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
		11th March 2015

Mrs Justice Elisabeth Laing DBE :

Introduction

1. This is my decision on the rolled-up hearing of an application for permission to apply for judicial review, and of the substantive application, if permission is granted. The Claimant is a College which caters for foreign students. The Claimant is subject to a complicated regime, set out in guidance produced by the Defendant, the Secretary of State ("the Secretary of State"). Under that guidance, the Claimant is permitted to sponsor foreign students under the terms of a licence given by the Secretary of State. The Secretary of State first suspended, and then withdrew, that licence. The issue is whether she acted lawfully in doing so.
2. The application for permission to apply for judicial review was lodged on 26 November 2014. On 5 December 2014 Foskett J gave directions on the papers, among other things for an oral hearing of the Claimant's application for interim relief. On 18 December 2014 Andrews J ordered a stay of the decision to revoke the Claimant's Tier 4 Sponsor Licence. She listed the application for permission to be listed for "rolled-up" hearing.

1. The facts

(1) ETS and its language tests

3. Two witness statements made for the Secretary of State in other cases explain the background to the revocation of the Claimant's licence in this case. Students who wish to study in the United Kingdom, and other migrants who wish to enter under other categories in the Immigration Rules HC 395 as amended ("the Rules"), have to show that they have an adequate understanding of English and that they can speak English to a reasonable level. Under the current regime that can be shown in various ways. The result in a secure English language test ("SELT") is one way of showing this.
4. In 2010 the Home Office issued a tender in order to find a small group of suppliers of SELTs which the Home Office would approve, and who would then have a licence from the Home Office. The only SELTs which would then be accepted by the Home Office as proof of English language ability would be the tests of those providers. 6 providers were approved. The licences came into effect on 6 April 2011. After that date, anyone who needed to prove their ability in English for the purposes of an immigration application had to take an SELT administered by one of the 6 providers.
5. One approved provider was ETS BV ("ETS"). ETS is a reputable test provider, based in the United States. It was established in 1947 and is the world's largest private non-profit educational testing and assessment organisation. It has a good reputation for preventing and detecting fraud. It administers the SAT, which is the test for college entry in America, and sets and marks over 3 million of these a year.
6. ETS administers two relevant tests: the test of English for international communication ("TOEIC") and the test of English as a foreign language ("TOEFL"). These tests are used internationally for purposes other than immigration control in the United Kingdom. TOEFL is the mostly widely respected English language test in the world. It is recognised by more than 9000 institutions in more than 130 countries.
7. ETS administers the TOEIC through a network of local providers ("the EPN"). ETS devises and marks the tests, but they are delivered locally by the EPN at test centres. It uses sophisticated digital techniques in order to eliminate as far as possible any bias which might arise from human marking (see paragraph 19 of Mr Millington's witness statement). A potential flaw in this approach is that it made it very difficult, if not impossible, for ETS to detect patterns which might show certain types of cheating at individual test centres (see paragraphs 23-25 of Mr Millington's witness statement).
8. ETS was responsible for ensuring the integrity of its test procedures. As at January 2014, apart from one issue which the Home Office had raised with ETS and which ETS had investigated, the Home Office had no reason to suspect that there were any problems with the ETS tests.
9. On 6 January 2014 the BBC's Panorama Programme wrote to the Home Office. The letter said that the programme had investigated two approved test centres (one of these was an ETS approved centre). The research suggested that tests were taken by "fake sitters" rather than by the candidates who were registered to take them, staff were falsifying verification checks, and invigilators at one centre were dictating answers to candidates in a multiple choice test, and at the other centre, multiple choice tests were completed in the absence of the candidate who was registered to take them. The BBC later revealed that the test centres were Eden College and University Training Centre.
10. The Home Office decided to suspend ETS's licence and to investigate. Applicants who had applied using an ETS test and those continuing to apply, relying on such tests, were given the chance to withdraw their applications and take a test with a different provider.
11. The programme was broadcast on 10 February 2014. It does not seem from the evidence I have read that the programme went further than the information which the BBC had sent to the Home Office in January 2014, except that there was an allegation that at the "ETS test centres" ["centre" must be intended] people had paid to pass the test (see paragraph 24 of the witness statement of Rebecca Collings). From other material in the Secretary of State's witness statements, it seems, in fact, that the BBC suggested that there was fraud at one ETS test centre in the United Kingdom.
12. ETS then got to work to investigate how widespread the problem might be, by using voice recognition software to analyse the digital files containing records of oral tests, in order to see if there were patterns showing the same speaker taking more than one test. ETS had already been developing such software for the TOEFL. The Home Office identified test centres which it considered to be at risk. ETS analysed results from those centres first, individually. The tests were run through a computer to find likely matches. These were flagged. These were then considered by two people, working separately. Only those flagged cases which had been independently marked as matches by both analysts would be treated as a match. All analysts were trained, and one of each pair was an experienced analyst. ETS discovered that many matches were tests taken by the same speaker.
13. 80% of 33,000 possible matches identified by the computer were confirmed by the analysts. The analysts' approach was not to identify a match if there was any doubt in their minds. Where, on this basis, ETS identified a match, it cancelled the test result. In those cases where a match has not been identified and verified, ETS might still cancel a result, if there is an irregularity in the administration of the test, for example if it had been taken at a UK centre where many other results have been cancelled because of a match.
14. By March 2014, ETS had concluded, from its analysis of 10,000 test scores, that they should all be cancelled, either as invalid, because they had been taken by a fake sitter, or as questionable, because they had been taken at centres where there was widespread abuse. What the Home Office evidence does not disclose is whether there were any patterns across the EPN; in other words, whether there were test centres where there no, or very few, matches, or conversely, whether there were centres where there were many.

