The Queen (on the Application of Wggs Ltd trading as Western Governors Graduate School) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Treacy,Lord Justice Maurice-Kay |
| Judgment Date | 08 March 2013 |
| Neutral Citation | [2013] EWCA Civ 177 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 March 2013 |
| Docket Number | Case No: C1/2012/2054 |
[2013] EWCA Civ 177
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MRS JUSTICE THIRLWALL
CO/8028/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lord Justice Jackson
and
Lord Justice Treacy
Case No: C1/2012/2054
Mr Ian Macdonald QC (instructed by Quist Solicitors) for the Appellant
Miss Cathryn McGahey and Mr Richard O'Brien (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 12th February 2013
This judgment is in seven parts, namely:
Part 1. Introduction,
Part 2. The facts,
Part 3. The present proceedings,
Part 4. The appeal to the Court of Appeal,
Part 5. Did WGGS' failure to report the ninety two students who failed to enrol justify refusal of HTS status?
Part 6. Did the high refusal rate justify refusal of HTS status?
Part 7. Conclusion.
This is an appeal by a college against a decision of the Administrative Court upholding a decision by the UK Border Agency ("UKBA") to refuse the college's application for "highly trusted" status.
At the heart of this appeal is the question whether the college faithfully performed the tasks which are expected of an educational institution that seeks to obtain "highly trusted" status. The issues of law concern whether UKBA acted lawfully in the manner in which it assessed the college's performance.
The claimant in the Administrative Court and the appellant in this court is WGGS Ltd, which trades under the name "Western Governors Graduate School". I shall refer to the claimant as "WGGS". UKBA was defendant in the Administrative Court and is respondent in this court.
A Confirmation of Acceptance for Studies is an electronic document issued by certain colleges to overseas students whom they are willing to accept on their courses. I shall refer to this as a "CAS".
The Points Based System ("PBS") was progressively introduced during 2008 and 2009. This system enables people in certain categories (referred to as "tiers") to enter the UK for the purpose of work or study, provided that they secure the required number of points. The details of the PBS are set out in the Immigration Rules, appendices to the Immigration Rules and supplementary guidance. None of these documents are light reading. In some cases the issue has arisen as to whether matters contained in the supplementary guidance are ineffective on the basis that they ought to have been included in the Rules. Mr Ian Macdonald QC, who appeared on behalf of the appellant, takes no such point in this case. So for present purposes I can take the supplementary guidance at face value.
Under the PBS persons who come here to study fall into Tier 4. Rule 245 ZV of the Immigration Rules requires applicants in Tier 4 to score thirty points under paragraphs 113 to 120 of Appendix A to the Rules and ten points under paragraphs 10 to 13 of Appendix C to the Rules. In order to score thirty points under paragraphs 113 to 120 of Appendix A the applicant must obtain a CAS issued by an institution which has been licensed by UKBA for this purpose.
In order to score ten points under paragraphs 10 to 13 of Appendix C the applicant must have sufficient funds to pay the tuition fees and to meet his or her living expenses in the UK. The detailed financial requirements are set out in a table at the end of paragraph 11 of Appendix C.
Colleges which are licensed to issue CASs are expected to take rigorous steps to ensure that they only accept bona fide students. That means people who have both the intention and the ability to pursue a course of study in the UK. This entails that they speak English, have appropriate academic qualifications and possess sufficient funds to meet the cost of living and studying in this country for the duration of their intended courses.
UKBA therefore reposes considerable trust in those colleges which it licenses to issue CASs. Colleges may be awarded either an "A-rated" sponsor licence, or, where UKBA considers they merit an even higher degree of trust, a "highly trusted sponsor" licence. This is usually abbreviated to "HTS".
UKBA regularly publishes guidance for the assistance of colleges which have or seek HTS status. This guidance sets out what is expected of such colleges, how applications for HTS status may be made and related matters. Each edition of this guidance is referred to as "Version" followed by the relevant month number. Thus the guidance on HTS status published in July 2010 is referred to simply as "Version 07/10"; the general Tier 4 guidance published in October 2010 (which referred to the separate HTS Guidance then in force, which was the 07/10 Guidance) is referred to as "Version 10/10"; and so forth. I shall follow this convention.
