Global Vision College Ltd, R (On the Application Of) v Secretary of State for the Home Department

These proceedings arise from the refusal by the respondent, the Secretary of State for the Home Department, on 2 November and 7 December 2012, of the application (dated 2 February 2012) by the appellant, Global Vision College Ltd (“the College”) for Highly Trusted Status (“HTS”). The consequence is that the College is no longer able to recruit foreign national students.

The reason the College is no longer able to recruit foreign national students is because, under the Tier 4 Points Based System which has been the primary immigration route into the United Kingdom for such students since 31 March 2009, the students must obtain a Confirmation of Acceptance for Studies (“CAS”) from an educational institution to which the Secretary of State for the Home Department has granted a sponsor licence. HTS status, a further level of sponsorship, was introduced in 2010. Since April 2012, all Tier 4 sponsors have been required to obtain HTS status after holding a sponsor licence for twelve months. If they do not their sponsor licences are revoked.

One of the mandatory eligibility requirements for HTS sponsorship status in the Secretary of State’s policy guidance for educational providers (version 09/11) is that the rate of refusals to applicants for entry who hold CAS issued by a provider must be less than 20% for the twelve month period immediately before the application for HTS. The general aim of the sponsorship system is that the recruitment procedures of those, such as employers and education providers, who benefit directly from migration, help prevent the system being abused. The 20% refusal rate for educational providers seeks to ensure that the admission processes of those with sponsor licences are thorough and that providers take rigorous steps to ensure that they only make offers of places to those who have both the intention and the ability to pursue a course of study in the United Kingdom.

In the present case, the letter dated 2 November 2012 stated that the College’s application was refused because in the 12 month period ending on 1 February 2012 it had not met the mandatory requirement for HTS that a provider’s “refusal rate must be less than 20%”. The College’s allocation of CAS was reduced to zero. Following representations by the College, the Secretary of State confirmed her decision in the letter dated 7 December 2012, and, in a letter dated 14 January 2013, revoked the College’s sponsor licence with immediate effect.

Direct challenges to the legality of using a refusal rate as a basis for concluding that a sponsor’s recruitment procedures are not sufficiently robust to merit HTS status have been unsuccessful: see the appeals in New London College Ltd v Secretary of State for the Home Department and West London Vocational Training College Ltdv Secretary of State for the Home Department [2013] UKSC 51, reported at [2013] 1 WLR 2358, the first affirming the decision of this court ([2012] EWCA Civ. 51) and the second that of the Divisional Court ([2013] EWHC 31 (Admin)). See also WGGS Ltd t/a Western Governors Graduate School [2013] EWCA Civ 177.

The judicial review proceedings challenging these decisions launched by the College on 6 March 2013 did not directly challenge the use of the 20% refusal rate. The challenge was based on two grounds:-

The evidence before King J included a witness statement dated 3 June 2013 of Mr Shirley. Following a two day hearing in July 2013, in an order dated 19 February 2014 he dismissed the College’s application. I summarise his reasons in section V of this judgment. Here it suffices to state that at [51] – [52] he stated that Entry Clearance Officers are entitled to interview applicants with a view to checking the “veracity” of a CAS but that he granted permission to appeal on the “Alvi ground”. The other ground was not pursued in this court. On the Alvi ground, the judge considered that the lawfulness of the disputed refusals and their impact on the Secretary of State’s decision was a matter that warranted the attention of this court because it raised an issue which had not hitherto been the subject of any decision, in particular in the context of the application of the mandatory refusal rate criterion for the grant of HTS status.

The judge also ordered that, upon the College undertaking to lodge its appeal with a request for expedition, interim relief which had been granted by an order of HHJ Davies dated 30 April 2013 restoring the College to the Tier 4 register of licensed sponsors be continued pending the appeal. He also ordered that the College be entitled to assign a maximum of 100 CAS be continued pending the appeal. By an order dated 13 March 2014, I granted the Secretary of State permission to appeal against the interim relief entitling the College to assign the 100 CAS. Her appeal was allowed by consent and with my approval on 27 March, three days before the hearing of the College’s appeal.

For the reasons I give in section VI of this judgment, I have concluded that the College’s appeal should be dismissed. Sections II and III summarise the regulatory and factual context and background. Section IV summarises the judgment below. The principal arguments made on behalf of the College are summarised in section V.

Except as provided by or under the Immigration Act 1971 (“the 1971 Act”), a person who is not a British citizen is not permitted to enter the United Kingdom unless given leave to do so in accordance with the provisions of the 1971 Act or provisions/rules made under it. Permission may be given either for a limited or an indefinite period: see sections 1(2) and 3(1) of the 1971 Act. By section 3(2), “the Secretary of State shall from time to time…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 conditions to be attached in different circumstances…”. These statements are contained in the Immigration Rules (HC 395 as amended).

Context and background

The Points-Based System was progressively introduced during 2008 and 2009. Its details are set out in the Immigration Rules, Appendices to those Rules, and supplementary guidance. Jackson LJ has stated that “none of these documents are light reading” and, more recently, that the provisions “have now achieved a degree of complexity which even the Byzantine emperors would have envied”: R (WGGS Ltd t/a Western Governors Graduate School) v Secretary of State for the Home Department [2013] EWCA Civ 177 at [6] and Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568 at [4].

Previous decisions (in particular R (New College Ltd) v Secretary of State for the Home Department [2013] UKSC 51, reported at [2013] 1 WLR 2358 at [1] and [3], and see Toulson LJ in the Divisional Court at [2013] EWHC 31 (Admin) at [35]) have referred to the centrality of the status of a licensed sponsor to the operation of the Points-Based System. That centrality is the result of the policy decision to try to improve immigration control by ensuring that sponsors carried out a high degree of due diligence to check that CAS holders would meet the requirements for entry clearance or leave to remain. Licences are of great economic importance to educational institutions because, if licensed, they can market themselves to international students on the basis that their acceptance will, in the ordinary course, enable the student to enter the United Kingdom. In the New London College case, Lord Sumption stated (at [19]) that, although “the grant of a CAS by an educational institution is not tantamount to leave to enter or remain”, it is “strong but not conclusive evidence of some of the matters which are relevant upon the migrant’s application for leave to enter or remain”.

