England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester, M60 9DJ
		11/11/2014

Mr Justice Mostyn:

1. This case is part of the fall out from the excellent piece of investigative journalism undertaken by the BBC's Panorama programme on 10 February 2014. This exposed industrial fraud in the taking of the Test of English for International Communication ("TOEIC"). This test is one of many designed and administered by a US company called Educational Testing Services ("ELT").
2. Since 2008 Secure English Language Testing ("SELT") has been an important element in the consideration of immigration applications under the points based system whether under Tiers 1, 2 or 4. This case is about Tier 4 which, as is well known, concerns immigration from outside the EU in order to study here. In 2010 ETS was approved as a supplier of SELT by means (inter alia) of the TOEIC.
3. The Panorama programme exposed wholesale cheating in the TOEIC by two means. Sometimes proxies were used to impersonate the candidate. Sometimes the invigilator simply read out the right answers. A guaranteed pass by one of these means would cost £500. Additionally, the fraudsters offered fake documents such as bank statements.
4. Obviously to cheat like this would be very risky. If the fraud were found out the consequences would be severe and would extend to criminal prosecution, deportation and a lengthy ban on any further immigration application. Obviously someone who had a good chance of passing the TOEIC would not take the risk. And obviously (one would think) a person who took that risk would have noticeably poor English.
5. Since the Panorama exposé the Home Secretary ("SSHD") has taken a very hard line with Colleges which have taken on students with fraudulent TOEIC certificates. I have been given a list of 78 private colleges which have had their Tier 4 sponsorship licences suspended, revoked or surrendered. One of them is London St Andrew's College. It has been granted permission to apply for judicial review. The substantive hearing will be on 25 and 26 November 2014. It is agreed that should I grant permission in this case the substantive hearing should be heard alongside the St Andrew's case. The issues are very similar and there would be an economy of scale. The hearing would not be appreciably extended, if at all.
6. This case was in fact before me on 29 July 2014 on an application for interim relief following the SSHD's decision on 2 July 2014 to suspend the Tier 4 sponsor licence of the claimant ("CLA"). A dispute arose as the form of the order. A version was sealed but the SSHD says that it is mistaken. This hearing on 6 November 2014 was fixed before me (in Manchester) to resolve that issue. I do not think that the order as sealed was mistaken, but that aspect of the case has been overreached and rendered moot by the later decision of the SSHD of 29 September 2014 to revoke CLA's Tier 4 sponsor licence. CLA therefore applies to amend its grounds seeking judicial review and that has been heard inter partes. In effect CLA has managed to procure an inter partes hearing of the leave application without a prior paper consideration by a judge, but the SSHD takes no point on that.
7. The decision of 29 July 2014 relied on four matters to justify the revocation of the licence. These were:

i) CLA had assigned 116 Conditional Acceptances of Studies ("CAS") to students who had false TOEIC certificates. This represents one in twenty of all CAS assigned by CLA since 2009;

ii) CLA's procedures for attendance monitoring were deficient;

iii) CLA's procedures for demonstrating academic progression were deficient; and

iv) CLA was in breach of certain of its Tier 2 obligations for some of its staff.

8. The figure of 116 CAS is certainly a big number, even if it is only 5% of the total CAS issued by CLA . CLA points out that of that number "only" 67 were granted by reference to the false TOEIC certificates; the remainder had CAS assigned by reference to other un-impugned criteria. Of the 67 "only" 21 were active at the time of the decision; for the others the course had either ended or the sponsorship otherwise terminated.
9. Since the revocation the SSHD has begun serving notices to leave the country on the members of the student body.
10. The revocation of the licence has been and will be economically disastrous for CLA. All of its students come from outside this country or the EU. Basically, the business will collapse.
11. I say immediately that grounds (ii) – (iv), whether taken individually or collectively, do not justify the draconian step of revocation. In fairness, Miss McGahey only sought to support grounds (ii) and (iii) faintly, and she did not attempt to justify ground (iv) at all. She rightly submitted that this case is all about ground (i). If ground (i) is valid then grounds (ii) – (iv) are unnecessary surplusage. If ground (i) is not valid then grounds (ii) to (iv) would not justify, on any view of the evidence, the sanction of revocation. That would be a grossly disproportionate response.
12. In para 33 of her skeleton argument Miss McGahey says:

"There is no suggestion that the College was in any way directly involved in perpetrating the fraud. The culpability lies in the College's failure to identify bogus students"

13. In her oral submissions she stated that it must have been "absolutely obvious" to CLA that for the 67 students for whom CAS was assigned by reference to fake TOEIC certificates the certificates were bogus. The SSHD was entitled to infer that the cheats could barely speak English and that this would have been blindingly obvious to the College. As such the College represented a serious threat to immigration control and this justified it having its licence being revoked and being, in effect, shut down.
14. Although the SSHD does not directly point her finger at CLA and accuse it of being directly complicit in fraud her allegation of wilful blindness comes to much the same thing. The allegation is a very serious one.
15. If we were starting with a tabula rasa I would think that a very stern response to fraud of this nature and scale was justified. I would think that the SSHD would be justified in relying on the bare datum of 67 CAS assigned by reference to false TOEIC certificates in reaching the decision to revoke the licence. I think she would be justified in taking a line of strict liability and in blocking her ears to pleas in mitigation or assertions of non-culpability.
16. However, we are not starting with a tabula rasa. Although there is no statutory regulation of Tier 4 sponsor licences the SSHD has published her policy in three documents dated 1 July 2014. It is trite law that where an administrative body publishes a policy it must follow it unless there are very sound reasons not to. The third document is entitled "Sponsors' Duties and Compliance". Para 163 provides:

"Whilst we cannot precisely define the exceptional circumstances in which we will not [revoke your licence in the circumstances set out in the Table above], this decision will be based on such factors as the number of breaches, previous history and the efforts you have made to address those issues … We will look for evidence that you were either not responsible for what happened or, if you were, you took prompt and effective action to remedy the situation when it came to light. For example if one of your employees was wholly responsible for what has happened and that person was dismissed when it came to light"

17. Mr Biggs argues that this imposes on the SSHD a duty to inquire into the sponsor's culpability and to consider carefully all evidence advanced in defence and in mitigation.
18. CLA says that it has advanced evidence which shows, at least prima facie, that it is not a "dodgy" institution. It says that for the 67 CAS issued in reliance on false TOEIC certificates there is no evidence that the students were anything other than genuine. It was not "absolutely obvious" that they could not speak English and were therefore fraudsters. On the contrary there was either evidence of an adequate command of English or, where further examination revealed doubts, the sponsorship of the students was withdrawn. All this was set out in great detail in a letter dated 26 August 2014; but this was effectively ignored by the SSHD when she came to make her decision of 29 September 2014. Mr Biggs argues that what the SSHD characterises as inference is no more than mere suspicion, and that mere suspicion is not a fair or rational basis on which to mete out a draconian sanction which will have such a calamitous economic consequence for an incorporated UK business.
19. In my judgment the case of CLA is arguable and permission should be granted. The bar for the grant of permission in judicial review proceedings is set low; the object is to weed out the obviously meritless cases. This case is not obviously meritless. It does not follow from my grant of permission that were I to hear the substantive case (and I will not) I would set aside this decision. Far from it. There is a lot to be said for the argument that when faced with the exceptional circumstance of fraud of this scope and scale the SSHD was and is entitled to adopt a line of adamantine strict liability whatever her previously published policy may have said.
20. This case will be heard alongside the St Andrew's case on 25 and 26 November 2014. Counsel are agreed that no further evidence is needed. Counsel must agree final directions concerning the filing of skeleton arguments, and an agreed bundle as well as an agreed file of authorities.
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