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
		19th December 2014

Mrs Justice McGowan :

1. This is a claim by London St. Andrew's College, ("the college") for Judicial Review of the Secretary of State's ("SSHD") decision of 3 September 2014, supplemented on 17 October 2014, to revoke it's Tier 4 licence. Leave was granted by Green J. on 7^th October 2014. An application for interim relief heard at the same time was refused.
2. This case was listed with a similar but distinct application made in the case of R (City of London Academy) v SSHD (CO/3320/2014). It was listed that way for reasons of expediency because there are some areas of principle in common. It is important to record that both cases are entirely separate and fact specific. During the hearing the SSHD offered to reconsider her position in relation to the City of London Academy, in light of some evidence that had become apparent very close to the hearing date. That case has been adjourned and the SSHD will provide a new decision. If required there will then be further argument. Again, if necessary, there will be a separate judgment. Despite the common legal and regulatory background the two cases are different, have been argued on different submissions and will, in large measure, turn on evidence relating to different concerns by the SSHD and responses provided by the colleges.
3. These cases have been brought on with some speed. This is principally to achieve certainty for those legitimate students who have invested great time, effort and considerable funds in attending these colleges and who now find themselves at risk of losing their college places and in some cases their immigration status. The National Union of Students wrote to the court through solicitors acting on their behalf, Bindmans LLP, on 21 November 2014 and 26 November 2014. They do not ask to be joined nor do they seek to intervene but they have in their letters outlined the position of those students concerned. Their position has been considered throughout these proceedings. Their fate cannot, however, determine the questions of public law highlighted here.
4. That speed meant that although this case could proceed to a substantive hearing, there was one significant matter of evidence which exceptionally, I allowed, could be dealt with by further written submissions after the hearing date.

Background

5. This is one of a number cases arising out of general concerns about the improper manipulation of academic courses to facilitate immigration fraud which was brought to greater public attention by a Panorama programme. The programme was centred on the activities of Educational Testing Services, ("ETS"). This was an institution supposedly granting Test of English for International Communication certificates ("TOEIC") to non-EEA applicants for places at colleges in the UK. The evidence showed that many such certificates were being granted on a fraudulent basis.
6. London St Andrew's College is an educational institution, established in 2009 and based in London. It was granted a Tier 4 sponsor licence on 8 December 2009 and Highly Trusted Status, ("HTS") in August 2010. That licence was renewed until 18 October 2013 when it was renewed until 8 December 2017.
7. On 24 June 2014 the SSHD suspended the HTS licence. A claim for Judicial Review was issued by the college on 14^th July 2014; it requested urgent consideration and applied for interim relief. A hearing to determine interim relief was listed by the court on 29 July 2014. A consent order staying the Judicial Review claim was signed on 28^th July 2014 by which the SSHD undertook to make a final decision whether to revoke or re-instate the licence, having taken further representations made by the college into account.
8. On 3^rd September a decision to revoke the licence with immediate effect made by the SSHD was communicated to the college, giving the following reasons;

"i) The Claimant had issued 65 CASs to students who cheated in their ETS exams. The Claimant may not have been aware of the ETS fraud but there were several examples of it awarding CASs to 'very poor quality students'. The Claimant was Sponsoring them even where there was 'very little evidence' of their having the intention or ability to study in the UK.

ii) The Claimant was not meeting its obligations under §§102-103 of the Tier 4 guidance to check that the courses for which students were applying involved genuine academic progression. In particular, the Claimant had assigned CAS to 6 named students and confirmed that their course would constitute academic progression when, in fact, the course did not constitute academic progression. These same 6 students had obtained TOEIC certificates by cheating."

9. The college submitted amended grounds claiming Judicial Review, again requesting urgent consideration and seeking the suspension of the SSHD's decision as interim relief. On 15 September Lang J directed that there be an oral hearing of the application for Judicial Review, urgent consideration and interim relief. That oral hearing took place before Green J on 7 October 2014 when the application for interim relief was refused but permission was granted for the Judicial Review with a hearing to take place as soon as possible.
10. On 17 October the SSHD wrote to the college maintaining her decision to revoke the Sponsor licence and setting out reasons under the following headings,

i) Assigning CAS for qualifications which are not approved.

ii) Withdrawn ETS Scores

iii) Students working in breach of their conditions

iv) Poor student assessments

v) Sponsoring migrants as a gateway to long residency

vi) Academic progression

vii) Retaining visa copies

viii) Consideration, defined as an endemic problem of poor judgment.

