The Queen (on the application of London School of Science and Technology) v Secretary of State for The Home Department

JurisdictionEngland & Wales
JudgeMs Sara Cockerill
Judgment Date08 March 2017
Neutral Citation[2017] EWHC 423 (Admin)
Docket NumberCase No: CO/3511/2016
CourtQueen's Bench Division (Administrative Court)
Date08 March 2017

[2017] EWHC 423 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Ms Sara Cockerill QC

(Sitting as a Deputy High Court Judge)

Case No: CO/3511/2016

Between:
The Queen (on the application of London School of Science and Technology)
Claimant
and
Secretary of State for The Home Department
Defendant

Mr Michael Biggs (instructed by Mayfair Solicitors) for the Claimant

Miss Sasha Blackmore (instructed by Government Legal Department) for the Defendant

Hearing date: 22 February 2017

Approved Judgment

Ms Sara Cockerill QC:

Introduction

1

In this case the Claimant ("LSST") seeks judicial review of the Defendant ("SSHD")'s decision of 10 June 2016 to revoke LSST's Tier 4 sponsor licence, and revocation of LSST's Tier 2 licence which occurred at the same time.

2

Permission to claim judicial review was given by Mrs Karen Steyn QC sitting as a Deputy High Court Judge on 28 November 2016.

3

The backdrop to this case concerns the Visa Sponsorship licensing system. In summary (and with apologies to Tomlinson LJ ( The Queen on the Application of Raj and Knoll Limited v. The Secretary of State for the Home Department [2016] EWCA Civ 770) and Lord Sumption (in R (New London College Ltd) v. Secretary of State for the Home Department [2013] 1 WLR 2358) on whose summaries the next paragraphs lean heavily) the position may be outlined as follows.

4

The SSHD has responsibility for the maintenance of the United Kingdom's immigration controls. Legislation has over the years been introduced which permits businesses to take a role in that system. There are three Tiers: Tiers 2, 4 and 5 which are addressed to different areas. Only Tiers 2 and 4 are relevant in this case.

5

The "Tier 2" System is a scheme which covers the employment sector, enabling skilled workers from outside the European Economic Area, the "EEA", to enter and remain in the UK to fill particular jobs which cannot be filled by settled EEA workers. Employers who are licensed by THE SSHD sponsor an applicant migrant by the issue to him or her of a Certificate of Sponsorship – "COS".

6

The Tier 4 scheme, which is the primary focus of this case, is a system for licensing educational institutions to sponsor students from outside the EEA. Under this scheme an applicant is deemed to meet the points criteria if a "Confirmation of Acceptance for Studies" (or "CAS") has been issued in respect of a course of study satisfying the academic requirements set out the rules. A CAS is an entry made by the sponsor in an electronic database to which the sponsor and the UK Border Agency's staff both have access.

7

There are two key aspects of the relationship thus created which are to some extent in tension. On the on hand the status of a licensed sponsor is (as Lord Sumption has observed) of great economic importance to the institutions which possess it as it enables them to market themselves to international students as being able to ensure that they can enter the United Kingdom for the duration of their studies. Their status may indeed be key to their continued functioning as a business.

8

On the other hand the role licensed sponsors play is a critical one in the process of immigration control. It is this aspect which has brought into being lengthy and comprehensive guidelines ("the Guidance") covering matters pertinent to each Tier, including in each case detailed record-keeping and reporting, and which ensures that compliance is monitored by the SSHD. The Guidance is frequently updated. The relevant versions in this case are 04/16 (in force at the time of the decision complained of), 11/2015 (in force at the time of the relevant actions) and 11/2014 (in force when the CAS was assigned).

9

Putting this into context, my attention was drawn by the SSHD to its published data which indicates that there are annually approximately 200,000 study visas granted, some 1,300 Tier 4 sponsors, some 30,000 Tier 2 and Tier 5 sponsors, approximately 100,000 applications by migrants on the basis of Certificates of Sponsorship from employers, and approximately 20,000 restricted COS.

10

The serious responsibility of a sponsor is stated in the Guidance. At paragraph 2.1 of the Sponsorship Duties Guidance 04/2016, "Guiding Principles".