(2) The college

15. The claimant college was established in June 2006. When the Home Office introduced the points-based system ("the PBS") the Claimant applied for a Tier-4 licence, in November 2008. UKBA visited the Claimant in February 2009. The Home Office issued a licence in March 2009 with an A rating. On 17 January 2013, the Claimant was given highly trusted status ("HTS"). UKVI carried out compliance visits in March 2013 and February of 2014.
16. At the date of Mr Syed's witness statement, there were just under 400 students. Slightly fewer than half (191) were sponsored under Tier 4. The rest were home students or in some other immigration category (such as spouses). I was told during the hearing that the last category amounts to 20% of the non-Tier 4 students. The Claimant had the capacity to sponsor about 600 students. Between October 2012 and December 2013, the Claimant issued 135 confirmations of acceptance of studies ("CAS").
17. On 24 June 2014, the Home Office visited the college to assess the Claimant's suitability to be a licensed sponsor.
18. On 12 September 2014, the Home Office wrote to the Claimant. The letter referred to the visit on 24 June 2014. It said that ETS had recently withdrawn a large number of SELT results from students who had taken its tests at some of its approved test centres. Some certificates had been obtained fraudulently and students received certificates for tests they did not take. Those were identified as invalid. In other cases ETS had doubts about certificates but could not confirm these conclusively. Those scores were marked as questionable. "Such wide-scale organised abuse of the immigration system is unprecedented and will not be tolerated by the Home Office". According to the Home Office records, the Claimant had assigned CAS to 63 students who had had their TOEIC certificates withdrawn by ETS. 43 had been marked as invalid, and 20 as questionable.
19. It followed, the letter said, that the Claimant had "assigned CAS to students on at least 43 occasions to individuals who have directly and deliberately circumvented immigration control. The matter does not relate to the actual certificates themselves being false but to the way in which they have been obtained by individuals, using some form of deception. Consequently we believe that each of the students listed, along with your institution, since you were prepared to sponsor them, have contributed to this unprecedented threat to immigration control". The letter then quoted paragraph 125 of the relevant sponsor guidance.
20. The letter went on to say that 14 of the 42 files inspected by the Home Office "contained evidence that the students you have sponsored were not adequately assessed". 5 cases were described where it was said that students with invalid TOEICs had been poorly assessed. They were all cases in which a CAS had been assigned on the basis that the student had completed a previous course, but the file did not contain a certificate which showed this. The letter said that the Home Office had "serious concerns" about the methods used by the Claimant to assess suitability. Paragraph 124 of the relevant guidance was quoted. This says that before awarding a CAS, a sponsor must assess a student's ability to follow a course. The CAS must say what evidence has been used to make this assessment. It also provides that one method of assessing suitability to follow a course of study is to use progress on an existing, or recently completed, course. A sponsor should take reasonable steps to ensure that its assessment is accurate, for example, by contacting the awarding body. Mr Middleton, for the Claimant, pointed out that the version of the guidance quoted here is not the version which was in force at the relevant time. The version in force at the time imposed no express obligation to check that the qualifications were authentic. Paragraph 17 of the letter, however, says that although the paragraph numbers have changed, the requirements of the guidance are the same.
21. The letter then gave examples of cases where the Claimant was said not to be assessing students' "progression" properly. "Progression" as Mr Middleton explained, is a term of art. 14 cases out of the 42 were mentioned. The letter said that students had moved to new courses at the same level mostly in completely different academic fields. This was a breach of the Claimant's duties under paragraphs 102 and 103 of the guidance. Paragraphs 413 and 414 (the appropriate paragraphs in the earlier version) are then set out.
22. The letter also said that four students had been enrolled after the licence of their previous college had been revoked. They should (underlined) have done so in order to complete their previous courses. The fact that they chose completely unrelated courses should have raised concerns, particularly where a student had failed to obtain a qualification and was not seeking to complete it with the Claimant. A better assessment would have revealed little evidence of academic progression or intention to complete their previous course of study. This is not particularly well expressed but I think what it means is that it should be expected that if a person has started a course which has been interrupted, they should be expected to finish that course at a new provider rather than to start afresh with a different course.