11. The claim for Judicial Review, in its amended form, sets out four questions of general importance;

i) Whether the Court should determine the precedent fact/s upon which the SSHD made her decision,

ii) How the phrase "your duties" in paragraph 162(d) of Document 3 of the Tier 4 Guidance for Sponsors should be construed,

iii) The construction of "academic progression" in para 162(i) of the guidance and

iv) The duties of the SSHD in the exercise of her discretion under para 163 of the guidance.

The skeleton argument added a fifth issue;

v) The common law duties of the SSHD in making supplementary decisions during the life of any Judicial Review proceedings.

Framework

12. The background to the evolution of the system of the grant of HTS is set out in detail in the judgment of Lord Justice Richards in R (New London College Ltd) v SSHD [2012] EWCA Civ 51 from paragraph 4 onwards and need not be repeated here. The essence of the current system is that in granting a Tier 4 licence or HTS, the SSHD imposes a high degree of trust in the establishment to fulfil its responsibility in implementing and policing immigration policy in respect of the students to whom it grants Confirmation of Acceptance for Studies, "CAS". A CAS is a virtual document, like a database record, which supports a potential student's application for approval to enter and / or to remain in the UK for the purposes of study.
13. Being authorised to grant such a certificate is a privilege but carries great responsibility. The Sponsor is, rightly, expected to carry out those responsibilities with all the rigour and vigilance of the immigration control authorities. That includes the proper determination of a student's ability and commitment to study and to abide by the rules. It further imposes a heavy burden on the Sponsor to ensure that the student continues to comply with all requirements; to that end the Sponsor must maintain its own records with assiduity. To achieve these requirements the Sponsor must be vigilant to report and, if necessary expel, students who appear to have failed to meet the high requirements upon them, even if they are some way through their period of study. They must fulfil these requirements, even if to do so is contrary to their own economic interests.
14. The SSHD continues to bear the responsibility for the grant and supervision of such trusted status to the Sponsors. The exercise of her discretion should not be interfered with lightly. She has the experience and expertise to make those decisions. The role of this court must be only to interfere if the discretion has been exercised in an unlawful way. Significantly the SSHD can act even if she fears that such a breach might occur, she does not have to wait for such a failing, and is deemed to have the expertise and experience to make such decisions, R (Westech College) v SSHD [2011] EWCH 1484 (Admin) per Silber J,

"17. In my view, there is no need for UKBA to wait until there has been breach of immigration control caused by the acts or omission of a Sponsor before suspending or revoking the Sponsorship, but it can, and indeed should, take such steps if it has reasonable grounds for suspecting that a breach of immigration control might occur, provided of course that UKBA complies with its public law duties.

18. There is therefore a clear need in some circumstances for UKBA to invoke its powers where there is a risk that the Sponsor might not be complying with its duties provided of course that UKBA complies with its public law duties. The expertise and experience of the UKBA in being able to detect the possibility that a Sponsor might not be or be at risk of not complying with its duties is something that the courts must and does respect because, unlike UKBA, courts do not have this critically important experience or expertise."

Grounds

15. Complaint is made about individual aspects of the decision/s made by the SSHD and arguments are levelled against each component separately. Each argument was advanced and will be dealt with separately but the combination of a number of different areas of concern must be taken into account in determining the reasonableness and rationality of the decisions taken by the Defendant. It must follow that a decision was not necessarily unreasonable or irrational if subsequent enquiry demonstrates that the position on that individual ground is not as extreme as was at first thought.

