Leung v Imperial College of Science, Technology and Medicine

JurisdictionEngland & Wales
JudgeMr Justice Silber,MR JUSTICE SILBER
Judgment Date05 July 2002
Neutral Citation[2002] EWHC 1358 (Admin)
Docket NumberCase No: CO/4939/2001
CourtQueen's Bench Division (Administrative Court)
Date05 July 2002

[2002] EWHC 1358 (Admin)

IN THE HIGH COURT OF JUSTICE

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before

The Honourable Mr Justice Silber

Case No: CO/4939/2001

Wing Kew Leung
Claimant
and
Imperial College of Science, Technology and Medicine
Defendant

Mr. Richard McManus QC and Mr. Adam Solomon (instructed by Hugh Cartwright and Amin for the Claimant)

Mr. Timothy Ward (instructed by Mills & Reeve of Cambridge for the Defendant)

Mr Justice Silber
1

Wing Kew Leung (“the claimant”) challenges the decision of Imperial College of Science, Technology and Medicine (“the college”) to classify him as an overseas student, rather than as a home student, for the purpose of the Education (Fees and Awards) Regulations 1997 (“the Regulations”). The significance of that classification is that the Regulations permit certain educational institutions, including the college, to charge higher fees for those students, who have been classified as overseas students rather than home students under the Regulations. Those who are regarded as home students for fee charging purposes include those who are settled in the United Kingdom and who also meet the residence conditions in Paragraph 9 of Schedule 1 of the Regulations.

2

A condition in Paragraph 9 of the Schedule of the Regulations, which is of central and crucial significance in determining the status of the claimant in this case, provides that a person meets the residence conditions in Paragraph 9 which, with my emphasis added, provides that:—

“(b) [the student's] residence in the United Kingdom.. has not during any part of [the three year period preceding the relevant date].. been wholly or mainly for the purpose of receiving full-time education”.

3

The Regulations make it clear that “the relevant date” for determining a student's status for classification of the fee purposes is 1 September, 1 January or 1 April, closest to the beginning of the first term of the student's course (Regulation 4(6)). In the case of the claimant, it is common ground between the parties that first, the relevant date for determining his status was 1 September 2000 and second, that his fee paying classification for the duration of his course was settled once and for all by the determination of his status as on that date. Mr. McManus QC, who appears with Mr. Adam Solomon for the claimant, says that if the claimant had been classified as a home student rather than as an overseas student, he would have saved about £9,000 in each year of his course at the college. In order to understand the rival submissions, it is necessary now to set out in outline some of the relevant chronology leading up to the making of this application.

The Chronology

4

The claimant was born in Hong Kong in December 1980. He, together with the rest of his family, was granted British citizenship in May 1995, which was the year when his parents left the United Kingdom where they had worked since 1972 in order to return to Hong Kong. They retained their property in London at 33 College Road, Wembley, which was occupied by the claimant's aunt. The parents of the claimant retained contact with the United Kingdom and they visited this country every summer. The claimant's older brother Yu Kew Leung (“Yu”) left Hong Kong to live in the United Kingdom in August 1990 and in May 1995, he became permanently settled in this country.

5

In August 1995, when the claimant was fourteen, he left Hong Kong where he had previously been at school to come to the United Kingdom, where he enrolled in September 1995 at Merchant Taylor's School in Northwood as a boarder. Shortly after the claimant arrived in this country, his parents purchased a house in Northwood (“the Northwood house”), which was occupied by Yu, the claimant and his aunt, who was also the claimant's guardian. Although he lived very close to Merchant Taylor's School, he has explained that he was a boarder there because his parents were keen for him to experience communal life.

