England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th February 2014

Mr Justice King:

1. This claim concerns the Tier 4 - Points Based System ('the system')introduced by the defendant as the primary immigration route available to students who want to study full time in the United Kingdom. In particular it concerns the application by the defendant of her 'less than 20% refusal rate' criterion as a mandatory requirement to be met by any applicant education provider seeking 'Highly Trusted' Sponsor status.
2. The claimant is a privately owned further education college based in Manchester offering and providing courses to overseas students. The claimant was originally granted a Sponsor Licence with a B rating in August 2009. Thereafter in 2010 and 2011 there is a history, more fully set out both in the Detailed Statement of Facts and Grounds and the detailed Grounds of Defence, of numerous visits and inspections of the claimant by the defendant, of its licence being suspended and then re-instated at 'B' level, until finally on the 10th May 2011 the claimant was re-rated to an 'A-rated' sponsor status.
3. By these proceedings for judicial review the claimant seeks to challenge (i) the decision of the defendant by letter of the 7^th December 2012 to refuse the claimant's application (dated 2^nd February 2012) for 'Highly Trusted Status' (HTS) and to reduce its allocation of CAS (Confirmation of Acceptance For Studies) to zero (ii) the consequential decision of the defendant of 14^th January 2013 to revoke the Sponsor Licence of the claimant with immediate effect. Permission was granted to challenge these decisions on limited grounds by HHJ Davies sitting as a High Court Judge by order of the 30^th April 2013.
4. The defendant had originally refused the application for HTS status by letter dated the 2^nd November 2012 and which letter also put the claimant on notice of revocation of its licence. That had been a short letter making clear that the sole basis for the refusal was the inability of the claimant to meet the mandatory requirement for HTS status that it's 'refusal rate must be less than 20 per cent'. This was a reference to the mandatory criteria set out in the material Policy Guidance (as to which see below) concerning the number of refusals of visa/entrance clearance applications made by students sponsored by the HTS applicant during the 12 months immediately prior to the date of its application. In its material part that letter reads as follows:

'… 418 leave applications were made during the 12 month period prior to the date your application was received, this being … from 2 February 2011 until 1 February 2012. Of these 143 were refused giving you a refusal rate of 34.21%.

For your convenience we have included in Annex A the CAS numbers used during your assessment period outlined above. The refused applications have been highlighted in bold.'

5. The letter of the 7^th December was in effect a reconsideration and confirmation of that original decision having regard to detailed representations made by the claimant by letter of 18^th November 2012 described as a letter before claim. Material to these proceedings, the claimant sought, amongst other things, to invite the defendant to examine the detailed reasons given by the Entrance Clearance Officer for the refusal of what was said to be 65 applications by students in which a common 'erroneous' decision reason was given namely '… you failed to correctly confirm how the College had assessed your English'. It is in fact conceded by the claimant that only 64 such applications were and have been identified.
6. The particular representation was put in this way:

'vi) … It is interesting to note that 65 applications have been refused on the same basis (numbers …) "… you failed to correctly confirm how the college had assessed your English"

A test of language skills is not necessarily 'announced' in interview as such rather, the interview itself is the test of English. As such, the students may not have been able to pin-point an actual test that was embedded in the interview process.

However, in many cases the students had other corroborative evidence to demonstrate their English language capabilities such as …'

The representation then set out by reference to a number of identified applications of the 64 how, for example, a particular student had a 'valid IETS certificate' or other identified qualifications before culminating with the following:

'We would submit that all 65 are accepted as being the subject of erroneous decision making by the entry Clearance officer and therefore should not be used in any calculation to assess HTS eligibility'

7. The letter of the 7^th December signed on behalf of the defendant by George Shirley 'Head of Sponsorship' responded to this particular representation in the following terms:

'Whilst 65 applications are referred to, only details of 64 have been provided.

It should be noted that in assessing the refusal rate for a particular college all refusals will be taken into account, regardless of the reason for refusal and whether the sponsor considers they are reasonable. This is the reason the bench mark is set at a relatively high level of 20%. Should an individual refusal decision be in dispute, then there are appropriate channels though which to challenge those decisions, either though administrative review, appeal or litigation. It is not the remit of the Highly Trusted Sponsor Team to reconsider individual migrant applications outside of these channels. ...emphasis is that of the court)

We have investigated all 64 indicated and can confirm that none of those indicated have successfully had the decision to refuse the application overturned as part of an administrative review. From our records, 40 of the 64 indicated had an administrative review (numbers identified) of which 37 were upheld. Of the remaining 3, 1 was rejected (as out of time), 1 was withdrawn, and 1 (resulted in an amended refusal notice).'

8. The letter further observed that six of the impugned applications had in any event been refused on other grounds:

'In addition several of those applications were either refused on reasons other than stated in the representations made, or the interviews highlighted other discrepancies other than the ability to name the method of English language assessment undertaken (numbers given).'