"Sponsorship is a privilege and not a right. Sponsors benefit directly from migration and are expected to play a part in ensuring that the system is not abused. Sponsors must therefore fulfil certain duties, in order to ensure that immigration control is maintained. Providers must be able to show that they can fulfil, and are fulfilling, these sponsors duties in order to gain and retain a Tier 4 Licence…"

11

This principle has received repeated judicial recognition, for example:

i) London St Andrews College v. SSHD [2014] EWHC 4328 per McGowan J: "the SSHD imposes a high degree of trust in the establishment to fulfil its responsibility in implementing and policing immigration policy in respect of the students whom it grants Confirmation of Acceptance for Studies… It must be understood that the grant of [sponsor] status is a fragile gift, constant vigilance about compliance is a minimum standard required for such sponsors. The burden of playing an active role in the support of immigration control is a heavy one. The SSHD is entitled to review purported compliance with a cynical level of supervision."

ii) R (on the application of Westech College) v. Secretary of State for the Home Department [2011] EWHC 1484 (Admin) per Silber J: the "fundamental principle of the sponsorship system requires the UKBA to trust the sponsor to a very substantial extent… a significant reason why the trust imposed on the sponsor is considerable is the wish and determination of many students to act in breach of their leave conditions… In return for this trust imposed in the sponsor, UKBA has to monitor the performance of the sponsor with great care as any failures by the sponsor could lead to interference with immigration control".

Both of these passages were incorporated into Haddon-Cave J's summary of the principles at first instance in Raj and Knoll [2015] EWHC 1329 (Admin), a judgment which has itself been repeatedly cited since and was endorsed by the Court of Appeal in the same case at [2016] EWCA Civ 770.

12

The interplay between this trust and the importance of compliance is summarised pithily by Lord Sumption in in R (New London College Ltd) v. Secretary of State for the Home Department at 2372:

"There are substantial advantages for sponsors in participating [in the Tier 4 scheme], but they are not obliged to do so. The rules contained in the Tier 4 Guidance for determining whether applicants are suitable to be sponsoring institutions, are in reality conditions of participation, and sponsors seeking the advantages of a licence cannot complain if they are required to adhere to them."

13

As of the date of the revocation decision, the relevant guidance for Tier 4 Sponsors was in 3 parts. It is headed "Tier 4 of the Points Based System: Guidance for Sponsors". Document 1 covered applying for a Tier 4 licence, Document 2 covered "Sponsorship Duties", and Document 3 covered compliance assessments and sanctions for non-compliance and was entitled "Tier 4 Compliance". There is also Guidance for Tier 2 and 5 sponsors, called "Tiers 2 and 5: Guidance for Sponsors".

The Facts

14

LSST is a limited company trading as private provider of higher education. It sponsored both non-EEA students and non-EEA employees (as both tutors and administrative staff). In order to provide courses of study to students who are not EEA citizens it needs a Tier 4 sponsor licence. In order to employ people who are not EEA citizens it needs a Tier 2 sponsor licence. Prior to the events in question it had held a joint Tier 2 and Tier 4 sponsor licence since 2008.

15

LSST was made a Highly Trusted sponsor in September 2013. It passed a number of compliance visits in the period after 2008. In the academic field it has achieved a number of positive reports from its inspecting body.

16

On 14–17 September 2015 representatives of the SSHD attended LSST's premises and conducted a compliance visit regarding Tier 4 and Tier 2 sponsor licences.

17

On 8 March 2016 Mr Box for the SSHD wrote to LSST stating that the SSHD intended to revoke LSST's Tier 4 sponsor licence, and informing LSST that its tier 4 sponsor licence was suspended. The letter set out various concerns as to LSST's compliance with its duties as a Tier 4 sponsor. The SSHD invited LSST to provide representations and evidence in response within 20 working days.

18

LSST responded by letters dated 5 April 2016 and 6 May 2016. The timing of these representations is explained by the fact that the SSHD's March letter included an erroneous appendix as regards the SSHD's concerns in relation to English language testing. Both letters indicated an awareness on the part of LSST that under the terms of the Guidance revocation of the Tier 4 licence would entail simultaneous revocation of the Tier 2 licence held jointly. In particular LSST suggested the possibility of surrendering the Tier 4 licence without effect on the Tier 2 licence.

19

On 10 June 2016 the SSHD, having considered those representations, sent the revocation letter which is the subject of challenge in these proceedings ("the Decision Letter"). It runs to just over 19 pages and 105 paragraphs. In the light of the representations made some of the concerns raised in the 8 March 2016 letter were considered to have been addressed and were no longer relied upon. For example Mr Box says, and the wording of the letter reflects, that in the case of two students he was satisfied that they demonstrated progression in their academic course and the new courses could represent deeper specialisation.

20

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