Precedent Fact

16. The Claimant submits that it is for the court to determine the facts before proceeding to consider whether the decisions made by the SSHD on those facts are unlawful. It is further submitted that they are unreasonable by virtue of being inconsistent with the Defendant's own guidance. In his primary argument Mr. Malik submits that this court should extend the principle established in R (Khawaja) v SSHD [1984] 1 AC 74 to be applied in this case. He relies on the observations of Jay J in R (Giri) v SSHD [2014] EWCH 1832 (Admin) who considered extending the Khawaja principle in that case but did not. I, also, decline to extend that principle in this case.
17. This is not a case concerned with the sort of fundamental rights engaged by the definition of an illegal entrant, as in Khawaja and Giri. In cases of the instant type it is not for the court to take on the position of fact-finder or decision maker, rather the court's role is to review and only to upset a decision which is so unreasonable as to be unlawful. Reliance is placed upon the judgment of Mostyn J in R (Thebo) v Entry Clearance Officer EWHC 146 (Admin). That cannot assist the Claimant here; in that case there was agreement as to the desirability of the precedent facts being established by the court on the issue of the construction of the rules in an immigration case to determine the Claimant's fundamental rights. It did not, as is the case here, turn on the propriety of the defendant's application of policy guidance.
18. In carrying out the exercise of assessing the rationality and reasonableness of the decision taken by the SSHD it must be remembered that the function of the court is supervisory. The court will not substitute its own judgement for that of the SSHD. The SSHD has an expertise that includes an understanding of the policy guidelines and their application. It is also important to bear in mind that the court must accept that the SSHD will police the grant of such a high level of responsibility to a Sponsor with anxious and thorough care.

"Your duties", the Guidance

19. Document 3 of the Tier 4 Guidance for Sponsors ("the guidance") sets out in some considerable detail what is to be expected of a Sponsor, seeking to obtain or maintain a Tier 4 licence. The Claimant contends that the SSHD has misconstrued the conditions set out in the guidance and consequently, or in any event, has made an irrational decision. It argues, in the alternative, that the decisions taken by the SSHD are inconsistent with the guidance and are therefore irrational.
20. The guidance sets out at Section 1 why such duties are imposed upon Sponsors.

"Why do I have Sponsor duties?

1. As a licensed Sponsor you will benefit directly from migration and we expect you to play your part in ensuring that the system is not abused. This means that you must fulfil certain duties. Some duties apply to all Sponsors under the points-based system, others are specific to Sponsors who are licensed under certain tiers or categories. You must meet these duties to ensure that immigration controls remain effective. These duties aim to:

prevent you abusing our process for assessing you;

quickly find and address any patterns of student behaviour that may cause concern;

address weak processes which can cause those patterns; and

monitor your and your students' compliance with immigration rules

2. You must be able to show that you are able to meet these Sponsor duties so that you can gain and keep your licence and achieve or maintain HTS status."

21. Section 2 of the guidance goes on to spell out how extensive those duties are.

"Section 2: What are my Sponsor duties?

This section gives information on:

• Recording keeping duties

• Reporting changes that affect your Sponsor licence

• Reporting changes to student circumstances

7. You have a duty to act honestly in any dealings you have with us. For example, you must not make false statements and you must ensure you disclose all essential information when you apply for a Sponsor licence or assign a CAS.

8. You must do all you can to ensure students you Sponsor arrive to take up their course and see that course through to completion. We will take action against you if we have evidence that an unacceptable number of students do not arrive or do not complete their course.

9. You must keep proper records of the students you Sponsor, including contact details and a copy of their biometric residence permit (BRP), and give them to us when we ask for them.

10. You must meet the requirements for your inspection or audit and the types of courses you may offer……….

11. To keep your licence, you must:

a) continue to be audited and/or inspected at a satisfactory and existing level; and

b) offer courses to international students which comply with our conditions; and

c) ………………….

12. You have a duty to inform us if:

a) students do not arrive for their course either following a refusal of entry clearance or leave to remain, or where leave is granted but the student fails to enrol;

b) students are absent without permission for a significant period which means you will no longer Sponsor them; or

c) they leave their course earlier than expected; or

d) you ask them to leave the course

.

13. In addition to your duties as a Tier 4 Sponsor, you are expected to contribute to supporting immigration control. In particular, you must take reasonable steps to ensure that every student at your institution has permission to be in the UK. Failure to do this may lead to the revocation of your licence."

22. In particular, paragraph 162 sets out in tabular form when the SSHD will consider revoking a HTS licence previously granted to an institution.

"Paragraph 162

(d) You fail to comply with any of your duties

(g) We find that students that you have Sponsored have not complied with the conditions of their permission to stay in the UK.

(i) You assign a CAS stating that the course represents progression but you cannot show how you assessed the progression, or we are concerned about how you have assessed it as authentic; or we find, after you have assigned a CAS stating that there is academic progression, that there is no academic progression."

23. Paragraph 163 sets out the flexibility in the system, in that the SSHD allows for a licence not being revoked in "exceptional circumstances".