6

In 1996, Yu commenced a three-year Biochemistry degree course at the college and he was classified as a home student for fee purposes. In September 1999, the claimant applied for places at the college and at a number of universities in the United Kingdom and on his UCAS application form, he gave the Northwood house as his permanent address. In November 1999, the claimant was asked by the college to complete a supplementary questionnaire and he duly did so. On 30 November 1999, the claimant received a conditional offer from the college of a place for a course starting in October 2000, which was dependent upon the claimant obtaining certain high grades in his Advanced Level examinations, which he was due to sit in Summer 2000. The claimant's conditional offer was not dependent on his fees status and he later accepted the offer. On 2 December 1999, the college wrote to the claimant (“the December 1999 letter”), and told him that he had been classified as an overseas student for fee purposes. No complaint was made by the claimant about this classification until more than nine months later.

7

In May 2000, the claimant received a letter from the college, which confirmed his acceptance of the conditional offer that had been made to him, and it also informed him again that he had been classified as an overseas student for fee purposes. The college also asked him to sign and return a Financial Statement, which he did on 29 May 2000. The Financial Statement simply confirmed that he had adequate funds to cover the tuition fees of an overseas student. He satisfied the conditions for obtaining his place at the college, which duly offered him an unconditional place in August 2001 and the college also sent the claimant a certificate stating that he had been accepted for admission and that his “classification for fee purposes” was “overseas”.

8

In the last week of August 2000, the claimant decided to take up his place at the college but by a letter dated 28 September 2000, he informed the college for the first time why he believed that the college had classified him incorrectly as an overseas student. In October 2000, the claimant duly commenced his course at the college.

9

On 15 December 2000, the college wrote (“the December 2000 decision letter”) to the claimant explaining that he had been correctly classified as an overseas student. This letter, to which I will have to refer to in greater detail later, expressly relied on advice offered by the Department for Education and Employment.

10

On 1 March 2001, the claimant wrote to the college (“the March 2001 letter”) and he reiterated his case that he should be treated as a home student explaining that he had come here to settle and not for the purpose of receiving full-time education and stating that he lived three minutes walk from the school; he urged reconsideration of the college's decision. On 6 September 2001 the college wrote (“the September 2001 decision letter”) to the claimant explaining that it had considered the information sent by him and stated that its decision on his status remained unchanged. The present judicial review application was commenced in 2001. On a paper application, Sullivan J refused to give the claimant permission to proceed on this application but subsequently, Collins J allowed the claimant's renewed application for permission after an oral hearing.

The grounds of challenge

11

Mr. McManus QC for the claimant accepts that he cannot challenge the decision of the college to classify the claimant as an overseas student in the December 2000 decision letter or in the September 2001 decision letter as Wednesbury unreasonable, but the claimant's challenge to the decision of the College is now, after re-amendment at the start of this hearing, based on errors allegedly committed by the college in the form of misdirections, unfairness, a failure to apply the proper burden of proof and to take account of relevant considerations. Many of these challenges overlap with each other.

12

There are four alleged misdirections and in the words of the claimant's skeleton, they are:—

a. that the college is alleged to have misdirected itself by failing “to determine at the time whether the claimant was telling the truth when he said he came to the UK to settle”;

b. applying an approach of whether it was reasonable to regard the claimant as in the UK wholly or mainly for the purpose of receiving full-time education.

c. regarding paragraph 57 of the Government Guidance as determining the issue against the claimant because he was at boarding school.

d. adopting an approach of “strict” construction of the regulations.

13

I will consider the complaints of the claimant in turn but it would be useful first to describe what material was before the college when it made the decisions of which complaint is now made. It would then be sensible to consider and determine three specific legal issues, which will arise on a number of occasions during my analysis of the claimant's complaints

Material before the college

14

In order to consider the challenges to the decisions of the college, it is necessary to specify and describe the material, which was before the college when it made its decisions under challenge to classify the claimant as an overseas student. In common with all other applicants for a university place, the claimant had to fill in a UCAS form, in which he gave the Northwood house as both his correspondence address and as his home address. He stated that his country of birth was Hong Kong and that his area of permanent residence was in Northwood, Middlesex. He had to insert two codes on the UCAS form, which are of some relevance. The first was to describe his “residential category”, which was obviously significant...

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