England and Wales High Court (Administrative Court) Decisions

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

		Leeds Combined Court 1 Oxford Row Leeds LS1 3BG
		3rd April 2012

MR JUSTICE HICKINBOTTOM:

1. The Claimant is a college, established in 2002 to provide educational courses for students from non-European Union countries.
2. In 2009, on behalf of the Secretary of State, the United Kingdom Border Agency ("UKBA") established a points-based system for controlling the entry of various categories of person into the United Kingdom. Tier 4 of the system applied to non-European Union nationals who wished to study in the United Kingdom. To obtain a Tier 4 student visa, and hence leave to enter or remain, a student needed first to obtain a written confirmation of acceptance of studies ("CAS") from their prospective education provider. In order to issue CASs, a college was required to be in possession of a Tier 4 sponsor licence, issued and monitored by UKBA. Thus, to that limited but significant extent, UKBA effectively delegated immigration control functions to colleges of education.
3. The licence system is operated under a UKBA guidance document, which has been subject of frequent revisions and amendments, entitled "Tier 4 of the Points-Based System - Policy Guidance" to September 2011 and "Guide to Sponsoring Students under Tier 4 of the Points-Based System" thereafter. There were 15 versions of the guidance in just over three years between July 2008 and September 2011.
4. Version 04/11 of that guidance applied from 21 April 2011 ("the April 2011 guidance"). It provided for three categories of sponsor licence status: highly trusted status, A-rated status and B-rated status. Paragraph 15 explained that B-rated status would normally be given to an organisation on a time limited basis and be subject to an action plan, setting out steps required by the licence holder to obtain or regain A-rated status. Depending on the success in compliance with that plan, at the end of the appropriate period, the licence would be re-rated with an A-rating or revoked.
5. It was therefore expressly envisaged that some breaches of the requirements of the scheme by a sponsor college could be dealt with by downgrading licence status from A- to B-rating, coupled with an action plan as I have described. Nevertheless, a breach of the requirements by a sponsor college could lead, not to downgrading, but rather to revocation of a licence. Thus, paragraph 17 of the April 2011 guidance provided as follows:

"When we consider that you have not been complying with your duties, have been dishonest in your dealings with us or otherwise pose a threat to immigration control, we will take action against you. The action we take can result in your licence being revoked, suspended or downgraded to an A-rating or a B-rating and/or a reduction in the number of [CASs] you are allowed to assign. If we decide to take action against you, we will give you an opportunity to explain your case to us."

Paragraph 354 was expressed in similar terms.

6. Licence revocation was dealt with in paragraphs 408 and following in the Guidance. Paragraph 409 set out a number of circumstances in which the licence would be revoked with immediate effect. Paragraph 411 set out circumstances in which the licence might be revoked, including where "any of your level 1 or level 2 users disclose their SMS password to another person", to which I shall return. There was also a catch-all provision giving UKBA a discretion to revoke where "you [the college] fail to comply with any of your duties."
7. Of the discretionary circumstances set out in paragraph 411, the following paragraphs provided:

"412. We cannot define precisely in which exceptional circumstances we may not revoke your sponsor licence, when one of the above circumstances applies. However, we regard this seriously and would look for evidence that you are either not responsible for what happened or, if you were, you took prompt and effective action to remedy the situation when it came to light. For example, if one of your employees was wholly responsible for the dishonesty and that person was dismissed when it came to light.

413. If any of the circumstances in paragraph 411 arise and we believe that the evidence we have shows that you are breaching your duties and/or pose a threat to immigration control, we will suspend your licence ....

414. If any of the circumstances in paragraph 411 arise and we do not believe it is necessary to suspend your licence, we are likely to downgrade you to a B-rating ...."

