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

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 The licence was suspended by UKBA on 18 December 2009 and was then withdrawn on 5 July 2010 (though the withdrawal has not yet come into effect, by reason of orders made in the course of a series of applications for judicial review).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.

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”).

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 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.

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.

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 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.

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

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:

Under the Points Based System, applications for entry clearance or leave to remain as a student are assessed in accordance with the provisions of Part 6A of the Immigration Rules applying to a “Tier 4 (General) Student”. The requirements for entry clearance are contained in paragraph 245ZV, and those for leave to remain in paragraph 245ZX. In each case, one of the requirements is that the applicant must have a minimum of 30 points under paragraphs 113 to 120 of Appendix A.

Paragraph 113 of Appendix A states that an applicant for entry clearance or leave to remain as a Tier 4 (General) Student must score 30 points. Available points are shown in Table 16, which awards 30 points for a Confirmation of Acceptance for Studies (“CAS”). Paragraph 6 of the Immigration Rules defines a CAS as “an authorisation issued by a Sponsor to an applicant for entry clearance, leave to enter or remain as a Tier 4 Migrant in accordance with these Rules”. The notes to Appendix A, set out in paragraphs 116 to 120 of the appendix, contain qualifications as to the circumstances in which a CAS will be accepted. In particular:

The CAS is not an actual certificate or paper document but is similar to a database record: sponsors complete a process within a sponsorship management system that results in the assignment of a unique CAS reference number. Prior to the introduction of the CAS, colleges issued “visa letters” to students to whom they had offered a place; and until October 2009, Table 16 referred to a visa letter rather than to a CAS. There then followed a transitional period during which 30 points could be awarded either for a visa letter or for a CAS. From February 2010, however, the table was amended to refer only to a CAS. The differences between a visa letter and a CAS are not material to the issues in the appeal, and for the sake of simplicity I will generally refer only to a CAS.

The Immigration Rules contain various provisions for the revocation or curtailment of an entry clearance or leave to remain in the event of a change of circumstances since it was issued or granted. They include specific provision in respect of the Points Based System. In particular, paragraph 323A provides as follows:

The rules quoted above make various references to a “sponsor licence”. Paragraph 6 of the Immigration Rules defines “sponsor licence” as “a licence granted by the Secretary of State to a person who, by virtue of such a grant, is licensed as a Sponsor under Tiers 2, 4 or 5 of the Points Based System”; and “Sponsor” is defined as “the person or Government that the Certificate of Sponsorship Checking Service or Confirmation of Acceptance for Studies Checking Service records as being the sponsor for a migrant”. There is, however, no provision of the Immigration Rules which identifies or defines the circumstances in which a sponsor licence will or may be granted, suspended or withdrawn. The Secretary of State’s practice in relation to the grant, suspension and withdrawal of such a licence is set out in guidance issued by UKBA. The Immigration Rules contain no specific reference to such guidance. The only material reference to guidance concerning the Points Based System is in paragraph 245AA, which reads:

UKBA’s “Guidance for Sponsor Applications for Tier 4 of the Points Based System” was first published for use for applications made on or after 5 October 2009 and has been subject to numerous subsequent revisions. Relevant parts of the guidance as it existed at material times are set out in the judgment of Wyn Williams J at [24] to [35]. I propose to refer only to some key provisions.

Licensed sponsors are given an A-rating or a B-rating, as described in the passages cited by the judge at [26] and [27] of his judgment.

All versions of the guidance contained provisions relating to the suspension of licences, as described by the judge at [28] to [30]. Paragraph 328 of the October 2009 version of the guidance was in these terms:

Where a licence is suspended, the sponsor is not entitled to issue any new CAS, and UKBA will not consider applications for leave by students with a CAS already issued by the sponsor, during the period of suspension.

The guidance in force at the time when decisions were taken to withdraw the college’s licence was that contained in the April 2010 version and the July 2010 version. As explained at [31] of his judgment, Wyn Williams J assumed those versions to be materially the same. He referred to paragraphs 344, 346 and 350 of the April version, of which paragraph 350 is the most important:

It fails to comply with any of its duties;

As a result of information available to our visiting officers, we are not satisfied the sponsor is using the processes or procedures necessary to comply fully with its duties;

We find that students that it has sponsored have not complied with the conditions of their permission to stay in the United Kingdom and the sponsor has not been following good practice guidance set out by us or a sector body;

Withdrawal of a sponsor licence results, of course, in the loss of entitlement to issue any further CAS. As to what happens to existing students and those already in possession of a CAS, the April 2010 version provided as follows:

Immediately end (curtail) the permission to stay in the United Kingdom of any students who we believe were actively involved (complicit) in any dishonesty by the former sponsor (for example, if the student agreed that the sponsor would arrange a non-existent course for him/her so he/she could come to the United Kingdom); and

reduce the length of the permission to stay in the United Kingdom of any other students (those who are not actively involved) to 60 calendar days, to give them a chance to find a new sponsor. (If a student has less than 6 months of his/her leave remaining, we will not curtail his/her leave).

The only other aspect of the guidance that I need to mention concerns the position on transfer of the sponsor’s business. The guidance contains detailed provisions relating to merger or takeover, but the point of particular importance for the arguments relating to A1P1 is that the sponsor licence cannot itself be transferred. The new organisation must apply for a sponsor licence of its own if it does not already have one; if it already has one, it can apply for an increase in its allocation of CASs under that licence (see e.g. paragraphs 383 and 387 of the March 2010 version of the guidance). If the transferor no longer needs a licence, the licence formerly granted to it becomes dormant or has to be surrendered.

The factual background is summarised clearly and succinctly in the introduction to Wyn Williams J’s judgment, at [1] to [10], from which I gratefully take the following.

The college provides further education courses in a range of subject areas from two campuses in Hounslow, London. In July 2008 it applied to UKBA for a Tier 4 General (Student) Sponsor Licence in anticipation that such a licence would be required so as to enable it to enrol non-EEA overseas students upon the introduction of the Points Based System. At that time the college operated from one campus only, the address of which was 1 Martindale Road, Hounslow.

