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
		16/03/2016

Mr Justice Hayden :

1. The Claimant in this case is a college of higher education which has operated since February 2006 from its base in Barking, East London. I am told by Mr Paul Simms who has conducted this hearing on behalf of the Claimant and who is the Legal Affairs Director of the London College of Business Limited that the college has been particularly successful in offering MBA degree courses validated by the University of Wales.
2. On the 29^th March 2012 the Defendant suspended Tier 4 sponsorship of the College which it had held since 2009. Tier 4 concerns the regulation of tuition to students from outside the European Union who study here in the United Kingdom.
3. Judicial Review proceedings were commenced on the 8^th July 2012 but before the proceedings had reached a hearing the Tier 4 licence was restored, on the 30^th August 2012. The Claimant contended in that application, which for convenience I will call (JR1), that the period of suspension had made it impossible to recruit overseas students requiring CAS for April 2012 and had made very difficult to recruit overseas students for the September 2012 intake.
4. Fractionally under one year later, the 2^nd August 2013, the Defendant again suspended the tier 4 sponsorship licence. Self evidently that caused severe difficulties in the recruitment of overseas students for the September 2013 intake. A new set of judicial proceedings were commenced in September 2013 (JR2) and again, before the matter reached a hearing the Tier 4 sponsorship licence was reinstated (4^th November 2013).
5. Just over a year after this second reinstatement the Tier 4 licence was suspended for the third time (22^nd December 2014). A third set of Judicial Review proceedings were issued on the 23^rd January 2015 (JR3) seeking, in effect, the reinstatement of the licence. Before that application could be heard the tier 4 licence was revoked, on the 19^th March 2015. In response, on the 31^st March a further claim for Judicial Review was issued (JR4), the objective of which was to reverse the revocation. In response to those proceedings and, as I understand it, for the first time in any of the applications, the Defendant entered an Acknowledgment of Service and Summary Grounds of Defence.
6. Sir Stephen Silber considered the application which he dismissed. The Claimants renewed their application at an oral hearing before Roger Ter Haar QC, sitting as a Deputy Judge of the High Court. In his judgment on the 23^rd June 2015 the Deputy Judge made the following observations:

"5. On the material that is before me, it seems to me that there is a highly arguable case that conclusion 7(1), taking it from the grounds of defence, was not justified. First of all, it appears that at the time of the inspection, the inspector was shown copies of certificates which indicated that the students, who were some 20 or 21, had in fact completed degree courses which were consistent with the fact that they could speak good English, or good enough English, to complete the courses.

6. Secondly, the evidence produced by the Secretary of State to show that the 20 students were linked to ETS abuse, that is to say were linked to what is said by the Secretary of State to be a widespread problem of people cheating when carrying out English language tests, seems to me to be flawed in that there is no connection in the generic evidence produced to any one of the particular 20 students who were identified by inspector. Now, it may be that on a full argument that can be dealt with by the Secretary of State, but it seems to me at least sufficient to give rise to an arguable case that the decision by the Secretary of State was flawed. If ground 7(1) falls away, it is far from certain that the other two grounds would have been sufficient in the Secretary of State's mind to justify either suspension or revocation, and indeed I have had helpful submissions from Miss Barnes on behalf of the Secretary of State to concede as much.

7. Accordingly, it seems to me that there is an arguable case that the Secretary of State's decision on 19 March of this year was flawed and should be quashed. Therefore, absent anything else, I would be minded to grant permission to apply for judicial review."

7. Having come to those conclusions Mr Ter Haar noted that in April 2015 the Secretary of State had expressed herself willing to undertake a full review. The Deputy Judge considered that to be not only an adequate remedy but in many respects one that was better than the Court could make within the relatively limited options available to it. He made the following observations:

"8. However, as far back as April of this year, the Secretary of State offered to carry out a full review. In my view, that is an adequate alternative remedy; indeed it is in my view a better remedy than this court can offer. If this matter were to stay here and be pursued to a full hearing, there would have to be the usual exchange of full submissions, there would have to be bundles of documents produced, and all the usual management directions would be given. I find it unlikely that that process would be completed in time for a hearing this legal term, so the matter would go off to September/October, depending when it can be fitted into the already busy lists of this court. If then the application was successful, the result would be that the Secretary of State would reconsider the decision, and the applicant would be no further forward than the position that is presently offered, that a review should take place straight away.

9. Moreover, the Secretary of State carrying out a review starting now would be able to take into account not only the materials which this court could take into account, that is to say whatever was available to her as at 19 March, but also further evidence which has been gathered since then, and in that respect the bundle in front of me shows that the claimant, unsurprisingly, has been working hard to show that the allegations made are factually inaccurate.

10. Accordingly, it seems to me that the review of her decision offered by the Secretary of State is a more adequate remedy, a better remedy, firstly because it will take place sooner, and secondly because the claimant would be able to put more evidence in front of the Secretary of State."

