England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/12/2014

Mr Justice William Davis:

Introduction

1. The Claimant, Brit College ("the College"), is an independent educational provider. It was established in 2006. In these proceedings it applies for judicial review of the decision of the Secretary of State for the Home Department ("the SSHD") to remove it from the register of licensed sponsors. That decision was made on the 21^st May 2014. A pre-action protocol letter was sent by the College to the SSHD on the 25^th June 2014. That letter invited the SSHD immediately to reinstate the College to the register. By a letter dated the 16^th July 2014 the SSHD declined that invitation. The procedural history thereafter was as follows:

Application for permission to apply for judicial review and application for interim relief lodged 28^th July 2014.

Acknowledgment of service and summary grounds of defence filed 12^th August 2014.

Both applications ordered to be considered at an oral hearing, that order being made on the 18^th August 2014.

Application for interim relief refused at an oral hearing on the 8^th October 2014 on which date the application for permission was adjourned to a rolled-up hearing.

2. The basis of the points based system by which the SSHD exercises immigration control of non-EEA foreign students has been rehearsed in innumerable decisions of this court and the Court of Appeal. The system as it was originally established is set out fully in the judgment of Silber J in R (Westech College) v SSHD [2011] EWHC 1484 (Admin) at paragraphs 4 to 19. I gratefully adopt his description of the system as it was in 2010. At that point licences to institutions such as the College were issued with either an A rating (trusted) or a B rating (sponsor). In 2011 the licensing system was changed. Any institution which was licensed had to achieve the rating of Highly Trusted Sponsor ("HTS"). Existing licence holders were required to apply for such a rating. The decision to remove the College from the register was made in the context of the SSHD's consideration of whether the College could be given the HTS rating.
3. The underlying basis of the system – both now and as originally established – is that the sponsor i.e. the educational establishment will fulfil its duties with rigour and care. Whether the student is genuine, whether the student is capable of completing the course of study in respect of which s/he has been given leave to enter, whether the student in fact is undertaking proper study – all of these are determined by the sponsor. Whilst there is no formal delegation of the immigration duties of the SSHD, any educational institution exercising the function exercised by the College de facto will be ensuring proper control of immigration insofar as its students are concerned.