On 18 October 2008 UKBA granted the college the licence which it had sought. The college was awarded an A-rating. By 18 October 2008 it had or was about to acquire the second campus, namely premises at 75-81 Staines Road, Hounslow. Nonetheless the licence granted related only to 1 Martindale Road.

On 18 December 2009 UKBA suspended the licence. In a letter to the college it explained the reasons why it had taken that action. The college responded immediately; it asserted that the reasons for the suspension were not sustainable and it asked for the suspension to be lifted. Despite those representations the suspension was not lifted. Indeed, as of 12 March 2010, UKBA had not responded substantively to the college’s representations. Accordingly, on that date the college issued proceedings for judicial review; it sought an order quashing the suspension of its licence or alternatively an order requiring UKBA to reach a decision about whether or not the suspension should continue.

On 25 March 2010, before the issue of permission could be determined, UKBA wrote a letter to the college setting out a number of complaints and seeking information about various points. The letter ended as follows:

On 31 March 2010 Holman J refused the college’s application for permission to apply for judicial review on the ground that the claim was premature and that UKBA was legitimately and justifiably pursuing the questions which it had raised in its letter of 25 March. No renewed application for permission was made.

Unbeknown to Holman J, on 26 March the college's solicitors had sent a detailed reply to UKBA’s letter of 25 March; in the eyes of the college, at least, the reply provided answers to the points raised by UKBA. By 30 April 2010 there had been no substantive response to the solicitors’ letter. Accordingly the college commenced a second judicial review. On 14 May 2010 Mr Ian Dove QC, sitting as a deputy High Court Judge, granted the college an interim injunction restraining UKBA from withdrawing the licence. As it happens, UKBA had already decided to withdraw the licence. By letter dated 14 May 2010 it communicated that decision to the college, but because of Mr. Dove’s order the decision was not put into effect. Nonetheless, the college’s licence remained suspended.

On 25 June 2010 Kenneth Parker J considered the issue of permission in the second set of proceedings. He had before him summary grounds of defence which had been filed on 7 June 2010. He refused permission. He also discharged the interim order of Mr. Dove. On 5 July 2010 the college renewed its application for permission.

On the same day, 5 July 2010, UKBA wrote to inform the college that it had decided to withdraw the licence. This was the operative withdrawal decision adjudicated on by Wyn Williams J.

On 5 August 2010 officers of UKBA met with officers of the college; it had been agreed that the decision of 5 July would be reviewed. A fresh decision was promised within 14 days. On 12 August 2010 officers of UKBA visited the college’s premises and undertook various investigations. On 19 August UKBA wrote to the college to indicate that it had decided to maintain its decision to withdraw the licence.

On 24 August 2010 the college issued a third claim for judicial review. The proceedings sought to challenge the decision of 5 July 2010. On 24 August 2010 Collins J made an order which had the effect of restraining the withdrawal of the licence but maintaining its suspension. On 12 October 2010 King J granted permission to bring both the second and third claims for judicial review. Those claims were then determined by the order of Wyn Williams J now under appeal.

The essence of the case advanced under this ground by Mr Manjit Gill QC on behalf of the college is that the system of sponsor licensing pursuant to which the suspension and withdrawal decisions were taken is unlawful, in that there is no power under the 1971 Act to create and operate such a system or, if there is such a power, the relevant requirements have to be included in rules laid before Parliament pursuant to section 3(2) of the 1971 Act and cannot lawfully be contained in policy guidance outside the rules. The submissions were put in a variety of different ways in Mr Gill’s skeleton argument but were given a narrower focus in his oral submissions. At the heart of the submissions is the reasoning of the Court of Appeal in Pankina, as considered in a number of subsequent decisions.

The applicants in Pankina had sought leave to remain and work in the United Kingdom. Under the relevant provisions of the Immigration Rules, they had to demonstrate that they had sufficient funds to maintain themselves; and in particular, by paragraph 2 of Appendix C, they were required to have £800 and to provide specified documents. By guidance not laid before Parliament, though issued while the statement of changes to the rules containing the relevant provisions was still before Parliament, the specified documents were bank and building society statements showing that the applicant had held at least £800 continuously for the three months immediately prior to the date of the application. The Court of Appeal held that the requirement in the guidance to have held £800 continuously for three months did not form part of the rules and was of no effect. The leading judgment was given by Sedley LJ, with whom the other members of the court agreed.

Sedley LJ said at [17] that “the time has come to recognise that, by a combination of legislative recognition and executive practice, the rules made by Home Secretaries for regulating immigration have ceased to be policy and have acquired a status akin to that of law”; and, at [21], that the fact that the rules were being elevated to a status akin to that of law and made the source of justiciable rights was a potent constitutional reason for Parliament’s insisting, by section 3(2) of the 1971 Act, that the Home Secretary’s rules of practice must be open to a negative resolution. Since the three-month test did not form part of the rules laid before Parliament, the question was whether it was of any legal effect. This led to the first question formulated for the court, at [23]: “(1) Can the immigration rules lawfully incorporate provisions set out in another document which (a) has not itself been laid before Parliament, (b) is not itself a rule of law but a departmental policy, and (c) is able to be altered after the rule has been laid before Parliament?”.

Referring to R v Secretary of State for Social Services, ex p. Camden London Borough Council [1987] 1 WLR 819, Sedley LJ accepted at [26] that a measure which has to be laid before Parliament is not vitiated if, rather than being self-contained, it derives part of its content from an extant and accessible outside source; and that the answer to question (1)(a), taken alone, was that the bare fact that a measure was not self-contained did not render it ineffective. As he said at [27], the objection was not to rules which relied on outside sources for evidence of compliance, but “to rules which purport to supplement themselves by further rules derived from an extraneous source, whether that source is the rule-maker him- or herself or a third party”. He continued:

This led to the conclusion, at [37], that the three-month criterion formed no part of the rules applicable to the cases under appeal and that the only relevant criterion was the requirement in Appendix C that applicants should have £800 at the time of the application.

