England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		1 March 2013

Mr Justice Supperstone :

Introduction

1. The Claimant, Manchester College of Accountancy & Management, is a private educational institution. It held a Tier 4 General (Student) Sponsor Licence ("the licence") issued by the United Kingdom Border Agency ("UKBA"), which enabled it to issue a confirmation of acceptance for studies ("CAS") to students who wished to study in the United Kingdom. The licence was suspended on 14 February 2012, and revoked on 2 April 2012. This is a claim for judicial review challenging the decisions of the Defendant, acting through UKBA, to suspend and revoke the Claimant's licence.
2. On 23 February 2012 the Claimant filed an application for permission to apply for judicial review of the Defendant's decision of 14 February 2012 to suspend the licence. The Claimant made representations to the Defendant on 15 February 2012, 7 March 2012 and 9 March 212. The Defendant responded to the representations by letter dated 12 March 2012. Thereafter, following a further compliance visit at the Claimant's premises on 26 March 2012, the Defendant made a decision on 2 April 2012 to revoke the licence.
3. On 23 May 2012 His Honour Judge Pelling QC, upon the Claimant's undertaking, inter alia, not to issue a CAS to anyone in any circumstances, granted the Claimant interim relief, prohibiting the Defendant from giving effect to the revocation of the Claimant's licence until the determination of these proceedings or further order.
4. On 6 September 2012 His Honour Judge Gilbart QC granted permission to apply for judicial review.

The issues

5. There are three grounds of challenge:

i) That the reliance by the Defendant upon the Tier 4 Points Based System Sponsor Guidance ("the Guidance") to suspend and/or revoke the Claimant's licence is unlawful (Ground 1).

ii) (a) That the procedure by which the decisions were taken to suspend and revoke the Claimant's licence is unlawful, unreasonable and unfair; and (b) the decisions are Wednesbury unreasonable (Ground 2).

iii) That the Claimant is entitled to damages on account of the economic losses suffered following the suspension and revocation of the licence (Ground 3).

Reliance on the Guidance to suspend and revoke the licence is unlawful (Ground 1) and the Claimant is entitled to damages (Ground 3)

6. Mr Rashid Ahmed, for the Claimant, accepts that by reason of the decision of the Court of Appeal in R (on the application of New London College Ltd) v Secretary of State for the Home Department [2012] EWCA Civ 51 Grounds 1 and 3 must necessarily fail. However the Supreme Court has granted permission to appeal on the "Pankina/Alvi ground". Mr Ahmed reserves his position to argue Grounds 1 and 3 further if the decision of the Supreme Court permits him to do so.

The procedure by which the decisions were taken to suspend and revoke the licence is unlawful, unreasonable and unfair; and the decisions are Wednesbury unreasonable (Ground 2)

The legislative framework

7. The Immigration Act 1971 ("the Act") provides by section 1(2) that persons not having the right of abode may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by the Act.
8. Section 3(1) provides that, except as otherwise provided by or under the Act, where a person is not a British citizen he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, the Act; he may be given leave to enter (or, when already there, leave to remain) either for a limited or for an indefinite period, and if he is given limited leave to enter or remain, it may be given subject to conditions restricting his employment and studies in the United Kingdom.
9. A new Points Based System was introduced with effect from 31 March 2009. Under the Points Based System, applications for entry clearance or leave to remain as a student are assessed in accordance with the provisions of Part 6A of the Immigration Rules applying to a "Tier 4 (General) Student".
10. Paragraph 245ZU of the Immigration Rules requires that all migrants arriving in the UK and wishing to enter as a Tier 4 (General) Student must have a valid entry clearance for entry under this route. To qualify for entry clearance as a Tier 4 (General) Student, an applicant must meet the requirements listed in paragraph 245ZV.
11. Paragraph 113 of Appendix A states that an applicant for entry clearance or leave to remain as a Tier 4 (General) Student must score 30 points. Available points are shown in Table 16, which awards 30 points for a Confirmation of Acceptance for Studies ("CAS"). Paragraph 6 of the Immigration Rules defines a CAS as "an authorisation issued by a Sponsor to an applicant for entry clearance, leave to enter or remain as a Tier 4 Migrant in accordance with these Rules".
12. Tier 4 students who require leave to enter or remain in the UK must be "sponsored" by an institution with a Tier 4 (General) Student Sponsor Licence, at which he or she intends to study. Only those institutions that are approved by the Defendant as a "sponsor", may issue a CAS and thus act as a sponsor for the purposes of the Rules.
13. Paragraph 6 of the Immigration Rules defines "sponsor licence" as "a licence granted by the Secretary of State to a person who, by virtue of such a grant, is licensed as a Sponsor under Tiers 2, 4 or 5 of the Points Based System"; and "sponsor" is defined as "the person or Government that the Certificate of Sponsorship Checking Service or Confirmation of Acceptance for Studies Checking Service records as being the sponsor for a migrant".
14. The Defendant's practice in relation to the grant, suspension and withdrawal of such a licence is set out in guidance issued by UKBA.
15. The Tier 4 Points Based System – Sponsor Guidance (valid from 5 September 2011) sets out duties that are specific to sponsors under Tier 4 and provides, inter alia, that:

"Sponsor Rating

249 Under the guidance in place before 5 September 2011, it was possible for some sponsors to be B-rated. This was either because we had concerns about their ability to meet all of their sponsor duties or because they had interim accreditation from one of the previously approved accreditation bodies…

250 If you are B-rated and your action plan is due for a review, we will carry out that review based on the guidance that was in place when you were given your action plan.