In the course of the hearing I was taken to a number of these particular refusals. The other grounds included refusal under Immigration Rule 372(7A) (false information). Mr Jagadesham has sought to persuade me that in the case of at least one of the six identified in the letter (that numbered '4'), what he would describe as the 'unlawful ground' was still used as decisive of the refusal. However having been taken by Mr Mandalia through the records applicable to those numbered 2, 3, 7, 49, 59 and 61 on the Analysis Chart provided by the defendant, I am satisfied at least six of the 64 decisions were refused on additional grounds unconnected with the reason complained of by the claimant in these proceedings.

9. As regards the point being made that other evidence was available to demonstrate the required level of English, the letter responded that:

'However, in issuing a CAS a sponsor confirms that they have already assessed a student's ability to undertake a course of study including any English requirement. They should also state the method of assessment on the said CAS. As part of an application for entry clearance/leave to remain, we make checks to ensure the information stated on the CAS can be verified. If further documentation was available to demonstrate a student's English Language ability this should have been stated on the CAS, for it to be considered as part of the student's application. Any information not stated on the CAS cannot be used in lieu of the original information not being able to be verified. … the reason to refuse based on the discrepancies highlighted at interview as regards the college interview are sufficient enough reasons to refuse the application … It should be noted that where we have indicated a student was unable to prescribe the method of English assessment used, this does not mean that no method was stated during the interview ...' (any emphasis is the emphasis of the Court)

10. The letter did however concede that one of the 418 applications should be taken out of the refusal calculation altogether on the basis of an erroneous refusal. It was to be removed altogether because it could not be confirmed 'that the application would have been approved otherwise'. This was student application No 28 (not one of the material 64) in which the refusal notice did not correspond to the CAS. In other words an error of fact had been made by the Entry Clearance Officer who had referred to a discrepancy which had no factual basis. It would appear that the student had been refused for failing to produce evidence of an accountancy qualification, not a fact referred to in the CAS, (to quote the letter: '1 student is stated as having been refused erroneously as there is no mention of ACCA in the CAS. We can confirm that CAS … used in this application makes no reference to ACCA and therefore does not correspond to the refusal notice').
11. In other words the starting point for this challenge must be, in my judgment, a refusal rate to be calculated by reference to 417 applications during the material period of which 142 were refused and in respect of which refusals the claimant says 64 were on the common erroneous basis identified. Of these 64 however, 6 were in any event refused on other grounds leaving a net figure of 58 'refusals' in dispute. Even if these 58 were removed from the 'refusals' there would therefore still be 84 'refusals' which form no part of the challenge before me. This would in any event give rise to a refusal rate of 20.17%, that is to say still beyond the required refusal rate under the mandatory criteria. If, contrary to my findings, the claimant is right in identifying only 5 applications refused on other grounds, the refusal rate, taking out of account 59 impugned refusals, comes out at 19.90%, just within the criteria.

The background: the Points Based System (PBS)

12. Before considering the grounds of challenge further, it is convenient to rehearse the essential features of the PBS. As already indicated, this was introduced by the defendant as the primary immigration route available to students who want to study full time in the United Kingdom. They must be sponsored by an education provider who has a sponsor licence granted by the defendant. To quote, the defendant's material Sponsor Guidance ('Tier 4 of the Point's Based System - Policy Guidance to be used by all prospective and existing sponsors from 5 September 2011') states at paragraph 17, 'Sponsorship provides evidence that the migrant will study for an approved qualification and places duties on the Sponsor that it must abide by'.
13. Paragraph 245ZU of the Immigration Rules (the Rules) require 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 such clearance an applicant has to meet the requirements listed in paragraph 245ZV, one of which is that he has a minimum of 30 points under the 'attributes' set out at paragraphs 113-120 of Appendix A. Paragraph 14 and Table 16 provide for 30 points to be available for a valid Confirmation of Acceptance for Studies ('CAS') issued by an institution with a Tier 4 (General) Student Sponsor Licence. Until the decisions under challenge in this claim, the claimant was such an institution.
14. As explained in the defendant's Policy Guidance material to this claim a CAS is the sponsor's way:

'of confirming as a licensed sponsor, that:

you wish to bring an overseas student to the UK to study;

to the best of your knowledge that student meets the requirements of the rules for a valid CAS and will be able to make a successful application for leave to come to stay in the UK' (para 34)

It is a virtual document similar to a database record. The sponsor completes a process which produces a unique CAS reference number given to the student and which the student includes with his entry clearance application.