In R (English UK) v Secretary of State for the Home Department [2010] EWHC 1726 (Admin), Foskett J stated at [59]-[60] that “[t]he ratio of the decision [in Pankina] appears to me to be that a provision that reflects a substantive criterion for eligibility for admission or leave to remain must be the subject of a process that involves a true Parliamentary scrutiny” (original emphasis) and that it followed that, if a change to current practice did not involve any alteration of a substantive criterion for admission or for leave to remain, there would be no objection to the change being effected in some form of extrinsic guidance.

In R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2010] EWHC 3524 (Admin), the Divisional Court applied the reasoning in Pankina in holding that interim limits placed by the Secretary of State on (i) the number of applicants for entry clearance who might be issued with visas under Tier 1 (General) of the Points Based System, and (ii) the number of certificates of sponsorship that might be issued under Tier 2 (General) of the system, were unlawful. Statements of changes to the relevant rules had been laid before Parliament in each case. In the first case, the changed rule referred to “a limit, details of which will be published by the Secretary of State on the UK Border Agency website”; in the second case, it referred to “limits [which] will be specified in the Points Based System guidance”.

The leading judgment was given by Sullivan LJ, with whom Burton J agreed. Sullivan LJ stated in his conclusions:

Pankina and Joint Council for the Welfare of Immigrants were followed by the Divisional Court in R (Alvi) v Secretary of State for the Home Department [2011] EWCA Civ 681. The case concerned points awarded for a certificate of sponsorship issued by a prospective employer. Paragraph 82 of Appendix A provided that no points would be awarded for sponsorship unless the proposed job appeared on a list of skilled occupations published on UKBA’s website. The court held that the governing principle set out in the list was a substantive matter and, on the reasoning in Pankina, was a requirement which had to be set out in the Immigration Rules if it was to be valid (see per Jackson LJ at [40]).

We were told that the decisions in Joint Council for the Welfare of Immigrants and Alvi are under appeal to the Supreme Court, where they have been listed for hearing in April 2012, and that the correctness of Pankina is a live issue in the appeals. There was, however, no request or suggestion that our decision on the present appeal should await the judgment of the Supreme Court in those cases.

Mr Gill submitted to us that the system of licensing of sponsors falls within the same vice as led to the findings of unlawfulness in Pankina and the two Divisional Court decisions, and that Foskett J in English UK had attributed too narrow a ratio to the decision in Pankina. Mr Gill contrasted the former paragraph 57 of the Immigration Rules with the position under the Points Based System. Paragraph 57 set out the requirements for leave to enter as a student and was the source of justiciable rights which could be the subject of appeal (see e.g. R v Immigration Appeal Tribunal, ex p. Idiaro [1991] Imm AR 546 for an applicant’s appeal on the basis that the college at which he was a student was a bona fide educational establishment). The rules now refer to a CAS issued by an institution with a sponsor’s licence, but all the detail concerning the requirements for that licence are contained in guidance, without any possibility for the student to raise on appeal the question whether those requirements are satisfied. Moreover that guidance is itself subject to change. Thus a system of regulation of colleges which was formerly exercised through the rules is now exercised through changeable guidance. That system of regulation imposes requirements which directly affect the status and entitlements of students and is in any event part of the practice followed in the administration of the 1971 Act for regulating the entry into and stay in the United Kingdom of persons required by the Act to have leave to enter or remain as students. It is therefore required to be included in the rules laid before Parliament pursuant to section 3(2).

For the Secretary of State, Mr Palmer emphasised that a sponsor licence simply confers on an educational institution the right to issue a CAS (and formerly a visa letter) which will be recognised by UKBA as evidencing (i) a student’s ability and intention to follow a course of study and (ii) the sponsor’s commitment to be responsible for the student while in the United Kingdom. The licence is relevant only to non-EEA nationals with no basis to be here apart from the wish to study at a particular college. Its purpose is to satisfy immigration officers that a person can be granted leave to enter as a student. It does not need any statutory foundation beyond the general powers conferred by sections 1 and 3 of the 1971 Act.

Mr Palmer summarised the history that led to the adoption of the Points Based System and referred to the passage from Ms Cram’s witness statement set out at [9] above. He pointed out that prior to the introduction of the system there was a requirement, under paragraph 57 of the Immigration Rules, for a college to be on the Register of Education and Training Providers, which was held by the Department of Education. The need for pre-approval was retained in the new system through the requirement that a college be licensed by UKBA as a sponsor. In neither case were the detailed criteria, whether for inclusion on the Register or for licensing as a sponsor, set out in the rules. But the new system did mark a fundamental shift, in that the Secretary of State was giving responsibility to the colleges to assess for themselves the suitability of applicants to study with them, subject to their monitoring of compliance with the relevant requirements and letting UKBA know of any problems (thus showing the need for them to have robust, reliable monitoring systems).

In Mr Palmer’s submission, the focus of sections 1 and 3 of the 1971 Act is on the control of entry into and stay in the United Kingdom by persons without the right of abode. The Immigration Rules set out the criteria to be applied in determining whether to grant such persons leave to enter or remain. The requirements for entry into and stay in the United Kingdom as a student are contained in paragraphs 245ZV and 245ZX of the rules and include in each case that the applicant must have a minimum of 30 points under paragraphs 113 to 120 of Appendix A. Those provisions do not include any cross-reference to policy guidance. They do require that a CAS be issued by an institution holding a relevant sponsor licence, but the question whether a sponsor has a licence is as much a matter of objective fact as whether, under the previous system, the institution was on the Register of Education and Training Providers. The substantive criteria relating to entry and stay as a student are complete and are neither supplemented nor qualified by guidance. This distinguishes the case from Pankina, the ratio of which was correctly identified by Foskett J in English UK. Pankina and the two Divisional Court cases were all concerned with substantive criteria for eligibility to enter or stay, which it was held should have been set out in the rules rather than in guidance that was subject to change without Parliamentary scrutiny. Whilst the criteria for the grant, suspension or withdrawal of a sponsor licence may have an indirect effect on a person’s entitlement to enter or remain as a student, in that the substantive criteria for eligibility to enter or remain include a requirement that the sponsor holds a sponsor licence, what was said in Pankina cannot have been intended to apply to such a situation. (Mr Palmer accepted that paragraph 245AA(c), set out at [14] above, may give rise to a problem under the reasoning in Pankina, but it is a general rule applicable to the whole of the Points Based System and, in his submission, has no bearing on the specific issues in this appeal concerning the suspension and withdrawal of sponsor licences.)