In Alvi’s case Lord Hope stated (at [42]) that the introduction of the Points-Based System has created a system of immigration control in which the emphasis is on “certainty in place of discretion, on detail rather than broad guidance”. Lord Walker stated (at [117]) that the system is “aimed at eliminating any need or possibility of further evidence being produced in support of an application” and for “the decision-making process to involve as little discretion or judgment as possible”. With the certainty and detail referred to by Lord Hope, however, comes some rigidity and also the possibility of strategic behaviour by those subject to the system in order to navigate their way around obstacles in the Rules. Where the Secretary of State considers that such behaviour has led to an unwarranted evasion of the Rules, her response has been to amend the Rules or the guidance.

A paper published by the UK Border Agency in March 2011 stated that there was a disturbingly high rate of refusals of entry to holders of Tier 4 visas, who were responsible for some 41% of port refusals and 41% of forgery detections in 2010. On 22 March 2011 it was announced that changes to the Tier 4 system, including the introduction of the requirement that an educational institution’s refusal rate must be less than 20%, would be made and would become effective on 21 April 2011. In his submissions, Mr Mandalia, on behalf of the Secretary of State, described the position as one in which the Secretary of State has had to “play catch-up” to address problems that had manifested themselves in the practical operation of the system.

I have referred to Mr Shirley’s witness statement. It deals with what might be regarded as pre-emptive action taken after the announcement on 22 March. He stated (see paragraph 3) that after 22 March the Home Office became aware of “an unusual increase in the number of [CAS] being issued by private education providers to potential students from South Asia and Pakistan”, and:

“This sudden increase in the number of CAS being issued was seen as a potential risk to the UK border. The concern was that colleges, in such a short space of time, were unlikely to be able to correctly assess the intentions and abilities of migrants to study in the UK in accordance with the Tier 4 guidance and potentially, therefore, thorough recruitment practices were not being adhered to.”

After setting out the requirements of the new 20% refusal rate policy and explaining how refusal rates were calculated, he stated (at paragraph 18) that:

“For an education provider to meet these requirements it follows that they will need to make certain checks in advance, including checks to ascertain that the student will meet the requirements for entry clearance or leave to remain, to ensure that they did not issue a CAS to a migrant who is not eligible or suitable, or who would prevent the College from meeting these obligations.”

He also stated (paragraph 22) that “a high refusal rate is an indication of poor compliance and recruitment practices” and (paragraph 24) “[h]istorically a high refusal rate has been a clear indicator of a threat to immigration control”. That pre-dated the Points-Based System. He also stated (paragraph 26) that:

“the strength, robustness and thoroughness of a sponsor’s recruitment will largely dictate how many of its prospective students are refused by the Home Office. The link between a rigorous recruitment policy and a low refusal rate is clear and logical. This fundamental expectation that a sponsor will undertake a rigorous recruitment process links to the core principles of sponsorship, in that those who benefit most from immigration should play a vital role in making the system work for everyone involved.”

He concluded (paragraph 28):

“By setting the refusal rate at 20%, this was…a more than reasonable and generous allowance for setting the margin of error in an application for leave to enter or remain made by the prospective student. The Home Office recognises that there may be situations in which an educational provider may not be able to anticipate the refusal of an application for leave to enter or remain. However, anything more than one in five refusals indicates a complete failure of a sponsor’s recruitment process, and demonstrates that for every five individuals who present to the Home Office, one does not meet the basic criteria for leave. This is therefore a threat to immigration control, and a sponsor with this level of refusal cannot be categorised as ‘highly trusted’.”

With regard to the interviews, Mr Shirley stated (paragraph 5) that interviews with the applicants “were conducted to check English language levels and to determine whether they had been adequately assessed during the CAS allocation process in order to safeguard the control risk that such a large spike in applications presented”.

The Tier 4 (General Student) category of the Points-Based System

Paragraph 245ZT of the Immigration Rules (HC 395 as amended) provides that Tier 4 is the route for those aged 16 or over who wish to study in the United Kingdom. Such persons must have valid entry clearance under this route. The requirements are set out in paragraph 245ZV. One of these requirements (paragraph 245ZV(b)) is that an applicant must score 30 points under paragraphs 113 – 120 of Appendix A to the Rules, and 10 points under paragraphs 10 – 13 of Appendix C to the Rules. Appendix A contains the attributes for Tier 4 (General Students). In order to achieve the required 30 points, an applicant must obtain a CAS issued by an institution with a sponsor licence. A CAS is defined in paragraph 6 of the Immigration Rules as “a unique reference number electronically issued by a sponsor via the Sponsor Management System to an applicant for entry clearance, leave to enter or remain as a Tier 4 Migrant in accordance with these Rules”.

The material parts of Appendix A in force in September 2011 provide:

“113.

An applicant applying for entry clearance or leave to remain as a Tier 4 (General) Student must score 30 points for attributes.

…

116.

A Confirmation of Acceptance for Studies will only be considered to be valid if:

…

(f)

it contains such information as is specified as mandatory in guidance published by the United Kingdom Border Agency… (Footnote: ¹)

…

117.

A Confirmation of Acceptance for Studies reference number will only be considered to be valid if:

(a)

the number supplied links to a Confirmation of Acceptance for Studies Checking Service entry that names the applicant as the migrant and confirms that the Sponsor is sponsoring him in the Tier 4 category indicated by the migrant in his application for leave to remain…

…

118.