"Paragraph 163

We may not always revoke your licence in the circumstances set out in the table above. Whilst we cannot precisely define the exceptional circumstances in which we will not, this decision will be based on such factors as the number of breaches, previous history and the efforts you have made to address these issues. However, we may immediately suspend it and may withdraw any CAS that you have assigned but which have not yet been used to support an application for leave to come to or stay in the UK. 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."

24. In the written submissions of the Claimant it is suggested that the responsibility for ensuring the genuineness of a potential student and their ability to speak sufficiently good English lies with the SSHD. That is not the position. The new regime of HTS status transfers that duty to the Sponsor. The Sponsor is responsible for the recruitment of students and ensuring that they are able to and will seek to comply with all requirements. It is the responsibility of the SSHD to monitor the Sponsor and their compliance with their duties, see Westech at para 16,

"16. A significant reason why the trust imposed on the Sponsor is considerable is the wish and determination of many students to act in breach of their leave conditions by seeking work or using the permit granted by the Sponsor as a ruse to enter this country and then to disappear ... In return for this trust imposed in the Sponsor, UKBA has to monitor the performance of the Sponsor with great care as any failures by the Sponsor could lead to interference with immigration control if, for example, the Sponsored student disappeared or started to work illegally. Indeed in this connection and bearing in mind the risk of migrants seeking to avoid immigration control, it is only right that first UKBA should have stringent powers to suspend a Sponsor or prevent it from taking more students or terminating their Sponsorship if it became concerned that a Sponsor was not complying with its obligations and second that UKBA has to be sensitive to any factors which might suggest the possibility of any breaches of immigration control having occurred or being about to occur because of lapses or omissions committed by a Sponsor."

25. It was suggested by the Claimant that the index to Section 2 of the guidance creates a definitive and closed list of the duties imposed on a Sponsor. The index lists the following: record keeping duties, reporting changes that affect the Sponsor licence, mergers takeovers etc, insolvency, surrendering the licence, reporting changes in students' circumstances and reporting student case studies. The proposition that these are the only duties cannot be right as the list does not include topics such as the duty to ensure "academic progression" or the provision of "approved qualification" courses which the Claimant recognises elsewhere in submissions are duties imposed upon the HTS Sponsor. In any event, it is quite simply an index to the chapter and must be read in conjunction with paragraph 162 (see above) which sets out the circumstances in which a failure to comply will result in the revocation of a licence.
26. The Defendant contends that there was a failure of the Sponsor to comply with its duties in that it accepted poor quality students. It is submitted on the part of the Claimant that there is no such duty. That submission is entirely at odds with the principle of granting HTS status. It is for an admitting college to ensure that a student to whom a CAS will be or has been awarded has the capacity and intention to attend and successfully complete the course on which a place is granted. That is not to say that a Sponsor is necessarily in breach if a reasonable number of students fail either to complete the course, by attendance or result. There will, as in any educational establishment, be students who fail and who could not properly have been identified as likely to fail before admission. The duty to examine the credentials of an applicant to a college cannot be avoided by the college itself, any more than the responsibility for assessing their aptitude and proficiency in English can be said to rest with the SSHD. As is clear throughout the jurisprudence the grant of a Tier 4 licence carries with it the responsibility for completing these sort of checks, refusing admission to a student who does not or cannot comply and reporting back to the SSHD in a manner that allows supervision by the SSHD of those decisions.
27. The basis of the decision of the SSHD that the college was failing to comply with its duties is not answered by the suggestion that such duties do not fall on the Sponsor. They do and there is no irrationality or unreasonableness in requiring the Claimant to maintain its HTS status by such compliance.

"Academic Progression"

28. The phrase "academic progression" has previously been described as vague. In most cases progression is marked by an achievement of increasingly more difficult or more taxing milestones, e.g. an undergraduate degree followed by a Masters degree. It may, in certain circumstances, mean another course at the same level but in an allied subject. It is possible to identify exceptional cases in which it might mean a further course at a lower academic level but which supplements the first, so that a degree in Business Studies might be followed by an A level in another language spoken in a country in which a career in business might be pursued. Whether something amounts to academic progression is a question of judgement which the Sponsoring college is expected to make in a robust and cautious manner. Equally it is open to the SSHD to disagree with that assessment if she is not satisfied that the subsequent course does actually amount to academic progression.
29. If the SSHD is not satisfied that all proper caution is being exercised then she must be entitled to call the Sponsor to account, as in the revocation letters in this case. The Claimant deals with the point in the second witness statement of Shamsul Arefin, the principal of the college, dated 9 September 2014. He says at paragraph 56,