In my judgment, Mr Palmer’s analysis is compelling. First, the college’s contention that there is no power under the 1971 Act to create and operate the system of sponsor licensing seems to me to be plainly wrong. Sections 1 and 3 of the Act are amply wide enough to confer the necessary power on the Secretary of State. Mr Gill did not advance any tenable argument to the contrary. The real thrust of his submissions was that such a system must be set out in the Immigration Rules themselves, not in policy guidance, rather than that there is no power to establish the system at all.

As to that, I acknowledge that there is some attraction to Mr Gill’s contention that the system of sponsor licensing forms part of “the practice to be followed in the administration of [the 1971] Act for regulating the entry into and stay in the United Kingdom of persons required by [the] Act to have leave to enter” and must accordingly, pursuant to section 3(2), be set out in rules laid before Parliament. Moreover, aspects of Sedley LJ’s reasoning in Pankina might be taken to support a wide view of what must be set out in the rules as opposed to policy guidance. But in my view the ratio of Pankina was correctly identified by Foskett J in English UK as relating to the substantive criteria for entitlement to leave to enter or remain. The particular issue in the case was whether a substantive criterion laid down in the rules could be qualified by changeable policy guidance; and when Sedley LJ referred at [33] to “criteria affecting individuals’ status and entitlements”, he was referring to the content of the substantive criteria themselves, not to extraneous factors which might affect the ability of an applicant to fulfil those criteria. In this case the substantive criteria governing entitlement to leave to enter or remain as a Tier 4 (General) Student are laid down in the rules which, as Mr Palmer submitted, are not supplemented or qualified by guidance. The fact that the rules include a requirement that the sponsor holds a sponsor licence is unobjectionable, just as the former requirement that the institution be included in the Register of Education and Training Providers was in my view unobjectionable. Whether the sponsor holds a sponsor licence does of course have an indirect effect on an applicant’s entitlement, in that it affects his or her ability in practice to meet the criteria; and it follows that the criteria for the grant, suspension or withdrawal of a sponsor licence also have an indirect effect on an applicant’s entitlement. Such criteria, however, are materially different from the substantive criteria for entitlement and do not affect the content of the substantive criteria.

A further concern about Mr Gill’s submissions is that if they were well founded it is difficult to see how any part of the system of sponsor licensing could survive in its current form. The college’s aim is to have its sponsor licence restored, and for that reason Mr Gill focused understandably on the alleged unlawfulness of the criteria for suspension and withdrawal of the licence. But if there is no power to adopt such criteria at all, or if the criteria must be contained within the Immigration Rules in order to be lawful, then the same must apply to the criteria relating to the grant of a sponsor licence in the first place. Thus the college’s case entails that the whole system, not just that part of it relating to suspension and withdrawal, is unlawful, in which event the college cannot ever have had a valid licence at all. It follows too that if the system of sponsor licensing is unlawful, the operation of the entire Points Based System will be brought to an effective halt until the problem is remedied: there will remain a valid requirement in the Immigration Rules that the sponsor must hold a licence, but there will be no valid system for the grant, suspension or withdrawal of such a licence. Mr Gill was unable, in my view, to grapple satisfactorily with these various implications of his submissions for his client’s position or for the system as a whole.

For the reasons given above, I am not persuaded by Mr Gill’s case under the Pankina ground. My reasons differ to some extent from the reasons given by Wyn Williams J at [45]-[47] of his judgment. In particular, he found that “the rules themselves specifically authorise the licensing of sponsors” and that the guidance “constitutes no more than an explanation of how the powers conferred by the relevant rules will be exercised in practice”; whereas it seems to me that, whilst the rules assume the existence of the system of sponsor licensing, the power to operate that system derives from the general powers of the 1971 Act rather than from any specific authorisation in the rules themselves, and that the guidance has a function falling outside the rules rather than explaining how powers conferred by the rules will be exercised in practice. I agree with the judge, however, that the guidance “does not impact upon the rights of the student in any way which is inconsistent with that which is contemplated by paragraph 323A itself” (concerning the consequences of a sponsor ceasing to hold a sponsor licence); and, as I have indicated, I consider more generally that the guidance does not impact upon the substantive criteria of the rules governing entitlement to enter or remain as a student. Thus, despite some differences of analysis, I am in agreement with the judge’s rejection of this ground of challenge.

The college’s case under the article 6 ground is that the suspension and revocation of the college’s licence constituted a determination of its civil rights within article 6 and that the availability of judicial review does not meet the requirement in article 6 for a hearing by an independent and impartial tribunal with full jurisdiction since the court on judicial review is restricted to examining the lawfulness of the decision and cannot resolve the underlying factual dispute, making its own factual determination. Mr Gill submitted that a full appeal on the merits is required for compliance with article 6, in the same way as issues arising under the former paragraph 57 of the Immigration Rules could be raised by a student in the context of an appeal as of right to the tribunal. He also referred to the regime established by sections 15 to 26 of the Immigration, Asylum and Nationality Act 2006 under which a right of appeal to the county court is conferred on employers issued with a civil penalty for employing adults who do not have leave to remain in the United Kingdom or whose leave does not entitle them to work.