23. CAS had been awarded to students whose files did not show evidence of the award of a qualification, but, instead, various pieces of evidence which suggested that the course in question was in progress. 5 examples were given. This led the Home Office to have serious concerns about assessment of suitability and the evidence relied on before a CAS was given.
24. Next, the letter gave examples of cases where the Claimant did not appear to be assessing academic progress properly. 7 examples were given of cases in which students awarded CAS seemed to have been given a CAS to study a course at the same level (all level 7) as their previous course, "mostly" in completely different academic fields. This was described as a breach of paragraphs 102 and 103 [413 and 414] of the guidance. That provides that to show progress, the new course must "normally" be above the level of the previous course. Progress can involve study at the same level, but in such a case the sponsor must confirm that the new course complements a previous course. If the course is at the same level, the Home Office can ask for an explanation.
25. Four students had been enrolled after the licence of their previous colleges had been revoked. They should have moved to complete their previous courses but had embarked on wholly different courses. It was said that better assessment would have shown that "little evidence of academic progression or intention to complete their previous course".
26. The letter then referred to a student whose file showed that she lived in Shrewsbury, 160 miles from London (three hours away by car and three and a half by train). It was not credible that she would travel that far for 15 hours' teaching a week when there must be courses available closer to her address. Paragraph 125 of the guidance requires a sponsor to satisfy itself, among other things, that a student intends and is able to follow a particular course of study.
27. Finally, the letter referred to 5 students of whose right to study in the United Kingdom the Claimant did not have evidence, contrary to the requirements of Appendix D to the Tier 4 sponsorship guidance.
28. These were said to be a failure by the Claimant to comply with its duties as a sponsor. The Claimant's licence was suspended immediately and the Claimant was given 20 working days to make representations, including submitting evidence, in response to the letter. If the Claimant failed to make representations, or adequately to address the concerns in the letter, the licence would be suspended.
29. On 9 October 2014, the Claimant's solicitors replied. The letter set out the history and referred to three compliance visits in 2013 and 2014 after the Claimant became a HTS. No issues had been found. During those visits, UKVI officers were told about the Claimant's assessment procedures and had met the Claimant's English teacher who was responsible for carrying out individual assessments. They were shown marked tests, for students who had been given, and refused, admission.
30. The letter dealt first with the SELT. The decision to treat the Claimant as harshly as the students was "completely unnecessary". The starting point was that the Claimant did not know that the certificates had been obtained improperly when it awarded the CAS. The TOEIC had always been considered acceptable by UKVI. The Claimant could sponsor about 600 students: it issued 135 CAS between October 2012 and December 2013. 43 is a very small number in that context. The Claimant had not contributed to any threat to immigration control. In fact, the Claimant had not accepted any students with a TOEIC since December 2013, which was 6 months before any directions were issued by UKVI. I asked Mr Middleton about this during the hearing. He told me on instructions that the Claimant had picked up problems with the TOEIC: the English of some students who had a TOEIC was not adequate. So the Claimant started testing students' English itself.
31. The letter then quoted paragraph 125 of the guidance and said that it had been complied with. The Claimant was satisfied with all the intentions and abilities of the students concerned. All students were individually assessed, and the Claimant's admission and assessment procedures were explained during the compliance visits. Officers were shown transcripts of marked tests, showing that the Claimant did have procedures in place. The Claimant introduced a written English language assessment in May 2013. Before 2013 it conducted face-to-face interviews.
32. The Claimant had been through the records of the 43 students listed. Only 28 had actually used a TOEIC to gain admission. 15 students who had not used a TOEIC were then listed. Their CAS were attached. The 28 other students were all assessed. Copies of their assessments were attached to the letter, other than for two existing students who had previously produced an IELTS and whom the Claimant did not consider it necessary to test. The Claimant was not a threat to immigration control if it was individually assessing students despite their presenting tests approved by UKVI.
33. 5 of the 20 students who had questionable TOEICs did not rely on those for admission. The remaining 15 students were assessed individually. A table showing the 5 students was included in the letter. In fact only 4 students were listed in the letter.