15. For students therefore a valid CAS is an essential part of qualifying for a visa/entry clearance or permission to extend a stay in the UK, although it does not of course guarantee they will qualify given they have, under the Rules, to acquire points referable to other criteria such as maintenance, and entry in any event may be refused on other grounds under the Rules, for example, under paragraph 320 (7A) (provision of false representations/documentation/information).
16. Under the Policy Guidance a licensed sponsor has a number of duties including one to assess a student's ability to follow a course of study and must state on the CAS the evidence used to make that assessment. Thus paragraph 385 reads:

'You must assess a student's ability to follow a course of study. You must state on the CAS what evidence you have used to make this assessment, for example you might;

- confirm any qualifications the student already has which makes them suitable for the course you are offering, such as checking a master's degree if they are going to do a PhD; or

- base the assessment on their progress in their existing course or a recently completed course'

17. There is a similar requirement under the Guidance with regard to the duty to assess the student's English language ability and when assigning a CAS a Sponsor has to ensure that the student is competent in the English language to the level specified. On this see paragraphs 325-334. In particular paragraph 325 provides that 'When you assign a CAS to students studying courses at QCF or NQF level 3, 4 or 5 … you must ensure that they are competent in English language at a minimum level B1 on the CEFR'. There is an obligation 'to keep records of the specific method or combination of methods used to ensure your student's language competence'. (paragraph 333)
18. To be valid under the Rules, a CAS has to contain that which is mandated in Appendix A of the Rules referred to (see paragraph 116 thereof) which refers back to that which is mandated under the Guidance. In particular details must be stated of how the Tier 4 sponsor has assessed the applicant's English language ability. Paragraph 116 of Appendix A (which itself is part of the requirements of the Rules) as cited to me by the defendant, expressly provides that 'A Confirmation of Acceptance for Studies will only be considered to be valid if', amongst other things, '(f) it contains the following mandatory information … (vi) details of how the Tier-4 Sponsor has assessed the applicant's English language ability including where relevant the applicant's English language test scores in all four components (reading, writing, speaking, and listening).' See too paragraphs 389 -390 of the material guidance.
19. Prior to April 2011 there was no self standing requirement under the Rules that the student demonstrate to an interviewer proficiency in the English language, if so required by the interviewer, although such a requirement was introduced by a new paragraph 245ZV(ca) of the Rules. I also accept Mr Jagadesham's point that prior to April 2011 there was nothing in any Guidance expressly referring to any interview by an Entrance Clearance Officer and when such reference was introduced it was in terms which did not, in terms, state it was for, amongst other things, the purpose of checking the veracity of the CAS:

'Our officials may interview a Tier 4 (general) student either as part of their tier 4 applications overseas or when they arrive in the UK (for example at the airport). If we interview a Tier 4 (general) student who has a CAS issued on or after 21April 2011 and they cannot hold a simple conversation without an interpreter we will refuse their application or refuse them permission to enter the UK. This is because they have not met the required standard of English' (September 2011 Guidance para 325)

20. Nor, I accept, was or is there any express requirement either under the Rules or the material Guidance that as a condition of being granted entry clearance that the student be able to state how the College had assessed his English language ability. Nor, as Mr Jagadesham emphasised to me, was such a requirement listed in the material paragraphs of Appendix A which expressly set out the requirements for a valid CAS (paras 116-117) or in paragraph 118 which begins 'No points will be awarded for a Confirmation of Acceptance for studies unless …'. The material guidance to students was directed at the student obtaining information from his tier 4 sponsor as to what evidence of qualifications his sponsor had included on his CAS so that the student could include it with their application for entry clearance. (see paragraph 96 to 112 of the material Policy Guidance for students, in particular paragraph 98 and 99). The material sponsor guidance directed at the Sponsor was in general terms. The defendant's letter of the 7^th December cited the Sponsor Guidance in place when the CAS were assigned (that of October 2010) at paragraph 172 stating:

'once a confirmation of acceptance for studies has been assigned, the sponsor must give the unique reference number to the student to enable him/her to apply in – country for leave to remain in the United Kingdom. The sponsor should also give details from the confirmation of acceptance for studies to the student to help him/her with his/her application for leave. For example ,details of the qualifications assessed'

It suggested that 'this may have avoided the problems encountered by said students in determining how their English was assessed'. To this suggestion I observe at once the claimant's riposte at paragraph 45 of the Grounds that all this begs the question 'Why is it that a student should know how their language ability was assessed by the college? What does that tell the UKBA about the student's actual knowledge of English, which is surely the important issue? How does that protect and maintain immigration control?'

21. It is clear that the aim of the Points Based System and the basis for Sponsorship (see para 19 of the Guidance) is that 'those who benefit most directly from migration' such as education providers should 'help to prevent the system being abused' and that those who come to the UK to study are eligible to do so with 'a reputable education provider genuinely (that) wishes to take them on'. As Silber J in R (Westech College) v SSHD [2011] EWHC 1484 (Admin ) observed:

'in essence the Secretary of State and the UKBA entrust to sponsors such as the claimant the vital function of monitoring compliance of its students with immigration law'

This aim is for example further reflected in paragraph 298 of the material Guidance '... before you assign a CAS, you should ensure that the student will meet the requirements for a visa or permission to stay. You can find details of these on our website …' and in paragraph 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'.