The case so advanced is premised in part on the judge’s finding that the suspension and withdrawal of the college’s licence engaged A1P1, but other matters are also put forward in support of the contention that the college’s civil rights were in issue and that article 6 was therefore engaged. The applicability of A1P1 is the subject of the Secretary of State’s cross-appeal which, for reasons given later in this judgment, should in my view succeed; and if A1P1 does not apply, I strongly doubt whether decisions relating to the grant, suspension or withdrawal of sponsor licences can be said to relate to a college’s civil rights or to engage article 6 at all. In saying that, I have taken into account two authorities to which we were helpfully referred by Mr Palmer: R (A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2557, at [34]-[45] per Lady Hale and at [55]-[65] per Lord Hope, and R (MK (Iran)) v Secretary of State for the Home Department [2010] EWCA Civ 115, at [57]-[58] per Carnwath LJ. It is, however, unnecessary for me to reach any conclusion on the point. For the purposes of the appeal I am content to assume, without deciding, that the decisions under challenge engaged article 6.

Making a similar assumption, Wyn Williams J dismissed the college’s article 6 case in robust terms at the end of his judgment:

In challenging that conclusion, Mr Gill submitted that the power of the court to hear oral evidence so as to resolve disputed issues of fact in proceedings for judicial review is not sufficient for compliance with article 6. The role of the court in such proceedings remains supervisory, restricted to determining whether a decision is vitiated by legal error. Mr Gill pointed to the limitations in judicial review that are evident from the way the judge directed himself at [94] of his judgment when considering the lawfulness of the decision to withdraw the college’s licence:

Mr Gill submitted that what is needed for the purposes of article 6 is a right of recourse to a court capable of making its own independent assessment in relation to the fact-sensitive issues involved in decisions on suspension and withdrawal.

I am not persuaded by those submissions. It must be recalled that sponsor licences do no more than confer a right to issue a CAS which will be recognised by UKBA for immigration purposes. In this context the administrative decision-making process provided for in the guidance, coupled with the availability of judicial review on conventional grounds, is in my view adequate to ensure a fair determination within the meaning of article 6. I agree with the judge’s conclusion on this issue.

In order to explain the various matters raised under this ground it is necessary to say a little more about the history and about how matters were analysed by Wyn Williams J.

By letter dated 18 December 2009 UKBA’s Ms Cram notified the college that its sponsor licence was suspended with immediate effect. The reasons for that decision were that (i) in breach of the licence, the college had yet to gain accreditation from the British Accreditation Council (“BAC”) for its second set of premises despite the fact that it was already delivering classes to students there; (ii) the college had issued 1,255 visa letters, despite the fact that it had a capacity to offer places to 200 students within its accredited accommodation and it had requested an allocation of 100 CAS; and (iii) viewing of an attendance register for a class showed that students had attended only 2 out of 8 classes, and although warning letters were issued to poorly attending students no further action was taken, which was in breach of the college’s attendance procedure and a failure to comply with its sponsorship duties. The letter gave the college 28 days to make any representations, following which UKBA would decide what, if any, further action to take.

The judge’s examination of that decision is at [48]-[63] of his judgment. He held that the decision was unlawful for two reasons. First, UKBA acted unfairly in deciding to suspend the licence without first giving the college an opportunity to deal with the circumstances said to justify the suspension and to make representations. Secondly, the decision was not in accordance with the published guidance then in force, in that the decision-maker did not have information or evidence before her which reasonably justified the conclusion that the college was “seriously breaching” its duties as sponsor and posed a “major threat” to immigration control (see paragraph 328 of the October 2009 version of the guidance, quoted at [17] above).

The judge’s conclusion on that issue is not challenged by the Secretary of State.

The judge went on to examine the maintenance of the suspension from 18 December 2009. Having referred to various exchanges in correspondence, he summarised a letter dated 25 March 2010 from Ms Cram to the college in which a number of complaints were made about the college: (i) the letter asserted that 26% of the college’s student body had failed to meet the standards of attendance required by the accrediting body, BAC; (ii) it suggested that 14 attending students had been refused leave to remain, several without the right of appeal; (iii) it complained that 2,308 visa letters had been issued in the period examined by UKBA yet 826 of the persons to whom they were issued were refused entry clearance or leave to remain, which was alleged to be a high rate of refusal and indicative that the system in place for recruiting students had not been adequately assessed; and (iv) the letter identified as the biggest area of concern the fact that 299 visa letters had been issued by the college which had not been declared on the attendance spreadsheet(s) supplied by the college to UKBA in response to its request for information in February 2010. The letter concluded:

The judge commented on what was a puzzling reference to paragraph 324 of the guidance, and he referred to the college’s solicitors’ substantive responses to the letter. But he found that the letter of 25 March was sufficient to render the maintenance of the suspension lawful as from 26 March:

The judge went on to consider in detail, at [77]-[90], the events leading to the decision to withdraw the college’s licence and the maintenance of that decision. He referred first to the reasons for the original withdrawal decision of 14 May 2010 because, although the grant of interim relief by the court meant that that decision was not itself acted upon, the same considerations were relied on in the later withdrawal decision of 5 July 2010. In broad outline, the reasons were (i) widespread poor attendance at the college, which was said to be clear evidence that the college’s systems for monitoring attendance and issuing warnings about non-attendance were not effective; (ii) evidence that the college was failing to monitor the immigration status of its students; (iii) 35% of all visa letters issued by the college were to persons who had subsequently been refused leave to enter or remain, which was said to demonstrate that the college’s recruitment processes were not identifying genuine students who met the requirements of the Points Based System; and (iv) checks showed that 299 visa letters had been issued by the college which had not been declared to UKBA on its attendance lists, indicating poor record-keeping and posing a threat to immigration control. Reliance was placed on paragraph 350 of the guidance, quoted at [19] above.

The decision letter of 5 July 2010, again from Ms Cram, considered the same matters, stating that representations made by letter of 8 June did not answer UKBA’s previous complaints, and also considered an issue concerning the inaccuracy of certain of the college’s records which had to some extent been admitted in the letter of 8 June.

There followed a meeting on 5 August 2010 between UKBA officials and representatives of the college to discuss the complaints, and a visit by UKBA officials to the college’s premises on 12 August 2010. The results of the investigations made on that occasion were set out in a written report.