34. The letter then dealt with the complaint that 14 of the 42 files which were inspected suggested that students had not been adequately assessed. The Claimant accepted that there were errors or lapses in this regard. All files should contain copies of passports and certificates. The files did not contain copies of the certificates. There were 5 cases in which the students concerned met the entry criteria for courses, but the CAS was not accurate and a certificate from an awarding body was not submitted with the application for further leave to remain ("LTR"). Despite this, LTR was granted. The Claimant did not believe in any of these cases that the students were required to have a certificate to show they had completed an approved qualification, nor that this was a requirement of the guidance. There was no intentional misrepresentation in the CAS.
35. Next, the letter turned to academic progression. It said that the guidance permits a sponsor to issue a CAS for study at the same level as a previous course where the sponsor's view is that there is progression. Progression is, in the first instance at least, assessed by the sponsor. That suggestion is well-founded: see paragraphs 45-47 of Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568; [2013] INLR 291 per Jackson LJ. The Secretary of State can ask for an explanation. No such explanation had been asked for. The Secretary of State had checked the files before and not raised any issues. The Claimant then dealt with the 7 students and explained why, in each case, it felt that the student was progressing. The letter dealt next with 4 students who had come to the Claimant after their former colleges' licences were revoked. The Claimant explained why each had changed course. Three were said to be attending regularly, to have submitted their assignments, and to be waiting for their results.
36. The letter then dealt with the student who lived in Shrewsbury. Her attendance rate was better than 85%, as the officer noted on the visit. There was no evidence she was not attending: her attendance records and signed attendance agreement were attached. That was a legally binding agreement and failure to comply with it could lead to expulsion. She was assessed before she started with the Claimant and was asked in her interview about travelling from Shropshire to her classes in Wembley.
37. Next, the letter dealt with the complaint that some files did not contain evidence of that the student had the right to study in the United Kingdom. The Claimant did not accept that, and included copies from the files of all the relevant information.
38. The letter then said that the Claimant's solicitors did not believe that the suspension was justified. It ended by saying that they had tried to address the Secretary of State's concerns, but that if the Secretary of State needed further information, she should not hesitate to contact them.
39. Applicants were still permitted to rely on TOEICs until the Immigration Rules changed in July 2014.
40. The Secretary of State revoked the Claimant's licence in a letter dated October 2014. The Secretary of State said that after reviewing the information submitted, she was not satisfied that the Claimant had addressed the issues raised in the letter of 12 September 2014. She "believe[d] that the college remains a current serious risk to immigration control". The risk in allowing the Claimant to continue as a highly trusted sponsor was "too great to ignore". The Secretary of State had decided to revoke the licence and there followed a "summary of the reasons for revocation".
41. The Secretary of State said that she had explained in her previous letters the issues with ETS and their withdrawal of a large number of SELT results. I pause there to say that there is only one previous letter that I have seen (the suspension letter). The explanation in the suspension letter is brief. The Claimant did not, in fact, get a detailed explanation of the issues with the test until two witness statements (which were dated June and July 2014) were served on the Claimant in February 2015.
42. The decision letter said that the abuse identified with fraudulent tests was unprecedented and that the Secretary of State was satisfied that the students with invalid scores obtained leave by deception. The suspension letter had said that the students with invalid and questionable scores "directly and deliberately posed a threat to immigration control", and that the Secretary of State had been extremely concerned that the Claimant had sponsored these students. The Secretary of State then summarised the Claimant's response.
43. The Secretary of State said that, independently of the fact that she had licensed ETS, the Claimant had a duty "robustly" to assess each prospective student before assigning a CAS. She referred to paragraph 125 of the guidance. 43 out of 135 CAS was not "a very small number". 31.9% of the CAS assigned in the relevant period were assigned to students who had an invalid TOEIC. Checks showed that the Claimant continued to sponsor 26 of the 42 students listed in Annex A. The Claimant's representations did not address how the Claimant came to sponsor the students in the first place, or why the Claimant continued to sponsor 26 of them, despite being made aware of the issue.
44. The letter referred to paragraph 1 of Document 3 of the Tier 4 guidance, which explains the background to the sponsor duties, and why they are necessary in order to ensure that immigration control is effective. In the light of that, it was disappointing that the Claimant continued to sponsor 26 students.