251 If you have not met all of the conditions of your action plan by the review date set, your licence will be revoked. If you have met all of the conditions your licence will be re-rated to an A-rating.

Assigning Confirmation of Acceptance for Studies

382 You may only assign a CAS under Tier 4 if you are satisfied that a student both intends and is able to follow the course of study concerned.

Sponsorship Duties

453 As a sponsor you have a number of duties that you must meet so that you can keep your licence and achieve or maintain highly trusted sponsor status. You will have to show that you are able to meet them before we will give you a sponsor licence.

Record-keeping Duties

460 You must keep all of the documents listed in Appendix D. You can store them as paper copies or electronically. We do not tell you how to store the documents, but you must be able to make them available to us when we ask.

Reporting Duties

461 Unless stated otherwise, you must report the following information to us within ten working days using the sponsor management system. It tells us about students who do not attend, do not comply with our requirements, or disappear. We use the information to take enforcement action against them where necessary.

Students who do not enrol

463 You must tell us if a student you have assigned a CAS to does not enrol on their course within the enrolment period. You must report this no later than ten working days the enrolment period has ended. You must include any reason the student gives for not enrolling for example if they:

miss their flight;

have decided not to come to the UK;

have decided to take up a course with a different sponsor; or

have had their application for permission to come to, or stay in the UK refused.

Student contact stops

467 If you are A-rated and a student misses ten consecutive expected contacts without you reasonably giving them permission, you must tell us within ten working days of the tenth missed contact. (Highly trusted sponsors can also choose to report after the student has missed ten consecutive expected contacts but this is not mandatory).

Significant change in circumstances

476 You must tell us within ten working days:

anything that suggests that a sponsored student is breaching the conditions of their permission to stay in the UK.

Compliance checks

488 We will visit you before we decide your sponsor licence application and we will check your current monitoring arrangements. We will make further checks after we have granted your licence. This is to ensure the information you provided on your application form is accurate and that you are able or continuing to do what is required of a licensed sponsor. We will check that:

the information given about you is accurate and complete;

you are able to offer courses of study which meet the current requirement;

you are genuine and are trading or operating lawfully in the UK;

you have the appropriate planning permission or local planning authority consent to operate your type or class of organisation at your trading address;

there are no reasons to believe that you as a prospective or existing sponsor are a threat to immigration control;

you will be able to comply or are already complying with your sponsor duties.

491 The compliance officer will gather material to support the information you gave on your sponsor application. This is to confirm that the information you gave was full and accurate, and that you are meeting (or will be able to meet) your duties and responsibilities as a licensed sponsor. They may wish to speak to people involved in recruiting or enrolling students and to sponsored students. They will not discuss the outcome of the assessment during the visit.

Suspending a Licence

504 We will immediately suspend your licence while we make further enquiries if we have reason to believe that you are breaching your sponsorship duties and/or are a threat to immigration control (for example, signing CASs to students who do not enrol, or fail to complete their course) to the extent that we may have to revoke your licence.

507 If after an investigation, we decide not to revoke your licence we will lift the suspension and reinstate your entry on the register of sponsors on our website.

Process we will follow if we suspend your licence

514 We start from one of two positions.

If we are satisfied that we have enough evidence to suspend your licence without the need for further investigation, we will write to you giving detailed reasons for suspending your licence.

If we have evidence that warrants your licence being suspended pending a full investigation, we will write to you giving our initial reasons for the suspension and informing you that an investigation will take place. It may not be possible at that point to say how long the investigation will take, but we will update you on our progress at regular intervals. During this period, you can make any written statements you think are necessary to respond, including sending in evidence. Any statement or evidence you send to us during this period will be taken into account during the investigation. When we have finished our investigation, we will write to you again, giving detailed reasons for suspending your licence.

515 When we write to you giving detailed reasons for suspending your licence, you will then have 28 calendar days from the date of that written notification, to respond to us in writing. We may extend this period at your request if we are satisfied that there are exceptional circumstances. You may make any written statements you think are necessary to respond, including sending in evidence. However, we will not hold an oral hearing.

516 If any new evidence comes to light during that 28-day period, we will write to you again, giving you another 28 days to respond in writing on the new evidence.

517 When we receive a response from you, we will consider it and may request information from any relevant compliance officer, other law enforcement agencies, government departments, agencies, local authorities, the police, foreign governments and/or other body. We will notify you of our decision within 28 calendar days of receiving your response.

518 If we do not receive a response from you within the time allowed, we will proceed with whatever action we believe to be appropriate and will notify you of our decision in writing. Appropriate action may be to reinstate or revoke your licence. If we reinstate your licence we may reduce the number of CASs you are allowed to assign.

Revoking a licence

522 Additionally, if you are a B-rated sponsor and subject to an action plan under the guidance in place before 5 September 2011, we will immediately revoke your licence in the following circumstances;

...

You have been B-rated and you have not complied with your current action plan within the specified target date for completing it.

523 We will consider revoking your licence for the following reasons.

…

You fail to comply with any of your duties

You fail to keep any of the documents specified in Appendix D of this guidance

We find that students that you have sponsored have not complied with the conditions of their permission to stay in the UK."