The policy which underlies Tier 4 of the PBS is well known. Genuine foreign students are welcome in this country. They make a valuable contribution to the UK economy and, indirectly, to good international relations. After completing their studies here, they return to pursue careers in their own countries, hopefully having enjoyed and benefited from their time in the UK. On the other hand bogus applicants, who use the PBS to evade immigration control and to live in this country unlawfully, are not welcome. The purpose of the Tier 4 rules is to secure the admission of genuine students and to weed out bogus applicants.
After these introductory remarks, I must now turn to the facts.
Mr Mark Chhatlani is a director and the moving force of WGGS. Since June 2003 WGGS has operated a college in East London known as Western Governors Graduate School, to which I shall refer as "the college". The college provides training in business management and related subjects for foreign students. Most of those students come from India.
On 24 th February 2009 WGGS was licensed to issue CASs under the original version of the Tier 4 rules. Pursuant to that licence WGGS proceeded to issue CASs to students whom it saw fit to accept.
On 23 rd March 2011 WGGS applied to the UKBA for HTS status. By letter dated 23 rd May 2011 UKBA refused that application for two separate reasons. First, in the preceding twelve months ninety two prospective students, who held CASs issued by WGGS, were refused entry clearance or leave to remain. This represented a refusal rate of 21.5%. This indicated that WGGS's selection procedure was insufficiently rigorous. Secondly, WGGS had failed to comply with reporting requirements: WGGS had not reported to UKBA that those ninety two students had failed to enrol.
Over the next few weeks WGGS and its solicitors sent emails and letters to UKBA, setting out representations as to why HTS status should be granted. UKBA duly considered those representations. It was not, however, persuaded to reverse its original decision. By letter dated 22 nd July 2011 UKBA explained in greater detail to WGGS why UKBA was upholding its original decision on the grounds previously identified.
WGGS was aggrieved by UKBA's decision. Accordingly it commenced the present proceedings.
By a claim form issued in the Administrative Court on 22 nd August 2011 WGGS applied for an order that UKBA's decision be quashed and that UKBA be ordered to grant HTS status to WGGS.
The main grounds on which WGGS sought this relief were essentially twofold. First, WGGS argued that the refusal rate relied on by UKBA did not indicate any deficiency in the college's procedures. Nor was the refusal rate above that which UKBA's guidance envisaged. Secondly, WGGS denied that it was under any duty to report to UKBA the ninety two students who had failed to enrol.
WGGS also raised certain other grounds in its claim form. Those matters, however, were not pursued. So I shall pass over them.
In support of its claim WGGS lodged two witness statements of Mr Chhatlani. Mr Chhatlani provided much helpful information about the college and its recruitment practices.
In opposition to the claim UKBA lodged two witness statements of Mr Lee Bartlett. Mr Bartlett was at the material time employed by UKBA as deputy director of PBS Sponsorship. Mr Bartlett explained the PBS system. He also provided details in respect of each of the ninety two applicants who had been refused entry clearance or leave to remain. In summary, seven cases involved deception related to previous immigration applications. Forty four cases involved some other form of deception. Twenty five cases involved insufficient funds for maintenance. The other sixteen applications were refused for a variety of reasons, including little or no ability to speak English.
The action was tried before Mrs Justice Thirlwall in June 2012. The judge handed down her judgment on 15 th June 2012. She rejected both of WGGS's grounds of challenge and, accordingly, dismissed the claim.
WGGS was aggrieved by the dismissal of its claim. Accordingly it appealed to the Court of Appeal.
By an appellant's notice dated 9 th August 2012 WGGS appealed to the Court of Appeal against Thirlwall J's decision. The two grounds of appeal are, essentially, the same as the two grounds of challenge which were pursued at trial.
WGGS contends that it was under no duty to report the ninety two students who failed to enrol because they were refused entry clearance or leave to remain. Alternatively, if WGGS was under such a duty, the failure to report...
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