45. The Secretary of State acknowledged that not all the students with invalid TOEICs presented their certificates to the Claimant, but said, in paragraph 13 of the letter, that "we cannot lose sight of the fact that the students with invalid test scores resorted to deception in order to stay in the UK. Their motives for this are unclear but whatever the reason for the students to fraudulently obtain their SELT merely confirms what their immigration history, academic progress and attendance also suggest; which is that the students had no intention to further their academic career in the UK. Even if unaware of the fraud, it is clear from the examples provided that when assigning the CAS the college did not thoroughly assess their ability intentions and previous academic progress as the Secretary of State would expect a highly trusted sponsor to do".
46. The Claimant by its sponsorship had contributed to "the risk to immigration control". If the student obtained the SELT before being sponsored by the Claimant, the Claimant's sponsorship allowed them to stay in the United Kingdom after obtaining LTR by deception. If the student obtained the fraudulent SELT after being sponsored by the Claimant, the Claimant was "part of their immigration journey and contributed to them entering or remaining in the UK". This issue gave the Secretary of State no confidence that there was a thorough assessment before the CAS was granted.
47. The Secretary of State then considered the question of assessment, dealing with 5 students with invalid ETS scores. The Secretary of State summarised the response, including the admission that there had been some errors and lapses. Kaur had been studying in the UK for 3 years, yet a foreign qualification was relied on. The Secretary of State's concern was further compounded by the fact that despite having studied in the United Kingdom for three years, she obtained a SELT by deception on 6 March 2013. That she was prepared to go to those lengths suggested that her English was below the level required for the course for which the Claimant assigned a CAS. Three other students, who had been studying in the United Kingdom since 2012, for two years, and since 2009, respectively, had gone to similar lengths. The Secretary of State then referred to the fact that these students had all been granted LTR. The grant of LTR by the Secretary of State did not absolve the sponsor of its duties thoroughly to assess students before taking them. Moreover, the Claimant had not alleviated the Secretary of State's concerns by providing any evidence from awarding bodies in its representations.
48. The Secretary of State turned to academic progression. One student had been studying in the United Kingdom at post-graduate level since 2011. She had obtained a fraudulent SELT in July 2013. This suggested that her English was not at the required level. Another student's application for LTR had been refused on 28 November 2013, and the Secretary of State was concerned that in its representations, the Claimant was asserting that she was "currently attending regularly and has submitted her assignments and is awaiting results". A third student had been assigned CAS to study a third course at level 7; her third course at that level. The 3 courses were in completely unrelated fields.
49. The four students who had moved from colleges with revoked licences all obtained SELTs by deception during 2013. They had been issued with CAS, not to complete their existing courses, but to start totally different courses. The cases were different, but collectively made the Secretary of State concerned about the processes to ensure academic progression and suitability to study. The Claimant had not been rigorous enough about the evidence it accepted. The practice of accepting evidence of qualifications which could not be verified by an approved awarding body was of grave concern.
50. No evidence such as tickets had been provided to show that the student who lived in 160 miles away in Shropshire regularly travelled to London. The distance between a student's home and college was a major factor in attendance. It was not credible that she could not find a college closer to home. The weekly journey costs would be prohibitive and "the practicality of travelling such distances to attend 15 hours of classroom study when courses are available closer to her residential address is simply not credible". All that raised serious concerns about her ability to complete her course of study.
51. The next section of the letter dealt with record-keeping. The Secretary of State did not rely on it at the hearing, so I need say no more about it.
52. The Secretary of State's decision was that the Claimant had failed adequately to address the reasons for the suspension, and that the issues confirmed that the Claimant remained a threat to immigration control. Nothing short of revocation would be proportionate. The Secretary of State referred to paragraph 163 of the guidance which explains when revocation will not follow a breach of the duties set out at paragraph 162(d) and (g) of the guidance.
53. The Secretary of State could see no basis, exceptionally, for not revoking the licence. The Claimant had not shown that it had robust procedures in place. It had not taken effective and prompt action against the students in question or offered adequate explanations. The Claimant was responsible for the issues identified. Reducing or zeroing the Claimant's CAS would mean allowing the Claimant to stay on the sponsorship register. The register would be "severely compromised" if this were to happen. Each ground (paragraph 162(d) and 162(g)) was satisfied. Individually and cumulatively those grounds justified revocation.