Factual background

4. The College first applied to be licensed as a sponsor within the points based system in January 2009. This application was granted in April 2009. The College was allowed to issue Confirmation of Acceptances for Studies ("CAS") from autumn 2009. The College was issued with an A rating, the licence being granted for a period of 4 years.
5. In May 2010 the College's licence was suspended. The SSHD had concerns about a significant number of students for which the College apparently was unable to account. The College applied for permission to apply for judicial review of this decision. On the 3^rd June 2010 this court granted interim relief in that it ordered reinstatement of the licence but with a B rating. Permission to apply for judicial review was granted in March 2011.
6. In April 2011 an inspection team acting on behalf of the SSHD made an unannounced visit to the College. As a result of that visit the SSHD notified the College that she was minded to suspend the College from the register as a result of matters discovered on that visit. However, it was indicated that no such decision would be taken until the outcome of the application for judicial review of the earlier decision to suspend the College's licence.
7. It was at about this time that the change to the licensing system as set out above came into effect. Because the system now was to be either HTS rating or A rating, the College applied again for interim relief, this time for reinstatement of the licence with an A rating. This application was refused on paper. A subsequent oral hearing was stayed to await the outcome of the litigation involving New London College.
8. At the beginning of 2013 the College applied to renew its licence since the original four year term was due to expire. The SSHD conducted a review of the College in May 2013. The recommendation of the relevant compliance officer was that the College should be licensed with an A rating. Since the system by now had changed, this was effectively the lower of two available ratings. On the 25^th June 2013 the College was licensed in accordance with that recommendation.
9. In the light of this the claim for judicial review was withdrawn. The SSHD granted the College's application to renew its licence with an A rating. Given that the system now required all sponsors to have HTS status, this renewal was short term in its effect pending the College's application for HTS status.
10. According to the evidence of Musaddiq Ahmed, the Chief Executive of the College, the College at its peak in 2010 had 5 branches at which there were nearly 4,000 students and 127 members of staff. In 2013 the College operated at a single site with around 300 students and 33 members of staff. This dramatic fall in student numbers apparently was due to the College only having a B rating from 2010 onwards. Mr Ahmed cites these figures to demonstrate the very serious effect on the College of having a reduced rating. The figures also demonstrate how significant the College was in terms of provision of courses to non-EEA students and the potential significance of the College vis-à-vis the entry of non-EEA students should it have achieved HTS status.
11. The College made an application on the 4^th February 2014 for HTS status. On the 17^th February 2014 an unannounced inspection visit was made to the College. The recommendation of the inspectors was that the College's sponsor licence should be suspended or revoked. On the 24^th February 2014 the College was informed of the decision to suspend its sponsor status. The reasons for that decision were set out in a letter of that date. The College was told that further investigations would be made and that it could provide written representations to the matters raised in the letter.
12. The College provided written representations in a letter dated the 19^th March 2014. The letter dealt with the matters raised in the letter of the 24^th February 2014. The College also noted that there had been a further visit on the 4^th March 2014 at the conclusion of which a visit report had been provided to the College. As will be identified hereafter that report was counter-signed by Mr Ahmed.
13. On the 3^rd April 2014 the SSHD confirmed her decision to suspend the College. In a letter of that date she set out six areas of concern. She provided the College with the opportunity to make further representations and to provide evidence in relation to the issues raised prior to any consideration of revocation of the College's sponsorship status.
14. By a letter dated the 1^st May 2014 the College made further representations. No evidence was provided by the College at this stage. The letter recognised that the College "need to improve procedures".
15. The SSHD concluded that the representations received from the College did not address her concerns. On the 21^st May 2014 the College's sponsor licence was revoked. The decision letter relied on the six areas of concern previously identified. In a separate decision on the following day the College's application for HTS status was rejected. That second decision was wholly dependent on the revocation decision.
16. On the 25^th June 2014 the College sent a Pre-Action Protocol letter to the SSHD seeking reinstatement of the College's sponsor licence. That letter was accompanied by various documents, none of which had been provided previously. The SSHD responded to that letter on the 16^th July 2014. In her response she indicated that one of the six areas of concern previously identified was not relied on to justify revocation of the licence but that otherwise her position remained the same. She declined to reinstate the College's sponsor licence.

The College's claim for judicial review

17. The College argues that none of the areas of concern identified by the SSHD individually was sufficient to warrant revocation of the licence. It argues further that, even on a cumulative basis, the SSHD had no proper basis to make the decision she did. Save for one matter, it is not suggested that the SSHD made any inherent error of law. Rather it is said that the SSHD's reliance on the various issues of concern was on the facts of the case irrational and unreasonable. It is recognised that it is not for me to remake the decision of the SSHD. I was referred in another context to the judgment of Neil Garnham Q.C. sitting as a Deputy Judge of the High Court in R (The London Reading College) v SSHD [2010] EWHC 2561 (Admin). The learned Deputy Judge encapsulated the relevant principles concisely at paragraph 60 of his judgment:

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

18. The SSHD relied finally on five issues when making her decision. I shall deal with the arguments put in relation to each of the issues separately. Nonetheless, in judging the rationality and reasonableness of the decision of the SSHD I must bear in mind the cumulative effect of the matters taken into account by her when she made the decision.