22. As part of the system of controlling numbers of migrant students who may apply for entry in any given year, and pursuant to any sponsor licence granted, the defendant makes an allocation to the college concerned of how many CAS it can assign. This in itself can give rise to disputes between the sponsor and the defendant.

Highly Trusted Status

23. The introduction of the Points Based System initially provided for two levels of sponsor status 'A'; and 'B', the latter being a time limited transitory status requiring the educational institution to reach level A within the time limit (a maximum of one year).
24. Subsequently since 2011 a further level of sponsorship has been introduced, that of 'Highly Trusted Status' ('HTS') as set out in the material Sponsor Guidance at paragraph 31:

'Highly trusted sponsor status (which we call HTS) is designed to ensure that all education providers are taking their obligations on immigration compliance seriously. It recognises sponsors who show a good history of compliance with their sponsor duties and whose students meet the standards of compliance with the terms of their visa or permission to stay in the UK (known as 'leave to remain').'

25. Under this new policy and system all Tier 4 sponsors were (and are) required to apply for and obtain HTS status by the dates specified as deadlines in the Policy guidance. The consequence of a failure to apply for or a refusal of an application for HTS is dire: the sponsor licence is revoked and the ability of the college concerned to assign a CAS to would be overseas students disappears and with it therefore its ability to continue to trade as a college for such non EEA overseas students. Paragraph 521 of the Policy guidance says in terms;

'We will revoke your licence immediately for any of the following reasons:

- You do not apply for highly trusted status by the dates specified …;

- Your highly trusted sponsor status expires and you do not apply in time to renew it;

- Your application for highly trusted sponsor status is refused.'

The mandatory criteria: the refusal rate

26. The Policy Guidance at paragraph 268 onwards provides for mandatory requirements (stage 1) and measurable requirements (stage 2) as criteria for the grant of HTS. Paragraph 271 makes clear that 'if you do not meet one or more of these requirements we will refuse your HTS application and your licence will be revoked. This is because you will have failed to meet the minimum standards for a sponsor who has been licensed for 12 months or more'.
27. The 'refusal rate' is one of the mandatory requirements set out in paragraph 270. It is in these terms:

'Your refusal rate must be less than 20 per cent.

This means that of all the CAS you have assigned which students have used to support an application for a visa or permission to stay, the total number of applications were refused must be less than 20 per cent. We will assess this using the CAS data from the SMS for the 12 month period immediately before you apply. We will take into account all CAS that students have used and applications we refused during this 12 month period'

28. The background and rationale behind such a requirement is explained in the evidence before me from George Shirley himself (dated 03 June 2013) in particular that a high refusal rate has always been a clear indicator of a threat to immigration control and an indicator of poor compliance and recruitment practices on the part of the sponsor. To quote his statement at para 26:

'… the strength, robustness and thoroughness of a sponsor's recruitment will largely dictate how many of its prospective students are refused by the Home Office. The link between a rigorous recruitment policy and a low refusal rate is clear and logical. The fundamental expectation that a sponsor will undertake a rigorous recruitment process links to the core principles of sponsorship in that those who benefit from the immigration should play a vital role in making the system work for everyone involved.'

The grounds of challenge

29. There is no challenge before me to the lawfulness of such a mandatory requirement itself. In any event in the light of existing authority this would be a difficult challenge to mount. A challenge to the lawfulness of the entire criteria for a sponsor licence on the grounds that they were contained in Policy Guidance and not Rules approved by Parliament was rejected by the Supreme Court in Regina (New London College Ltd) v Secretary of State for The Home Department [2013] UKSC 51. The Divisional Court in the Queen on the application of West London Vocational Training College Ltd V SSHD [2013] EWHC 31 (Admin) 31 ('WLVTC'), with background evidence before it from Mr Shirley in similar terms to that before me, rejected the argument that the 20% refusal rate should be construed so that only those refusals associated with some fault on the part of the education provider should be taken into account or that it was irrational or unfair for the defendant to take into account refusals which the education provider could not have anticipated, and further upheld as unobjectionable the setting of the refusal rate at 20%. The figure allowed significant leeway for matters which the sponsor could not reasonably anticipate. See Toulson LJ at paras 40 and 41:

'40. I am not persuaded that there is a sustainable objection on grounds of unfairness, to the use of a refusal rate as a basis for concluding that the sponsor's recruitment procedure are not sufficiently robust to merit classification as highly trustees. The reasons given by Mr Shirley for adopting it make sense. The points made by the claimant about possible reasons for refusal of entry (change of financial circumstances since the issue of the CAS, forgery of documents and so) would apply equally to all sponsors. If a particular sponsor's refusal rate is significantly higher than average, it may not prove but it does tend to suggest that there has been a less than rigorous approach to selection. The policy adopted by the defendant is a strong incentive to strict scrutiny …

41. There being no sustainable objection in principle to the use of a refusal rate, I can see no ground of objection to the rate set at 20%. As Mr Shirley said, the figure allowed significant leeway for matters which the sponsor could not reasonably anticipate.'

