R (English UK) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 09 July 2010 |
| Neutral Citation | [2010] EWHC 1726 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3854/2010 |
| Date | 09 July 2010 |
[2010] EWHC 1726 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr Justice Foskett
Case No: CO/3854/2010
Judith Farbey and Sharif Hamadeh (instructed by Penningtons Solicitors LLP) for the Claimant
Neil Sheldon (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 29 th and 30 th June 2010
JUDGMENT: 9 th July 2010
Mr Justice Foskett:
Background
The Common European Framework of Reference for Languages ('CEFR') is the product of an initiative of the Council of Europe. The first paragraph of the lengthy document that comprises the CEFR describes its essential purpose as follows:
“The Common European Framework provides a common basis for the elaboration of language syllabuses, curriculum guidelines, examinations, textbooks, etc. across Europe. It describes in a comprehensive way what language learners have to learn to do in order to use a language for communication and what knowledge and skills they have to develop so as to be able to act effectively. The description also covers the cultural context in which language is set. The Framework also defines levels of proficiency which allow learners' progress to be measured at each stage of learning and on a life-long basis.”
The purpose of the CEFR is described in this way:
“The Common European Framework is intended to overcome the barriers to communication among professionals working in the field of modern languages arising from the different educational systems in Europe. It provides the means for educational administrators, course designers, teachers, teacher trainers, examining bodies, etc., to reflect on their current practice, with a view to situating and co-ordinating their efforts and to ensuring that they meet the real needs of the learners for whom they are responsible.”
The way in which “levels of proficiency” are categorised and defined in the CEFR is somewhat complex, but essentially it divides the various levels of proficiency into categories A, B and C, Category A being the least proficient and Category C the most proficient. Category A reflects the abilities of the “Basic User”, Category B reflects those of the “Independent User” and Category C those of the “Proficient User”. Each category is sub-divided into two separate sub-categories. The sub-categories relevant to this case are A1 and 2 and B1 and 2.
The abilities of those in Category A are classified as follows:
A1
Can understand and use familiar everyday expressions and very basic phrases aimed at the satisfaction of needs of a concrete type. Can introduce him/herself and others and can ask and answer questions about personal details such as where he/she lives, people he/she knows and things he/she has. Can interact in a simple way provided the other person talks slowly and clearly and is prepared to help.
A2
Can understand sentences and frequently used expressions related to areas of most immediate relevance (e.g. very basic personal and family information, shopping, local geography, employment). Can communicate in simple and routine tasks requiring a simple and direct exchange of information on familiar and routine matters. Can describe in simple terms aspects of his/her background, immediate environment and matters in areas of immediate need.
The abilities of those in Category B are set out in this way:
B1
Can understand the main points of clear standard input on familiar matters regularly encountered in work, school, leisure, etc. Can deal with most situations likely to arise whilst travelling in an area where the language is spoken. Can produce simple connected text on topics which are familiar or of personal interest. Can describe experiences and events, dreams, hopes and ambitions and briefly give reasons and explanations for opinions and plans.
B2
Can understand the main ideas of complex text on both concrete and abstract topics, including technical discussions in his/her field of specialisation. Can interact with a degree of fluency and spontaneity that makes regular interaction with native speakers quite possible without strain for either party. Can produce clear, detailed text on a wide range of subjects and explain a viewpoint on a topical issue giving the advantages and disadvantages of various options.
Unfortunately, in this case there does not seem to be complete unanimity about how those classifications translate into what would be expected within the current UK examination system. The Claimant asserts that A2 is roughly equivalent to GCSE grades D-F, B1 is roughly equivalent to a GCSE in a foreign language at grade A*-B and B2 is broadly equivalent to AS-level going on to A-level. UKBA (the United Kingdom Border Agency) described B2 in its News Release on 10 February (as indeed it did in the report to which reference is made in paragraph 20 below) as the equivalent of having “just below a GCSE in a foreign language” whereas the Secretary of State in his written Ministerial statement of the same date described it as “roughly the equivalent of GCSE standard”. In a document entitled “The Languages Ladder: Steps to Success”, prepared by the Department for Education and Skills in September 2007, A2 and B1 are equated to “Foundation GCSE” and B2 as “AS/A/AEA”. I am not able, nor am I called upon, to resolve these differences. It is common ground that, whatever the true UK examination equivalent level may be, the decision that lies at the heart of this case raised the relevant level for intending students from overseas.
One of the uses to which the classifications within the CEFR has been put by the UK Government is effectively to provide the minimum attainment required by a non-EEA national to qualify for entry to the UK to study. The study may be for any subject, but English language is, of course, one such subject.
What lies behind the present application to the court is a decision taken by the then Secretary of State in February this year (in the circumstances set out below) effectively to increase the minimum attainment required for certain students who wish to come to the UK to study English. Until the decision made in February was implemented with effect from 3 March it was possible for international students to come to the UK (subject to the terms of the Points Based System: see paragraph 24 below) to study English at the minimum level of level A2 whereas after the decision the minimum level at which study would be permitted was level B2.
This has had the practical effect of requiring that a student who hitherto had needed merely to demonstrate proficiency at level A1 in order to study at level A2 or above would henceforth have to show competence at level B1 in order to study at level B2 or above. Transitional provisions provide for those already accepted on courses, but as from 3 March the new requirements were in place.
No objection is taken in these proceedings to the decision to impose a B1 minimum standard for students not intending to take an English course – in other words, for those who will be studying other subjects in the UK where the language in which the subject is taught is English. The objection is to the effective imposition of a B1 standard on intending English language students.
The decision (driven by concerns that the previous arrangements were giving rise to abuse by those who wished to come to the UK illegally) caused some controversy in Parliament prior to the recent General Election (see, for example, paragraph 74) and the present proceedings were commenced before the new Government took office. Given that these proceedings are contested and that no new consultation or review is, so far as I am aware, proposed, it must be taken that the present Secretary of State wishes to adopt the position taken by her predecessor. Since the essential decisions were made by the then Secretary of State (Mr Alan Johnson MP), I will refer to the Secretary of State as 'he' or 'him' throughout.
As will appear (see paragraphs 30–38 below), the change was effected by a change in the guidance given by the UKBA to “sponsors” of intending students (in effect, the educational establishments which had accepted the particular student for a course of study) on the operation of the Points Based System; it was not effected by any direct change or changes in the Immigration Rules.
The nature of the challenge to the decision
The challenge made in these proceedings is made effectively on a threefold basis:
(a) That the change in the minimum level of English language tuition permitted ought to have been introduced by a change to the Immigration Rules and was not capable of being introduced by a change in the UKBA's Guidance. Reliance is placed on the decision of the Court of Appeal in Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719, in which the judgment was handed down on 23 June.
(b) That the decision is, in any event, Wednesbury unreasonable and/or irrational because the evidence did not warrant the conclusion that immigration control required that international students be prohibited (save for certain exceptions) from entry to courses below level B2.
(c) That the Immigration Rule relevant to the present claim (paragraph 120(a) of Appendix A to HC 395) is being utilised in a way that amounts to an unlawful delegation of the Secretary of State's powers and/or an unlawful ouster of the Court's jurisdiction. On that latter basis the Rule is, it is argued, to...
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