No points will be awarded for a Confirmation of Acceptance for Studies unless:

(a)

the applicant supplies, as evidence of previous qualifications, specified documents that the applicant used to obtain the offer of a place on a course from the Sponsor unless the applicant is sponsored by a Highly Trusted Sponsor, is a national of one of the countries listed in Appendix H, and is applying for entry clearance in his country of nationality or leave to remain in the UK. The UK Border Agency reserves the right to request the specified documents from these applicants. The application will be refused if the specified documents are not provided in accordance with the request made…

(b)

for Confirmation of Acceptance for Studies assigned on or before 20 April 2011, one of the requirements in (i) and (vii) below is met:

…

(vii)

the Confirmation of Acceptance for Studies Checking Service entry confirms that the applicant has a knowledge of English equivalent to level B1 or the Council of Europe’s Common European Framework for Language Learning or above…

…

(c)

For Confirmation of Acceptance for Studies assigned on or after 21 April 2011, one of the requirements in (i) to (iii) below is met:

…

(ii)

the course is degree level study and the Confirmation of Acceptance for Studies has been assigned by a Sponsor which is not a Recognised Body or is not a body in receipt of funding as a higher education institution…

…

(4)

the application provides an original English language test certificate from an English language test provider approved by the Secretary of State for these purposes, which is within its validity date, and clearly shows:

…

ii.

that the applicant has achieved or exceeded level B2 of the Council of Europe’s Common European Framework for Language Learning in all four components (reading, writing, speaking and listening)…

…

(iii)

the course is for below degree level study and:

…

(4)

the applicant provides an original English language test certificate from an English language test provider approved by the Secretary of State for these purposes, which is within its validity date, and clearly shows:

…

ii.

that the applicant has achieved or exceeded level B1 of the Council of Europe’s Common Framework for Language Learning in all four components (reading, writing, speaking and listening)…

…”

Paragraph 245ZV(ca) of the Immigration Rules, introduced in April 2011, provides that where an applicant has been issued with a CAS on or after 21 April 2011 “the applicant must, if required to do so on examination or interview, be able to demonstrate without the assistance of an interpreter English language proficiency of a standard to be expected from an individual who has reached the standard specified in a [CAS] assigned in accordance with Appendix A, paragraph 118(c)…”.

Policy guidance for sponsoring institutions

The relevant edition of the UKBA’s “Guide to Sponsoring Students under Tier 4 of the Points Based System” for these proceedings is version 09/11, to be used by all Tier 4 sponsors from 5 September 2011. (Footnote: ²) It explained that changes were being introduced to ensure that Tier 4 sponsor licences are only granted to education providers who meet the standards set for highly trusted sponsors. It states that a provider which does not have HTS status must apply for it after having a sponsor licence for twelve months (see paragraph 244). I note that in this case the twelve month period ended on 9 October 2011. The guidance states that, if the institution does not meet the HTS requirements, its licence will be revoked: see paragraphs 31 – 32. Paragraph 34 states that a CAS is the institution’s way of confirming, as a licensed sponsor, that “to the best of [its] knowledge, [an overseas] student meets the requirements of the rules for a valid CAS and will be able to make a successful application for leave to come to or stay in the UK”: paragraph 34.

The eligibility requirements for HTS status are in paragraphs 268 – 278 of the Guidance. The mandatory requirements are set out in Table (iv) to paragraph 270. That with which these proceedings are concerned is the refusal rate. The relevant column of Table (iv) states:

“Your refusal rate must be less than 20 per cent.

This means that of all the CAS you have assigned which students have used to support an application for a visa or permission to stay, the total number of applications we refuse must be less than 20 per cent. We will assess this using CAS data from the SMS [Sponsorship Management System] for the twelve month period immediately before you apply. We will take into account all CASs that students have used and applications we refuse during this twelve month period.”

The other mandatory requirements in Table (iv) are the minimum qualifying period for which a sponsor must have held a licence, absence of any civil penalties, the sponsor’s enrolment rate, course completion rate, and declaration of academic progression.

Paragraph 324 of the Guidance provides that, for students studying at degree level and above, officials may interview a Tier 4 (General) Student either as part of the student’s application overseas or when the student arrives in the UK. It states that, if a student with a CAS issued on or after 21 April 2011 is interviewed and cannot hold a simple conversation without an interpreter, their application will be refused or the student will be refused permission to enter the UK because he or she has not met the required standard of English.

Paragraph 325 provides that when an institution assigns a CAS to students studying courses at QCF or NQF level 3, 4 or 5 (below degree level), the institution “must ensure they are competent in English language at a minimum level B1 on the CEFR”. Paragraph 333 imposes an obligation on the institution to “keep records of the specific method or combination of methods…used to ensure [the] student’s language competence”.

Paragraphs 378 – 425 deal with assigning a CAS. Paragraph 382 provides that the institution may only assign a CAS under Tier 4 if it is satisfied that a student both intends and is able to follow the course of study concerned. Paragraph 385 states that the educational institution “must assess a student’s ability to follow a course of study. [It] must state on the CAS what evidence [it has] used to make this assessment”.

Paragraphs 504 – 530 deal with suspending and revoking a sponsor’s licence. Paragraph 521 provides inter alia:

“We will revoke your licence immediately for any of the following reasons.

…

•

You do not apply for highly trusted sponsor status by the date specified…

•

Your highly trusted sponsor status expires and you do not apply in time to renew it.

•

Your application for highly trusted sponsor status is refused.

…

•

You have offered places are assigned CASs…without first properly assessing their English language ability. …

…”

Policy guidance for students

The UKBA also issued policy guidance on Tier 4 of the Points-Based System for students. The material version for these proceedings is 07/11, which is stated is to be used for all Tier 4 applications made on or after 4 July 2011. Paragraph 28 of this states that the sponsor will need to provide the student “with some of the information they used when they assigned the [CAS]”, for example course details, documents the Tier 4 sponsor has used to assess the student, and fees due for the appropriate period of study. The paragraph also states that the student “will need this information to accurately complete his/her application to make sure that he/she knows which documents to send when he/she applies”.

Paragraph 30 of the guidance for students states that the full details of the information a CAS must contain in order to be valid are contained in the Immigration Rules and the Tier 4 sponsor guidance. Paragraph 33 states “having a valid [CAS] does not guarantee that a student’s application will be successful”. It also states that “the student must meet all the requirements of the category and any other requirements of the Immigration Rules”.