30. Underlying all this existing authority is the recognition that there is no public law duty on the defendant when applying the 20% rejection rate criteria, to examine the circumstances of each and every applicant who had been refused entry clearance or leave to remain, to determine whether the sponsor was at fault in failing to foresee the problems. This was expressly rejected by the Court of Appeal in R (Wiggs Ltd trading as Western Governors Graduate School) v SSHD [2013] EWCA Civ 177. See Jackson LJ at paragraphs 60 and 61:

'60. … it would be quite impracticable for UKBA to examine the circumstances of each applicant who is refused entry clearance … and then to determine whether the college was at fault …

61. … all this is catered for by the UKBA's present system. A refusal rate of 20% makes proper allowance for those applicants who are unsuitable to come as students but cannot reasonably be weeded out by colleges' admissions staff.'

31. I observe in this context the express approval by Toulson LJ in WLVTC (para 40) of the dicta of Thirlwall J in R(WGGS) v SSHD [2012] EWHC 2076 (Admin) at para 34:

'Mr MacDonald submitted … the use of a refusal rate is irrational. To my mind the opposite is the case. It is surely powerful evidence of the robustness of recruitment procedures if a significant number of those recruited do gain entry clearance. In the absence of such an approach the Secretary of State would, as Mr MacDonald submits she should, be bound to examine the reasons for each refusal; a task which the partial delegation of immigration powers to colleges was designed to avoid. The claimant has undertaken the exercise at some length in these proceedings for reasons I understand, but the length and detail of the exercise underlines why the use of a refusal rate cannot be said to be irrational.'

32. Similar sentiments were expressed by Judge Alice Robinson in R (London College of Management Ltd) v SSHD [2012] EWHC 1029 (Admin) at paras 35 to 39. As she said (para 37) there are plainly administrative advantages to having a fixed threshold. These would be negated if individual cases had to be examined. In the context of the facts of that case, the Judge observed (paragraph 35) that:

'if the Secretary of State was entitled to adopt a mandatory criterion that refusals should not exceed 20% it is difficult to see why she should not apply the policy to this case but instead regard it as an exception such that the reason for each refusal should be looked at as an exception. The reasons for refusal identify precisely the sort of issues you would expect to arise in Tier 4 cases: whether financial requirements are met, whether documentation is appropriate or genuine and the standard of the student's English. Of course refusal of the HTS application had serious consequences for the College's business as the Secretary of State's new policy is that to enrol non-EEA students the educational provider must have HTS status but the same would be true of all existing Tier 4 sponsors so that it is not a justification for making an exception in this particular case'

Discretion: the 64 refusals

33. What is at the heart of the challenge before me however is a challenge to the failure of the defendant to apply her discretion 'properly or at all' in the application of the mandatory refusal rate, to the particular 64 refusals under challenge in this case. Mr Jagadesham on behalf of the claimant submits that the particular circumstances of those refusals which he asserts discloses they were 'unlawful' must mean that this case falls within the discretion which is recognised to exist in both case law and the defendant's own policy guidance which he submits expressly refer to 'exceptions' being made and 'some form of discretion being exercised even where a college does not meet the 20% refusal rate'.

Case law

34. As to case law he relies first on the observations of Toulson LJ in WLVCT at para 42 in which in rejecting the submission that in adopting the mandatory refusal rate criterion the Secretary of State had unlawfully fettered her discretion, the court accepted the evidence of the defendant through Mr Shirley that she was willing to exercise her discretion in specific cases to grant or maintain HTS Status in the case of a sponsor whose refusal rate was above 20%:

'42. It is alleged that the defendant unlawfully fettered her discretion. I am not persuaded of that on the evidence. According to Mr Shirley's statement, the UKBA recognise there may be instances when the circumstances of the case are so compelling that that the rigid application of the mandatory requirement may be disproportionate to the overall aim. In such cases UKBA would consider applying some form of discretion, but those instances would be limited to a small number of cases where the exercise of discretion can be clearly justified. Mr Shirley has given an example of one such case where the applicant did not strictly meet the terms of the policy but discretion was exercised in its favour because the numbers involved were very low.'

35. I was referred also to paragraph 39 of the judgment of Judge Robinson referred to where she said:

'… it would entirely defeat the purpose of adopting a criterion with a fixed threshold if individual cases routinely had to be examined as well. That is not to say there will not be occasions when an exception should be considered and made. These should be decided on a case by case basis. … there is no unfairness in this case such as to render the decision not to have regard to individual reasons for each refusal unlawful.'