2. The legal framework

54. Section 1(2) of the Immigration Act 1971 ("the 1971 Act") provides that those who do not have the right of abode in the United Kingdom may live, work and settle there by permission and subject to such regulation as is imposed by the 1971 Act. Section 1(4) provides that the rules laid down by the Secretary of State as to the practice to be followed in the administration of the 1971 Act for regulating the entry into and stay in the United Kingdom of those who do not have a right of abode must include provision, for example, for admitting people for the purposes of study. Section 3(2) requires these rules to be laid before Parliament. Those rules are the Rules.
55. The Rules contain very detailed provisions about obtaining leave as a Tier-4 Student. The provisions which apply to the colleges and other educational institutions which sponsor students are not in the Rules, but in three substantial documents called "Tier 4 of the Points-based System Guidance for Sponsors". In R (New London College) v Secretary of State for the Home Department [2013] UKSC 31; [2013] 1 WLR 2358 the Supreme Court held, among other things, that these provisions are not required to be set out in the Rules, because they do not set out conditions for obtaining leave to enter or remain.
56. Document 1 covers applications for, and renewal of, licences and highly trusted sponsors. Document 2 is entitled "Assigning CAS and Sponsoring Students". Paragraph 92 imposes a duty on sponsors to take all reasonable steps to ensure that they are satisfied through their assessment that an applicant reaches language competence requirements. Paragraph 100 deals with academic progression. Paragraph 102 provides that normally the student's new course should be above the level of the previous course, but progression can involve study at the same level. The sponsor must confirm that the new course complements the old course (paragraph 103), for example by enabling a student to develop a deeper specialisation in a field. The Secretary of State can ask for an explanation if the course is at the same level. Paragraph 124 provides that a sponsor must assess a student's ability to follow a course of study before it assigns a CAS. That assessment must be based on checking existing qualifications and on progress in an existing, or recently completed, course. Before a CAS is assigned, a sponsor must be satisfied that a student "intends and is able to follow the course of study concerned" (paragraph 125).
57. Document 3 is called "Sponsor Duties and Compliance". Paragraph 1 of Section 1 explains why sponsors have duties. Licensed sponsors benefit directly from migration and are expected to play their part in ensuring that the system is not abused. The aim of the duties imposed on sponsors is, among other things, quickly to find and to address any patterns of student behaviour which are causing concern, to address weak processes which can cause such concern, and to monitor compliance with the Rules.
58. Section 3 of Document 3 is headed "Compliance". Above paragraph 130 is a heading, "What will happen if you do not comply with your sponsor duties". The guidance continues:

"This sub section gives information on:

Suspension

a) Suspending a licence because we have concerns about you

b) How suspension affects your sponsored students

c) Process we will follow if we suspend your licence

d) Re-instating your licence after suspension

Revocation

130. The majority of those who employ overseas workers or offer courses of study to students are honest and willing to comply with their duties. Because sponsorship transfers a significant amount of responsibility for selecting students to sponsors, we have a duty to ensure that we deal appropriately with the minority who do not comply with their duties.

