London College of Business Ltd v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Moulder |
| Judgment Date | 19 December 2017 |
| Neutral Citation | [2017] EWHC 3144 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ16X02518 |
| Date | 19 December 2017 |
[2017] EWHC 3144 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings,
Fetter lane, London EC4A 1NL
Mrs Justice Moulder
Case No: HQ16X02518
Mr Paul Simms (acting as the Claimant's representative) for the Claimant
Mr Colin Thomann (instructed by Government Legal Department) for the Defendant
Hearing dates: 23–24 November and 27 November 2017
This is a claim for damages for alleged harm caused by five separate acts or omissions of the defendant administering the Tier 4 licensing scheme in relation to the claimant. The claimant claims that the defendant's conduct amounted to a breach of the claimant's rights under Article 1 of Protocol 1 ("A1P1") of the European Convention on Human Rights ("ECHR").
Mr Paul Simms, director of legal affairs of the claimant, sought the permission of the court to represent the claimant at the trial pursuant to CPR 39.6. Mr Simms provided details in accordance with paragraph 5.2 of the PD39A including his familiarity with the subject matter of these proceedings. Permission was granted there being no particular and sufficient reason why it should be withheld.
The part of the Home Office responsible for monitoring and regulating the Tier 4 licensing scheme was the UK Border Agency ("UKBA") which changed its name in 2013 to the UK Visas and Immigration ("UKVI"). References in this judgment to UKBA and UKVI should therefore be deemed to be references to the defendant.
Background
The claimant is a college in the business of providing higher education courses, predominantly to non-EEA nationals and to do so requires a Tier 4 sponsorship licence. The claimant provided courses which were validated by the University of Wales. These courses led to awards granted by the University of Wales and included both BA Honours and MBA degrees. The claimant entered into a validation agreement with the University of Wales for this purpose. The college also offered a range of diploma courses awarded by Edexcel.
The defendant is responsible for the administration of the Tier 4 licensing system including issuing, suspending and revoking licences.
The claim was originally bought as a claim for judicial review on 17 September 2015 by which the claimant sought judicial review of the Secretary of State's failure to undertake its review of revocation of the licence following the refusal of permission in its previous claim on 23 June 2015 on the basis it would be reconsidered.
On 6 January 2016 the claimant was granted permission to amend the grounds of judicial review to assert that it sustained continuing detriment and financial loss including a breach of property right under A1P1 of the ECHR.
By a consent order dated 25 May 2016 the parties agreed that the claim was limited to the damages claim and agreed a transfer to the Queen's Bench Division. The claimant's Grounds for Judicial Review stands as its particulars of claim.
On 21 November 2016 Master Yoxall ordered that a preliminary issue should be tried on liability.
The five matters under challenge
The claimant challenges as unlawful the decision to suspend its licence on three occasions: 29 March 2012 (the "2012 Suspension"), 2 August 2013 (the "2013 Suspension") and 22 December 2014 (the "2014 Suspension"). The claimant also challenges the decision to revoke the claimant's licence on 19 March 2015 ("the Revocation Decision") and the failure of the defendant to conclude a review of the revocation decision as soon as practically possible after 23 June 2016 (the "Failure to review").
The defendant has accepted that the Revocation Decision was unlawful on public law grounds.
The claimant asserts that the defendant's conduct is in breach of A1P1 of the ECHR which provides:
"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 the 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."
In R (New London College) v the Secretary of State for the Home Department [2012] EWCA Civ 51 the Court of Appeal held that a Tier 4 sponsor licence was not a possession for the purposes of A1P1 but that the " marketable goodwill" of a business is a " possession" for those purposes. Consequently, the revocation or suspension of a Tier 4 licence will only amount to an interference with A1P1 if it has an adverse effect on the marketable goodwill of the business.