8. In other words, if a sponsor college failed to comply with the requirements of the scheme, then it was open to UKBA to revoke or suspend the licence, or downgrade it temporarily to a B-rating on the basis of an action plan, designed to see whether return to A-rating or revocation was the appropriate longer term course. However, the guidance indicated that, if there were a failure to comply, a college should expect to have its licence revoked, in the absence of "exceptional circumstances".
9. A new version of the licence was issued on 5 September 2011 (Version 09/11, "the September 2011 guidance"). Some provisions remained substantially unaltered. For example, paragraphs 524-5 effectively replicated paragraphs 411-2 of the April 2011 guidance.
10. However, a fundamental change was made in that, subject to transitional provisions to which I shall also return, B-rating was abolished, leaving only highly-trusted and A-rated sponsor status (see paragraph 237). From 5 September 2011, although it continued to be open to UKBA to suspend the licence rather than to fully revoke a licence, temporary downgrading to B-rating was no longer an option.
11. The facts giving rise to this claim are to a large extent uncontroversial.
12. On 26 March 2009, the Claimant applied to UKBA for a Tier 4 sponsor licence. Following an inspection by UKBA officers. it was awarded an A-rated licence on 16 June 2009. At that time Version 03/09 of the guidance ("the March 2009 guidance") applied.
13. On 16 June 2011 (when the current guidance was the April 2011 guidance), UKBA officers visited the Claimant's premises, where they undertook an extensive review of the Claimant's systems and procedures. At that time, the college had about 470 students and 25 members of staff.
14. On 23 June 2011, UKBA wrote to the Claimant with notification of its decision to suspend its Tier 4 sponsor licence with immediate effect. The letter identified eight issues which were said to raise concerns about whether the Claimant was fully compliant with its duties as a Tier 4 sponsor, and gave 28 days for a response.
15. Through solicitors, the Claimant responded to each of the points raised in a letter dated 21 July. The letter also purported to be a pre-action protocol letter before claim, in which the Claimant said that it would commence judicial review proceedings unless the licence was reinstated. It had at that time of course only been suspended.
16. On 1 August, UKBA responded to the Claimant's letter, indicating that a decision on the Claimant's representations would be made by 19 August 2011, whereupon the Claimant's Tier 4 licence would be either reinstated or revoked. However, by a letter of 10 August, UKBA requested further information in respect of certain students enrolled with the Claimant to which the Claimant responded through solicitors on 22 August.
17. By a letter dated 30 September 2011, UKBA notified the Claimant that it had decided to revoke its Tier 4 sponsor licence with immediate effect. The September 2011 guidance having come into effect earlier that month, that decision to revoke was made under that guidance.
18. In that letter, UKBA acknowledged that the Claimant had given a satisfactory response in relation to four out of the eight areas of concern raised in the suspension letter. The remaining issues of concern upon which UKBA decided to revoke the licence were as follows.
19. First, the Claimant had failed to notify UKBA through the Sponsor Management System ("the SMS") that a particular student had had her sponsorship withdrawn. The SMS is an electronic system run by UKBA, described in paragraph 195 of the April 2011 guidance thus:

"This system allows you [the sponsor college] to carry out your day-to-day activities and report to us changes to your organisation, for example a change of address. It also allows you to assign CASs and to fulfil your reporting duties in respect of your sponsored students."

20. The Secretary of State accepted that the Claimant had notified UKBA by post that the particular student was no longer sponsored. The criticism was that the prescribed method of notifying the withdrawal of sponsorship (i.e. through the SMS) had not been used.
21. Second, although the Claimant had provided details of how it had recently installed an electronic system known as "the College Management System" ("the CMS") to monitor student attendance, it had not provided any documentary evidence to show that it had previously complied with its requirements under the guidance to monitor such attendance.
22. The third point again concerned the SMS. Paragraph 196 of the April 2011 guidance stated:

"We call a person who has access to the SMS a 'user'. The SMS allows users two different levels of access - level 1 user and level 2 user. The level determines the type of access (permissions) the user has to the system, and the functions the user can perform."

23. The guidance makes clear that particular specific checks (including a Police National Computer check) will be made in respect of any person before his or her authorization as a level 1 user (paragraph 59 of the March 2009 version of the guidance, reiterated through all relevant subsequent versions).
24. Dr Harun ur Rashid Quadi, the principal of the college, was the Claimant's only level 1 SMS user. In his administrative duties, he was out all material times assisted by Ms Kasmin Khan, the college's marketing and recruitment manager. She was a level 2 user. However, Dr Quadi had shared his level 1 user password with Miss Khan, who had, with it, issued approximately 300 CASs. The issue of CASs was a function that was restricted to level 1 users.
25. The suspension letter said:

"During the visit, it was discovered that you have shared your SMS password with unauthorised users. Your marketing and recruitment manager, Ms Kasi Khan, confirmed that although she had been set up on SMS as a level 2 user, she had been instructed never to use her own login details but to use those belonging to you. Ms Khan further confirmed that she had issued approximately 300 CASs using your password ...".

