) No Warning
85	The case for the claimant is that although there was a warning as to the consequences of failing to reply properly to the suspension letter “there was no initial warning that records needed to be maintained or the licence may be revoked.  UKBA went straight to the sanction of revocation.”
86	The claimant seeks to derive assistance from the London Reading College case in which the judge said :-
“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”.
87	It is abundantly clear that the claimant knew that the maintenance of adequate records was required by UKBA and that this was an important duty.  Indeed paragraph 296 of the Guidance and the Action Plan point for the claimant show that records had to be made available.  
88	Furthermore this was not a case where UKBA immediately invoked the sanction of revocation as the claimant was given the opportunity to explain why the discrepancies in its records and the absence of planning permission as was explained in the suspension letter of 27 September 2010. The claimant failed to take advantage of this offer and did not provide any satisfactory explanation.
(v). Planning Permission
89	As I have already explained in paragraphs 46 to 52, this was a valid concern of the UKBA and although by the time when the revocation decision was taken, the claimant had applied for retrospective permission, it had not been granted and it could not be presumed that it would be successful. So the claimant was using its premises unlawfully. As I have explained, this was a matter which UKBA was entitled to regard as a very serious matter.
(vi) The Incorrect Information about the Two Care Homes
90	The information provided by the claimant entitled UKBA to conclude as it did in the termination letter on this issue that:-
“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”
91	In his witness statement,. Mr. Grace explained that UKBA is responsible for ensuring that immigration rules are adhered to and in this regard, sponsors are required to keep accurate records, and the purpose of such duties was, as set out in paragraph 293 of the Guidance, to “capture early any patterns of student behaviour that may cause concern” and “to monitor compliance with the immigration rules”.
92	Mr. Grace convincingly explains why UKBA was concerned about the failure of the claimant to keep accurate records especially in the light of the substantial responsibilities entrusted to them. In consequence there was a very real risk that students could disappear or take on unauthorised employment if they were not properly monitored. These factors and the absence of planning permission entitled UKBA to terminate the claimant’s sponsorship.
VIII. Conclusion
93	I have come to the clear conclusion that notwithstanding the submissions of Mr. Saifee, this claim has to be dismissed.