QUEENS BENCH DIVISION
Leeds LS1 3BG
B e f o r e :
sitting as a Judge of the High Court in Leeds
| The Queen on the application of
SAN MICHAEL COLLEGE LIMITED
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Alan Evans (instructed by Treasury Solicitor of One Kemble Street, London WC2B 4TS) for the Defendant
Hearing dates: 01st March 2011
Crown Copyright ©
Judge Behrens :
2. 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  EWHC 3004 (Admin) at  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.
3. The Guidance
7. For the purpose of this case the relevant Guidance was that promulgated on 5th October 2009. In the course of the submissions a number of generalised points were made about the Guidance:
8. Paragraphs 277 to 287 of the Guidance set out the Sponsor's duties. These include a duty to keep records (280a), a duty to report events within a specified time limit (280d), a duty not to issue a "Confirmation of Acceptance" ("CAS") or a visa letter unless it is satisfied that the student both intends and is able to follow the course of study concerned (281).
9. A CAS is not an actual paper document but a virtual document similar to a database record (153). It acts as a confirmation from a licensed sponsor that it wishes to bring an overseas student to the UK to study and that to the best of its knowledge that person meets the rules for the assignment of the CAS. UKBA makes the final decision on who is allowed to travel or remain in the UK (161). The CAS scheme was introduced in February 2010. Before that the sponsor issued a visa letter.
10. Paragraphs 127 to 144 of the Guidance deal with Sponsor ratings. Sponsors may be A rated or B rated according to UKBA's assessment of the sponsor's ability to meet its duties. An A rated sponsor is one that has the necessary systems in place to meet its duties and with no evidence of abuse (129). If a sponsor has not fully complied with its duties but has not acted in a way serious enough for UKBA to withdraw its licence it will be awarded a B rating (135) . A B rated sponsor must comply with an action plan within a set time. The plan sets out the steps the sponsor needs to take to fully comply with its duties and obtain an A rating (139). If a B rated sponsor has not improved its performance it risks having its licence withdrawn (138).
11. Paragraphs 328 to 349 of the Guidance deal with the suspension and withdrawal of the licence. If UKBA have reason to believe that a sponsor is seriously breaching its duties and poses a major threat to immigration control (for example issuing visa letters to students who do not qualify to come to the UK) it may suspend the licence whilst it makes further enquiries (328). The Guidance divides the cases where the licence is withdrawn into three categories – those where the licence will be withdrawn (345), those where the licence will normally be withdrawn (346) and those where there is a discretion to withdraw the licence (349). It is common ground in this case that the decision to withdraw was made as a matter of discretion under paragraph 349. Paragraph 336 sets out the principles to be followed in deciding what action to take. In summary UKBA will take all the facts of the case into account. It will consider the seriousness of the sponsor's actions and the harm done, whether the sponsor's actions are part of a consistent or sustained record of non compliance or poor compliance or are a single event, any action the sponsor has taken to minimise the consequences of what it has done.
4. The facts.
Grant, Initial Suspension of and Reinstatement of Licence
"The B Rating will remain in place for 1 month, after which time we will expect you to demonstrate that the processes you now have in place work effectively and fully meet the PBS requirements. Should you fail to demonstrate that you have implemented the action plan within this time frame your licence will be revoked.
We expect your organisation to meet the requirements of the action plan in the areas of :
- Migrant Tracking and Monitoring
- Record Keeping"
Mark Taylor's Involvement.
The visit dated 20th July 2010.
The request and supply of information.
Analysis of Information supplied by Mr Umoh
The visit on 27th August 2010
The letter of suspension
1. Failure to notify UKBA timeously. Three examples were given. In each case there was a significant delay between the expiry of the visa (in the autumn of 2008) and the report (which occurred between February and July 2010)
2. Failure to track students on work placements. Two examples were given where there were no up to date contact details or inaccurate details of work placements
3. Inconsistent record keeping. One example was given where differing accounts were given in respect of one student.
The letter of 27th September 2010
The revocation of 15th October 2010
1. The failure to provide any adequate explanation or evidence relating to the actual numbers of visa letters issued
2. The fact that a large number of individuals entered the UK on the basis of the visa letters and did not attend the college, thereby contributing to the 22.9% non attendance rate at the college and UK immigration control problems relating to the number of students not meeting the conditions of their leave.
3. The college were given the opportunity to make improvements when they were B rated in June but despite implementing new processes still had issues with data accuracy, monitoring students on their work placements etc.
5. Submissions and Discussion
1. The reliance on historic failures that pre-date the action plan.
2. The failure by SSHD/UKBA to substantiate the serious allegation of deception in respect of the 526 undeclared visa letters.
3. The reference to the 80% attendance rate when this rate never formed part of the action plan or the published Guidance.
5.1 Historic failures
5.2 Failure to substantiate the allegations in respect of the 526 undeclared visa letters.
5.3 The reference to 80% attendance.
35. In terms of reporting does the UK Border Agency still work to 80% attendance?
No. This is no longer a requirement. Instead, Sponsors are required to report if a migrant misses ten expected contacts. Equally if a sponsor judges that a student is no longer attending before they miss 10 expected contacts they should report this to UKBA.
36. Do students have to miss 10 CONSECUTIVE days or can those days be sporadic before sponsors are required to report the absence to the UKBA?
You must report to UKBA when the student misses 10 expected contacts consecutively. The frequency of this contact will depend upon the type of course and the level of study. However if you consider that a student is no longer participating in their study you do not have to wait until the student misses 10 expected contacts. You can report to the UKBA sooner than this but 10 is the maximum limit before reporting
Assessing the intentions and credibility of a prospective students is a core sponsor obligation. Given the fact that 22.9% of your students are not attending, a further 51% are failing to attend for at least 80% of the time and that 222 students applying for your institution have been refused leave from entry clearance posts abroad we are not satisfied that you have robust procedures in place.