Initial attendance concerns

19. An important consideration in ensuring that a non-EEA student who has leave to enter for the purposes of study is fulfilling the terms of his or her leave is the attendance of the student at the educational institution, in particular attendance at any teaching session. It follows that the system by which the institution maintains attendance records is significant in any assessment of sponsorship status. At the first visit on the 17^th February 2014 the inspection team was told that attendance registers at any class were maintained electronically by the lecturer or tutor and that the electronic register was locked 30 minutes after the start of the class so that no amendment could be made to it thereafter. This appeared to be contradicted by material obtained at the visit e.g. an entry to an electronic register for a particular day timed at 15.23 in relation to an event which occurred at 16.25. In due course an explanation was given for this entry but the explanation gave rise to further issues. It transpired that the student in question originally had been marked as absent but, after a letter was sent to the College by the student, the register was amended to show that the student was present. The documents showed that the student had been present, that he had been marked as absent because he had not paid his fees and that the register had been amended to show that he was present once his fees had been paid. On further enquiry a significant number of other examples of such amendment came to light. The SSHD took the view that this system was misleading. In any given case whether a student has paid fees due is a matter between the student and the college. If the student has attended a class, the sponsor should record that attendance accurately. Otherwise, it may be said that the student is not complying with his or her conditions of leave to enter when in fact there has been compliance.
20. The further examples of ex post facto amendment which emerged in the course of the SSHD's consideration of attendance issues were not restricted to cases where the College had declined to note the attendance of the student due to an issue over payment of fees. It was apparent that there were instances of students submitting a written request that they be marked as present when the register showed them as absent without any question of non-payment of fees. On occasion the request was made several days after the class in question with no indication of any earlier request, written or oral.
21. The Guidance for Sponsors issued by the SSHD was and is voluminous and comes in three separate documents. Paragraph 159(c) of Document 1 of the Guidance states as follows:

"We look at your processes and how you monitor student attendance to ensure that you will be able to fulfil your sponsor duties…..If you are an existing sponsor and doubts arise, we may revoke your licence".

The SSHD relies inter alia on this specific guidance to justify revocation of the College's licence.

22. The College argues that the system it operated in relation to attendance was entirely appropriate and that it enabled the College properly to fulfil its monitoring duties. It is said that the decision letter did not refer to the Guidance. Moreover, the College had a written policy in relation to attendance. It had been in operation in 2013 when the SSHD had conducted a review of the College for the purposes of assessing the licence renewal application. It allowed for the practice identified by the SSHD as being contrary to proper principles of monitoring. The College's principal argument was that it was irrational of the SSHD not to take account of the existence of the written policy (and the clear rationale for the policy) when making her decision. I was invited to infer that the SSHD must have been aware of the policy as at the time of the 2013 review.
23. I do not consider that the absence of any reference in the decision letter to a particular part of the Guidance document is of any significance. The substance of the concerns of the SSHD is made quite clear in the decision letter. The written policy was not produced by the College at any stage of the process until the Pre-Action Protocol letter. On the two occasions prior to the revocation decision when the College addressed in writing the concerns of the SSHD there was no mention of the policy. Thus, the decision to revoke made in May 2014 cannot be impugned by reference to the written policy. I am not prepared to infer that the SSHD was aware of the policy from the time of the May 2013 visit. Rather, I am satisfied that she was not. The objections raised in February 2014 and thereafter would have been raised in 2013 had it been known that the policy existed. This conclusion is supported by the fact that the College did not refer to the policy at all until after the decision had been made.
24. In any event the section of the policy now relied upon is less than clear. It reads as follows:

"If a student is suspended, he/she will be marked absent. The student may claim the attendance by writing an application and getting it signed by their teacher that he/she was present in class. If the application is approved, the student can be marked as present. The attendance will be approved subject to the student's status."

Issues such as the reason for suspension, the date by which any written application is to be presented to the teacher, to whom the application then is to be directed and the meaning of "the student's status" are left unclear. If the SSHD had been aware of this policy in May 2013, I am in no doubt that she would have raised a number of concerns in relation to it.

25. If this were the only issue about which the SSHD had concerns, it may be that she would not have revoked the College's licence and that, if she had, it would have been susceptible to judicial review. The SSHD argues that it must be considered as part of a continuum of failings. Subject to the existence of such a continuum being established, I agree with that approach. Further, I find that the system for monitoring attendance operated by the College was not such as to provide a proper basis of fulfilling its duty as a sponsor.