8. Having identified his reasoning thus Mr Ter Haar refused the renewed application for Judicial Review, for the same reason given in the first paragraph to the order of Sir Stephen Silber i.e:

"1. In the light of the documents disclosed by the Claimant after the decision 19^th March 2015 was made, the Defendant has offered to reconsidered that decision if the Claimant withdrew his present claim and so the present proceedings are academic"

9. Mr Ter Haar did not seek to circumscribe what he had in contemplation when he referred to 'a reasonable period of time to review the decisions of 22^nd December 2014 and 19^th March 2015'. Accordingly, three months later, no review having been conducted, the Claimant issued yet a further set of proceedings which are those which now come before me (JR5). On the 18^th Sept 2015, Blake J ordered an abridgement of time for the Defendant to enter an Acknowledgement of Service. In what the Claimant identifies as a familiar pattern the Defendant then offered to reverse both the revocation and suspension on the basis of an 'Action Plan' which was to endure for a period of three months.
10. With self evident indignation the Claimant accepted this proposal, though rejecting, in principle, the necessity for any such plan. However, upon reinstatement the Defendant assigned the College on its Register of Sponsors to the category of 'Probationer'. It appears that such a categorisation had not been in any way foreshadowed by the Defendant in any discussions with the Claimant. The Claimant considered that there could be no justification for such a label and pursued the Defendant vigorously to withdraw it. In November 2015 the Defendant yielded and removed the status.
11. Mr Simms characterises the litigation that I have summarised above as 'a game of cat and mouse', with the College as the mouse. The Defendant resists the process being traduced in this way and submits that the SSHD's responses should be seen in the nuance of the detail. In his Skeleton Argument Mr Simms goes rather further and submits 'the Defendant appears to have targeted the Claimant with the view to causing its economic collapse, as part of the Defendant's policy to restrict immigration, including student immigration'. Such a policy, says Mr Simms, cannot be lawfully applied 'by bringing trumped up reasons for suspension and then restoring the Claimant's licence when challenged'.
12. By an application for permission to amend the Grounds for Judicial Review, dated the 17^th November 2015, the Claimant sought to refocus the objective of their case, largely in line with the reasoning at para 11 above. Their document headed 'Amended Essential Facts and Grounds for Judicial Review' trawls through each of the claims for Judicial Review and sets out what they contend is the factual matrix for each of the suspensions. The objective is to seek damages for loss of 'goodwill' to the College, as a facet of its entitlement to protection from a breach of its proprietary rights under the ECHR protocol 1, Article 1:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

13. On the 6^th January 2016 Ben Emmerson QC, sitting as a Deputy High Court Judge, granted permission to amend the Grounds in the way that I have set out and ordered that the application for permission to apply for Judicial Review be listed in Court, on notice to the Defendant, which application comes before me today. Mr Emmerson made the following observations, on the order, which I repeat in full:

"It appears that the claim, as originally framed, may well have become academic in light of the steps which the Defendant has taken to re-register the Claimant and to address its concerns about the status of that registration. However, the Claimant asserts continuing detriment and financial loss, and seeks to argue that these are sufficient reasons to allow the claim to proceed. Moreover, the Claimant has sought (and I have allowed) an amendment that asserts, among other things, a breach of a proprietary right under the ECHR Protocol 1, Article 1.

I should stress that I have considerable doubts as to whether this claim can be made good. However, the issues should all be considered together and would benefit from clarification at an oral hearing."

14. In allowing the amendment to incorporate the Protocol 1, Article 1 point Mr Emmerson was, in fact, really permitting the Claimant the opportunity to expand that which had already been part of this claim and, indeed, part of each previous claim for Judicial Review. In reality the permission granted was to enable the Claimant to amplify and elaborate their claim under the ECHR. Both Mr Simms and Mr Fisher, who appears on behalf of the Defendant, agree with this interpretation.
15. It is significant, says Mr Fisher, that the ECHR point was a feature of the earlier claims because each of those claims has now been dismissed or, in respect of the earliest application, withdrawn by consent (on the 25^th March 2014). Thus it is argued that it would be an abuse of process to permit the Claimant to pursue a claim under this heading which has previously been litigated and concluded. There should be, it is submitted, finality in litigation and a party should not be twiced vexed in the same matter: Johnson v Gore Wood & Co (No.1) [2002] 2 AC 1.
16. Moreover, to litigate the proprietary rights argument on the 'cat and mouse basis' i.e. predicating it on the Defendant's behaviour since the time of the first suspension would, it is submitted fall foul of the CPR rule 54.5, which provides:

"(1) The claim form must be filed –

(a) promptly; and

(b) in any event not later than 3 months after the grounds to make the claim first arose.

(2) The time limits in this rule may not be extended by agreement between the parties.

(3) This rule does not apply when any other enactment specifies a shorter time limit for making the claim for judicial review.

(4) Paragraph (1) does not apply in the cases specified in paragraphs (5) and (6).

(5) Where the application for judicial review relates to a decision made by the Secretary of State or local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose.