The College, a privately owned Further Education College offering courses to overseas students, was founded in March 2009. In August 2009 it was granted a Tier 4 (General) Student sponsor licence. During 2010 and 2011 there was a history of visits and inspections of the College by the UK Border Agency. Its sponsor licence was suspended in April 2010, reinstated in May, and a “minded to suspend” letter was issued in December 2010. Following exchanges between the College and the UK Border Agency in early 2011, on 10 May 2011 the College was given “A rated” sponsor status. That status was, however, subject to a condition that it showed that the ACCA course it ran had a minimum fifteen hours of organised daytime study as stipulated in the definition of “bona fide private education institution” in paragraph 6 of the Immigration Rules.

I have stated that, from April 2012, all Tier 4 sponsors were required to obtain HTS status, and on 2 February 2012 the College applied for HTS status. After the College’s application, the UK Border Agency provided it with an initial analysis of the outcomes of visa applications by those to whom it had issued a CAS. The College responded with its own analysis and written submissions. The UKBA then offered the College 246 further CAS during February 2012, but stated that “this is a separate issue to the refusals”.

Following a further letter from the College, Mr Shirley wrote the letter dated 9 May 2012 to Mark Taylor, to which I have referred. Mr Shirley’s evidence (paragraphs 10 – 12) was that, because Mr Taylor had stated that the College believed the refusals should not be taken into account, he wrote this letter “in order to clarify the HTS guidance in paragraphs 269 and 270” (see [3] above). The material part of the letter stated:

“With regards to any HTS application we will discount any incorrect refusals from the final refusal percentage. However, to qualify the decision must have been overturned at appeal or administrative review, or evidence must be provided that the Entry Clearance Officer or Caseworker made a factually incorrect decision. All other cases will count towards the overall refusal percentage.”

There were further exchanges of correspondence in May and June.

In its initial decision letter dated 2 November 2012, to which I have referred, the UK Border Agency informed the College that it was unable to award the College HTS status, would shortly commence action to revoke its sponsor licence, and that its allocation of CAS was reduced to zero with immediate effect. The letter stated that the Agency was unable to approve the application because its records indicated that the College’s refusal rate did not meet the mandatory requirement in Table (iv) to paragraph 270 of the guidance to providers (see [24] above) that a provider’s refusal rate must be less than 20%. The letter stated:

“418 leave applications were made during the twelve months 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%.”

The CAS numbers used were set out in an annex with the refused application numbers highlighted in bold.

The College’s response to this letter, dated 18 November 2012, described itself as a letter before claim and made detailed representations. The judge below stated (see [5]) that the College invited the UK Border Agency:

“to examine the detailed reasons given by the Entry Clearance Officer for the refusal of what was said to be 65 applications by students in which a common ‘erroneous’ decision was given, namely ‘…you failed to correctly confirm how the College had assessed your English’”.

The reference to 65 applications was an error, and the College conceded that only 64 applications had been identified. The judge set out the particular representation made at [6]. This was:

“(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 pinpoint 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 representations addressed the point by reference to a number of identified applications and stated:

“We would submit that all 65 are excepted 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.”

As I have stated, the UK Border Agency maintained its decision in its letter dated 7 December 2012. This was a detailed, nine and a quarter page single-spaced document, signed by George Shirley. After referring to the fact that details of only 64 applications were provided, the material parts of this letter stated:

“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 responsible. This is the reason the benchmark is set at a relatively high level of 20%. Should an individual application refusal decision be in dispute, then there are appropriate channels through which to challenge those decisions either through an administrative review, appeal or litigation. It is not within the remit of the Highly Trusted Sponsor Team to reconsider individual migrant applications outside of these channels.

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 undertaken…of which 37 were upheld. Of the remaining three, one was rejected as it was received outside the 28 day period, one was withdrawn, and one did result in the reason for refusal being amended, however the decision to refuse was confirmed as correct and a new refusal notice issued. No new admin review was submitted for the revised refusal notice.

In addition, several of those applications indicated were either refused on reasons other than that stated in the representations made or the interview highlighted other discrepancies other than the ability to name the method of English language assessment undertaken. [Six applications are identified as falling into this category.]”

As to the representation that there was other evidence to demonstrate the required level of English, the letter stated:

“…[I]n issuing a CAS a sponsor confirms that they have already assessed a student’s ability to undertaken (sic) a course of study including any English language requirement. They should also state the method of assessment on said CAS. As part of an application for entry clearance/leave to remain, we make checks to ensure that 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 is 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.

…[After noting that, in five cases, in addition to an interview, an IELTS certificate and relevant scores for listening, reading, writing and speaking were noted on the CAS, but in one case the reason for refusal did not match that stated in the representations, and in the other four]…the reason to refuse based on the discrepancies highlighted at interview in regards to the College interview , are sufficient enough reason 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.”

The letter stated that discretion had been exercised to discount one of the refusals because (see judgment at [10]) the student in question had been refused for failing to provide evidence of an accountancy qualification, not a fact referred to in the CAS. This, however, was not one of the 64 cases which are the subject of these proceedings.

An example of an application which was refused, which was considered by the judge and on which submissions were made to this court, is that of Mohammed Arshad. In his case, the CAS’s date of assignment was 24 June 2011. The data recorded by the sponsor on the CAS included the documents used to obtain it, one of which was an IELTS certificate (listening – 4.0, reading – 5.0, writing – 4.5, speaking – 5.0; overall band score – 4.5). The statement under “other evidence” that the student has been assessed by an Online Skype Interview. The assessment confirmed that the student “has an English language competence level equivalent to CEFR level B1 in all aspects (reading, writing, speaking and listening)”.

This applicant applied for entry clearance on 30 June 2011. He was interviewed by the Entry Clearance Officer at the British High Commission in Islamabad on 29 August. Questions 9 and 10 of the interview were “How did the College assess your English?” and “What can you tell me about that assessment process? When and where did your interview take place – and was there anyone there to help you?” It is stated that the first question was asked three times. The recorded answer is “They asked me some questions”. The answer to the other questions was “Skype interview, just listening, no other tests”. The synopsis was:

“Meets English level but CAS discrepancy: Although applicant was able to confirm College name, course, duration etc. was unable to confirm how English had been assessed by the College despite being asked the question three times he could only confirm that he had a listening test whereas the CAS states he had reading, writing, speaking and listening tests, he also did not state that he provided an IELTS and BA to the College – CAS discrepancy.”