16. Ms Roxanna Cram, higher executive officer of UKBA, describes in her witness statement the Tier 4 Sponsor licence system:

"2. … When applying for a Tier 4 Sponsor licence, an educational institution agrees to comply with their duties. Those duties are outlined in the Policy Guide for Tier 4 Sponsors, along with a separate Appendix D which lists the relevant documents they are expected to keep for each sponsored migrant. The Policy Guide is comprehensive and designed to ensure that a sponsor follows recommended best practice and meets their obligations in order to minimise the risk to immigration control.

3. The principal basis for an educational provider to have a role in maintaining the integrity of immigration control is through the duties imposed via a licence to issue Confirmation of Acceptance for Studies (previously visa letters). Sponsors attain a 'rating' at the time of their initial licensing. These ratings are 'B-rated' which means a sponsor is only partially compliant with their duties and must adhere to a time-sensitive action plan to attain a higher rating. A 'Trusted' status is for a sponsor who is fully compliant with their duties, have no areas for improvement and are using the processes and procedures necessary to minimise the risk to immigration control. 'Highly Trusted Sponsor' status is a rating given to Tier 4 Sponsors upon application and is a mandatory requirement from 5 April 2012. The sponsor must demonstrate that they meet specific criteria such as lower rates of student visa refusals, low 'drop out' rates and processes to minimise the risk to immigration control. Only those sponsors who demonstrate they meet this very high threshold are awarded Highly Trusted status."

17. In R (London Reading College) v Secretary of State for the Home Department [2010] EWHC 2561 (Admin) Mr Neil Garnham QC sitting as a Deputy High Court Judge said that:

"It has to be remembered that the primary duty 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."

The factual background

18. In July 2010 the Claimant's application to become a licensed sponsor under the Points Based System was approved and a B-rated licence was granted. The letter to the Claimant dated 14 July 2010 sets out the reasons for this rating as follows:

"… As issues were identified in the following HR areas:

Monitoring Immigration Status and Preventing Illegal Employment

Migrant Tracking and Monitoring

Additionally you have been awarded this rating as per paragraph 29 of Tier 4 of the Points Based System Guidance for Sponsors. All new sponsors with only Stage 2 accreditation will be B-rated until they have attained Stage 3 accreditation.

This is a transitional rating and Manchester College of Accountancy and Management will be expected to improve their performance sufficiently within a relatively short period so as to warrant being upgraded to an A-rating. Failure to improve may result in the sponsor licence being withdrawn.

This B-rating is conditional on the organisation fully complying with the requirements of a time limited action plan…

…

If a Sponsor fails to comply with an action plan, we may withdraw its licence."

Since becoming a licensed sponsor the Claimant has been subjected to a number of compliance visits, and deficiencies identified as to the Claimant's record keeping, reporting and practices, have been the subject of three Sponsor Licence Action Plans. The first was issued on 9 August 2010; the second on 8 April 2011. The Claimant was notified of decisions to maintain the B-rating by letters dated 22 March 2011, 27 April 2011 and 16 September 2011. The letter of 16 September 2011 informs the Claimant:

"You must now ensure that you become an A-rated sponsor following a visit to your premises to assess your compliance against the action plan otherwise your sponsor licence will be revoked."

19. The third sponsor action plan which was issued on 19 September 2011 identified issues as to

i) the monitoring of the immigration status and prevention of illegal employment by a process to ensure that staff's right to work is checked using the correct documents and students' visa/leave to remain dates are correctly entered on the system;

ii) maintaining migrant contact details by a system to ensure that contact details are kept up to date and that addresses have been checked and verified with proof of address sought from individual students where appropriate; and

iii) the reporting to UKBA within the correct time frame of a student to whom a CAS was issued, but who is a late or non-starter.

The target date for completion of the action plan was identified as 19 October 2011.

20. UKBA Compliance Officers visited the Claimant's premises on 19 October 2011 and 1 December 2011. A number of concerns were identified, which were set out in the letter to the Claimant dated 14 February 2012, suspending the Claimant's licence with immediate effect ("the suspension letter"). The witness statement of Ms Cram (at paras 4-26) sets out the events leading to the suspension and subsequent revocation of the Claimant's sponsor licence. A compliance visit was undertaken at the Claimant's premises on 26 March 2012. By letter dated 2 April 2012 the Defendant notified the Claimant of the decision to revoke the sponsorship licence with immediate effect because the Claimant posed a significant risk to the effectiveness of immigration control ("the revocation letter").

The revocation letter

21. Five areas of complaint are identified in the revocation letter: (1) attendance records; (2) students who fail to enrol; (3) non-compliance with the B-rate Action Plan; (4) student assessment; and (5) reporting duties.
22. Attendance records (paras 5-9 of the revocation letter): Paragraph 5 of the revocation letter refers to the compliance visit on 1 December 2011 when a register for one class was not available at 1300hrs despite the class commencing at 0930 that morning. During the compliance visit on 26 March 2012 Mr Weston, the UKBA compliance officer, spoke to Ms Ravinder Singh, a class tutor, who informed him that she had been instructed by the college not to mark students absent and to leave the entry blank. By doing this it would be possible to amend attendance registers to mark absent students as attending. Mr Weston made a contemporaneous note of the visit, which was signed by the Claimant's Director and Representative as being accurate (supplementary bundle/72). In a statement dated 19 April 2012 Ms Singh denied that she had been given this instruction by the college and she denied that she had said what Mr Weston recorded. However Mr Ahmed stated that the Claimant does not now take issue with the evidence that Ms Singh did inform Mr Weston that she had been instructed by the college not to mark students absent and to leave the entry blank.
23. Further it is not in issue that the e-mails sent on 20 March 2012 by Dr Tahir Baig, a member of the Claimant's administration team, which requested the student to attend the college on 26 March 2012 "because we want to show our attendance and strength to the UKBA" was sent to all students of the college. The Claimant's assertion that the e-mail was sent merely to update students as to the time and date of the next UKBA visit so that students would have an opportunity to speak to compliance officers if they wished to do so is not supported by the content of the e-mail itself. Mr Vinesh Mandalia, for the Defendant, makes the point that there had been no request made by UKBA to speak to any of the students; the visit on 26 March 2012 did not fall during a planned holiday and so students attending the college in the normal course of events would be available for interview or to speak themselves to UKBA.
24. Paragraph 8 of the revocation letter states:

"In addition to the above, our officers spoke to a Mrs Hudson-Sitar, a former Student Welfare Officer at the college. She informed us that during her time at the college she had seen evidence of attendance records being altered:

Kashif Raza and Kashif Rehman were detained by the UK Border Agency in Plymouth. These students had attendance below 80% in December 2010 but then showed attendance of 100%. Ms Hudson-Sitar states that when she queried this she was informed their records had been taken home by a member of staff and falsified."

Mrs Hudson-Sitar had approached UKBA in early December 2011 and Mr Weston in the SMU Compliance Report that he completed in respect of the 26 March 2012 visit noted:

"On 14/12/2011 VO [Visiting Officer] interviewed Mrs Emma Hudson-Sitar who was Student Welfare Officer at the college between August 2010 and August 2011. She stated that class attendance registers were routinely falsified in line with instructions issued by Mohammad Abaidullah. VO asked how the records were falsified and he was told that tutors were instructed by Mohammad Abaidullah to only mark those students who were present during the lessons and not to include an absence mark next to those students who were not there. She said that once collected in by the college administrators these blank marks would be amended prior to the date of being entered into the CMS database.

…

Mrs Hudson-Sitar provided photocopies of class registers from the college that she had said had been taken after being completed by the lecturers prior to any amendments by Abaidullah or Baig. …"

25. In making his submissions in response to these allegations Mr Ahmed referred to the statement made by Dr Manzoor and Mr Abaidullah dated 12 November 2012. Dr Manzoor and Mr Abaidullah say as follows:

"142. MANCAM [the Claimant] asserts that Mrs Sitar has presented stolen and subsequently tampered with records from the College to show that one copy of the same attendance register had fewer students marked as being present than the other.

143. MANCAM can only assume what could possibly have happened and cannot be certain about it. MANCAM believes that while producing College records for UKBA, Mrs Sitar tampered with copies of the College attendance register to misguide the UKBA. From the two versions of the attendance registers, it is evident that the tampered with copy (page 593) could only be created in more than one step as it shows the date '27/6' in different handwriting from what is recorded in the College's original attendance record (page 592).

144. It appears that at first, Mrs Sitar copied the 'completed and only tutor signed' original attendance register, before submitting the original register to the Attendance Registrar (Dr Tahir Baig) who believed it to be true, countersigned the page and updated the electronic records accordingly. On a copied register, Mrs Sitar then altered the date and attendance of a couple of students who were marked present 'P' on the original register. It is believed that she then added the same date of '27/6' on the register in her own handwriting and produced it to UKBA along with a copy of the original attendance register for the same date. The date entered on her altered register is in handwriting that is different from Dr Tahir Baig's handwriting.

145. The Claimant is unable to offer any other plausible explanation for the same date of '27/6' appearing in two different sets of handwriting on the two registers produced by Mrs Sitar to UKBA. It is easy to match her writing of the digits on the tampered with register with some other entries for similar digits, such as those made by Mrs Sitar in her witness statement (page 369).

146. Quite understandably, any attempt at tampering with the register by MANCAM, as is wrongly alleged by Mrs Sitar, would not require MANCAM to have two different sets of handwriting for the date on the two documents. The rest of the documents are in the same handwriting."

26. Dr Manzoor and Mr Abaidullah in their statement dated 12 November 2012 (at para 28) state in relation to paragraph 8 of the revocation letter: the College has never altered any attendance records. The attendance records of the two students referred to in the allegation (Kashif Raza and Kashif Rehman) are at 3/583-586. These records clearly refute Mrs Hudson-Sitar's assertions. Their attendances have never been 100%. The Claimant contends that Mrs Hudson-Sitar (and also Ms Farnworth, the Claimant's former Receptionist, Administrator and International Development Officer) are disgruntled former employees who were made redundant and are currently bringing proceedings against the college alleging unfair dismissal. Dr Manzoor and Mr Abaidullah contend (at para 33):

"It is unfair for the UKBA to base its revocation decision partly or wholly on baseless allegations of individuals who have a history of grievances with the College and who have personal interests in undermining the reputation of the College. UKBA failed to corroborate their serious allegations with other current/ex-employees that were better placed to give unbiased opinions. Furthermore, none of the allegations made have been substantiated with supporting evidence."

27. The Claimant also relies on a witness statement made by Subir Sarwat, an Admission Officer and ESOL teacher at the Claimant, dated 18 September 2012 who says:

"3. On 24^th June 2011, myself, Ms Adele Farnworth and Mrs Hudson-Sitar were told by the Management that we were going to be made redundant and were given one month's notice before termination of our job. …

Around the same time, I with Mrs Farnworth and Mrs Hudson-Sitar went into a student common room… While discussing our redundancy I witnessed Mrs Hudson-Sitar loudly stating that it was not fair at all that she was being made redundant. She believed College was making profits and instead of increasing salary we were being terminated from our work. Ms Adele Farnworth also shared her belief. They both were angry at the college management over this decision. Mrs Hudson-Sitar talked about her financial difficulties in paying mortgage and kids' care if she were made jobless.