(6) Where the application for judicial review relates to a decision governed by the Public Contracts Regulations 2015, the claim form must be filed within the time within which an economic operator would have been required by regulation 92 of those Regulations (and disregarding the rest of that regulation) to start any proceedings under those Regulations in respect of that decision."

17. In addition, the Defendant submits that this claim cannot validly challenge the decisions of the 22^nd December 2014 or the 19^th March 2015 (which concluded all but this application) because the claim is out of time, in that it seeks to review the conduct of the Defendant over the past 4 years. Mr Fisher submits that on this basis alone, given that this is a claim for Judicial Review and not a private law action for damages, it renders the claim unarguable.
18. In relation to the Protocol 1, Article 1 (A1 P1) claim, the Defendant argues:

i) It is not open to the Claimant to claim damages for acts and/or omissions that are not validly the subject of this judicial review claim or which pre-date the three month time limit for judicial review;

ii) it is not arguable that the only permissible ground of challenge, namely the Defendant's alleged delay in reaching a review decision, caused any quantifiable damage;

iii) A1P1 is not engaged in this case because:

a. a Tier 4 and Tier 2 licence is not a possession for the purposes of A1P1;

b. although goodwill is a possession for the purposes of A1P1, there is no sufficient evidence before the court to conclude that the Claimant's goodwill has been affected by the Defendant's decisions and, to the extent that evidence has been advanced by the Claimant, it suggests that any diminution in goodwill is occasioned only by the loss of potential future income, which is not a breach of A1P1.

iv) any interference with the Claimant's A1P1 rights was proportionate to the aim of ensuring a fair immigration system.

19. Finally, the Defendant contends that since all the remedies for the infringement of rights protected by Public Law can be obtained on application for Judicial Review, as a general rule, it would be contrary to public policy and an abuse of the process of the Court for a plaintiff complaining of a Public Authority's infringement of his Public Law rights to seek redress by ordinary action: see O'Reilly & Ors v Mackman & Ors [1983] 2 AC 237; Bahamas Hotel Maintenance & Allied Workers Union v West Bay Management Limited & Ors [2011] UKPC 4. Judicial review is not the appropriate route to assert a private law right. Where any public law element is not made out or has fallen away, the action can be transferred to the Queen's Bench Division, to be determined as a private law action. The Court of Appeal in R v Ministry of Agriculture, Food and Fisheries ex p Live Sheep Traders Ltd [1995] COD 233 confirmed that where it is quite clear that any declaration was going to be of academic interest it was not the function of the court to give bare declarations which were of no utility. The Court was not in the business of enabling an applicant to seek a remedy merely to show that a public body had behaved improperly: see R v BBC ex p Quintavelle (1998) 10 Admin LR 425 CA and R (on the application of Zoolife International Limited) v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin).
20. In response, the Claimant makes essentially three points: the principle in O'Reilly v Mackman (supra) is of general but not universal application; the authority pre-dates the Human Rights Act 1988 by some distance (and ECHR points were not considered in Johnson v Gore Wood (supra); the claim under A1P1 can only be established on an cumulative review of the Defendant's decision making processes, none of which has previously been individually litigated, given that the central objective of the Claimant was, throughout, to enable the College to continue to recruit students. In addition Mr Simms observes:

"It is clear from Johnson v Gore Wood that the court was anxious to ensure that there should be a "Broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before". See Lord Bingham at page 31 at D ."

21. It seems to me that an alleged breach of proprietary rights may frequently require to be evaluated in the context of a course of conduct. Individual decisions may only be revealed as demonstrably unfair or irrational when considered cumulatively alongside a wider decision making process. Whether the SSHD can, tactically, shut out a cumulative review of her individual decisions by repeatedly compromising Judicial Review claims (effectively avoiding litigation of the issues), seems to me to present an arguable point. There are plainly competing policy issues in play in this case as well as some complex issues of law. I have not addressed the question of 'goodwill' because that seems to me to go predominately, if not entirely to the question of damages. Furthermore, given that all agree that a proprietary right is engaged here I do not need further to consider those issues at this stage.
22. Finally, Mr Fisher accepts there is a valid basis on which this claim is presently before this court, namely the Defendant's failure to conduct the review of her decisions, dated 22^nd December 2014 and 19^th March 2015, within a reasonable period of time. Though conceding its validity Mr Fisher submits that this claim became academic when the Defendant completed the review, reinstating the Claimant to the Register of Sponsors and receiving the Claimant's agreement to its Action Plan. However curmudgeonly the Claimant's agreement may have been given it was undoubtedly given, as Mr Simms properly concedes. It follows, says Mr Fisher, and I agree, that any relief that could have been granted by the Court in relation to this limb of the claim had effectively been provided by the Defendant.
23. The Claimant appears implicitly to acknowledge the point in the Skeleton Argument, seeking no relief in relation to the suspension/revocation. The Claimant focuses instead on the claim for damages, under s.8 of the Human Rights Act, for breach of the proprietary rights protected by A1P1 of the ECHR. In my judgment they are right to do so, therein lies the single arguable issue. Accordingly and on this basis I grant permission to pursue the application.