The reasons given by the Entry Clearance Officer for refusing entry clearance to this applicant on 21 September 2011 were:

“You have claimed 30 points for your CAS. Your CAS states that your English language ability meets the minimum CEFR level and in order to establish this you were assessed via an online Skype interview and an IELTS certificate. On the basis of the interview conducted at the British High Commission on 29/08/11 you failed to correctly confirm how the College had assessed your English ability. Given this significant discrepancy, you have not been awarded any points for the CAS. You therefore do not meet the requirements to be granted entry clearance as a Tier 4 (General) Student and I refuse you application under sub-paragraphs 113 – 120 of Appendix A of paragraph 245ZV(b) of the Immigration Rules.”

The judge stated that the 64 students denied entry had not been denied entry on the basis of a substantive requirement which was not in the Immigration Rules. He stated (at [47]) that, had he concluded that they had been so denied entry, he would have had some sympathy with the submission based on the Supreme Court’s decisions in the Alvi and New London College cases. He stated (at [48]) that he was unable to read the material refusal notices in that way. Taking the one which is set out at [40] above, he stated (at [49]):-

“The refusal was by reference to the Officer in question considering that the discrepancy identified between what the CAS asserted and that which the student said in interview undermined the veracity of [the] CAS and hence the CAS was worthless. This necessarily meant that the CAS could not qualify as a CAS for the purpose of the Rules. The refusal was not on the basis of some other requirement not mentioned in the Rules, but by reference to the Rules. Nor was it based on any failure to meet an English language requirement as such. That is made even clearer by the contents of the material CAS and record of interview in [the] particular case.”

After quoting from the CAS and record of interview in that case (as to which see [39] – [40] above) the judge rejected the submission that the alleged discrepancies were not ones which should have cast doubt on the veracity of the CAS “since the information the student failed to give was not that which he could be expected to know (such as that his language ability had been assessed by telephone interview)”. He stated (at [51]) that:

“A distinction…has to be drawn between omissions going to the validity of the CAS within the meaning of Appendix (which was not the basis of any of the refusals in this case) and an assessment made by a Clearance Officer following his interview with a student as to the veracity of what was asserted in the CAS. The Clearance Officer in all these cases was not saying the CAS was invalid by reference to an alleged (and Mr Jagadesham would say non-existent) requirement of validity that the student can confirm how the College assessed his language ability. He was saying rather that the discrepancies identified by him between what was asserted on the CAS and what was said by the student in interview were such that the veracity of the CAS was undermined.”

He also stated (at [52]) that there was nothing unlawful in the Secretary of State making checks to ensure information stated on the CAS can be verified as part of an application for entry clearance/leave to remain simply because the Secretary of State had not expressly given notice in advance of the sort of questions to asked for that purpose.

The judge had earlier referred to the authorities to which I have referred at [5]. In those cases submissions that the 20% refusal rate should be construed so that only refusals associated with some fault on the part of the education provider should be taken into account were rejected. The submission that the Secretary of State was under a public law duty to examine the circumstances of each and every applicant who had been refused entry clearance when applying the 20% rejection rate criteria was also rejected.

The judge concluded (at [53]) that the disagreement as to whether the matters relied on by the Secretary of State were discrepancies and whether, if they were, they undermined the veracity of the CAS, did not bring this case into the exceptional category recognised in the authorities and by the Secretary of State where she should, in the exercise of her discretion, depart from her application of the mandatory requirement that refusals should be less than 20%. He also (see [54]) rejected the submission that the Secretary of State had unlawfully fettered her discretion to depart from the mandatory requirement. Mr Shirley’s letter dated 9 May 2012, he stated, was not an assurance to the College that any refusal which could be shown by the College to be “in error” on any basis would be examined by the Secretary of State and, if such error was made out, discounted. Any such assurance, he stated, was understandably “restricted to refusals which could be shown to be ‘factually incorrect’ which cannot apply to any of the 64 refusals under challenge in this case”. He noted that, in fact, the Secretary of State did (see [33] above) apply her discretion to discount one of the refusals although it was not one of the 64 cases.

These conclusions were reached without regard to the Secretary of State’s submission that, even if the 58 of the 64 refusals which were solely based on the erroneous basis complained of were to be discounted, the refusal rate would still be 20.17% and thus fail, albeit only just fail, to meet the mandatory requirement. The judge stated that, had he found the Secretary of State to have been in error in not discounting the 58 refusals, he saw force in the submission that the proper course would have been to remit the application for HTS status for reconsideration by the Secretary of State.

The principal submission by Mr Jagadesham on behalf of the College was that the judge erred in finding that the refusals in the 64 cases were not unlawful because the decisions were not made on the basis of a substantive requirement which was not in the Immigration Rules. The refusals could not, he argued, be “by reference to the Rules” (see judgment, [49]) if there was no Rule that covered the CAS being invalidated by having no points awarded for it. The essence of this submission was that there is no distinction between checking the veracity of a CAS on the basis of answers to questions not authorised by the Rules and concluding (at [49]) that “the CAS could not qualify as a CAS for the purpose of the Rules” and a finding that a CAS is not valid on the basis of the answers to such questions.

The Rules made specific provision for the requirements for the validity of a CAS and a CAS reference number (see paragraphs 116(f) and 117(a) of Appendix A, set out at [21] above) but not for checks in interviews about the assertions in the CAS. Mr Jagadesham submitted that those checks were part of the criteria for granting leave to enter or remain which the applicant had to satisfy. It was clear from the judgments of Lord Dyson in Alvi’s case and Lord Sumption in the New London College case that, as such they were requirements which operated as rules within the 1971 Act and had to be sanctioned by Parliament. Mr Jagadesham also relied on the statements of Lord Walker in Alvi’s case set out at [13] above. It followed, he submitted, that since the checking was part of the criteria and because there is no Rule saying that a CAS can be invalidated in the sense of no points being awarded for it where its veracity is put into question by what is said at interview, that the judge erred.