131. If we consider that you have not been complying with your duties, have been dishonest in your dealings with us or you are a threat to immigration control in some other way, we will take action against you. This action may be to:

a) revoke or suspend your licence; or

b) reduce the number of CAS you can assign.

If we decide to take action against you, we will usually give you an opportunity to explain your case to us..........

Suspension

Suspending a licence because we have concerns about you

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

Process we will follow if we suspend your licence

150. We start from one of two positions.

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

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

151. When we write to you giving detailed reasons for suspending your licence, you will then have 20 working days from the date of that written notification, to respond to us in writing. We may extend this period at your request if we are satisfied that there are exceptional circumstances. You may make any written statements you think are necessary to respond, including sending in evidence. However, we will not hold an oral hearing...

153. When we receive a response from you, we will consider it .... We will notify you of our decision within 20 working days of receiving your response…."

59. Paragraph 163 is headed "When we will consider revoking your licence". A table lists the circumstances in which the Secretary of State will consider revoking a licence. They include: "d. You fail to comply with any of your duties", "e. As a result of information available to our compliance officers, we are not satisfied that you are using the process or procedures necessary to fully comply with your sponsor duties" and "g. We find that students you have sponsored have not complied with the conditions of their permission to stay in the UK".
60. Paragraph 164 then provides:

"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."

61. The background to the Tier 4 regime was explained by Silber J R (Westech College) v Secretary of State for the Home Department [2011] EWHC (Admin) 1484. There was a huge rise in student applications in 2009. There was clear evidence that the student route was being used as "a route to illegal migration and a backdoor to low-skilled economic migration" (Westech, at paragraph 12). The Secretary of State relies on sponsors to a large extent. They must assess whether a student intends and is able to follow a course, and if so, may issue the CAS which enables a student to study. They must keep records. A significant reason why the trust placed by the Secretary of State in sponsors in considerable is because may students wish to break the conditions of their leave by seeking work, or by using the student route to enter the United Kingdom and then disappear (Westech, paragraph 14-16). This means that the Secretary of State does not have to wait until there is a breach of immigration control, but can suspend or revoke sponsorship "if [she] has reasonable grounds for suspecting that a breach of immigration control might occur, provided.... that [she] complies with her public law duties. She is entitled to "maintain a fairly high index of suspicion..... and a light trigger in deciding when and with what level of firmness they should act." (per Silber J at paragraph 19 of Westech, quoting Neil Garnham QC).
62. This is an area in which the Secretary of State, not the courts, has the experience and expertise necessary to decide in which cases it is appropriate to revoke a sponsor licence. This is a system in which the Secretary of State places great trust in sponsors, as sponsors issue the CAS. The courts have emphasised that the grant of a sponsor licence is a privilege: R (London St Andrews College v Secretary of State for the Home Department [2014] EWHC4328 (Admin), per McGowan J. She said (judgment, paragraph 36), "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 support of immigration control is a heavy one. The SSHD is entitled to review purported levels of compliance with a cynical level of supervision."

