The Queen (on the application of New London College Ltd) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Richards,Lord Justice Rimer,Lord Justice Mummery
Judgment Date02 February 2012
Neutral Citation[2012] EWCA Civ 51
Docket NumberCase No: C4/2011/1137 and 1137(B)
CourtCourt of Appeal (Civil Division)
Date02 February 2012
Between:
The Queen (on the application of New London College Limited)
Appellant
and
Secretary of State for the Home Department
Respondent

[2012] EWCA Civ 51

[2011] EWHC 856 (Admin)

Before:

Lord Justice Mummery

Lord Justice Richards

and

Lord Justice Rimer

Case No: C4/2011/1137 and 1137(B)

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Mr Justice Wyn Williams

Royal Courts of Justice

Strand, London, WC2A 2LL

Manjit S Gill QC and Edward Nicholson (instructed by Chhokar & Co) for the Appellant

Robert Palmer (instructed by The Treasury Solicitor) for the Respondent

Hearing dates : 22–23 November 2011

Lord Justice Richards
1

The appellant ("the college") is a limited company which provides further education courses. It formerly held a Tier 4 General (Student) Sponsor Licence issued by the United Kingdom Border Agency ("UKBA"), which enabled it to issue a visa letter or a confirmation of acceptance of studies ("CAS") to non-EEA students who wished to study in the United Kingdom. The licence was suspended by UKBA on 18 December 2009 and was then withdrawn on 5 July 2010 (though the withdrawal has not yet come into effect, by reason of orders made in the course of a series of applications for judicial review). In a judgment handed down on 7 April 2011, Wyn Williams J found that the suspension of the licence from 18 December 2009 to 25 March 2010 was unlawful but that the decisions to maintain the suspension thereafter and then to withdraw the licence were lawful. He also found that the decisions to suspend and withdraw the licence engaged Article 1 of the First Protocol ("A1P1") to the European Convention on Human Rights and that the initial period of suspension was in breach of that article.

2

The college now appeals on three broad grounds against the order made by Wyn Williams J in so far as he dismissed the claim against the suspension and withdrawal decisions. In outline, the grounds are that: (1) the system of sponsor licensing pursuant to which the decisions were taken is unlawful because it is contained in policy guidance, not in the Immigration Rules, and it lacks the necessary legislative authority (the college relies primarily on Pankina v Secretary of State for the Home Department [2011] QB 376 and I will refer to this as "the Pankina issue"); (2) the lack of a right of appeal to an independent body is in breach of article 6 ECHR ("the article 6 issue"); and (3) the judge was wrong to find on the facts that the decisions were reasonable and proportionate ("the reasonableness issue").

3

The Secretary of State cross-appeals against the judge's finding that the suspension and revocation of such a licence engages A1P1 ("the A1P1 issue").

The legislative framework

4

The Immigration Act 1971 ("the 1971 Act") provides by section 1(2) that persons not having the right of abode may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by the Act. By section 1(4), the rules laid down by the Secretary of State as to the practice to be followed in the administration of the Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admission (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) of persons coming for the purposes of study.

5

Section 3(1) provides that, except as otherwise provided by or under the 1971 Act, where a person is not a British citizen he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, the Act; he may be given leave to enter (or, when already there, leave to remain) either for a limited or for an indefinite period; and if he is given limited leave to enter or remain, it may be given subject to conditions restricting his employment and studies in the United Kingdom.

6

Provision is made in section 3(2) for the laying before Parliament of the rules made by the Secretary of State (generally referred to as the Immigration Rules):

"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 to different circumstances….

If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying…, then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution…."

7

The significance of that provision for the status of the Immigration Rules, and the extent to which the rules may be qualified or supplemented by policies which have not been laid before Parliament, are at the heart of the decision in Pankina.

8

The requirements for leave to enter as a student were formerly contained in paragraph 57 of the Immigration Rules, which included the following:

"57. The requirements to be met by a person seeking leave to enter the United Kingdom as a student are that he:

(i) has been accepted for a course of study, or a period of research, which is to be provided by or undertaken at an organisation which is included in the Register of Education and Training Providers, and is at either:

(a) a publicly funded institution of further or higher education which maintains satisfactory records of enrolment and attendance of students and supplies these to the [United Kingdom Border Agency] when requested; or

(b) a bona fide private education institution; or

(c) an independent fee paying school outside the maintained sector which maintains satisfactory records of enrolment and attendance of students and supplies these to the [United Kingdom Border Agency] when requested; and

(ii) is able and intends to follow either:

(a) a recognised full-time degree course or postgraduate studies at a publicly funded institution of further or higher education; or

(b) a period of study and/or research in excess of 6 months at a publicly funded institution of higher education where this forms part of an overseas degree course; or

(c) a weekday full-time course involving attendance at a single institution for a minimum of 15 hours organised daytime study per week of a single subject, or directly related subjects; or

(d) a full-time course of study at an independent fee-paying school…."

That gives a sufficient flavour of the matter. It is unnecessary to set out the further requirements contained in paragraph 57 itself or those in paragraph 60 concerning an extension of stay as a student.

9

A new Points Based System (or "PBS"), was introduced with effect from 31 March 2009. Its introduction is described as follows in the witness statement of Ms Roxanna Cram, a higher executive officer of UKBA:

"4.…The new system was designed to consolidate the various routes of entry into the United Kingdom into five different tiers. Central to the new system were 'sponsors' who would play a part in ensuring that only genuine students and workers entered the United Kingdom….

5. Prior to the introduction of the PBS, extensive consultation took place, including with the education sector. That consultation took place against the background that for many years prior to the introduction of PBS, Entry Clearance Officers (ECOs) tested the suitability, credibility and intentions of an international student when applying to come to the UK. If the ECO was not satisfied about these matters, they had the power to refuse an application for leave to enter. The education sector had historically seen this as a fetter on their activities since genuine students were said to be refused entry clearance. This assessment was also seen as a duplication of that already done by the sponsoring educational institution.

6. In light of the above responses, a key change brought about by the consultation was UKBA's agreement to remove an ECO's power to make refusals on 'credibility and intention' on the basis that the education provider was best placed to make judgments as to the genuineness, or otherwise, of a prospective student and their ability to follow a course of study. The agreement was that UKBA would not make 'academic judgments' under PBS because the sector gave assurances that they would sponsor only genuine students who they had assured themselves were fully intending to study. A further…key change was that sponsors (of both students and workers) took on responsibility to monitor the compliance of the students or workers whom they had sponsored with immigration rules while in the UK.

7. Thus, once the educational provider has issued a visa letter/ confirmation of acceptance for studies ('CAS') to the migrant, UKBA's opportunity for further checks and its grounds for refusal are based on an objective assessment of whether an applicant has a valid offer from a registered UK based sponsor for an approved course, and an ability to maintain and support oneself without recourse to public...

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