The next limb of the College’s submissions was based on the decision of this court in Pokhriyal and another v Secretary of State for the Home Department [2013] EWCA Civ 1568. In that case, the Secretary of State refused two applications for leave on the ground that the courses named in CASs issued by educational institutions did not constitute “academic progress” as required by paragraph 120B of Appendix A to the Immigration Rules to achieve the necessary 20 points. The Secretary of State decided that the CASs were deficient because the courses as described did not appear to amount to academic progress, and the institutions should have provided some justification for their assertion that they did. It was argued on her behalf that the issue of a CAS does not imply compliance with paragraph 120B of Appendix A, and that, if the student is to obtain the requisite 30 points the educational institution must also expressly state that the course constitutes academic progress.

The Secretary of State’s decisions were upheld by the First Tier and Upper Tribunals but the students successfully appealed to this Court. It held that the issuing of a CAS created, at the very least, a presumption of the sponsor’s compliance with the material requirement within the Rules: see [50], [51] and [54], [79], and [83] – [84] respectively per Jackson, Longmore, and Vos LJJ. In that case, this court stated that where there was an alleged deficiency in the CAS, that matter should be taken up with the college.

Mr Jagadesham submitted that the position was similar in this case. If there was an issue as to how the College had assessed English language, the matter should have been taken up with the College and, if this was shown, paragraph 521 of the Guidance for Sponsoring Institutions (summarised at [28] above) would enable the Secretary of State to revoke the licence on the grounds that places had been offered and CASs had been assigned without the College first properly assessing the applicant’s English language ability.

The third limb of the College’s submissions was at bottom a complaint that the Secretary of State has placed form over substance in her decision in this case. Mr Jagadesham argued that, in a situation in which it has never been asserted that the College in fact failed properly to assess the English language ability of the students to whom it had issued CASs and where the students had all provided IELTS certificates and this fact was stated on the CAS, it was absurd and pointless to rely on what he referred to as an “outside-the-Rules requirement”. He also maintained that it undermined the Secretary of State’s assertion, and the judge’s view (at [51]), that the checks are part of the need to avoid threats to immigration control. Why, he asked, did it matter if an applicant did not refer to the IELTS certificate in his interview, given that the original test certificate is sent to the Secretary of State’s agents to be checked and verified where appropriate?

Finally, Mr Jagadesham submitted that the unfairness of the checks is also shown by the fact that the applicant student is being questioned on something that the College has done in circumstances when he or she does not know exactly what the College was assessing during the interview.

The essence of the decision in Alvi’s case is that, in Lord Hope’s words (at [32]), “the powers of control that are vested in the Secretary of State in the case of all those who require leave to enter or to remain are now entirely the creature of statute. That includes the power to make Rules of the kind referred to in the 1971 Act.” In Lord Dyson’s words (at [94]):-

“… [A]ny requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused, is a Rule within the meaning of section 3(2) [of the 1971 Act]. That is what Parliament was interested in when it enacted section 3(2). It wanted to have a say in the Rules which set out the basis on which these applications were to be determined.”

See also Lord Lord Hope at [57] and Lord Sumption in the New London College case at [24]. The reason for this was in order to ensure that the policy content of Rules was subject to Parliamentary control. As was stated by Sedley LJ in Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719, reported at [2011] QB 376, at [31], documents containing criteria “affecting an individual’s status and entitlement” which had not themselves been subjected to Parliamentary scrutiny which, even if ascertainable, might otherwise “be changed without fresh scrutiny”. The consequence was that documents setting out criteria which were, or might be, determinative of an application for leave to enter could not be relied on by the Secretary of State when making a decision if the criteria in it were not part of Immigration Rules which had been laid before Parliament.

The process of distinguishing documents the contents of which are Rules requiring Parliamentary scrutiny from other documents the contents of which do not so qualify has not been straightforward, and it is important to see the background that led Lord Dyson to his formulation in Alvi’s case which I set out in the last paragraph. In that case, the authorities were reviewed by Lord Hope. He stated (at [52]) that a variety of approaches and a variety of expressions have been used. The formulations included tests distinguishing (1) provisions reflecting a “substantive criterion” or criteria from “minor matters”, (2) “substantive requirements” and “the means of meeting” such requirements, and (3) the substantive criteria themselves and matters which might affect the ability of an applicant to fulfil the relevant criteria. For (1), see the Joint Council for the Welfare of Immigrants case [2010] EWHC 2666 (Admin) per Sullivan LJ at [43], and Alvi’s case [2011] EWCA Civ 681 per Jackson LJ at [40]. For (2), see R (Ahmed) v Secretary of State for the Home Department [2011] EWHC 2855 (Admin) reported at [2012] Imm AR 185 per Singh J at [41] For (3), see the New London College case [2012] EWCA Civ 51 per Richards LJ at [48].

At the time of the decision in Alvi's case, an application for permission to appeal to the Supreme Court in the New London case was pending. For this reason, Lord Hope did not comment as to whether any of the other cases were rightly decided. But he stated (at [52]) that he did not find any of the suggested solutions to what he described as a “difficult problem” entirely satisfactory. Lord Dyson (at [89]) stated that, while there is a conceptual distinction between a substantial requirement of the Rules and the evidential means by which that substantive requirement is satisfied, it is not clear-cut, and, in the absence of a definition of a substantive requirement, the suggested definition of a rule becomes “a chimaera”. Lord Walker, whose observations I have set out at [13], agreed with Lord Dyson. It was against that background that Lord Dyson gave the passage set out at [54] above as his preferred solution. Three observations by Lord Hope are also of some significance. The first (at [63]) was his statement that the 1971 Act recognised that instructions to immigration officers are not to be treated as Rules. The second is that what is simply guidance to sponsors and applicants can be treated in the same way. The third is his conclusion (at [64]) that “the question whether or not material in an extraneous document is a rule, or a change in the rules, will have to be determined on the facts of each case”.