Further attendance concerns

26. This issue relates to actual attendance by non-EEA students sponsored by the College. Before considering the substance of the concern which exercised the SSHD, it is necessary to consider an evidential issue. When the College was visited in March 2014 the files of 24 sponsored students were available to be viewed. 17 of those students apparently had poor attendance records. The visit report form prepared at the time of the visit noted as follows: "Attendance levels – no warning letters on file – sponsor advised letters on computer system". This form was signed by Mr Ahmed and a copy left with him. The typed report form completed thereafter noted as follows: "The sponsor claimed that there were warning letters for all students on the computer system. However, the computer administrator was on leave and access therefore was not possible." In the representations made on the 1^st May 2014 the College asserted that "the warning letters you refer to are historic and not related to the period in question". By the time of the Pre-Action Protocol letter it was being asserted that the College disputed the suggestion that any warning letters had been issued at all with no reference to historic issues. Mr Ahmed's witness statement repeats the denial of any warning letters having been sent. He accepts that he signed the visit report form and that he was given a copy. He gives no explanation of what could have been said that might have been misinterpreted by the person who completed the form. He does not explain why he did not raise the question of warning letters once he had had time to read the form. It was argued on behalf of the College that I was bound to accept the evidence of Mr Ahmed in the absence of any evidence from the relevant official who had conducted the visit in March 2014. I disagree. I am entitled to consider the contemporaneous documents and to assess the inherent reliability of Mr Ahmed's account. Given those matters I am satisfied that the College in March 2014 did tell the relevant official that warning letters had been sent. Since it is now common ground that no such letters were sent, I am bound to conclude that there was a lack of transparency (to put it at its lowest) on the part of the College in relation to poor attendance and what it tried to do about it. The SSHD before me argued that the issue of warning letters was a peripheral issue and that I did not need to decide the point. I agree that the issue is not central. Equally, it was referred to in the revocation decision. I conclude that it was a relevant consideration for the SSHD in her decision and that she was justified in drawing a conclusion adverse to the College in respect of that issue.
27. When the SSHD made her decision she had seen the full files of 24 sponsored students. Of these, 12 had an average attendance of less than 50% and 5 more had an average attendance of between 50% and 70%. She also had been provided with a basic schedule of attendance for all students at the College (168 in number). 132 of the students at the College had an average attendance of less than 80%. The variations in attendance was substantial. There were many students with an attendance rate of less than 50%. The attendance figures related to the period from the beginning of the new term in 2014 i.e. a period of 4 to 6 weeks. Students with a poor attendance record on the face of it were not effectively undertaking full time study hours so as to comply with their conditions of entry. The SSHD considered paragraph 162(g) of Document 3 of the Sponsor Guidance which provided her with a discretion to revoke a sponsor's licence in these circumstances:

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

28. The issue of actual attendance by students of the College was dealt with in the College's letter of the 1^st May 2014 i.e. the final representations from the College prior to the revocation decision. No issue was taken with the figures. It was stated that the figures were "simply attributable to the current circumstances". The letter went on to say this:

"We understand your concern that despite the above, such a large percentage of files checked contained examples of poor attendance. Our client shares the concerns but would again highlight that the College has been undergoing a difficult period during the litigation. It has had trouble retaining students and maintaining morale amongst the few students that they have left."

Towards the end of the letter this was said:

"(The College) wishes to address the concerns you have with your support. One way to move forward may be to cancel the sponsorship of all underperforming students. Students with low progress and low attendance will have their sponsorship cancelled."

Given those concessions and given the material available to her, it is perhaps not surprising that the SSHD relied on the actual attendance figures as a basis for revocation.