"The Defendant in her letter dated 18 July 2014 and even satisfactory response provided by the institution at the time of issuing CAS and post supervision maintained and alleged in her letter dated 3 September 2014 that the College Sponsored following 6 students who have not shown any academic progressions from their previous course." (sic)

30. Mr Arefin then goes on to explain the position in relation to those six students. It is important to note that the SSHD conceded that her original position was wrong in respect of a seventh student. He sets out the justification for the college's assessment, which includes the factors that some new courses complemented existing qualifications or that other courses of equal academic standing were more "respectable". It was open to the SSHD not to be persuaded that these explanations should alter her original assessment. She can disagree with such a purported justification and to call into question the degree of care taken by the Claimant in allowing such suspect progression.

Failure to exercise discretion under paragraph 163

31. As set out above paragraph 163 allows for the SSHD not to revoke a HTS Sponsor's licence in the exercise of her discretion. Complaint is made here that she failed to consider and, in any event, failed to exercise that discretion in the Claimant's favour. Since the claim was filed there have in fact been two new letters, dated 17 October 2014 and 13 November 2014, in which it is clear that she did consider her discretion but decided not to exercise it in the Claimant's favour.
32. The Defendant contends, rightly, that it will only be in "exceptional circumstances" as set out in paragraph 162, see above, that revocation would not follow a failure to comply with the duties imposed on a Sponsor. In so far as what is meant by "exceptional circumstances" can be determined from the illustration in paragraph 162, it would appear to apply in circumstances where one particular lapse can be ascribed to a member of staff who has left the institution, it does not appear to be considered appropriate in a case of many and varied failings, said to be part of the everyday system of this college.

Supplementary Decision of 17 October 2014

33. It is obvious that a Claimant should know what criticism it has to meet and has adequate time in which to respond. As explained earlier this case has moved with speed. Both sides recognise the precarious position of some students at the college. The shortening of the usual time period before the hearing has brought some extra pressures but none causing insurmountable problems. When a Claimant raises points of principle or fact in its claim the Defendant would, properly, be open to criticism if those matters were ignored. In this case further consideration has properly been given to matters that have arisen along the course of the proceedings. As a consequence new areas have been covered in the latest letter. There is nothing contained in that letter which has meant that the Claimant has not been able to consider and respond to all matters. It must be remembered that the stringent record keeping duties, which it is accepted fall on the college, should mean that the required information is readily to hand. There has been no unfairness in these proceedings and the ability to respond and adapt is an essential part of the SSHD's duty to consider and review responses made by any Claimant to her decisions. Indeed, for reasons set out below, that element of flexibility can operate to the advantage of the Claimant.
34. In any event, if such a rigid approach were to be followed it would simply ensure that a further decision would be made, a further claim for review would be issued and a further hearing would be required. There can be no merit in seeking to run parallel litigation, the costs would be unnecessarily increased and the delay and uncertainty would not assist the Claimant and would greatly harm the students of the college.

Courses leading to "Approved Qualifications"

35. In her submissions the SSHD argued that the college was not apparently complying with its obligation only to offer courses leading to "approved qualifications". It was submitted that good and proper grounds justifying revocation were made out under this head alone. It was described as a "killer blow". Although, as it was established after the hearing, the courses offered by the college were in fact approved, that answer to the criticism made by the SSHD was not raised in Mr Arefin's evidence, nor in written or oral submissions originally made by the Claimant. It was only on the second day of the hearing that the Claimant submitted that the reference numbers listed in the Claimant's documents actually referred to the registration of the courses with an approved body. After the hearing the Defendant was able to investigate that proposition and accept it. It can be said that sufficiently rigorous record keeping should have made that fact immediately apparent but the more important point is that it illustrates that flexibility and the ability to alter and adapt is an essential and valuable part of the process of Judicial Review.

Conclusion

36. There were failings in the management and administration of the college which meant that specific and general duties to comply with the obligations that come with the grant of HTS status were not always met in this case. The SSHD was entitled, on that basis, to reach the decisions she did. It must be understood that the grant of HTS status is a fragile gift, constant vigilance about compliance is a minimum standard required of such colleges. The burden of playing an active role in the support of immigration control is a heavy one. The SSHD is entitled to review purported compliance with a cynical level of supervision.
37. Accordingly this claim is refused.