3. Discussion

63. Mr Middleton's main submission was that the Secretary of State was irrational in raising concerns about the Claimant's failure to assess students' ability in the face of evidence from the Claimant that it had used its own tests independently to assess ability in English, and had provided evidence of those assessments. The Claimant did not know, and had no reason to believe, when it assigned the CAS, that the SELTs were fraudulent: ETS was a provider chosen, not by the Claimant, but by the Secretary of State.
64. It was also suggested by Mr Middleton that the Secretary of State was unreasonable in expecting the Claimant, in its representations, to show that it was taking immediate action about the students with invalid TOEICs. He submitted that a college cannot simply expel students, as it is required as a matter of contract to give a student a hearing before expulsion. He also submitted that the Claimant had no details of what was wrong with the tests. There is something in both points. But the Claimant did not in its representations challenge the Secretary of State's conclusion that the SELTs had been fraudulently obtained, or ask for further information about the basis of that conclusion. Moreover, a notable feature of the representations is that they do not suggest that any process will be begun against the students with TOEICs which were fraudulently obtained. Paragraph 163 of the guidance specifically refers to the efforts a sponsor has made to deal with an issue. If the Secretary of State was to be persuaded exceptionally not to revoke the sponsor licence, she was entitled to expect an indication from the Claimant about what the Claimant intended to do about the students who had fraudulent TOEICs. There was none. I appreciate the Claimant might well not have been able to expel students immediately; the point, rather, is that there was no hint that the Claimant intended to take any steps at all.
65. These two submissions are also, it seems to me, answered by the thrust of the decision letter. Whether or not ETS were approved by the Secretary of State, the Claimant had an independent duty as a sponsor to assess ability in English. I bear in mind Mr Middleton's submission about this, and I discount my superficial appreciation of the subtleties of testing students' ability in English (Mr Holborn for the Secretary of State took me to an example in argument which did not make me confident that the Claimant had persuasively concluded that a student's English was good enough to study a course at the level for which the CAS had been issued).
66. It is plain from the decision letter that the Secretary of State had three serious underlying concerns. First, a substantial number of the Claimant's sponsored students had obtained LTR by deception, relying on fraudulent SELTs. Second, those students, some of whom had been studying in the United Kingdom for two or more years, were anxious enough about their ability in English to obtain a fraudulent SELT. Third, despite the Secretary of State's concerns, 26 of those students were still being sponsored by the Claimant. I do not ignore the Secretary of State's other concerns (which were to a greater or lesser extent well-founded): admitted failures to keep required records, and the incredible circumstances of the Shropshire student, for example. The latter strengthens my view that the Secretary of State was entitled to doubt whether the Claimant was complying with its duty, before issuing a CAS, to satisfy itself that a student "intends and is able to follow the course of study concerned".
67. The Secretary of State was entitled, from the first two concerns, to be, at the very least, very suspicious about the robustness of the Claimant's compliance with its duty to assess the English language ability of its students, despite the material in the representations. The Secretary of State was also entitled to conclude, in the light of those matters, and in the light of the fact that the Claimant continued to sponsor the 26 students, that the Claimant posed a serious risk to immigration control. The fact that there was no indication in the representations of any recognition that the Claimant should take any steps about the 26 students entitled the Secretary of State to take the view that there were no exceptional circumstances which militated against revocation.
68. Mr Middleton is right to submit that a college does not necessarily have to have a certificate from a previous course when it awards a CAS, as there may be cases in which the certificate has not been awarded by the time the CAS is assigned, even if the student has been properly attending the previous course. There would be nothing sinister about this. I accept that submission. It follows that the extent that the Secretary of State relied on this reasoning, she erred. But once the CAS had been awarded, the Claimant had, it seems to me, a duty (in relation to which it seems to have admitted lapses) to have relevant evidence, such as certificates, on file.
69. Mr Middleton submits that the paragraph 13 of the decision letter (quoted in paragraph 45, above), is wrong. There was nothing at all about the immigration history, attendance and academic progress of the Claimant's students which would give cause for concern. Mr Holborn submitted that this was generic reasoning about the sort of person who would fraudulently obtain a TOEIC. Such a person was, simply, unlikely to be a genuine student. This, it seems to me, is supported by the point made in the next paragraph of the letter; by continuing to sponsor students with fraudulent TOEICs, the Claimant was contributing to a risk to immigration control.
70. Mr Middleton also submitted that the Secretary of State had erred in the decision letter in relying on paragraph 162(g) of Document 3. I accept that submission, for what it is worth. Obtaining leave by deception (which is what the students who relied on fraudulent SELTs did) is not the same as failing to observe a condition of leave. The fact that students have obtained leave by deception is not mentioned in paragraph 162. But the Secretary of State was, nonetheless, entitled to conclude that the Claimant had failed to comply with its duties.
71. So there are undoubted flaws in the decision letter. But the decision letter was written by officials, not by lawyers. Like other such decision letters, it is not to be construed like a statute. An intelligent, well-informed reader, such as the Claimant, could have been left in no doubt by the terms of the decision letter why the Secretary of State was revoking the licence. The letter is not, in my judgment, flawed by a material error of law.

Conclusion

72. I dismiss this claim.