29. The arguments put forward by the College are two-fold. First, it is asserted (contrary to the contents of the letter sent on the 1^st May 2014) that the attendance records were not open to proper criticism. Second, it is said that the Pre-Action Protocol letter and the material provided therewith provides a proper explanation for the position. As a result the SSHD was irrational in maintaining the revocation. In relation to the first argument, the proposition is that the College followed its attendance policy which required 80% attendance by non-EEA students. This level of attendance fell to be measured over the whole of a semester. It was unreasonable to draw any conclusions from the figures relating to a few weeks. But this proposition is in conflict with the terms of the relevant part of the policy. That reads as follows:

"Any international student whose attendance falls below 80% attendance rate is considered as having unsatisfactory attendance. (The College) monitors the student's attendance weekly and compiles a list of students with unsatisfactory attendance. (The College) will subsequently request an explanation. If student gives a satisfactory explanation no action will be taken apart from reminding them to improve their attendance."

The only sensible reading of the policy terms is that the College determines whether a student is maintaining satisfactory attendance on a weekly basis. I also consider that to consider attendance only at the end of a semester inevitably would mean that a sponsor would be unable properly to ensure compliance with a student's conditions of entry. The first argument of the College is unsustainable.

30. The Pre-Action Protocol letter was accompanied by a welter of documentation, none of which had been provided previously and all of which had been in existence at the time of the College's letter of the 1^st May 2014. The principal purpose of the documentation was to demonstrate that many of the attendance issues were caused by the bankruptcy of an external course provider which meant that students had to wait until an alternative provider was in place before they could resume attendance. The material also dealt with previous attendance records of the students identified as having particularly poor attendance from the start of 2014. I do not consider that this secondary material could or should have affected the decision of the SSHD. As to the principal issue raised by the fresh documentation, this had to be judged against all that had been said in earlier correspondence from the College. The matters set out at paragraph 28 above were of particular significance. In any event the Pre-Action Protocol letter and the documents accompanying it sought to demonstrate that 85 students had been affected by the external course provider's bankruptcy. 9 of the 17 students whose files had been considered in detail were amongst those 85 students. That left 47 students with a less than 80% attendance for whom there was no explanation. In relation to the students whose files had been considered in detail, there were said to be 6 where the external provider's bankruptcy was irrelevant but in respect of whom "the reason for their absences was recorded". Nothing was said even then as what the reason might have been. At its highest the material provided after the decision had been made gave some basis for considering that some of the poor attendance had a sensible explanation. The material was not such as to undermine the fundamental basis of the earlier decision. It left questions unanswered. It was wholly at odds with the concessions made by the College in the 1^st May 2014 letter.
31. I conclude that the view taken in the letter of the 21^st May 2014 by the SSHD in respect of further attendance concerns was wholly justified. The contrary is not seriously argued by the College. I do not consider that the SSHD acted irrationally when she maintained that view in her response to the Pre-Action Protocol letter. The material then provided was not sufficient to require a reasonable decision maker in the position of the SSHD to change her view.

Student Assessments

32. A critical part of the sponsorship scheme is the process of Confirmation of Acceptance for Studies ("CAS"). A CAS document is a vital step in the process for a non-EEA student. In order to obtain the requisite number of points to be permitted entry into the UK, the student must have a CAS letter from a sponsor. Before the sponsor properly can assign a CAS, the sponsor must be satisfied that the student intends and is able to follow the course of study concerned and that the student will successfully complete their course on the date specified in the CAS. Where a student already holds qualifications in their own country, the sponsor must be satisfied that the course intended to be followed represents academic progression. When a student changes course, the sponsor must report this as part of its duty qua sponsor. This duty appears in Document 3 of the Guidance.
33. In the continued suspension letter dated the 3^rd April 2014 the SSHD identified seven students in respect of whom she asserted that a CAS had been assigned inappropriately. In the case of one of those students (a Mr Deb) she asserted that there had been a breach of the duty to report a change of course. The response of the College on the 1^st May 2014 did not present any real argument to contradict these assertions. The relevant part of the letter was as follows:

"With reference to the student assessments and students ability to complete the course…this is historical. Mr Deb (sic) and a number of other students were unable to complete their original course of study. The College….were (sic) under the impression that a further CAS was not required."