The final relevant matter was a letter dated 19 August 2010 from UKBA to the college, which identified the previous areas of concern, summarised the recent representations made and additional evidence provided, and recorded that the visit of 12 August had established that the college was not complying with its duties in relation to student attendance, maintaining migrant contact details, student recruitment, monitoring immigration status of students and preventing illegal employment by students. The findings were summarised and the letter concluded by indicating that the decision to withdraw the college’s licence was to be maintained.

In examining the lawfulness of the decision of 5 July 2010 the judge observed at [95] that the comprehensive skeleton arguments had analysed the letter in minute detail, dealing individually with each reason said to justify the withdrawal of the licence. The judge observed that the letter must be read as a whole and that the reasons said to justify withdrawal of the licence must be considered together and in the round. That said, he went on to deal in turn and at some length with each of four main reasons addressed in the arguments: (a) attendance levels, (b) in-UK refusals, (c) overseas refusals, and (d) visa letters.

He considered the issue of attendance levels at [96]-[105]. The main contention for the college was that UKBA’s assertion that the attendance levels failed to meet the 80% required by BAC was a fundamental error of fact which had led to an error of law, in that an 80% attendance level, although a policy of the college, was not a BAC requirement. The judge found, however, that the main thrust of the criticism against the college was that it did not effectively enforce its own policy, and that the available evidence supported that view. He concluded:

The issue relating to in-UK refusals was considered at [106]-[109]. UKBA asserted that students who had been refused leave to remain without a right of appeal were nonetheless attending the college. The letter of 25 March 2010 had identified four such students in particular. The letter of 5 July 2010 suggested that the onus was on the college to ensure that students had the right to study in the United Kingdom and that the college had not explained why it failed to do this adequately in the case of the four named students. It further asserted that the college had provided no evidence to show that it had rectified the situation or that the four students had either regularised their stay or left the United Kingdom. Thus there was said to be a continuing failure in the sponsor duty to monitor immigration status and prevent illegal study. The college’s response was that it kept full records of the expiry dates of students’ leave to remain, as well as copies of passports and acknowledgment letters issued by UKBA when applications for further leave to remain were made, and that it had done all it reasonably could to ensure that its students had the right to study in the United Kingdom. The judge concluded:

The issue relating to overseas refusals was considered at [110]-[117]. UKBA’s letter of 25 March 2010 recorded that the college had issued 2,308 visa letters to prospective students but that 826 students were refused entry clearance or leave to remain during the period 31 March 2009 to 5 February 2010. A high rate of refusal was said to indicate that the systems in place for recruiting students had not adequately assessed their ability and intention to follow their chosen courses. The college’s response was to suggest that a large volume of the refusals was because the visa letters issued could not be verified, and that a large number of the refusals had been made at one specific High Commission in India; the essential thrust of the representations was to the effect that the refusals were not related to the college’s own practices or procedures for recruiting students. The judge examined the evidence and found that, even if a significant proportion of the 826 students had been refused on the basis of “visa letter not verified”, a similar and significant number of students were refused for different reasons and that in those circumstances it was not irrational for UKBA to conclude that a number of students had been recruited who were not suitable for their chosen course of study – as at 5 July 2010, possibly as many as about 50% of the persons refused entry.

The issue relating to visa letters was considered at [118]-[124]. According to UKBA’s letter of 25 March 2010, investigations had revealed that 299 visa letters had been issued by the college to persons who did not appear on the attendance lists provided by the college to UKBA; and those letters might have resulted in a number of individuals obtaining entry clearance who did not appear to be attending the college and who were in the United Kingdom illegally. The college’s first response was that any inconsistency between the visa letters issued and the attendance lists was unintentional and in any event the true inconsistency was likely to be very small. The representations of 8 June 2010, however, involved a change of stance: it was acknowledged that no less than 345 students to whom visa letters had been issued were not included in the attendance lists provided to UKBA, but the omission was explained as an unintentional administrative error. UKBA’s decision letter of 5 July 2010 stressed the importance of record-keeping and said that it was unacceptable that the college only identified a significant error in its attendance data when it was pointed out by UKBA. The college’s case was that UKBA’s approach was irrational, given that the college always had the relevant records and the failure was simply a failure to transpose the information accurately onto a spreadsheet as requested by UKBA. The judge concluded:

Accordingly, the judge found that UKBA was entitled to reach the conclusions it did on each of the issues analysed in the letter of 5 July 2010. In the light of those conclusions, he was not persuaded that the decision to withdraw the licence was unreasonable or disproportionate.

The judge went on to examine the decision of 19 August 2010 to maintain the withdrawal decision. This involved examination of the minutes of the meeting of 5 August 2010 and of the report into the investigation undertaken at the visit on 12 August 2010. It led to the conclusion at [141] that the decision to maintain the decision was also lawful.

In his submissions to us, Mr Gill challenged the judge’s conclusions in relation to each of the four issues examined in detail by the judge when considering the lawfulness of the withdrawal decision of 5 July 2010 (attendance levels, in-UK refusals, overseas refusals, and visa letters). He submitted that UKBA’s reasons in respect of the four issues were misconceived, based on inadequate inquiry and perverse, and also that the withdrawal of the licence was a disproportionate interference with the college’s rights under A1P1 and of the rights of the college and other persons under article 8 ECHR. His arguments as outlined at the hearing and elaborated in his written skeleton argument were essentially a re-run of the arguments considered by the judge. I do not propose to set them out here, nor Mr Palmer’s arguments in response. It seems to me that Wyn Williams J examined the issues with great care and I am not persuaded that he made any material error in his analysis. I am content to adopt his reasoning and conclusions without going over the whole ground again in this judgment.

I would simply add that, although the judge looked at the matter in terms of proportionality as well as rationality, I take the view that the proportionality analysis is not necessary. That is because, as already mentioned and for reasons given later in this judgment, I do not consider A1PI to have been engaged by the suspension or withdrawal of the licence; and because in my view the college has no arguable case that the suspension or withdrawal engaged the college’s rights under article 8 or any relevant article 8 rights of other persons.

