R Global Vision College Ltd v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lady Justice Sharp,Lady Justice Arden |
| Judgment Date | 15 May 2014 |
| Neutral Citation | [2014] EWCA Civ 659 |
| Docket Number | Case No: C1/2014/0723 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 May 2014 |
[2014] EWCA Civ 659
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mr Justice King
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Beatson
and
Lady Justice Sharp
Case No: C1/2014/0723
Vijay Jagadesham (instructed by Lester Morrill inc. Davies Gore Lomax) for the Appellant
Vinesh Mandalia (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 1 April 2014
I. Introduction
These proceedings arise from the refusal by the respondent, the Secretary of State for the Home Department, on 2 November and 7 December 2012, of the application (dated 2 February 2012) by the appellant, Global Vision College Ltd ("the College") for Highly Trusted Status ("HTS"). The consequence is that the College is no longer able to recruit foreign national students.
The reason the College is no longer able to recruit foreign national students is because, under the Tier 4 Points Based System which has been the primary immigration route into the United Kingdom for such students since 31 March 2009, the students must obtain a Confirmation of Acceptance for Studies ("CAS") from an educational institution to which the Secretary of State for the Home Department has granted a sponsor licence. HTS status, a further level of sponsorship, was introduced in 2010. Since April 2012, all Tier 4 sponsors have been required to obtain HTS status after holding a sponsor licence for twelve months. If they do not their sponsor licences are revoked.
One of the mandatory eligibility requirements for HTS sponsorship status in the Secretary of State's policy guidance for educational providers (version 09/11) is that the rate of refusals to applicants for entry who hold CAS issued by a provider must be less than 20% for the twelve month period immediately before the application for HTS. The general aim of the sponsorship system is that the recruitment procedures of those, such as employers and education providers, who benefit directly from migration, help prevent the system being abused. The 20% refusal rate for educational providers seeks to ensure that the admission processes of those with sponsor licences are thorough and that providers take rigorous steps to ensure that they only make offers of places to those who have both the intention and the ability to pursue a course of study in the United Kingdom.
In the present case, the letter dated 2 November 2012 stated that the College's application was refused because in the 12 month period ending on 1 February 2012 it had not met the mandatory requirement for HTS that a provider's "refusal rate must be less than 20%". The College's allocation of CAS was reduced to zero. Following representations by the College, the Secretary of State confirmed her decision in the letter dated 7 December 2012, and, in a letter dated 14 January 2013, revoked the College's sponsor licence with immediate effect.
Direct challenges to the legality of using a refusal rate as a basis for concluding that a sponsor's recruitment procedures are not sufficiently robust to merit HTS status have been unsuccessful: see the appeals in New London College Ltd v Secretary of State for the Home Department and West London Vocational Training College Ltd v Secretary of State for the Home Department [2013] UKSC 51, reported at [2013] 1 WLR 2358, the first affirming the decision of this court ( [2012] EWCA Civ. 51) and the second that of the Divisional Court ( [2013] EWHC 31 (Admin)). See also WGGS Ltd t/a Western Governors Graduate School [2013] EWCA Civ 177.
The judicial review proceedings challenging these decisions launched by the College on 6 March 2013 did not directly challenge the use of the 20% refusal rate. The challenge was based on two grounds:-
i) The Secretary of State erred in applying a fixed approach to the College's refusal rate under which only refusals overturned on an administrative review were discounted despite a letter dated 9 May 2012 from Mr George Shirley, then UKBA's Head of Sponsorship, to Mark Taylor of the Taylor Partnership, which represented the College. That letter stated (see [32] below) that the "incorrect refusals" which would be discounted from the refusal rate would include refusals shown to be "a factually incorrect decision".
ii) The Secretary of State acted unlawfully in taking account of 64 of the 143 refusals in the relevant twelve month period which were refused on the ground that the student applicant was unable to confirm how the College had assessed his or her English language ability. The refusal was based on a discrepancy between the CAS and what the applicant said in interview, although this was not how the College pleaded the ground. The College submitted that this was a ground for refusal predicated on a requirement that is not contained in the Immigration Rules, and, in the light of the decision of the Supreme Court in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, reported at [2012] 1 WLR 2208, was unlawful. I shall refer to this ground as "the Alvi ground".
The evidence before King J included a witness statement dated 3 June 2013 of Mr Shirley. Following a two day hearing in July 2013, in an order dated 19 February 2014 he dismissed the College's application. I summarise his reasons in section V of this judgment. Here it suffices to state that at [51] – [52] he stated that Entry Clearance Officers are entitled to interview applicants with a view to checking the "veracity" of a CAS but that he granted permission to appeal on the " Alvi ground". The other ground was not pursued in this court. On the Alvi ground, the judge considered that the lawfulness of the disputed refusals and their impact on the Secretary of State's decision was a matter that warranted the attention of this court because it raised an issue which had not hitherto been the subject of any decision, in particular in the context of the application of the mandatory refusal rate criterion for the grant of HTS status.
The judge also ordered that, upon the College undertaking to lodge its appeal with a request for expedition, interim relief which had been granted by an order of HHJ Davies dated 30 April 2013 restoring the College to the Tier 4 register of licensed sponsors be continued pending the appeal. He also ordered that the College be entitled to assign a maximum of 100 CAS be continued pending the appeal. By an order dated 13 March 2014, I granted the Secretary of State permission to appeal against the interim relief entitling the College to assign the 100 CAS. Her appeal was allowed by consent and with my approval on 27 March, three days before the hearing of the College's appeal.
For the reasons I give in section VI of this judgment, I have concluded that the College's appeal should be dismissed. Sections II and III summarise the regulatory and factual context and background. Section IV summarises the judgment below. The principal arguments made on behalf of the College are summarised in section V.
II. The legislative and policy framework
Except as provided by or under the Immigration Act 1971 ("the 1971 Act"), a person who is not a British citizen is not permitted to enter the United Kingdom unless given leave to do so in accordance with the provisions of the 1971 Act or provisions/rules made under it. Permission may be given either for a limited or an indefinite period: see sections 1(2) and 3(1) of the 1971 Act. By section 3(2), "the Secretary of State shall from time to time…lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to…the conditions to be attached in different circumstances…". These statements are contained in the Immigration Rules (HC 395 as amended).
(i) Context and background
The Points-Based System was progressively introduced during 2008 and 2009. Its details are set out in the Immigration Rules, Appendices to those Rules, and supplementary guidance. Jackson LJ has stated that "none of these documents are light reading" and, more recently, that the provisions "have now achieved a degree of complexity which even the Byzantine emperors would have envied": R (WGGS Ltd t/a Western Governors Graduate School) v Secretary of State for the Home Department [2013] EWCA Civ 177 at [6] and Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568 at [4].
Previous decisions (in particular R (New College Ltd) v Secretary of State for the Home Department [2013] UKSC 51, reported at [2013] 1 WLR 2358 at [1] and [3], and see Toulson LJ in the Divisional Court at [2013] EWHC 31 (Admin) at [35]) have referred to the centrality of the status of a licensed sponsor to the operation of the Points-Based System. That centrality is the result of the policy decision to try to improve immigration control by ensuring that sponsors carried out a high degree of due diligence to check that CAS holders would meet the requirements for entry clearance or leave to remain. Licences are of great economic importance to educational institutions because, if licensed, they can market themselves to international students on the basis that their acceptance will, in the...
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