26. That was an allegation relied upon in the revocation letter. The Claimant accepts Ms Khan was given and had used the level 1 password, and now concedes that she ought not to have done so.
27. The fourth and final point relied upon in the revocation letter was that the Claimant had failed to monitor the immigration status of one particular student, Ms Akua:

"The college has clearly failed in this regard as this student has held no valid leave from 31 July 2010, the leave she did have at the time did not confer the right for her to study at the Central College of London, and therefore she was enrolled without the right to study there. She was subsequently refused leave to remain on 19 August 2010 and failed to submit an appeal against that decision. She should have left the UK at that point."

28. The circumstances relating to Ms Akua are described in paragraphs 1-6 of Dr Quadi's statement of 14 January 2012. He explains that the college and its solicitors misunderstood the immigration status of Ms Akua, believing that she had leave to remain pending the final determination of her application for leave and any appeal. As the Claimant now accepts, she did not have such a right; because her application was made at a time when she did not have existing leave to remain and, in those circumstances, her appeal did not automatically extend that leave.
29. As I have already indicated, at the relevant time the college had several hundred foreign students. The revocation of its licence had a devastating impact on its business. Without a sponsor licence, it could not issue CASs and, given that it provided education only to non-European Union students, it could not sensibly continue to trade. The revocation also of course had a profound impact on the students themselves, who no longer had an effective sponsor for Tier 4 purposes. In those circumstances, after a period of grace, unless a student could find a new sponsor, then his or her leave to remain in the United Kingdom would come to an end.
30. The Claimant considered that the revocation of its sponsor's licence was procedurally defective in a number of ways, and was an unwarranted and disproportionality response by UKBA to the infringements of sponsor obligations under the Tier 4 points-based system that had been identified and maintained in the revocation letter; and it commenced this claim on 12 October 2011, seeking to challenge UKBA's decision to revoke the licence.
31. Permission was refused on the papers by Timothy Straker QC, sitting as a Deputy High Court Judge, on 7 November 2011. The Claimant, following a change of legal representatives, issued a notice of renewal, lodged by the new team on 14 November 2011.
32. At the oral hearing on 19 January 2012, Nicol J refused permission on all grounds save one, namely that the revocation was arguably an interference with the Claimant's rights under Article 1 of the First Protocol to the European Convention on Human Rights ("A1P1"). His refusal of permission on the other grounds has not been challenged elsewhere, and consequently holds good.
33. In relation to the ground for which permission had been granted and prior to that grant, on 7 April 2011, in R (New London College) v Secretary of State Home Department [2011] EWHC 856 (Admin), Wyn Williams J had held that the revocation of a Tier 4 sponsor licence did engage A1P1. However, on that issue he was reversed on 2 February 2012 (after Nicol J had given permission in this claim), when the Court of Appeal (Mummery, Richards and Rimer LJJ) held that A1P1 is not engaged in such a case, unless there is an adverse effect on the goodwill of the college's business in the economic sense of the capitalised value of the business as a going concern ([2012] EWCA Civ 51). As I understand it, the college in that case is seeking permission to appeal to the Supreme Court – but, in the light of the Court of Appeal's judgment, Mr Banner for the Claimant before me properly accepted that he could not pursue the A1P1 ground in this court, because I would be bound to follow the Court of Appeal in New College. He consequently conceded that I am bound to dismiss the application for judicial review on the sole ground upon which the Claimant has been given permission to proceed.
34. However, the Claimant, through Mr Banner, sought to recast its complaint that the revocation of its licence was unwarranted and disproportionality, in what might be described as "domestic" (as opposed to European Human Rights) grounds; and sought permission to amend its grounds so to do. By my order of 28 February, I adjourned consideration of the application to amend to include these two new grounds to be considered at the substantive hearing in respect of the A1P1 ground, which was still then on foot and set down for hearing on 15 March 2012. At that hearing, the proposed new grounds evolved further and, having heard full argument on some, I adjourned to enable Mr Banner to set out his proposed new grounds comprehensively and in final form; and to allow Mr O'Brien, on behalf of the Secretary of State, a proper opportunity to consider those grounds and respond.
35. Consequently, today I have before me a rolled-up hearing of the Claimant's application to amend to include the new grounds, and for permission to proceed on those grounds; and, if those applications are successful, the hearing of the substantive judicial review itself.
36. Mr Banner seeks to rely on four new grounds as follows:

(i) The Tier 4 sponsor guidance created a legitimate expectation that UKBA would respond to breaches of sponsor duties in a proportionate manner, the revocation of the Claimant's licence being disproportionality and in breach of that legitimate expectation.

(ii) The revocation of the Claimant's licence was so draconian as to be irrational.

(iii) In making the decision to revoke the licence, UKBA wrongly applied the September 2011 guidance, rather than the April 2011 guidance; and consequently failed to take into account a material consideration, namely the option of downgrading the Claimant's licence to B-rating (which was available under the April 2011 guidance, but not the later guidance).

(iv) If the September 2011 guidance applied, the Secretary of State erred in law by (a) delaying a decision until after that guidance had become effective, and (b) making a decision under that guidance without giving the Claimant an opportunity to make representations under it, as opposed to representations under the April 2011 guidance.

I deal with those grounds in turn.

37. However, the first two additional grounds (legitimate expectations and Wednesbury unreasonableness) can usefully be considered together. They each seek to capture the same essential point as the A1P1 ground, namely that the revocation of the licence was an unjustified overreaction by the Secretary of State; but they are couched in domestic law terms, rather than by reference to Convention rights.
38. The starting point for these grounds are the propositions, accepted by Mr Banner, that the decision of UKBA to revoke the Claimant's licence can only be challenged on usual public law grounds: and, in domestic law, "disproportionality" is not a discrete ground upon which the decision of a public body can be challenged (R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696).
39. However, Mr Banner submitted that, where, in breach of a regulatory scheme for which a public body is responsible, the decision of that public body is in the form of an unwarranted and disproportionality response to action taken by a particular citizen or corporation, then the decision may fall within one of the recognised grounds for judicial review. In this case, he submitted the decision did; because it was in breach of a legitimate expectation engendered in the Claimant by the guidance to which I have referred, and it was irrational in the sense of being Wednesbury unreasonable.
40. As a general proposition of law, I accept that a decision of a public body, which may be regarded as a disproportionality response to actions of a person subject to a regulatory scheme, may be unlawful as properly falling within the scope of one of the recognised grounds of challenge in public law. However, I do not consider that the decision to revoke the Claimant's licence, in this case, arguably does fall within such scope.
41. With regard to legitimate expectation, Mr Banner submitted that the April 2011 guidance created in the Claimant a legitimate expectation of a proportionate response to breaches of its obligations. If it did, then that of course begs the question why that expectation was relied upon neither as a domestic alternative to the A1P1 ground relied upon before Nicol J, nor indeed until after the Court of Appeal's determination against that ground in the New College case. However, putting that question to one side, to found a claim for legitimate expectation, there must be a commitment by the relevant public body, engendered by a representation, promise or practice. That commitment must be "clear, unambiguous and devoid of relevant qualification" (R v Inland Revenue Commissioners ex parte MRK Underwriting Agents Ltd [1991] WLR 1545, at page 1569F). Whether the commitment is sufficiently clear depends upon all of the circumstances of a particular case. In some cases that question may be a difficult one to answer. But this is not such a case.
42. The guidance does not refer to "proportionality" at all. It indicates that, where there are discretionary grounds for revocation of a licence, revocation can be expected in all but "exceptional circumstances", that precise phrase being found both in the April 2011 guidance (see, e.g., paragraph 412) and the September 2011 guidance (paragraph 525). On a fair reading of either guidance, the message is clear. For any infraction of the requirements imposed by the guidance upon a Tier 4 sponsor, revocation of the licence is likely and to be expected; it will not be revoked only in exceptional circumstances. At the very least, the guidance clearly reserves to UKBA a wide discretion as to when a licence will be revoked. The width of that discretion has been noted by this court in previous cases (see, e.g., R (London Reading College) v Secretary of State Home Department [2010] EWHC 2561 (Admin) in particular at [60], and R (Westech College) v Secretary of State for the Home Department [2011] EWHC 1484 (Admin), at [19]).
43. The reason for that wide margin of discretion, even where the direct consequences of the breach may appear to be limited, has also been marked. As I said in R (London Ambassador College) v Secretary of State Home Department [2011] EWHC 1696 (Admin) at [17]:

"[The scheme] effectively imposes an obligation on a sponsoring college to ensure that it has processes and procedures in place to enable the Secretary of State to satisfy herself (through UKBA) that the college is complying with its substantive duties."