And to observations of HH Judge Anthony Thornton QC when granting permission in R (on the application of Warnborough College Ltd) v. SSHD [2013] EWHC 1510 (Admin) at paragraph 22(7)(v):

'There are indications in the documents that the UKBA accepted that in appropriate cases it would review the refusal rate in what is referred to as 'an holistic way' and that the basis of the review was what would be fair in the circumstances of the case. However no clear ground rules were produced to indicate when such a review would take place. What is clear is that the grounds were broader than 'in exceptional circumstances'

36. Mr Jagadesham also strongly relied upon the public law principle exemplified in R v SSHD ex parte Venables and Thompson [1997] UHL25; [1998] AC 407 at 496G-497C that a decision maker cannot rigidly apply a policy that has been devised. A fixed and fettered approach to policy irrespective of individual circumstances of a particular case is unlawful.

The defendant's own policy guidance

37. As to the defendant's own guidance, Mr Shirley in his evidence refers to the further detail given on how the refusal calculations are made published in the defendant's 'Frequently Asked Questions' on the new policy for HTS, published in September 2011.
38. Under the question 'how are refusal rates calculated and how does this impact on an HTS application?', the following appears:

'A high refusal rate is an indication of poor compliance and recruitment practices. However when a sponsor applies for HTS status, we are aware that on some occasions an error may occur.

When calculating refusal rates we will count all visa refusals for the previous 12 months. When calculating this figure we will not include any refusal that has been overturned.

Equally any refusal where a formal right of appeal is being exercised will not count towards the calculation of refusal rates.

To the question 'will an unsuccessful first visa application that is then followed by a second successful application still be counted: or will it be excluded from the data on the basis that the second application was successful?' the following answer is given:

'We will always look at an application in the round and consider the full details of any refusal and also look at any subsequent application for a visa or extension.

Yes the first refusal will count but the issue of a second CAS which is then granted also counts. The percentages are such that a small number of errors by migrants will not affect the overall result of the application.'

39. Mr Jagadesham however on behalf of the claimant drew my attention to a further passage in the same document:

'[w]e have always said we will use a holistic approach to those Tier 4 sponsors that demonstrate significantly low CAS usage and recognise that a small number of reports in these circumstances can have a disproportionate effect'

He makes the point that there is no suggestion that the described 'holistic approach' is confined to cases where there are small numbers.

The Shirley letter of 9^th May 2012

40. In addition the claimant relies on what is said to have been assurances on the approach to be adopted in applying the refusal rate given to it by Mr Shirley in a letter of 9^th May 2013 to Mark Taylor acting on behalf of the claimant whose evidence is also before the court. That letter it would appear was primarily concerned with an exceptional award of CAS to the claimant. However included within the letter was the following paragraph:

'with regards to any HTS application we will discount any incorrect refusals from the final refusal percentage. .However to qualify the decision must have been overturned at appeal or administrative review or evidence must be provided that the entry clearance officer or case worker made a factually incorrect decision. All other cases will count towards the percentage.' (any emphasis is the emphasis of the Court)

41. The submission is made that by this letter the defendant was expressly acknowledging a discretionary ground upon which refusals would be discounted from the refusal rate calculation in addition to that of a refusal being overturned on appeal, administrative review or litigation, namely if it could be shown that the decision was erroneous which the claimant says it can demonstrate in respect of the 64 referred to.
42. The defendant says the reliance upon the letter in this way is totally misguided. Paragraph 32 of the Detailed Grounds of Defence asserts the approach set out in the letter:

'… is entirely consistent with the Defendant's published document entitled 'Frequently asked Questions on the new policy for (HTS)'. That is the defendant is aware that on some occasions an error may occur and that when calculating refusal rates, the Defendant will not include any refusal that has been overturned or where a formal right of appeal is being exercised. The second category of refusals identified in the letter of 9^th of May … is self explanatory. That is the Defendant will discount any incorrect refusals where there is evidence that the entry clearance officer or caseworker made a factually incorrect decision. There is plainly a distinction between decisions that the Claimant might assert are 'incorrect' and circumstances where there is evidence that the entry clearance officer or case worker made a factually incorrect decision.' (italics is that of the court)

The point is made that in one instance in the decision letter of the 7^th December the defendant did exercise her discretion to discount a refusal even though it had not been subject to a successful appeal or administrative review when it was pointed out that there was evidence that the officer or caseworker had made a factually incorrect decision by reason of a discrepancy between the Refusal Notice and the information available. See paragraph 10 above.