Both parties have obtained expert reports. In the joint statement prepared by the experts dated 8 November 2017 the experts agree that the claimant had goodwill capable of being valued immediately prior to the first suspension in 2012 although the experts note they have a very different view on the level of the quantum. Both experts also agree that the appropriate date to value goodwill is immediately prior to the first suspension in 2012 and that any loss of goodwill cannot be valued at the remaining dates because of the impact of the first suspension on the business.
Chronology
I deal below with the detailed evidence in relation to each of the suspensions under challenge but in outline the chronology was as follows:
i) 2006 the claimant commenced operations and in 2009 was granted a Tier 4 licence to assign Confirmations of Acceptance for Study ("CAS").
ii) November 2010 the claimant was issued with an HTS licence (Highly Trusted Sponsor Status).
iii) 26 March 2012 compliance visits were carried out at the three campuses, Barking, Oxford Street and Birmingham.
iv) 29 March 2012 the claimant's licence was suspended.
v) 1 June 2012 judicial review proceedings issued by the claimant
vi) 30 August 2012 the claimant's licence was reinstated.
vii) 18 June 2013 visit by the defendant sponsor licensing unit.
viii) 11 July 2013 the claimant's Tier 4 licence and HTS licence were renewed until 17 March 2017 and 18 November 2013.
ix) 2 August 2013 the claimant's licence was suspended.
x) 18 October 2013 the claimant was permitted to amend its grounds of claim.
xi) 4 November 2013 Secretary of State reinstated the licence.
xii) 25 March 2014 the judicial review proceedings were withdrawn by consent.
xiii) 29 September 2014 visit by the defendant's sponsorship licensing unit. The officer recommended suspension.
xiv) 22 December 2014 the claimant's licence was suspended.
xv) 22 January 2015 the claimant challenged the suspension by way of judicial review.
xvi) 30 January 2015 the defendant maintained the suspension.
xvii) 19 March 2015 the Secretary of State revoked the claimant's licence.
xviii) 31 March 2015 the claimant challenged the revocation by way of judicial review.
xix) 14 May 2015 permission refused on the basis that the defendant offered to reconsider the decision rendering the proceedings academic.
xx) June 2015 permission for judicial review refused in the linked claims.
xxi) 19 September 2015 a further judicial review commenced.
xxii) September 2015 the defendant offered to reinstate the claimant to the register but did so as a probationer.
xxiii) April 2016 permission granted.
Witnesses
For the claimant I heard evidence from Dr Basha, director of the claimant and the sole shareholder.
For the defendant I heard evidence from Mr Pamnani, an assistant Director with responsibility for Tier 4 Sponsorship Compliance. He only joined the sponsorship team in June 2015. His evidence in cross-examination was that in order to prepare his witness statement he had not liaised with the individuals who were named as the signatories for the decisions under challenge; he looked at the evidence of the contemporaneous documentation and the relevant guidance at the time. He accepted that it was therefore his " surmise" from reading the file. Whilst therefore Mr Pamnani did his best to assist the court and his evidence provides helpful background he can provide no direct evidence as to the reasons why decisions were taken at the relevant time.
The evidence of Rebecca Collings, Peter Millington and Adam Sewell was admitted as hearsay. The evidence related to the ETS test results but the detailed evidence of these individuals was not referred to in submissions for either party or in the course of cross-examination of the live witnesses. Accordingly I have not found it necessary to refer to such evidence in this judgment. The evidence of Professor French was not admitted as, in my view, it was not relevant to the issues before the court.
Tier 4 Points Based System
As is set out in the defendant's Guidance, Tier 4 of the Points Based System was the primary immigration route available to students who wanted to study full-time in the UK. They had to be sponsored by an education provider that had a sponsor licence. The sponsor was an education provider that offered courses of study within the UK and had a licence to sponsor migrants so they could take those courses. Sponsorship provided evidence that the migrant would study for an approved qualification and placed duties on the sponsor that it must abide by. According to the guidance in force at the material time, sponsorship was based on two principles: namely that those who benefited most directly from migration i.e. employers and education providers helped to prevent the system being abused and that those applying to come to the UK to study were eligible to do so and a reputable education provider...
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