R (London Reading College) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Neil Garnham QC |
| Judgment Date | 18 October 2010 |
| Neutral Citation | [2010] EWHC 2561 (Admin) |
| Docket Number | Case No: CO/14177/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 October 2010 |
[2010] EWHC 2561 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr Neil Garnham QC
Sitting as a Deputy Judge of the High Court
Case No: CO/14177/2009
Charles Banner (instructed by Messrs Hafiz & Haque) for the Claimant
Jonathan Hall (instructed by Treasury Solicitors) for the Defendant
Hearing date: 23 September 2010
Neil Garnham QC :
Introduction
By letter dated 28 October 2009, the UK Border Agency (“the UKBA”) informed Mr Sowmik Rayhan of the London Reading College (“the LRC”) that the College had been removed from the “sponsor register” maintained by the UKBA. By these proceedings, brought with permission of Stadlen J. granted on 8 th July 2010, the LRC challenges that decision. The College seeks a quashing of the decision and damages under section 8 of the Human Rights Act.
The LRC is represented in these proceedings by Mr Charles Banner; the Defendant by Mr Jonathan Hall. It is agreed between counsel that if I find for the Claimants I should adjourn the hearing for the assessment of damages.
The Scheme
To understand the decision and the challenge it is necessary to know something of the background to the Sponsor's Register. The Register was devised by the UKBA as part of a “points based scheme” introduced by paragraph 113 of Appendix A to the Immigration Rules HC395 (as amended). A non-EU applicant for entry clearance or leave to remain as a Tier 4 (General) Student requires “30 points” which may be obtained by holding a visa letter or a “Confirmation of Acceptance for Studies” document. Pursuant to paragraph 116(d), that document is only valid if by “if it was issued by an institution with a Tier 4 (General) Student Sponsor License”.
That requirement was described by the Divisional Court in R on the application of Bhatti, Middlesex College and others v Croydon Magistrates’ Court and Secretary of State for the Home Department [2009] EWHC 3004 (Admin) at [5] as follows:
“5….Following the introduction of a new points-based system by the United Kingdom Border UKBA (UKBA), those educational establishments, such as the College, wishing to be a Tier 4 sponsor were required, after 31st March 2009, to be included in the register of licensed sponsors maintained by the Sponsor Licensing Unit (SLU). SLU is part of UKBA, but it is operationally separate from the other parts of UKBA, including those parts of UKBA which are responsible for investigating alleged breaches of the Immigration Rules.”
The SLU has published Guidance for sponsor applicants. The relevant version at the time of the decision was that issued in October 2009; the version relevant during the investigation which led up to the decision was that issued on 31 March 2009. Paragraph 8 of the latter edition describes the two fundamental principles of sponsorship namely:
“(i) those who benefit most directly from migration (that is, the employers, education providers or other bodies who are bringing in migrants) should play their part in ensuring that the system is not abused;
(ii) we need to be sure that those applying to come to the United Kingdom to do a job or to study are eligible to do so and that a reputable employer or education provider genuinely wishes to take them on.”
Paragraph 9 describes “how the system works”. It explains that:
“To obtain a licence, a prospective employer must apply to us, supplying specified documents (listed in Appendix A) to show that it is eligible. We will carry out appropriate checks before deciding whether to grant the licence.”
To be licensed, an establishment must also have achieved an accreditation from an accreditation body. This “key feature” of the licensing system was explained in Bhatti:
“12. A key feature of SLU's new licensing system is the need for any applicant applying to be included on its register as a Tier 4 sponsor to have accreditation from a specified independent body. The guidance for applicants makes it clear that such accreditation is a prerequisite for inclusion in SLU's register. In the present case the relevant accrediting body is the Accreditation Service for International colleges (ASIC).”
Once licensed under Tier 4;
“the sponsor will be able to issue visa letters to migrants who wish to come to the UK to study” (paragraph 10 of the Guidance).
It should be understood that establishing a college and achieving both accreditation and licensing is a substantial undertaking for an establishment. Having achieved this status and opened for business teaching students, the college will inevitably have made substantial financial commitments. The loss of a license would have the most serious professional and financial consequence for the college and its proprietors. It would also have a serious impact upon both its students and its prospective students because, without a visa letter or a “Confirmation of Acceptance for Studies” document from a licensed college, the students’ immigration status is undermined. It follows that a license is a very valuable thing.
During the currency of the license, the sponsor college is ascribed various duties in the Guidance. Paragraph 427 identifies the four “objectives of these duties”, namely preventing abuse of assessment procedures, capturing early patterns of migrant behaviour that may cause concern, addressing weaknesses in process which can cause those patterns and monitoring compliance with immigration rules. There are then set out various “generic duties” including record keeping duties and reporting duties. It is plain from the Guidance that the scheme operates by imposing on the sponsor colleges serious and onerous duties in return for the grant of what for the college is a valuable license.
The facts
The Claimant College was established in 2005 and provides educational courses primarily to students from abroad, many from the Indian sub-continent. A Tier 4 license was essential for its business. On 29 th January 2009 it was granted a Tier 4 license.
On 1 st July 2009, officers of the UKBA including a Mr Rogers visited the Claimant. There is a report of his visit at [7/23] in the papers. Amongst other matters, Mr Rodgers noted that the library was very small and contained general fiction rather than “books of learning”. He noted that the entrance to the fourth floor of the building, which was apparently used for LLB classes, was locked at the time of the visit.
Of greater relevance, he recorded having asked four members of staff how many students were registered at the college and received estimates ranging from 400 to 600. He asked for a print out of those currently registered. That took a long time to produce and there were varying excuses for the delay. After a 5 hour wait, Mr Rodgers discovered that the administration department was creating a list for the purpose, then and there. He was told again that the number registered was between 400 and 600. He responded by pointing out that the Home Office had granted leave to remain to 1076 of their students. The explanation for the discrepancy was that “there must have been a lot of drop outs”.
The SLU's officers also inspected student files. They found 11 files were not up to date. They were also told how student attendance was registered. On closer examination it was discovered that there were discrepancies between what lecturers recoded about student attendance and what a “health and safety signing in book” revealed.
The conclusion of the visiting officers was a recommendation that the College have its license revoked. The author of the report said he was not satisfied that the college currently met the licensing requirements.
Mr Roger raised his concerns during the course of the visit. The Claimant College sought to address them in a letter dated 3 rd July 2009 from Mr Rayhan, their Chief Executive Officer. The letter enclosed a list of students and talked about LRC's “honest efforts towards compliance with our sponsorship duties”. The letter explained how they proposed improving their tracking and reporting by the use of a biometric attendance system. The letter concluded with the statement “should you require any further assistance, please do not hesitate to contact us”.
The UKBA's response was contained in its letter of 20 th August 2009. It referred to the various deficiencies unearthed by Mr Rogers, describing them as “potentially serious breaches of your sponsorship obligations”. The letter indicated concerns regarding the maintenance of student files, the Claimant's ability to provide sufficient records of its students or staff and the ability accurately to ascertain from LRC's attendance registers whether students at the college were completing the required 15 hours per week of daytime study. The letter concluded by stating that the Claimant would be provided with an opportunity to make representations in response and that the Defendant would aim to decide what action to take within 14 days of receipt of those representations.
The Claimant took the opportunity offered to make representations. In their letter of 1 September 2009, they addressed the points raised in the UKBA's letter. The letter set out the relevant paragraphs of the 20 August letter under the headings, “HR procedure”, “attendance system” and “tracking and monitoring”. It is worthy of note that the Claimants did not dispute the findings set out in the August letter but attempted to explain...
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