As a result, where there has been a breach of obligation in respect of (e.g.) documentation recording leave to remain expiry dates, a licence may be revoked even where there is no evidence of particular adverse consequences in the form of (e.g.) students actually going missing; because the scheme requires processes and procedures in place that ensure compliance, and reduce the potential for misuse and abuse of the immigration powers effectively delegated by the Secretary of State to the sponsor colleges.

44. With regard to sanction for any particular breach, the scheme requires UKBA to assess the appropriate penalty, because it has particular expertise so to do (a point particularly made by Silber J in Westech, at [84]). This court will be cautious when considering replacing UKBA's assessment of appropriate sanction with its own. It will only do so when the sanction is so disproportionality that no reasonable authority would impose it for the relevant breaches, or if it amounts to some other breach of public law. For the position to be otherwise would be to bring in disproportionality as a discrete ground of public law challenge by the back door.
45. Furthermore, a commitment to consider a sanction "proportionately" cannot be considered in a vacuum: it has to be looked at in proper context. UKBA considered this case in the proper context of the guidance, fairly read. That guidance required any sanction to be in accordance with the scheme of the guidance itself, and to fall within the generous bounds of UKBA's discretion allowed by the Wednesbury test. The guidance could not arguably have given rise to any commitment to dealing with a matter "proportionately" in any other sense.
46. The decision to revoke the licence was unarguably made in accordance with the guidance as properly construed, and within the boundaries of UKBA's discretion; and, consequently, it is not arguable that the decision to revoke the Claimant's licence breached any legitimate expectation.
47. The merits of the second proposed new ground are, in my view, no better. The ground is phrased in terms that the decision was "so draconian as to be irrational". It is clear that this is again based upon a complaint of disproportionality. However, to avoid falling foul of the principle in Brind, it must be "disproportionality plus"; i.e. to succeed, the disproportionality must render the decision irrational or unreasonable in a Wednesbury sense.
48. However, this case falls well short of that high threshold. The breaches of obligation were multiple: the college's principal had divulged a confidential password without authorization, one student had been without leave to remain for the entire period of her study, another student's non-enrolment had not been duly notified, and the Claimant neither recorded students' expiry dates nor reported non-attendance as required by the guidance. The guidance makes clear that any breach of a sponsor's obligations would probably result in revocation.
49. In respect of consequences of those breaches, Mr O'Brien for the Secretary of State submitted that they were not insubstantial. For example, Ms Khan used the level 1 SMS password to issue 300 CASs, and the Secretary of State does not accept that she performed this function in every case simply as a computer in-putter for Mr Quadi. However, even if the consequences of the infractions might be considered relatively minor, there were four separate failures, suggesting a substantial failure in systems or processes. The revocation of a sponsor licence will inevitably have a severe impact upon the students involved. Neither the relatively minor consequences of the breaches, nor the severe consequences for both the Claimant and its students, can arguably be described as "exceptional circumstances", in this context. The decision to revoke may be regarded as harsh by the Claimant; but it cannot arguably be considered irrational.
50. For those reasons I do not consider that either of these first two new grounds is arguable.
51. As to the third ground, Mr Banner submitted that UKBA wrongly applied the September 2011 guidance to the decision to revoke the licence because, as a matter of construction, the September guidance only applied prospectively to a case in which the Tier 4 sponsor's licence was suspended after 5 September 2011. The Claimant's licence was suspended on 23 June 2011. The decision as to what action to take against the Claimant ought to have been taken under the April 2011 guidance. That guidance required consideration of whether the licence ought to be downgraded to B-rating, with an action plan. As that option was not considered, the decision to revoke was unlawful because that option was a material consideration which was not taken into account.
52. As a general rule, it is now well established that the Secretary of State is entitled to change her policy or guidance in relation to how her discretion will be exercised in immigration matters; and, where she does, unless it specifies to the contrary, the new policy or guidance will be applicable to all applications including pending applications which have been made but not decided (Odelola v Secretary of State Home Department [2009] UKHL 25) and also all processes begun but not completed (R (New London College v Secretary of State Home Department [2012] EWCA Civ 51 at [19] and [77].
53. In relation to the relevant change from the April 2011 guidance to the September 2011 guidance (i.e. withdrawal of the B-rating option), what is there (if anything) to indicate such a contrary intention?
54. In support of those submissions, Mr Banner relied upon wording from both the April 2011 and the September 2011 guidance.
55. In relation to the former, he referred to paragraphs 420 and 421 guidance which, under the heading "Process we will follow in deciding what (if any) action to take", states:

"420. ... We will first consider downgrading your licence...

421. If we suspend your licence the process will then continue in one of the two following ways ..."

Those two ways of proceeding ways include, of course, consideration of temporary downgrading to B-rating with an action plan. Mr Banner submitted that "will" indicated an imperative; and the passage quoted was a clear indication that, once a suspension had been made under the April 2011 guidance, it was locked into the procedures of that guidance, including consideration of downgrading as an option.

56. In relation to the September 2011 guidance, he referred to paragraph 514 which, under the heading "Process we will follow if we suspend your licence", says: "We start from one of two positions." In the following paragraphs, the future tense is used for the process to be followed. Throughout the September 2011 guidance, the process is expressed in a prospective manner. That, he submitted, confirms the trigger point for the process, i.e. the suspension. It is the fact of suspension that locks the process into a particular procedure.
57. However, I am entirely unpersuaded by those submissions.
58. As I have indicated, decisions by UKBA will usually be made in accordance with the guidance at the time of the decision, even where an application or process was begun at the time of a earlier guidance document. I do not consider that simply by using the use of the word "will" and the future tense, the relevant April 2011 guidance was intended to, or did, bind future Secretaries of State to the post-suspension process set out in that guidance, once a suspension had been effected. That would be very unlikely and, in my judgment, is not a true construction of the words used, looked at in full context.
59. In considering whether it was intended that the earlier guidance continues to apply, in my view, the focus needs to be on the new guidance not the old. Despite the wording to which Mr Banner referred, it seems to me clear that the September 2011 guidance was intended to apply to all applications and processes in which decisions were made, whether new or pending, except where the earlier procedure was expressly retained.
60. In coming to that conclusion, I particularly take into account the transitional arrangements in the September 2001 guidance relating to cases in which an A-rated licence has been downgraded to a B-rated licence and an action plan imposed, which provisions allow the sponsor an opportunity to comply with that plan and re-attain a rating (see paragraphs 249 and following). Not only are there no such provisions where an A-rated licence had been suspended but there had been no downgrading to a B-rating by 5 September 2011, it seems to me that the transitional provisions that are set out in paragraphs 249 and following would be otiose if, on a true construction of the two sets of guidance, the April 2011 guidance procedures applied in all cases which had been triggered simply by a suspension before 5 September 2011. Furthermore, in paragraph 285 of the September 2011 guidance, it is provided as follows:

"If you already have highly-trusted sponsor status and apply to renew it before 5 September 2011, we will decide it against the guidance in place before that date."

That is a clear provision in relation to a circumstance in which the earlier guidance would continue to apply. There is a notable absence of any such provision in relation to circumstances in which a suspension had taken effect but no downrating to B-rating had been made before 5 September 2011.