The Supreme Court in the New London College case stated that requirements concerned with the position of the sponsor are rules. But, because they are not rules calling for compliance by the migrant as a condition of obtaining leave to enter or remain and rules governing sponsors, they are not subject to the requirements of section 3(2) of the 1971 Act and consequently do not require Parliamentary scrutiny.

With that introduction, I turn to the present case. It is to be recalled (see [19] above) that Mr Shirley stated that the interviews served two purposes. The first, which is not material to this appeal, was to check English language levels. The second was to determine whether applicants had been adequately assessed during the CAS allocation process as a result of the increased risk to border controls at that time which was assessed to be the consequence of “the large spike in applications”. The concern of the Secretary of State and her officials was that the size of the increase in numbers meant that sponsors were taking short cuts in the way they assessed the intentions and abilities of applicants, and were not adhering to the requirements designed to ensure thoroughness. Underlying this was a concern that the numbers meant there was an increased risk that applicants without the required qualifications, means, and intentions would have a CAS containing the information specified as mandatory in paragraph 116(f) of Appendix A and would apply for entry clearance.

The parts of the criteria for entry clearance or leave to remain that are clearly relevant in this case are satisfaction of the required level of competence in the English language, and possession of a valid CAS. Had the 64 applicants not met the language requirement, no Alvi point could have been taken by them because that requirement is clearly sanctioned by the Rules: see paragraph 245ZV(ca), the material parts of which are set out at [22] above. Had the CAS not contained the information required by Appendix A to the Rules, no Alvi point could have been taken about a refusal based on that.

The Immigration Rules make no express provision for checks to be carried out as to the “veracity” of a CAS, whether by way of interviewing a person applying for entry clearance or otherwise. The submissions on behalf of the College, if accepted would mean that so long as a CAS contains the information specified as mandatory in paragraph 116(f) of Appendix A and is therefore “valid”, subject to only one possible exception, no applicant could be refused entry clearance or leave to remain on a ground related to the CAS. It would only be possible to refuse entry clearance or leave to remain where the officer concludes that the applicant does not have the required standard in the English language, financial means or some other requirement which is expressly contained in the Rules. It would not be possible to refuse an application where the problem concerns compliance by the educational provider which has issued the CAS with requirements to which it is subject. This would be so despite the statement in paragraph 33 of the guidance for students (see [30]) that having a “valid” CAS does not guarantee that an application will be granted. Entry clearance officers would be required in all circumstances to take CASs and possibly other documents issued by educational providers at face value whatever the surrounding circumstances indicated. The only exception conceded by Mr Jagadesham was a case of fraud, although, as will be seen (at [68]), that is narrower than the circumstances for going behind the contents of a CAS contemplated by Jackson and Vos LJJ in Pokhriyal’s case.

If it is not possible for entry clearance officers and others administering border control to check the veracity of a CAS and to act on any manifest discrepancies between what is stated in it and what the applicant says when interviewed, the risk that unqualified applicants will be admitted to the country will be increased and it is likely that the efficacy of the policy that educational providers should exercise due diligence in their admissions processes will be reduced. Immigration officers, of course, will remain obliged to ensure that applicants qualify for the visa they seek and entitled to refuse entry clearance where they do not, but the burdens on them are likely to increase. Moreover, control on sponsoring institutions to ensure adherence to the requirements as to admissions processes and exercise of due diligence imposed on sponsors will only be possible on an ex post basis after applicants have been given entrance clearance and in many cases after they have arrived in this country. It would be necessary for the Secretary of State to demonstrate at that stage that a provider has not been adhering to the requirements of the recruiting process. It would be necessary at that stage, and despite what may be significant evidential difficulties given the lapse of time and any difficulties in locating applicants, to examine the cases of individual applicants in the way that the authorities have stated is not required when applying the 20% refusal rate.

The last paragraph outlines what would be significant practical consequences for the Secretary of State and her officials if Mr Jagadesham’s submissions are correct. But, if on analysis, the checks about the “veracity” of a CAS are part of the criteria for granting leave and thus within the scope of the decision in Alvi’s case, those consequences would have to follow absent a change in the Rules. I have, however, concluded that, for the reasons below, the checks were not part of the criteria for granting leave, and that the refusal of entry on the basis of them did not therefore represent the unlawful application of a requirement for entry outside the Rules.

Entry clearance officers are not bound to take documents furnished by applicants at face value. They are entitled to check on the “veracity” of documents, such as job offers and bank statements, and to take action, including refusing entry clearance, in the light of discrepancies. In my judgment, it follows from this that, despite the status (Footnote: ³) of a CAS as a document that creates a presumption that an educational provider has addressed its mind to the relevant questions and concluded that the requirements of the Rules have been met, in principle its “veracity” can also be checked.

I turn to the criticism that the judge erred in law in treating the CASs of the 64 applicants as “not qualifying as CASs for the purpose of the Rules” and that in substance there is no difference between the “validity” of a CAS and its “veracity”. The terms of [49] and [51] of the judgment are not entirely clear. At [49] the judge stated that the discrepancy which undermined the veracity of the CAS “necessarily meant that the CAS could not qualify as a CAS for the purpose of the Rules”. That suggests the document is invalid because, if it could not “qualify” as a CAS within the Rules, then in what sense could it be valid? But the judge also stated (at [49]) that the discrepancy made the CAS “worthless”, which has no connotations of invalidity, and (at [51]) he accepted Mr Mandalia’s submission that a distinction “has to be drawn” between omissions going to the validity of a CAS and an assessment as to its veracity.

I bear in mind the fineness, and what has been said to be the chimerical nature, of the distinction between a substantial requirement of the Rules and the evidential means by which that substantive requirement is satisfied. (Footnote: ⁴) The distinction between an invalid document and a worthless but valid document may be equally fine. But I reject the submission that there is in substance no distinction between “validity” and “veracity” in this context. There is a juridical difference between an invalid document, and a valid one which, for one reason or another is worthless. An example might be the difference between a forged bank statement purporting to show and represent that an applicant has the requisite funds, which is clearly not a “valid” bank statement, and the bank statement of the account of another person with the same name as the applicant which has been generated by a dishonest bank official, or the bank statement of the applicant into which the dishonest official has inserted false information.

