London St. Andrews College v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice McGowan |
| Judgment Date | 19 December 2014 |
| Neutral Citation | [2014] EWHC 4328 (Admin) |
| Docket Number | Case No: CO/3256/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 December 2014 |
[2014] EWHC 4328 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice McGowan
Case No: CO/3256/2014
Zane Malik (instructed by Khans Solicitors) for the Claimant
Rory Dunlop (instructed by Treasury Solicitor) for the Defendent
Hearing dates: 25–26/11/2014
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.
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.
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.
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
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.
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.
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.
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."
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.
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.
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
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.
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.
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...
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