61. In my judgment, the intent of the September 2011 guidance is clear: unless there had been a suspension followed by a downrating to B-rating before 5 September 2011, the provisions of the new guidance (without the option of B-rating and an action plan) applied to the post-suspension procedure.
62. For those reasons, I do not consider that the third ground is arguable.
63. The fourth and final new ground is based upon the premise that the September 2011 guidance does apply. The ground has two limbs, each based upon the fact that the procedure was commenced and pursued under that guidance. Mr Banner submitted that, first, for the Secretary of State to delay making a decision until after the September 2011 guidance had become effective on 5 September 2011 (ten-and-a-half weeks after the suspension), thereby eliminating the possibility of a B-rating licence and action plan, was "conspicuously unfair and/or an abuse of power"; and in any event, second, it was procedurally unfair for UKBA to have made its decision to revoke under the new guidance without giving the Claimant an opportunity to make representations under that new guidance.
64. However, there is no evidence that UKBA delayed making a decision in this case, so that the Claimant would be denied the opportunity of having a decision made under the perhaps less onerous April 2011 guidance. The final representations from the Claimant were made on 21 August 2011, and the guidance gave UKBA 28 days from that date in which to consider and decide on sanction, i.e. by 18 September 2011. That was after the September 2011 guidance came into effect, on 5 September. Although the decision was not in fact made until 30 September, the delay from 18 September to 30 September 2011 was immaterial for these purposes.
65. It comes as some comfort that there is no significant unfairness to a sponsor in UKBA taking into account the latest guidance when it determines sanction for breach of a sponsor's obligations, as in this case. There was no representation that the guidance would remain unaltered. Far from it. As I have described, revisions to the guidance were very frequent, and sponsors were or ought to have been aware of the possibility of changes. Paragraph 487 of the April 2011 guidance said, in terms: "We may amend it [i.e. the guidance] at any time". There was no obligation upon the Secretary of State to notify any sponsor college of any individual change in the guidance that might affect it in any specific way; indeed, there was an obligation upon the college to keep up-to-date with the changes that were made from time-to-time.
66. Mr Banner submitted that UKBA ought to have given the Claimant an opportunity to make further representations under the September 2011 guidance, and in particular representations as to sanction given that the option of a downgrading to B-rating had been removed. There were other options open, for example, a reduction in the number of CASs; specific representations could have been made in respect of these. However, given the obligation on the college to keep up-to-date with changes to the guidance, it seems to me that the Claimant did have a fair opportunity to make such representations, if it had wished to do so. It could of course have made representations in respect of these alternatives at the outset, because they were available under the April 2011 guidance. But, in any event, the Claimant could have made further representations after 5 September 2011; as I have indicated, the Claimant was under an obligation to keep abreast of changes to the guidance from time-to-time. The terms of paragraph 515 of the September 2011 guidance, which restricted time for representations to 28 days, is not in point because under those provisions the Secretary of State had a discretion to extend that period upon request, if she was satisfied that there were exceptional circumstances. In this case it was certainly open to the Claimant to make those representations, and to submit that the change in guidance amounted to an exceptional circumstance for those limited purposes. The Claimant chose not to do so.
67. Mr O'Brien submitted that in any event it did not matter whether the decision was taken under the April 2011 or September 2011 guidance because Mr Richard Newsome, a Higher Executive Officer of UKBA, in a witness statement dated 28 March 2012, indicated that the decision would have been bound to have been the same in any event. However, I do not accede to that submission. It is not necessary for me to do so to determine the issues before me, and in my view Mr Newsome's statement may not go as far as stating unambiguously that the result of the application would have been bound to have been the same under either scheme. Although in paragraph 23 of his statement, Mr Newsome indicates that both the number and seriousness of the Claimant's failings meant that downgrading would not have been appropriate in any event, in paragraph 25 he suggests that, wherever there were two circumstances identified from the list in paragraph 411, it would be "virtually inconceivable that a licence would be downgraded" alone. I am not persuaded that Mr Newsome's evidence is sufficient for me to conclude that, at the relevant time, the decision would inevitably have been the same had it been made under the April 2011 guidance, with the option of downgrading to a B-rating being available.
68. However, for the reasons I have given, this decision to revoke falls very far short of being "conspicuously unfair" or an "abuse of power"; nor is it based upon any procedural error such as to amount to an error of law. I do not consider either limb of this fourth ground to be arguable.
69. As I have indicated, the only extant ground for which the Claimant obtained permission from Nicol J was the A1P1 ground which, in the light of the New College case is not being pursued before me. The Claimant seeks permission to amend to rely upon four new grounds. For the reasons I have given, I do not consider any of those new proposed grounds to be arguable.
70. Consequently, without needing to consider the issue of delay, I shall refuse the application to amend; and formally refuse the substantive application for judicial review that is before me.
71. I give permission for this judgment to be referred to in other proceedings.