I do not consider that responses of applicants to questions about how the educational provider assessed their English language ability are criteria for the determination of an application for leave to enter or remain which the applicants must satisfy. Neither are the contents of paragraphs 385 or 521 of the guidance for sponsoring institutions: see [26] and [28] above. The questions and action taken as a result of responses are simply the application of a common sense check to test the veracity, that is the truthfulness, of the contents of the CAS, one of the documents required by the Rules. The contents of paragraphs 385 and 521 are requirements for sponsors not applicants, but they are also guidance to which immigration officers can have regard without being treated as Rules: see Lord Hope in Alvi’s case at [63], and [56] above.

I have referred to what the authorities say about a CAS. In the words of Lord Sumption, set out at [12] above, the grant of a CAS is strong but not conclusive evidence of some of the matters which are relevant upon a migrant’s application for leave. A discrepancy between its contents and what is said by an applicant significantly reduces its evidential weight. Since a valid CAS is not conclusive evidence of the matters in it, it must be open to an entry clearance officer to regard a discrepancy in an appropriate case as disentitling the applicant to the points attributable to the CAS. Mr Jagadesham’s submission would require an entry clearance officer to grant entry clearance where an applicant, when asked how a College had assessed his English, answers that the College did not assess it at all. It cannot be right to require a CAS about which there is such a doubt to be treated in the same way as a CAS issued by a careful provider who has meticulously followed all the requirements and exercised due diligence.

What of the decision of this court in Pokhriyal’s case, the circumstances of which I have summarised at [49] – [50] above? In my judgment, Mr Jagadesham gets very limited, if any, assistance from that case. First, there was no discrepancy between what the educational providers stated in the CAS and what the applicants in that case had said. Secondly, that case concerned the Secretary of State second guessing an educational provider on a question (“academic progress”) of academic judgment which she accepted (see [2013] EWCA Civ 1568 at [37]) was primarily a matter for the provider. Jackson LJ also described it (ibid., at [46]) as “not a hard-edged question” but involving a value judgment on which the provider had “the requisite expertise”. Here what is involved is a discrepancy about factual matters that gives rise to what could be described as, in Jackson LJ’s words, a “hard-edged” question.

Thirdly, this court did state that “in the ordinary way” the Secretary of State cannot go behind the educational provider’s assessment of academic progress. But Jackson and Vos LJJ recognised at [47] and [84] that “different considerations might arise if, for example, there were fraud, or if the college made an assessment which was plainly inappropriate on the face of the documents”, although cf Longmore LJ at [80].

Fourthly, in Pokhriyal’s case the court was considering direct challenges to the refusal of entry clearance by two prospective students. It is of some significance that in the case before us, not one of the 64 applicants successfully applied to have the refusal overturned in an administrative review, and this court was not told that any had challenged the refusal in a court or tribunal. These proceedings are in a sense an attempt by the College to avoid the bar to direct challenges to the “less than 20% refusal rate” criterion for HTS status by making a challenge which derives from the position of individual applicants who have not, or not successfully, challenged the decisions in their cases. The College is, of course, not precluded from seeking judicial review because a more directly affected person has not challenged the decision in question, but this is a factor which has been taken into account in some cases: see the authorities listed in Fordham, Judicial Review Handbook, 5^th ed., §38.2.10. It might be thought that there is a particular case for doing so where the ultimate aim of the College is not to challenge the decisions refusing the applications of individuals for entry clearance or leave to remain, but the decision revoking its HTS status.

As to Mr Jagadesham’s “form over substance” submission (see [52] above), this presupposed that the 64 applicants did in fact satisfy all the requirements. But, even if they did, it is a flawed argument. This is because the authorities make it clear that there is no public law duty on the Secretary of State when applying the “less than 20% refusal rate” criterion to examine the circumstances of each applicant who has been refused entry clearance or leave to remain: see [44] above. Notwithstanding the decisions in the West London Vocational Training College Ltd case [2013] EWHC 31 (Admin), affirmed in [2013] UKSC 51, and the WGGS Ltd t/a Western Governors Graduate School case [2013] EWCA Civ 177, his submission, if accepted, would require the Secretary of State and the Court to examine the circumstances of each and every applicant in every case, in the way those authorities have stated is not required.

I also reject Mr Jagadesham’s submission that the unfairness of the checks is also shown by the fact that the applicant student is being questioned on something that the College has done in circumstances when he or she does not know exactly what the College was assessing during the interview. The case of Mohammed Arshad which I have summarised at [39] – [41] above shows the sort of questions asked. Mr Arshad was asked three times how the College had assessed his English and finally responded that he had been asked some questions over a Skype interview and that he had undergone “just listening test, no other test”. An applicant whose reading and writing skills had been assessed, whether over a Skype interview or otherwise, would know because some action on his or her part would be required.

In view of what I have stated, I would dismiss the appeal on the Alvi ground. If the appeal is dismissed on that ground, it is not necessary to consider the Secretary of State’s secondary argument. Mr Mandalia submitted that, even if it was unlawful to take account of the discrepancy between what the 64 applicants stated and the contents of their CAS, the College failed to meet the “less than 20% refusal rate” criterion. This was because (see [46] above) in 6 cases the applications were also refused on other grounds, and the refusal rate was 20.17%. He argued that it followed that the appeal should be dismissed in any event. Had it been necessary to decide that matter, in the light of the number of cases that would have been wrongly taken into account and because the refusal rate was a mere 0.17% above 20%, my instinct is to agree with the judge that the proper course would have been to remit this matter to the Secretary of State.

If my Ladies agree, I would affirm the decision of the judge that the Secretary of State was entitled to rely on the 64 refusals in her application of the “less than 20% refusal rate” criterion for HTS status and dismiss the appeal on that ground.

I agree.

I also agree.