R New London College Ltd v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wyn Williams |
| Judgment Date | 07 April 2011 |
| Neutral Citation | [2011] EWHC 856 (Admin) |
| Docket Number | Case No: CO/5236/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 April 2011 |
[2011] EWHC 856 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Wyn Williams
Case No: CO/5236/2010
Case No: CO/9023/2010
Manjit Gill QC and Edward Nicholson (instructed by Chhokar & Co) for the Claimant
Robert Palmer (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 17 & 19 January 2011
Introduction
The Claimant is a limited company which provides further educational courses in a range of subject areas from two campuses in Hounslow, London. In July 2008 it applied to the United Kingdom Border Agency (hereinafter referred to as UKBA) for a Tier 4 General (Student) Sponsor Licence in anticipation that such a licence would be required so as to enable the Claimant to enrol non EEA but overseas students upon the introduction of the Points Based System of immigration control. At that time the Claimant operated from one campus only the address of which was 1 Martindale Road, Hounslow.
On 18 October 2008 UKBA granted the Claimant the licence which it had sought. The Claimant was awarded an A-rating (as to which see paragraphs 25 and 26 below). By 18 October 2008 the Claimant had or was about to acquire the second campus, namely premises at 75–81 Staines Road, Hounslow. Nonetheless the licence granted related only to 1 Martindale Road.
On 18 December 2009 UKBA suspended the licence. In a letter to the Claimant it explained the reasons why it had taken that action. The Claimant responded immediately; it asserted that the reasons for the suspension were not sustainable and it asked for the suspension to be lifted. Despite those representations the suspension was not lifted. Indeed, as of 12 March 2010, the Defendant had not responded, substantively, to the Claimant's representations. Accordingly, on that date, the Claimant issued proceedings for judicial review; the Claimant sought an order quashing the suspension of its licence or alternatively an order requiring the Defendant to reach a decision about whether or not the suspension should continue.
On 25 March 2010, before the issue of permission could be determined, UKBA wrote to the Claimant seeking information about various points raised in the letter. The letter ended as follows:-
"You now have 28 days to make representations including submitting evidence in response to this letter. If you fail to make representations, or to adequately address these issues within this time, your licence will be revoked and you will no longer be able to sponsor migrants."
On 31 March 2010 Holman J refused the Claimant's application for permission to apply for judicial review on the ground that the claim was premature and that UKBA was legitimately and justifiably pursuing the questions which it had raised in its letter of 25 March. No renewed application for permission was made.
Unbeknown to Holman J the Claimant's solicitors had sent a detailed reply to the Defendant's letter of 25 March 2010 on 26 March; in the eyes of the Claimant, at least, the reply provided answers to the points raised by UKBA.
By 30 April 2010 there had been no substantive response to the Claimant's solicitor's letter. Accordingly the Claimant commenced a second judicial review. On 14 May 2010 Ian Dove QC, sitting as a Deputy High Court Judge, considered an application by the Claimant for interim relief; he granted the Claimant an interim injunction restraining the Defendant from revoking the licence. As it happens, UKBA had already decided to revoke the Claimant's licence. By letter dated 14 May 2010 it communicated that decision to the Claimant, although by virtue of the order of Mr. Ian Dove QC the decision was short lived. Nonetheless, the Claimant's licence remained suspended.
On 25 June 2010 Kenneth Parker J considered the issue of permission in the second set of proceedings. He had before him summary grounds of defence which had been filed on 7 June 2010. He refused permission. He also discharged the interim order of Mr. Dove QC. On 5 July 2010 the Claimant renewed his application for permission. That same day UKBA wrote to inform the Claimant that it had decided to revoke the Claimant's licence.
On 5 August 2010 officers of UKBA met with officers of the Claimant; it had been agreed that the decision of 5 July would be reviewed. A fresh decision was promised within 14 days. On 12 August 2010 officers of UKBA visited the Claimant's premises and undertook various investigations. On 19 August UKBA wrote to the Claimant to indicate that it had decided to maintain its decision to revoke the licence.
On 24 August 2010 the Claimant issued a third claim for judicial review. The proceedings sought to challenge the decision of 5 July 2010. On 24 August 2010 Collins J made an order which had the effect of restraining the revocation of the licence but, nonetheless, maintaining its suspension. On 12 October 2010 King J granted permission to bring both the second and third claims for judicial review.
Before me the Claimant challenges the lawfulness of three decisions made by UKBA, namely the decision to suspend its licence made on 18 December 2009, the decision to revoke the licence made on 5 July 2010 and the decision to maintain that revocation made on 19 August 2010. It also argues that the maintaining of the suspension from 18 December 2009 was unlawful.
All of the relevant decisions were made by Ms Roxanna Cram; she is a higher executive officer employed within the sponsor licensing unit of UKBA. She has made two witness statements in these proceedings primarily focussed upon why she made the decisions which are under challenge.
The grounds upon which the Claimant impugns each decision are detailed and are not susceptible of easy summary at this stage. I will deal with each ground in turn and in detail later in this judgment.
In the evidence there is a significant amount of information relating to the introduction of the Points Based System (PBS) and a detailed description of how it works. PBS is a comparatively new system (introduced initially in 2008) which determines whether or not certain categories of migrant should be given leave to enter the United Kingdom or given leave to remain. Initially the system applied only to highly skilled migrants who wished to work or become self-employed in the United Kingdom. In March 2009, however, it was extended to cover students. Under this system, in summary, applicants for entry or stay in the United Kingdom are required to establish that they have accumulated a set number of points in accordance with detailed provisions specified in the Immigration Rules; if the requisite number of points are achieved the applicant may (subject to other requirements also being fulfilled) be given leave to enter or remain; if they are not his application is refused.
No useful purpose would be served in this judgment by a further description of the system and the reasons for its introduction. That is because the system has been described in a number of recent decisions of this court; see, in particular, the decision of Foskett J in R (English UK Ltd) v Secretary of State for the Home Department [2010] EWHC 1726 at paragraphs 23 to 29. Those parts of PBS system which are relevant to my decision will be set out in a later section of this judgment.
I should record that following the oral hearing I received communications from the parties about aspects of the evidence. I have not found it necessary to base my decision upon any of those communications. In any event, there was no suggestion at the end of the oral hearing that I would be sent further submissions/information.
Section 1(4) of this Act provides:-
"The rules laid down by the Secretary of State 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 not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming….for purposes of study…."
The relevant parts of section 3 of the Act provide:-
"(1) Except as otherwise provided by or under this Act, where a person is not a British citizen
a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under this Act
b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;
c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely –
i) …..
i(a) a condition restricting his studies in the United Kingdom
…..
(2) The Secretary of State shall from time to time (and as soon as may be) 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 period for which leave is to be given and the conditions to be attached in different circumstances….
If a statement laid before either House of Parliament in this sub-section is disapproved by resolution of that House...
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