The issues raised by the Grounds

43. In summary therefore the challenge being made is as follows. The grounds upon which permission was granted are limited to those set out in paragraphs 41 to 50 of the Detailed Statement of Facts and Grounds. They rely upon the assurances given by the defendant through Mr Shirley in the letter of the 9^th May. They assert an unlawful fettering in this case by the defendant of her discretion to depart from a rigid application of the 20% refusal rate in allegedly by her letter of the 7^th December declining to discount refusals which had not been the subject of a successful challenge by the student by way of an administrative review (being it is said the only provided route of challenge by a student whose application for a visa is refused) notwithstanding the claimant was able to show that a number of refusals were 'incorrect' or made on a 'flawed basis'. They are confined to a consideration of the 64 refusals in which it is said the common reason for refusal was that 'the students were unable to confirm to the interviewing entry clearance offers how the College had assessed their English ability'.
44. Mr Jagadesham's critical submission to me was that these were not only 'incorrect' and hence within the assurances given by the defendant but unlawful on the grounds that that was no requirement under the Immigration Rules, whether by reference to any free standing substantive Rule or by reference to the express requirements for the validity of a CAS or an award of points for a CAS set out in Appendix A of the Rules, that the student be able to give that confirmation and on the further ground that this was not information which any student could be expected to know and nothing in the Policy guidance put the student on notice that he was required to have this information. On this aspect see paragraphs 20 and 21 above.
45. Mr Jagadesham submits that such a feature of unlawfulness in the reasons given for refusal takes this case outside the sort of case previously considered in the authorities, which as I have indicated are strongly against any obligation upon the defendant routinely to examine the reasons for any refusal when applying the mandatory refusal rate. The defendant could not lawfully, it is submitted, simply ignore the fact that a 'significant category of refusals were unlawful'.

The court's conclusions

46. Notwithstanding the defendant's primary stance based on the authorities to which I have referred, that it is not for this court to re-assess each refusal upon the students' applications which a claimant does not like and in respect of which it seeks to put forward reasons why they are 'wrong' or 'incorrect', the defendant has disclosed the 'Refusal of Entry Clearance' Decision Notices for each of the 64 students in issue. The court itself was provided with two lever arch files containing the material documents together with an 'Analysis of the Relevant Refusals'. In many instances the Notice is accompanied by the relevant CAS and the Record of Interview but not in every one. I was invited to consider a number of them by both Mr Jagadesham and Mr Mandalia.
47. Had I been convinced by such examination that in truth the student was denied entry on the basis of a substantive Requirement, not however in the Immigration Rules, that he be able to confirm the basis of the College's assessment of his language ability which he had failed to meet, then I would have had some sympathy with the submissions being made by Mr Jagadesham as to unlawfulness. See the well known line of authority culminating in Alvi ...R (on the application of Alvi) v SSHD 2012 UKSC 3333 (Lord Hope at para 57) and New London College, to which I have referred.
48. However I am quite unable to read the material Refusal Notices in this way. It is important to note how the typical Refusal Notice in these cases is phrased. Thus taking one of the examples highlighted by the defendant, namely ECO ref 691726 (number 11 on the analysis chart, bundle 1 p 113); it reads as follows :

'You have claimed 30 points for your CAS. Your CAS states that your English language ability meets the minimum CEFR level and in order to establish this you were assessed in person by a college staff member. On the basis of the interview conducted at the British High Commission (date given) you failed to correctly confirm how the college had assessed your English ability. Given this significant discrepancy, you have not been awarded any points for the CAS. You do therefore do not meet the requirements to be granted for entry clearance as a Tier 4 (General) student and I refuse your application under subparagraphs 113 to 120 of appendix A of paragraph 245ZV(b) of the immigration rules.'

49. The highlighting in the wording above is that of this court. In this particular application, as in all the other refusals of this type, the refusal was by reference to the officer in question considering that the discrepancy identified between what the CAS asserted and that which the student said in interview undermined the veracity of CAS and hence the CAS was worthless. This necessarily meant that the CAS could not qualify as a CAS for the purpose of the Rules. The refusal was not on the basis of some otherwise requirement not mentioned in the Rules but by reference to the Rules. Nor was it based on any failure to meet an English Language requirement as such. That is made even clearer by the contents of the material CAS and Record of Interview in this particular case. The synopsis of that Interview Record reads:

'Meets English level but CAS discrepancy: although applicant was able to confirm college name, course, duration etc. Was unable to confirm how English had been assessed by the college despite being asked the question 3 times he could only confirm that he had a listening test whereas the CAS states he had reading, writing, speaking and listening tests, he also did not state that he provided an IELTS and BA to the college – CAS discrepancy.'

The CAS itself asserted:

'the student has been assessed by an Online Skype Interview. The assessment confirms that the student has an English language competence level equivalent to CEFR Level B1 in all aspects (Reading, Writing, Speaking and Listening).'

The Interview Record discloses the student was asked 'How did the college assess your English?' x 3 to which his reply was 'They asked me some questions'. To the next question 'what can you tell me about that assessment process? When and where did your interview take place – was anyone there to help you?' the recorded answer is 'Skype Interview, just listening test no other tests'.