Mr Gill advanced an additional, discrete argument in relation to the judge’s conclusion concerning the letter of 25 March 2010 and the lawfulness of the decision to maintain the suspension from that date. He said that the judge appeared to have been influenced by the fact that the test for suspension had been relaxed in the March 2010 guidance, by the removal of the words “seriously” and “major” when referring respectively to breaching the sponsor’s duties and posing a threat to immigration control (see [17] above). He submitted in particular that it was unfair to assess the college against that relaxed test and that the letter of 25 March raised four new concerns in relation to which the college should have been given time to make representations before those concerns were relied on as grounds for maintaining the suspension.

I see no force in those submissions. The change in the content of the guidance is not itself the subject of complaint and could not sensibly be so. The college’s position as at 25 March 2010 fell properly to be assessed on the basis of the guidance then in force and there was no unfairness in the judge taking that changed guidance into account. The letter of 25 March must also be considered in context: it was sent at a time when the college’s licence had already been suspended (albeit the judge found the original suspension to be unlawful) and in the light of further exchanges between the parties since the date of the suspension. In that context it was perfectly fair and reasonable for the letter to set out UKBA’s continuing concerns and to give an opportunity, as it did, for further representations to be made before any final decision on withdrawal was taken. The original procedural unfairness had been remedied, as the judge found, and the sending of the letter involved no further procedural unfairness.

Accordingly, I do not accept any part of the college’s case in relation to the reasonableness issue.

Article 1 of the First Protocol to the European Convention on Human Rights (to which, as already indicated, I will refer as “A1P1”) provides:

Wyn Williams J concluded at [148]-[150] of his judgment that, although the point was not without difficulty, the suspension and withdrawal of the college’s sponsor licence was an interference with the college’s rights under A1P1, that the interference could not be justified in respect of the period during which the college was the victim of an unlawful suspension, but that the interference was otherwise justified.

By her cross-appeal the Secretary of State contends that the judge was wrong to find that the decisions in question engaged A1P1 at all.

It is well established that the concept of “possessions” in A1P1 has an autonomous Convention meaning, independent of classifications in domestic law. Unfortunately it is quite difficult to determine how that concept applies in a licensing context such as that with which we are concerned in this case.

In Tre Traktörer Aktiebolag v Sweden (1991) 13 EHRR 309 the European Court of Human Rights considered the application of A1P1 to the authorities’ withdrawal of a non-transferable liquor licence which conferred on the applicant company, TTA, an authorisation to sell alcoholic beverages in its restaurant, Le Cardinal. The court stated, at paragraph 53:

The judgment in Tre Traktörer referred to adverse effects on goodwill. Denimark Limited v United Kingdom (2000) 30 EHRR CD 144 provides a useful statement by the Strasbourg court of the distinction that has been developed in the authorities between loss of goodwill and a mere loss of future income. In considering the extent to which the applicants’ “possessions” had been affected by a statutory prohibition on handguns, the court said this:

Among subsequent domestic cases in which that distinction has been considered is R (Nicholds) v Security Industry Authority [2007] 1 WLR 2067, in which Mr Kenneth Parker QC (as he then was), sitting as a deputy High Court Judge, considered the application of A1P1 to a permission to act as a nightclub door supervisor under self-regulatory arrangements that preceded the licensing system introduced by the Private Security Industry Act 2001. He referred at [69] to the difficulty of determining whether such permissions were possessions within A1P1. At [71] he said that he had two firm fixed points upon which to tackle the question. First, the goodwill of a business, or part of a business, might constitute a possession; second, an expectation of future income was not a possession. As to “goodwill” , he said this:

He went on to consider the application of A1P1 to licences or permissions of various kinds:

Having considered Tre Traktörer and certain other authorities, however, he thought it right, despite his reservations, to proceed for the purposes of his judgment on the footing that the relevant permissions did constitute possessions within A1P1. He went on to hold that if they did, the interference with them was nonetheless justified.

In R (Malik) v Waltham Forest NHS Primary Care Trust [2007] 1 WLR 2092 the Court of Appeal held that a doctor’s right to practise in the National Health Service flowing from his inclusion in a specified list was not a possession within A1P1 because, in summary, he was precluded by regulation from selling the goodwill in his practice and such goodwill therefore had no economic value. In the course of a lengthy exposition of the issue, Auld LJ referred at [29] to the distinction between goodwill and loss of future income. He observed at [40] that when considering a person’s claimed future monetary entitlement derived from an instrument such as a licence or permit, “a court should focus first on whether the entitlement has a present economic value to him in the sense of being marketable by him”; a licence itself is not a possession, and whether the economic interests that flow from it are a possession depends on the facts, “one of which may be the marketable goodwill that can flow from the exercise of a licensed trade”. At [42] he referred with apparent approval to the “powerful” analysis by Kenneth Parker J in Nicholds.

In the same case, Rix LJ referred at [58]-[59] to the decision in Denimark Limited v United Kingdom, observing that the court seemed to be saying that a substantive rather than a formal test was to be applied for the purpose of distinguishing between an existing possession (viz. goodwill consisting in clientele) and a mere expectation of future income: “[t]hus there will be no interference with possessions within article 1 of the First Protocol if the value of a business (including, presumably, its goodwill) declines only in so far as loss of future income is anticipated”. At [65]-[66] he said that the distinction might turn out to be difficult, possibly even unworkable, given that the present-day value of any business will inevitably reflect its future profit-earning capacity. One solution, suggested in Nicholds, might be to look only at marketability, but Rix LJ was not sure about that; and he said that the point did not have to be resolved because the doctor’s goodwill in the instant case had no economic value and could not therefore be regarded as an asset or a possession for the purposes of A1P1. Moses LJ agreed with both judgments, whilst adding some observations of his own, at [82]-[86], on the distinction between goodwill and a right to future income.