5. I witnessed Mrs Hudson-Sitar making threats against College management. She had stated that she will make sure the college is closed and no-one else in the college will have job. It appeared, as if she was trying to find the ways by which the reputation of the college could be undermined. She had also stated that she would go to a solicitor the next day.

6. I have been informed by the College management that Ms Adele Farnworth and Mrs Hudson-Sitar have made some very serious allegations against the MANCAM and its management. I am disappointed with their allegation; however, I am not surprised as I had anticipated this since I had attended the above said meeting with them."

28. Mr Weston deals with this issue of the falsification of attendance records in his witness statement. At paragraph 13 he sets out his conversation with Ms Ravinder Singh (see para 15 above). At paragraph 14 he records his conversation with another tutor, Ms Vicky Rouse, about the attendance patterns of one of the students in her General English class, Mr Muhammad Basir Abbasi (see para 43 below). He then continues:

"15. The evidence that I uncovered during the visit relating to the accuracy of the recording of students' attendance corroborated some allegations that I had received during a meeting with two former members of staff at the college, Mrs Emma Hudson-Sitar and Ms Adele Farnsworth.

16. I was contacted by e-mail by Mrs Hudson-Sitar on 2 December 2011 and arranged to meet her 14 December 2011 in Manchester. It is quite common for individuals connected to colleagues in the North … or with information regarding college activity to contact me directly; as the UKBA regional head for the education sector I am widely known across the community. Mrs Hudson-Sitar was accompanied by Ms Farnsworth to the meeting…

17. At the meeting they made numerous allegations relating to the running of the college and handed me copies of attendance records that they had in their possession. Both ladies subsequently completed witness statements detailing these allegations. Mrs Hudson-Sitar claimed that the attendance records demonstrated that the records of student attendance were routinely falsified and she explained that this was done by tutors not marking students absent when they did not attend and the blank record then being completed at a later stage.

18. I analysed the attendance records supplied and some of the records did corroborate this allegation; there were copies of registers that appeared to have been completed by the tutor only and contemporaneous copies of the same register apparently countersigned by the college administration staff. However without copies obtained directly from the college I was unable to confirm that the registers were genuine or did indeed provide evidence of abuse of the immigration system.

19. During the course of the compliance visit of 26 March 2012 I obtained control copies of each of the registers provided by Mrs Hudson-Sitar from the college management team. I was able to compare the college registers to the copies provided by Mrs Hudson-Sitar and I included this analysis on the visit report. My detailed analysis of the registers in my possession along with my conversation with Ms Singh, my review of the attendance records of Muhammad Basir Abbasi and conversation with his class tutor led me to conclude that there was evidence that attendance/absence records were being falsified at the college."

29. The SMU Compliance Report for 26 March 2006 records as follows:

"Whilst reviewing the records provided VO identified some instances [where] two copies existed of the same register; these were the version said to have been completed and signed by the class tutor and the subsequent version countersigned by the Administrator and 'SMS-Admin input'. VO found evidence that some 'blank' attendance marks had been altered to show that students had been present after the tutor had signed the register but before it had been entered onto the CMS database. VO also found evidence that student absences marked 'A' by the tutor had been amended to 'LA' for late arrival after the tutor had signed off the register prior to entry onto the CMS database.

The records provided by Mrs Hudson-Sitar and the comparison with the control copy provided by the college 26/03/2012 are listed below:

Graduate Diploma in Business Management (BM) Level 6 Year 3 Group 1

23/05/2011-26/06/2011

Includes two copies of register for 27/06/2011: one signed only by the tutor – this shows two students as being absent for the a.m. and p.m. sessions – Satya PAL 26/12/1976 PAK and Zahoor TASSADAQ 15/10/1988 PAK: the copy of the … in e-mail correspondence Mr Peter Kendal, until 23/03/2012 the college Principal, relayed to the VO numerous occasions upon which he had carried out classroom observations. He cited the example of conducting one such assessment on the Business Computing (Diploma Yr1) class week commencing 26/09/2011 and there only being seven students in attendance – the electronic attendance record for this class has all eighteen students in attendance."

In relation to the Graduate Diploma in Business Management (Year 3, Level 6) class on 27 June 2011, the version certified by the class tutor is at 3/593; and the version countersigned by Dr Baig is at 3/592. Further Mrs Hudson-sitar provided copies of registers in respect of the Graduate Diploma in Business Management (Year 1, Level 4, Group 2) class on 22 June 2011: the version certified by the class tutor is at SB/33; and the version countersigned is at SB/34.

30. Mr Mandalia submits that the suggestion made by the Claimant that the attendance records were falsified by Mrs Hudson-Sitar makes no sense at all. Mr Weston obtained controlled copies of each of the registers provided by Mrs Hudson-Sitar from the college management team during the course of the visit on 26 March 2012 and was able to compare the college registers to the copies provided by Mrs Hudson-Sitar. The Claimant has no answer to this evidence.
31. Students who failed to enrol (paras 10-12 of the revocation letter): on 12 March 2012 Ms Cram wrote to Dr Niaz of the Claimant as follows:

"On 14 February 2012 we suspended your sponsor licence due to a number of concerns identified during an Action Plan visit on 19 October 2011 and follow up visit on 1 December 2011.