50. Although Mr Jagadesham sought to persuade me by reference to other refusal records that the alleged CAS discrepancies in these cases were not ones which should have cast doubt on the veracity of the CAS since the information the student failed to give was not that which he could be expected to know (such as that his language ability had been assessed by telephone interview), I am unable to accept the argument that these considerations render the refusal unlawful in the sense contended, that is a refusal not sanctioned by the Rules.
51. Nor am I able to accept the submission of Mr Jagadesham that an Entry Clearance Officer is not entitled in law to interview an applicant with a view to checking the veracity of a CAS. This is all part of the need identified by Mr Shirley to avoid threats to immigration control. The fact there is nothing in the rules or the policy guidance to this effect is in my judgment to nothing. Neither the newly introduced rule 254(ZV)(ca) nor the Guidance at paragraph 324 to which I have referred in any way limited the purpose of any interview which an entrance clearance officer chose to undertake. A distinction, as Mr Mandalia submitted, has to be drawn between omissions going to the validity of the CAS within the meaning of Appendix A (which was not the basis of any of the refusals in this case) and an assessment made by a clearance officer following his interview with the student as to veracity of what is asserted in the CAS. The clearance officer in all these cases was not saying the CAS was invalid by reference to an alleged (and Mr Jagadesham would say non existent) requirement of validity that the student confirm how the college assessed his language ability. He was saying rather that the discrepancies identified by him between what was asserted on the CAS and what was said by the student in interview were such that the veracity of the CAS was undermined.
52. In her letter of the 7^th December 2012 the defendant stated that: 'as part of an application for entrance clearance/leave to remain we make checks to ensure the information stated on the CAS can be verified.' I can see nothing unlawful in the defendant adopting this approach nor is it rendered unlawful because the defendant has not expressly given notice in advance of the sort of questions to be asked for that purpose.
53. Once this position is reached by the court, the essence of what the claimant is saying is that in relation to each of these 64 refusals, it strongly disagrees with the assessment made by the defendant through the clearance officer or on any administrative review, that the discrepancies identified between what was said in the CAS and what was said by the student in interview were properly to be characterised as discrepancies or if they were, that they should have been considered to undermine the veracity of the CAS. Such disagreement however in my judgment cannot begin to bring this case into that exceptional category recognised in the authorities (and as recognised by the defendant) when the defendant in exercise of her discretion should depart from her application of the mandatory requirement that refusals should be less than 20%, and have regard to the detail of individual refusals. The rationale for the use of such a mandatory requirement without the need to consider individual refusals, (as attested to by Mr Shirley in his statement) namely that a refusal rate of 20% or more (which is considerably higher than any average refusal rate) represents a threat to immigration control and a sponsor who has that level of refusal cannot be categorised as 'highly trusted', must in my judgment continue to hold good notwithstanding the claimant's strong disagreement with the significance put upon the CAS discrepancies in these individual refusals by the entry clearance officer.
54. Nor do I consider that this is a case which the defendant can be said to have unlawfully fettered her discretion to depart from the mandatory requirement. The claimant's reliance upon the letter of Mr Shirley does not in my judgment make this out. That letter was not an assurance to the claimant that any refusal considered by and which could be shown by the claimant to be 'in error' on any basis (such as disagreeing with the assessment made by the clearance office that the discrepancies identified undermined the veracity of the CAS) would be examined by the defendant and if such error was made out, would be discounted by the defendant. Such assurance was, in my judgment, understandably restricted to refusals which could be shown to have been 'factually incorrect' which cannot apply to any of the 64 refusals under challenge in this case. I accept the submissions made by the defendant in this regard to which I have already referred including the evidence that the defendant did apply her discretion to discount one refusal on this basis. See above at paragraph 43.
55. This is not in my judgment a case in which the public law duty identified in Venables not to adopt an inflexible and invariable policy (represented in this case by the mandatory 20% refusal rate criterion) which precludes a decision maker from departing from that policy in particular circumstances peculiar to a particular case, has been broken. Neither the letter under challenge (that of the 7^th December) nor the evidence before me demonstrated this to be the case. What rather is lacking in this case in my judgment is the identification of any proper basis in the circumstances of the refusals under challenge, upon which it can be demonstrated that this was a case calling for a departure from that mandatory requirement.
56. For all these reasons this claim must be and is dismissed and it is unnecessary to consider the conflicting submissions on whether a claim to damages could in any event be made out.
57. Of course these conclusions are reached without regard to the fact that for the reasons already given, even if those refusals which were solely based on the erroneous basis complained of by the claimant were to be discounted, the refusal rate would still fail to meet the mandatory requirement (if only just) (see paragraph 11 above) which would in any event call into question whether any relief should be granted even if, contrary to my findings, the grounds of challenge directed to these refusals had been made out.
58. However I do not decide this claim on this latter basis. I can see force in Mr Jagadesham's submission that if this court had found the defendant to have been in error in not discounting 58 of the 64 refusals, the proper course would be to remit the application for HTS for reconsideration by the defendant in the light of any further representations the claimant might choose to make.