In R (Countryside Alliance) v Attorney General [2008] 1 AC 719, at [21], Lord Bingham of Cornhill also referred to the distinction between goodwill and a right to future income; and having mentioned authorities that included Tre Traktörer and R (Malik) v Waltham Forest NHS Primary Care Trust, he said:

Wyn Williams J said at [146] of the judgment now under appeal that it was difficult to see how the analysis of Kenneth Parker J in Nicholds fitted squarely with that in Tre Traktörer since the licence in Tre Traktörer was itself non-transferable. He continued:

Mr Palmer submitted to us that the judge was right to find that a sponsor licence is not itself a possession within A1P1, but that he was wrong to draw the parallel he did between the withdrawal of the applicant’s liquor licence in Tre Traktörer and the withdrawal of the college’s sponsor licence in this case. In Tre Traktörer the withdrawal of the licence was found to have had an adverse effect on the goodwill of the applicant’s business. The distinction between goodwill and loss of future income is a difficult one to draw but it has to be drawn on the current state of the authorities, and the judge failed to draw it. His reasoning in effect proves too much: it would be applicable to all, or substantially all, cases in which the State licenses or permits economic activity of a particular kind. In this case the sponsor licence is not a permit to carry on the provision of education; it has a distinct, limited function under the Points Based System, as described above. It is not marketable and has no market value. If the ownership of the business changes, the new owner must apply for its own sponsor licence if it does not already have one. Further, the college does not have a commercial connection with its students comparable to the connection between the restaurant and its customers in Tre Traktörer. The economic reality is that the sponsor licence gives no more than an expectation of future income from non-EEA students requiring leave to enter or remain in order to study in the United Kingdom. Any reduction in numbers of students as a result of the suspension or withdrawal of the licence does not result in a loss of goodwill in the sense used in the cases.

For the college, Mr Gill submitted that a sponsor licence is itself a possession within A1P1: he referred to cases, such as Bimer SA v Moldova, where the Strasbourg court accepted without comment the parties’ agreement that a licence was a possession. But he submitted in any event that the suspension and withdrawal of the college’s licence gave rise or would give rise to an interference with the college’s possessions in various ways. The business could be sold at a significantly higher price with the benefit of a licence than without one, since a new owner would easily be able to get a licence of its own: in substance, if not in form, there would be a transfer of the licence. The property and other assets of the business could not be used effectively in the absence of an operational licence, as shown inter alia by the dramatic reduction in the number of current students (from 1,000 to 250) as a result of the suspension. There was also a dramatic effect on the college’s goodwill, consisting of the various contacts it had put in place, its contracts with students whose entry clearance applications could not be processed by reason of the suspension, and its relationship with existing students. Students wanted continuity, and the effect of suspension was to cause existing students to leave the college in view of the college’s anticipated inability to provide educational services to the end of their current courses. The ability of the college to continue existing contracts with employees and third parties was also affected. It was simply incorrect, submitted Mr Gill, that the college was complaining only about loss of future income.

In my judgment, Wyn Williams J was plainly correct to find that a sponsor licence is not itself a possession within A1P1. The analysis of Kenneth Parker J in Nicholds, which met with a strong measure of approval in Malik and Countryside Alliance, strongly supports that conclusion. A sponsor licence is not marketable or even transferable, nor is it obtained at a market price. I reject Mr Gill’s contention that on the sale of a business having the benefit of a licence there would in substance be a transfer of the licence. The new owner would have to satisfy UKBA that the conditions for grant of a licence were met under the new ownership.

The principal factor leading Wyn Williams J to find that the suspension and withdrawal of a sponsor licence nevertheless engaged A1PI was the apparent parallel with the withdrawal of the liquor licence in Tre Traktörer. There is obvious attraction in that line of reasoning, given the undoubted effect on the business in each case. The judge did not grapple, however, with the question whether the adverse effect in the present case amounts to an effect on goodwill, in the sense used in the authorities, or only to a loss of future income (albeit a loss with serious economic consequences for the business). I agree with Mr Palmer that he needed to do so. The distinction is far from clear but one has to decide which side of the line the case falls, since the relevant possession is the goodwill of the business, and the suspension or withdrawal of a licence will not amount to an interference with the right to peaceful enjoyment of possessions within A1P1 unless it has an adverse effect on that goodwill.

Kenneth Parker J in Nicholds was of the view that “goodwill” in this context means the capitalised value of the business as a going concern. Mr Gill did not seek to challenge the correctness of that view. Whilst there is evidence in this case of the economic disruption caused by the suspension of the college’s licence, and liable to be caused by the withdrawal of the licence, the evidence does not deal with the goodwill of the business in the sense identified in Nicholds. Thus there is no concrete evidential basis on which to found a conclusion that the goodwill of the business has been or would be adversely affected by suspension or withdrawal of the licence. Nor, as it seems to me, can such an effect be inferred from the information available to us.

It is important to bear in mind that the sponsor licence does not touch on the freedom of the college to provide courses of education to students. What it does is to confer the right to issue a CAS which will be recognised by UKBA and will contribute to a student’s ability to meet the substantive criteria for leave to enter or remain under the Immigration Rules. That certainly enables the sponsor to attract non-EEA nationals wishing to apply for leave to enter or remain as students, and the loss of that ability through suspension or withdrawal of the licence, with a consequential loss of income from that source, is clearly a serious matter. But it is far from clear that the expected income stream from such students can be capitalised as part of the value of the business, in particular because it depends on a licence that is non-transferable and has no market value in itself: in order to maintain the income stream, a purchaser of the business would have to obtain a licence of its own. (I accept that if the business is run in such a way that the current owner qualifies for a licence, it will facilitate the obtaining of a licence by the new owner; but on that basis it is the underlying state of the business that matters and the existing licence of itself has no substantive significance.)

The conclusion I reach is that the college has failed to establish that the suspension or withdrawal of its sponsor licence amounts to an interference with its right to the peaceful enjoyment of its possessions within A1P1 so as to require justification under that article. On this one issue, therefore, I respectfully differ from the view taken by Wyn Williams J.

For the reasons given I would dismiss the college’s appeal in its entirety but would allow the Secretary of State’s cross-appeal on the A1P1 issue.

I agree.

I also agree.