…

Students who had failed to enrol at the college

4. During the visits our officer noted that you had failed to report 272 students who had missed their enrolment date by many months. In response to this you have stated that the students concerned were all assigned Confirmation of Acceptance for Studies (CAS) prior to April 2011. You have also confirmed that 200 of these students commenced their studies at the college in January 2012. We are concerned that this figure does not account for the other 72 students identified during the visit. We are also concerned that posts overseas have only confirmed that 224 students had delays due to interviews conducted in August and September 2011. Of these 130 students were granted visas, an additional 94 were refused.

…

5. You have been unable to account for the total number of students identified in our suspension letter. You have also failed to report the 94 students who were refused visas as a failure to enrol. These students should have been reported a number of weeks ago if their course start date had been extended to January 2012 as claimed. We remain concerned that you are not reporting students promptly and that you do not keep track of the students you assign CAS to. This contravenes paragraph 463 of the Tier 4 Policy Guidance…"

32. In a document headed "Claimant's Composite Response" it is said:

"The college agrees that prior to September 2011 it did not report those students who's overseas visa applications were refused. However, this was due to the fact that as per the UKBA Sponsoring Guidance, October 2010, in force at that time, this reporting was not mandatory. …

Since implementation of the Sponsor Guidance, September 2011 version, the College has been complying with the mandatory reporting requirements except for with regards to those students whose visa applications were refused. This was a one off unintentional oversight in appreciating relevant changes in the new policy. This error is acknowledged and Claimant undertakes that this would not occur again."

33. Mr Mandalia observes the Claimant has provided no satisfactory response to the two points made in paragraph 10 of the revocation letter. Further, the reporting duties set out in the Sponsor Guidance issued in September 2011 are not materially different from the duties contained in the Sponsor Guidance issued in October 2010. In the October 2010 version it is stated:

"…Information about students' non-attendance, non-compliance or disappearance will be used to take enforcement action against them:

if a sponsored student does not enrol on his/her course within the enrolment period, the report must be provided within ten working days and must include any reason given by the student for his/her non-enrolment (for example a missed flight)."

In the September 2011 version additional examples of reasons for non-enrolment are given.

34. Non-compliance with the B-rate action plan (paras 13-16): the Sponsor Action Plan issued on 19 September 2011 noted:

"There is evidence that you do not have up to date contact details for your migrant students.

The contact addresses shown to our visiting officers from your student records include addresses (for example) from Glasgow, Birmingham, Newcastle and London. Evidence is required that these [addresses] have been checked and verified with proof of addresses sought from the individual students where appropriate.

You must have the history of migrants' contact details (United Kingdom residential address, telephone number, mobile telephone number). This must be up to date."

35. The Compliance Visit report of 26 March 2012 noted that the records for Mr Samee held a verified UK address which had not been the case on the previous visit. It was also noted that it was the Claimant's practice to confirm the accuracy of students' stated UK addresses by writing to the student and having the student sign and return the letter to the college, and that since May 2011 students have also been requested to provide documentary evidence, such as rental agreements or bills to verify the accuracy of the address on a quarterly basis. However Dr Baig stated that "very few students had in fact provided any such evidence when requested". The Defendant's complaint is that the Claimant was not dealing with the problem.
36. Student assessment (paras 17-22): the concern that the college did not effectively assess student ability before assigning a CAS was raised in the suspension letter. In respect of two named students the Claimant's response in its pre-action protocol letter was that Mr Ashraf "was fully capable of completing the business diploma on which he had originally enrolled, but took a perfectly legitimate decision to raise the standard of his English". Mr Azmatullah, it was said, "transferred to [the Claimant] after studying elsewhere. The CAS was issued on the basis of qualifications gained with the previous college. The attendance rate [at] that… college was not, and could not be, known".
37. Mr Mandalia submits that the Defendant was entitled on the evidence to conclude that the suspension reason has not been adequately addressed. In the case of Mr Ashraf the Claimant's website stated the minimum level of English required to follow the course on which he originally enrolled was IELTS 6.5, yet Mr Ashraf's CAS stated his English was B1 level. Further he paid for his ESOL course on 19 October 2011 before his counselling session on 4 November 2011. As for Mr Azmatullah, he did not obtain a qualification with his previous sponsor and the documents held in his student file are evidence that he was only enrolled at the previous college. The student's secondary school certificate was the only qualification held on file.
38. Reporting duties (paras 23-26): this issue was referred to in the suspension letter. The Claimant's response in its pre-action protocol letter, in respect of Kashif Raza and Kashif Rehman was that documentary evidence has been maintained which shows the continued contact with these two students, official warnings when their attendance dropped and the subsequent reporting of their absence". That is so, however the Claimant did not adhere to its mandatory reporting obligations. By the afternoon of 13 April 2011 (3/585) Kashif Raza had ten missed contacts; a report was required by 28 April 2011; the Claimant conceded the student was only reported on 4 May 2011. As for Kashif Rehman, by the afternoon of 7 April 2011 he had ten missed contacts (3/583); a report was required by 22 April 2011; the Claimant again conceded the student was only reported on 4 May 2011.
39. There were also reporting failures in the cases of Mr Ashraf and Mr Nabid Ahmed Abbasi (para 25 of revocation letter). Regarding Mr Ashraf, the Claimant stated it did not report his change of course due to the fact that this reporting was not mandatory under the October 2010 Sponsor Guidance because both courses were of the same duration. However, whilst the student did not need to obtain permission to change course, and the sponsor could in those circumstances take over responsibility for notifying UKBA of the change (see the Guidance, para 270), the Claimant did not in fact do so.
40. As regards Mr Abbasi, the Claimant acknowledged that he should have been reported for failing to attend by 28 February 2011 and accepted that it neglected its reporting duties "on this occasion" (Claimant's Director's statement dated 9 March 2012 at para 20). The Claimant suggests that the fact that Mr Abbasi went on to enrol with it and began his course of study, which ended on 1 March 2012, "demonstrates that this error did not result in a student abusing the immigration system by gaining entry to the UK dishonestly" (para 20). However the fact that the student subsequently enrolled with the Claimant and completed his course provides no justification for breach of the reporting obligations. The Claimant now contends that the concession that it made in respect of the failure to report was "an error" (1/176 at para 103).
41. Mr Abbasi arrived in the UK on 16 December 2011 and should have attended his first lesson on 3 January 2012. On 5 January 2012 Mr Abbasi sent an e-mail to the college (3/727) stating:

"Due to some of my family matters I was unable to join my classes for this session when last date is 23 January, very soon I will be able to continue my study so please grant me extension until next coming session if it is possible for me??"

On the same day Mr Abaidullah wrote a letter extending Mr Abbasi's start date to 2 April 2012, stating that this is because of "some family problems faced by student".

42. The contemporaneous note of the compliance visit on 26 March 2012 records that there is no evidence of Mr Abbasi's non-arrival being reported to UKBA within the prescribed timescale. The note states (1/213):

"A document entitled 'notification of mitigating circumstances' dated 05/03/2012 states 'arrived UK 16/12/11: fever since 25/12/11 left him confused. Reported to college 29/2/12' a note on the file stated the significant changes were reported to UK Border Agency in regard of this student 30/01/2012 and 13/10/2011. When asked about the college's procedures for dealing with sickness absence Dr Tahir Baig told VO that in cases of an absence for more than 2 weeks/4 expected contacts students were required to provide a doctor's note as evidence. No such note is kept on the file of ABBASI. When asked about the significant changes Baig checked CMS database and found no record, when shown a note written on the file stating 'Mr Moh advised UKBA of extension date to April 2^nd' he stated that this meant the student's start date had been put back until the beginning of April. The class registers were reviewed and VO noted that ABBASI was included upon them. When reviewing the last four weeks' registers VO noted that w/c 05/03/2012 ABBASI is added in pen to the printed register and is marked as a 'L' for authorised leave for both a.m. and p.m. sessions on the Monday and Tuesday, w/c 12/03/2012 he is marked as absent from all sessions; w/c 19/03/2012 he is marked as 'LA' for late arrival for the Monday a.m. session (the 'L' appears to be a later addition) and 'P' for present at the p.m. session (the 'P' appears to be written over an 'A' for absent mark) for the Tuesday he is marked as LA for late arrival for the a.m. and p.m. sessions (the 'L' appears to be a later addition) to an 'A' for absent mark); on the day of the visit 26/03/2012 this student was absent and was marked 'A' for absent in the register. None of which is consistent with his course start date being delayed until 2/04/2012. VO asked the class tutor to comment on his attendance and she stated that she did 'not know him'." (see also contemporaneous record of visit of 26 March 2012 at SB/59 at 80).

43. Mr Mandalia submits there was a clear breach of the reporting obligations in the case of Mr Abbasi. He had been in the UK since December 2011. He had to enrol by 23 January 2012 for a course to start at the beginning of January 2012. There was no proper investigation as to why he could not attend. His start date was extended to April 2012. Yet the records showed him as attending the college before that date. However his class tutor, Ms Rouse, did not know him.

Summary on Ground 2

44. Mr Ahmed submits, having regard to the judgment of Wyn Williams J in New London College Limited [2011] EWHC 856 (Admin) at [56]-[60] it is incumbent upon the Defendant to operate a fair procedure, which involves: first, putting the relevant institution on notice as to the principal matters of complaint; and second, allowing the opportunity to address those matters prior to suspension/revocation. Mr Mandalia submits that the Claimant's sponsor licence was suspended on 14 February 2012 and thus this is not a case where the Defendant has immediately invoked the sanction of revocation. The Claimant was given proper opportunity to respond to the Defendant's concerns and to submit evidence dealing with the discrepancies identified. The subsequent decision of 2 April 2012 followed the appropriate procedure and the published guidance as to the circumstances in which a sponsor licence may be revoked.
45. The suspension letter identified five areas of concern that were the subject of investigation during the compliance visit on 26 March 2012 and which formed the grounds for revocation.
46. Mr Ahmed takes objection to the Defendant relying

"on the evidence of some ex-members of staff (Ms Adelle Farnworth, Mr Peter Kendal, Ms Hudson-Sitar) who have made witness statements confirming that the Claimants have behaved improperly. These witnesses claim to have obtained documents from the College which supports their assertions. These documents which the Defendant appears to rely on have been removed from the College without prior authorisation and have been taken unlawfully. In such circumstances the Court is invited to disregard this particular evidence on the basis that it has been obtained unlawfully from the Claimant unless the Defendant is able to provide convincing justification for its admissibility." (See Claimant's skeleton argument dated 19 November 2012, paras 12 and 13).

