The Queen (on the Application of Global Vision College Ltd) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice King |
| Judgment Date | 14 February 2014 |
| Neutral Citation | [2014] EWHC 205 (Admin) |
| Docket Number | Case No: CO/2695/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 February 2014 |
[2014] EWHC 205 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (MANCHESTER)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice King
Case No: CO/2695/2013
Vijay Jagadesham (instructed by Lester Morrill inc. Davies Gore Lomax Solicitors) for the Claimant
Vinesh Mandalia (instructed by The Treasury Solicitors) for the Defendant
This claim concerns the Tier 4 — Points Based System ('the system')introduced by the defendant as the primary immigration route available to students who want to study full time in the United Kingdom. In particular it concerns the application by the defendant of her 'less than 20% refusal rate' criterion as a mandatory requirement to be met by any applicant education provider seeking 'Highly Trusted' Sponsor status.
The claimant is a privately owned further education college based in Manchester offering and providing courses to overseas students. The claimant was originally granted a Sponsor Licence with a B rating in August 2009. Thereafter in 2010 and 2011 there is a history, more fully set out both in the Detailed Statement of Facts and Grounds and the detailed Grounds of Defence, of numerous visits and inspections of the claimant by the defendant, of its licence being suspended and then re-instated at 'B' level, until finally on the 10th May 2011 the claimant was re-rated to an 'A-rated' sponsor status.
By these proceedings for judicial review the claimant seeks to challenge (i) the decision of the defendant by letter of the 7 th December 2012 to refuse the claimant's application (dated 2 nd February 2012) for 'Highly Trusted Status' (HTS) and to reduce its allocation of CAS (Confirmation of Acceptance For Studies) to zero (ii) the consequential decision of the defendant of 14 th January 2013 to revoke the Sponsor Licence of the claimant with immediate effect. Permission was granted to challenge these decisions on limited grounds by HHJ Davies sitting as a High Court Judge by order of the 30 th April 2013.
The defendant had originally refused the application for HTS status by letter dated the 2 nd November 2012 and which letter also put the claimant on notice of revocation of its licence. That had been a short letter making clear that the sole basis for the refusal was the inability of the claimant to meet the mandatory requirement for HTS status that it's 'refusal rate must be less than 20 per cent'. This was a reference to the mandatory criteria set out in the material Policy Guidance (as to which see below) concerning the number of refusals of visa/entrance clearance applications made by students sponsored by the HTS applicant during the 12 months immediately prior to the date of its application. In its material part that letter reads as follows:
'… 418 leave applications were made during the 12 month period prior to the date your application was received, this being … from 2 February 2011 until 1 February 2012. Of these 143 were refused giving you a refusal rate of 34.21%.
For your convenience we have included in Annex A the CAS numbers used during your assessment period outlined above. The refused applications have been highlighted in bold.'
The letter of the 7 th December was in effect a reconsideration and confirmation of that original decision having regard to detailed representations made by the claimant by letter of 18 th November 2012 described as a letter before claim. Material to these proceedings, the claimant sought, amongst other things, to invite the defendant to examine the detailed reasons given by the Entrance Clearance Officer for the refusal of what was said to be 65 applications by students in which a common ' erroneous' decision reason was given namely '… you failed to correctly confirm how the College had assessed your English'. It is in fact conceded by the claimant that only 64 such applications were and have been identified.
The particular representation was put in this way:
'vi) … It is interesting to note that 65 applications have been refused on the same basis (numbers …) "… you failed to correctly confirm how the college had assessed your English"
A test of language skills is not necessarily 'announced' in interview as such rather, the interview itself is the test of English. As such, the students may not have been able to pin-point an actual test that was embedded in the interview process.
However, in many cases the students had other corroborative evidence to demonstrate their English language capabilities such as …'
The representation then set out by reference to a number of identified applications of the 64 how, for example, a particular student had a 'valid IETS certificate' or other identified qualifications before culminating with the following:
' We would submit that all 65 are accepted as being the subject of erroneous decision making by the entry Clearance officer and therefore should not be used in any calculation to assess HTS eligibility'
The letter of the 7 th December signed on behalf of the defendant by George Shirley 'Head of Sponsorship' responded to this particular representation in the following terms:
' Whilst 65 applications are referred to, only details of 64 have been provided.
It should be noted that in assessing the refusal rate for a particular college all refusals will be taken into account, regardless of the reason for refusal and whether the sponsor considers they are reasonable. This is the reason the bench mark is set at a relatively high level of 20%. Should an individual refusal decision be in dispute, then there are appropriate channels though which to challenge those decisions, either though administrative review, appeal or litigation. It is not the remit of the Highly Trusted Sponsor Team to reconsider individual migrant applications outside of these channels. (emphasis is that of the court)
We have investigated all 64 indicated and can confirm that none of those indicated have successfully had the decision to refuse the application overturned as part of an administrative review. From our records, 40 of the 64 indicated had an administrative review (numbers identified) of which 37 were upheld. Of the remaining 3, 1 was rejected (as out of time), 1 was withdrawn, and 1 (resulted in an amended refusal notice).'
The letter further observed that six of the impugned applications had in any event been refused on other grounds:
'In addition several of those applications were either refused on reasons other than stated in the representations made, or the interviews highlighted other discrepancies other than the ability to name the method of English language assessment undertaken (numbers given).'
In the course of the hearing I was taken to a number of these particular refusals. The other grounds included refusal under Immigration Rule 372(7A) (false information). Mr Jagadesham has sought to persuade me that in the case of at least one of the six identified in the letter (that numbered '4'), what he would describe as the 'unlawful ground' was still used as decisive of the refusal. However having been taken by Mr Mandalia through the records applicable to those numbered 2, 3, 7, 49, 59 and 61 on the Analysis Chart provided by the defendant, I am satisfied at least six of the 64 decisions were refused on additional grounds unconnected with the reason complained of by the claimant in these proceedings.
As regards the point being made that other evidence was available to demonstrate the required level of English, the letter responded that:
'However, in issuing a CAS a sponsor confirms that they have already assessed a student's ability to undertake a course of study including any English requirement. They should also state the method of assessment on the said CAS. As part of an application for entry clearance/leave to remain, we make checks to ensure the information stated on the CAS can be verified. If further documentation was available to demonstrate a student's English Language ability this should have been stated on the CAS, for it to be considered as part of the student's application. Any information not stated on the CAS cannot be used in lieu of the original information not being able to be verified. … the reason to refuse based on the discrepancies highlighted at interview as regards the college interview are sufficient enough reasons to refuse the application … It should be noted that where we have indicated a student was unable to prescribe the method of English assessment used, this does not mean that no method was stated during the interview …' (any emphasis is the emphasis of the Court)
The letter did however concede that one of the 418 applications should be taken out of the refusal calculation altogether on the basis of an erroneous refusal. It was to be removed altogether because it could not be confirmed 'that the application would have been approved otherwise'. This was student application No 28 (not one of the material 64) in which the refusal notice did not correspond to the CAS. In other words an error of fact had been made by the Entry Clearance Officer who had referred to a discrepancy which had no factual basis. It would appear that the student had been refused for failing to produce evidence of an accountancy qualification, not a fact referred to in the CAS, (to quote the letter: ' 1 student is stated as having been refused erroneously as there is no mention of ACCA in the CAS. We can confirm that CAS … used in this application...
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