The argument that the assessments were historical did not meet the point made by the SSHD. By definition the assessments were historical. They were made at the beginning of the relevant courses. The SSHD's point was that, in the light of the subsequent history and progress, the College cannot have had proper grounds to conclude that the students concerned were able to follow the course of study concerned. The SSHD relied on the poor attendance records of the seven students, the history of failing examinations and (in one case) a report that the student concerned changed course because his original course was "too complicated". In the light of the representations made by the College, the SSHD concluded that there had been a breach of duty in relation to CAS assessments.

34. The argument put now by the College is that further material was provided with the Pre-Action Protocol letter which ought to have led the SSHD to change her view. Her failure to do so was irrational. That irrationality is demonstrated by the failure to address the points made in and the material provided with the Pre-Action Protocol letter. In fact the additional matters put before the SSHD did not take the matter any further to any appreciable extent. The "historical" point was rehearsed and amplified. Evidence of the assessments carried out prior to students' changes of course was provided. Some limited information was given about the particular position of one of the students which may not have been before the SSHD previously. In reality there was no substantial matter raised which required the SSHD to remake her decision. If she was entitled to conclude that there had been a breach of duty in relation to CAS assessment on the 21^st May 2014, she was entitled to do so in July 2014.
35. The performance of the relevant students was strikingly poor. The following are examples. I shall identify them by initial rather than by name. DC commenced a diploma course in 2011. He did not attempt any examinations in the summer of 2012. He failed the exams in December 2012 and June 2013. At that point he was permitted to change his course. His attendance rate in 2014 was 44%. MH began an accountancy course in 2010. He took no examinations at all between 2011 and 2013. He then changed his course saying that the accountancy course was "too complicated". His attendance rate was 30%. MM began a four year course in 2009. In 2011 he took no exams. In 2012 and 2013 he failed exams. He switched course in 2014 at which point his attendance rate was 63%. I am satisfied that the SSHD was entitled to reach the conclusion she did in relation to the College's breach of duty in relation to CAS assessment. It was something that she entitled to take into account as part of her revocation decision. Certainly she did not act irrationally in so doing.
36. It is in relation to student assessments that the College argue that the SSHD acted unlawfully in the making of her decision. When the College provided evidence to accompany the Pre-Action Protocol letter, it included material relating to a student with the initials MR. He was a student who had been accepted for a particular course but who subsequently said that he could not pass it (presumably because it was too difficult for him) and who was permitted to change course. In her response to the Pre-Action Protocol letter the SSHD relied on the material concerning MR to confirm the view she previously had formed. The College argues that this amounts to procedural unfairness which undermines the legality of the decision of the SSHD. I do not find it necessary to decide this issue. The procedural unfairness alleged is the failure to give the College the opportunity to deal with the points made by the SSHD. Had the College had that opportunity, it might have failed to do so (in which case it would be worse off) or it might have succeeded (in which case it would be no better off). I do not consider that in those circumstances any procedural unfairness (about which I find it unnecessary to reach any view) could affect the legality of the SSHD's decision on this point.

IAM Students

37. A sponsor is not permitted to offer places to non-EEA students if the main course of study does not lead to an approved qualification. If a sponsor does so it will lead to mandatory revocation of any licence under paragraph 160(k) of Document 3 of the Guidance. In 2013 an institution known by the acronym IAM ceased to trade. This institution had provided approved qualifications. A number of the College's students were studying for IAM qualifications. When IAM ceased to trade, its qualifications were not approved. When the decision was taken on the 21^st May 2014 to revoke the College's licence, the SSHD was entitled to invoke paragraph 160(k). That is accepted by the College. In the course of argument it was described as "a knockout blow". It was conceded in terms that at the time of the original decision it was appropriate for the SSHD to revoke the licence on this ground alone. However, at the time of the Pre-Action Protocol letter evidence was provided to show that the relevant students by then were registered with a body providing an approved qualification. Therefore, it is argued, the SSHD no longer can rely on the position as it was in May 2014.
38. The SSHD agrees that paragraph 160(k) no longer applies. However, the relevant evidence was only provided in July 2014. In her letter of the 3^rd April 2014 she in clear terms required that evidence to be provided to her. Within the Guidance a failure to provide such evidence within 28 days of any request is a discretionary basis for revocation under paragraph 162(q). In her response to the Pre-Action Protocol letter the SSHD rehearses the history and identifies the failure to provide the information within the time allowed. Although the response does not cite paragraph 162(q) specifically, the reasoning of the SSHD is quite clear. The SSHD had a proper basis for maintaining her decision in relation to this part of the case albeit on different grounds.