47. Mrs Hudson-Sitar and Ms Farnworth contacted Mr Weston and at a meeting with him in early December 2011 made allegations relating to the running of the college and handed to him copies of attendance records that they had in their possession (see para 24 above). However the information they provided did not form part of the reasons for the suspension. The suspension letter makes clear that it was the concerns identified during the visits on 19 October 2011 and 1 December 2011 that led to the suspension of the Claimant's licence.
48. It was during the visit on 26 March 2012 that Mr Weston made use of the intelligence provided by Mrs Hudson-Sitar and Ms Farnworth. As a result of what he had been told and documents he had been shown he looked to see if there was corroboration for the allegations that had been made (see Mr Weston's witness statement dated 31 August 2012, paras 17-19).
49. He did indeed find corroboration. This included the following: (i) Ms Ravinder Singh reported that she had been instructed by the college management not to mark absent students "A" for absent, but to leave the entry blank (see para 22 above); (ii) the register for the "Marketing" class showed one student marked to be "present", with the entries of all remaining students left blank (1/214); (iii) the register for the "Economics" class was not available; the tutor stated that she had not been given a register to be completed by the Administrator (1/214); and (iv) a spreadsheet was produced by Dr Baig purporting to contain details of verification letters issued by the Claimant to students on 9 January 2012 and returned by students, who included Mr Muhammad Masir Abbasi, on 10 January 2012. However a review of that student's records disclosed (1/212) that Mr Abbasi's verification letter was in fact dated 29 February 2012, and he had not attended the college throughout January and February 2012.
50. In relation to the documents disclosed by Mrs Hudson-Sitar Mr Weston also obtained independent corroboration of the allegations she had made: she had disclosed two versions of an attendance register for the Graduate Diploma in Business Management (Year 3, Level 6) class on 27 June 2011. The first, certified by the class tutor shows the entries for two students having been left blank (3/593). The second, countersigned by Dr Baig, shows the two students having been present in the class (3/592). During the compliance visit the Claimant disclosed to the Defendant the version countersigned by Dr Baig (3/591). (See also paras 29-30 above).
51. The Claimant contends that there is reliance in the revocation letter on the statements of Mrs Hudson-Sitar and the attendance records she produced; the Claimant was not informed of the disclosure made by her before the decision to revoke was made and therefore the Claimant did not have the opportunity to say that she had an "axe to grind" and to allege that it was she, not the Claimant, who had tampered with the documents. However I am satisfied that there was no procedural unfairness in this regard. The Defendant was entitled to use the intelligence disclosed and investigate whether there was independent corroboration for the allegations that had been made. It was the evidence that was obtained during the visit on 26 March 2012 that led to the conclusion in paragraph 9 of the revocation letter that the college was not properly monitoring its students' attendance.
52. Accordingly I am satisfied that there was no procedural irregularity in relation to the use by the Defendant of the information disclosed by Mrs Hudson-Sitar. In any event in my view there is no realistic prospect, in the light of the disclosure made by the Claimant on 26 March 2012 of the version of the attendance register for the class on 27 June 2011 countersigned by Dr Baig (3/591) that the Defendant would have taken a different view of the documents produced by Mrs Hudson-Sitar if they had known of the Claimant's allegation that she was a disgruntled ex-employee. The independent corroboration obtained on 26 March 2012 of the allegations made by Mrs Hudson-Sitar (see para 49 above) leads inevitably to that conclusion.
53. Further, there is no reliance placed in the revocation letter on any disclosure by Mr Kendal and the statements made by Ms Farnworth about the Claimant's methods of assessing student ability (referred to at para 21 of the revocation letter) are independently supported by the evidence analysed at paragraphs 17-20 of the revocation letter relating to Mr Azmatullah and Mr Ashraf (see para 37 above).
54. In summary, in my view the Defendant was entitled on the evidence to conclude that the Claimant was not properly monitoring its students' attendance. I reject the Claimant's contention that the Defendant's determination of this issue is unlawful by reason of any unfairness in the procedure adopted by the Defendant to investigate this complaint.
55. The other four reasons for revoking the Claimant's sponsor licence were each raised with the Claimant on previous occasions and in the letter of suspension. In my view the Defendant was plainly entitled following the compliance visit on 26 March 2012 to reach the following conclusions in the revocation letter in respect of those reasons on the basis of the evidence considered:

i) The Defendant was not satisfied that the Claimant reported students who failed to enrol promptly and that the Claimant kept track of the students it assigned CAS to (para 12).

ii) Although some attempts had been made by the Claimant to improve the process for updating contact details, given the other instances of poor record keeping the Claimant's failure to implement an effective process within its action plan period led the Defendant to conclude that it did not comply with its action plan duty to keep up to date contact details for its students and ensure that they are updated regularly (para 16).

iii) The Claimant has not effectively assessed student ability before assigning a CAS. This suspension reason has not been adequately addressed (para 22).

iv) The Claimant had not been adhering to its mandatory reporting obligations (para 23-26).

Further there was, in my view, no unfairness in the investigation into these matters.

56. The decision to suspend the Claimant's licence was made in accordance with the Defendant's stated policy and guidance to suspend the licence pending further investigation. The Claimant was invited to make representations and submit evidence in response to the matters raised, before a decision was made as to whether the Claimant's sponsorship licence should be revoked. The decision to revoke the Claimant's licence was made in accordance with the Defendant's stated policy and guidance.

Conclusion

57. In my judgment the procedure by which the decisions were taken to suspend and revoke the Claimant's licence is not unlawful, unreasonable or unfair. Further the challenge on Wednesbury grounds to the decisions to suspend and revoke the Claimant's licence is without merit.
58. For the reasons I have given, this claim fails.