R (on the application of Westech College) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Silber |
| Judgment Date | 13 June 2011 |
| Neutral Citation | [2011] EWHC 1484 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/11611/2010 |
| Date | 13 June 2011 |
[2011] EWHC 1484 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Silber
Case No: CO/11611/2010
Faisal Saifee (instructed directly) by the Claimant
Sasha Blackmore (instructed by Treasury Solicitor) for the Defendant
Hearing date: 13 May 2011
I. Introduction
On 15 October 2009, Westech College ("the claimant") was granted a Tier 4 sponsor licence by the UK Border Agency ("the UKBA"), which is an agency of the Secretary of State for Home Department ("the Secretary of State") and the claimant's name was included on the Sponsors' Register ("the Register"). This enabled the claimant to issue letters, which would thereby enable non-EU nationals, who so wished to enter and remain in the United Kingdom so as to be able to study at the claimant's institution. By a letter dated 2 July 2010 ("the Zero Allocation decision"), the UKBA reduced the Confirmation of Acceptance for Studies ("CAS") allocation limit for the claimant to zero, which meant that it could not issue any more CAS's but its name still appeared on the Register. By a further decision dated 27 September 2010 ("the Suspension decision"), the UKBA suspended the claimant's licence with immediate effect while giving the claimant the opportunity to explain various discrepancies before the UKBA began revocation action. By a further letter dated 2 November 2010 ("the Revocation decision"), UKBA having considered the representations made by the claimant revoked its licence and removed the name of the claimant from the Register with immediate effect.
By these proceedings the claimant originally sought to quash only the Revocation decision but by an amendment, the claimant is also challenging the Zero Allocation and the Suspension decisions. On 8 December 2010, Mr. John Randall QC (sitting as a Deputy High Court Judge) granted the claimant interim relief.
A rolled-up hearing was ordered, and at the outset of that hearing I gave permission to the claimant to challenge each of the three decisions and to seek orders to be reinstated to the sponsorship register as well as to recover damages in the sum of £248,700. It is agreed that if I find for the claimant, I should then adjourn the hearing for the assessment of damages. The claimant has been represented in these proceedings by Mr. Faisal Saifee, while the defendant has been represented by Miss Sasha Blackmore.
II. The Factual Background
The claimant's educational establishment is located at 191/191A, Ballam Street, Plaistow and it has been trading from those premises since 2003. When the claimant's premises were inspected in July 2010, it had 155 enrolled students, all of whom originated from outside the EEA. The claimant was prior to the revocation order on the Register, which had been 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).
This regime was described by Sullivan LJ in R (Bhatti, Middlesex College and others) v Croydon Magistrates' Court and Secretary of State for the Home Department [2009] EWHC 3004 (Admin) in this way:-
"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."
To obtain entrance clearance or leave to remain, a student from outside the EU required 30 points, which could be obtained by holding a visa letter or a CAS document. Pursuant to paragraph 116(d), that document would only be valid if " if it was issued by an institution with a Tier 4 (General) Student Sponsor License", such as the claimant.
The rules of the regime relevant to the claimant's application were set out in a document produced by UKBA entitled "Tier 4 of the Points Based System – Sponsor Guidance" ("the Guidance"), which came into effect on 1 October 2010. Paragraph 1 of it describes the two fundamental principles of sponsorship, which were and are that:-
"(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 7 describes "How the Sponsorship works". It explains that:-
"To obtain a Standard Tier 4 licence, a prospective sponsor must apply to us, supplying specified documents 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. Sullivan LJ explained in Bhatti that:-
"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 assign confirmation of acceptance for studies to students who wish to come to the UK to study" (paragraph 10 of the Guidance).
Establishing a college and achieving both accreditation and licensing was a substantial undertaking for an establishment and it would require very substantial financial commitments. Not surprisingly, the loss of a licence would have most serious professional and financial consequences for a licensed and accredited body and its proprietors as well as having a serious impact on its students and prospective students because the students' immigration status would be undermined if they did not have a visa letter or a CAS document from a licensed college, such as the claimant. I will bear this in mind when considering this application.
III. The Role of UKBA in the Sponsorship Regime.
The background to the sponsorship regime was described in a Joint Report by UKBA and the Department for Business Innovation and Skills, which conducted a joint review of student visas in December 2009. It explained that this review was:
"prompted because of concern about the unprecedented rise in adult student applications being seen in some parts of the world following the launch of the new Tier 4 route for students on 31 March 2009.
During 2009/2010 UKBA had experienced a global increase of student applications of approximately 18% despite the fact that the number of institutions bringing students into the UK under Tier 4 has halved. Much bigger increases have been experienced in China (up by over 100% in South China) and India, and with Nepal and Bangladesh also now adding to the surge (up to 250%).
This is clear evidence that the student route is being used as a route to illegal migration and the back door to low skilled economic migration. This may be adding 40,000 each year to the illegal population of the UK. It is not possible to take enforcement action against all of those and to do so would cost in the region of £440m per year." (Executive Summary page 1).
On 10 February 2010, the Home Secretary said that this review "highlighted concerns about the number of individuals who were not serious about studying in the UK but who were primarily using Tier 4 as a route to work". Indeed my experience of sitting in the Administrative Court for many years and that of my colleagues with similar experience is that both before and after the Tier 4 regime came into force, a substantial number of those immigrants, who are now in this country having initially entered lawfully on student visas and then having started working illegally either during the period covered by their student visa or when it had expired. Finding these overstayers and illegal workers is exceedingly difficult unless those people come to the attention of the authorities usually by committing an offence. The persistent misuse of the immigration system by those who initially enter as students is a factor of importance in ascertaining if UKBA and the Secretary of State have acted in breach of their public law duties.
As is set out in paragraph 1 of the Guidance (which is set out in paragraph 7 above), a fundamental principle of the sponsorship system requires the UKBA to trust the sponsor to a very substantial extent. The reason is that those who are sponsors are entrusted with enabling a student to come to and remain in the UK for the purpose of studying first by providing evidence that he or she will study for an approved qualification (paragraph 2 of the Guidance); second by pledging that that it will accept the duties of sponsoring the student (paragraph 2 of the Guidance); third by ensuring that proper records are kept (paragraphs 13 and 296 of the Guidance); and fourth by reporting to UKBA if any student does not turn up for his or her course or is absent without permission for a significant period or if he or she does not comply with the appropriate obligations (paragraphs 13 and 296 of the Guidance). This information is...
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