English Language verification

39. Under the Guidance non-EEA students cannot be assigned a CAS if the sponsor has not first properly assessed the English language ability of the student concerned. The general expectation is not that the sponsor will itself carry out the assessment. Rather, the student will take a test or examination conducted by an external body and the sponsor will verify with the external body that the student is competent in the English language. At the time of the visits in February and March 2014 the College's position was that it then required students to pass the IELTS examinations. In the representations made by the College prior to revocation, two points were made. First, it was said that the Guidance did not require verification of examinations carried out by students. Second, it was asserted that at the visit in March 2014 the relevant official saw evidence of the IELTS verification system and confirmed his satisfaction with it.
40. The College argued before me that there was no evidence to suggest that any student in fact did not have sufficient English language ability or that any certificates relied on were invalid. That is correct. However, the SSHD argues that the College had not provided evidence to show that the relevant certificates were verified prior to admission. In the student files there was no evidence of such verification. Whilst the means to verify may have been available, the SSHD argues that no evidence has been provided to show that verification actually occurred. In the Pre-Action Protocol letter it is said that "the files that were available on the day contained documentary evidence of the verification processes that had been undertaken". Given the amount of other documentary material that was disclosed at that point, it is notable that this documentary evidence was not provided.
41. I consider that this limb of the SSHD's decision on its own might not have been sufficient to warrant revocation. It is just arguable that a reasonable decision maker in the position of the SSHD would have made further enquiries with the officials who saw the relevant files and/or made another visit. However, that proposition is only just arguable and, in any event, the failure of the College to provide the evidence of English language verification has to be judged against all the other matters considered by the SSHD. Taking those matters into account I conclude that the SSHD did not act unreasonably or irrationally in taking into account the verification issue.

Exercise of discretion

42. The College's case is that all of the matters finally relied on by the SSHD gave rise to a discretionary power to revoke the licence. Given the provision (albeit tardy) of the material concerning the IAM students, that proposition as at the 16^th July 2014 must be correct. It is argued that nowhere in the decision letter or any other material emanating from the SSHD is there any express consideration of whether she should exercise her discretion. Thus, so the argument goes, the decision of the SSHD should be quashed on the basis that she has failed to consider whether this was an appropriate case to exercise her discretionary power or to take some other course. I reject that argument. I am quite satisfied that the SSHD was fully aware of the options available to her and that she properly considered such alternative as there may have been to revocation. The fact that there is no express rehearsal of the discretionary nature of her power cannot render unlawful a decision that is otherwise wholly rational and reasonable.

Article 1 Protocol 1

43. In view of my conclusions on the propriety of the SSHD's decision to revoke the College's licence the question of whether there can be a claim for damages for a breach of Article 1 of the First Protocol to the ECHR does not arise. The reasoning of Richards LJ in R (New London College Limited) v SSHD [2012] EWCA Civ 51 makes it very difficult to see how such a claim could arise in a case such as this. In the event the issue is academic and I do not need to consider it further.

Conclusion

44. It follows that I am satisfied that the SSHD's decision to revoke the College's licence fell comfortably within the limits open to her in the exercise of her judgment and discretion. This was a rolled up hearing. Given the preponderance of the arguments in favour of the SSHD I do not consider the case was arguable and I refuse the College permission to apply for judicial review.