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

This is the substantive hearing of an application for judicial review by the claimant, Burnley Training College Limited, of a decision made by the defendant, the Secretary of State for the Home Department, on 11 April 2001 to refuse the claimant’s application for a Tier 4 sponsor licence. The application for judicial review was made on 8 July 2011. Permission was granted by HHJ Gosnell sitting as a judge of the Queen’s Bench Division on 1 August 2011, and he also ordered an expedited hearing. This is that hearing. Evidence has been filed by and on behalf of the claimant by the claimant’s principal offer, Mrs Saddique, and by the claimant’s solicitors. That evidence is unchallenged, none having been filed in response on behalf of the defendant.

The background is as follows: the sponsorship system grew out of the government’s dissatisfaction with, and concern about, the number of colleges and education establishments which overseas students were apparently attending, but with some of which there was a perception that the attendance was merely an attempt to evade immigration restrictions. In short, the provision of education for overseas students was, it was felt, being abused. Accordingly, a register was devised by the UK Border Agency (“UKBA”) as part of a points-based system introduced under paragraph 113 of Appendix A to the Immigration Rules HC 395 as amended. A non-EU applicant for entry clearance 2 or for leave to remain in the United Kingdom as a Tier 4 general student requires 30 points, which may be obtained by holding a visa letter or a Confirmation of Acceptance for Studies document issued by an institution with a Tier 4 general student sponsor licence.

In order to obtain a Tier 4 sponsor licence colleges were required after 31 March 2009 to be included in the register of licensed sponsors maintained by the Sponsor Licensing Unit (“SLU”), part of the UKBA. From time to time the SLU has published guidance for sponsor applicants. The guidance relevant in this case issued by the UKBA was in the form of a pamphlet, version 10/10, dated 1 October 2010, called “Tier 4 of the Points Based System”. This guidance describes the two fundamental principles of a sponsorship system thus:

“Sponsorship is based on two fundamental principles:

i.

those who benefit most directly from migration (that is, the employers, educational providers or other bodies who are bringing in immigrants) should play their part in ensuring that the system is not abused; and

Certain criteria are specified which the aspiring applicant has to meet, including as to its “suitability” (see paragraph 8). Paragraph 9 of the guidance stresses that applications which do not meet the criteria will be refused. The main principle at paragraph 64 sets out what the defendant is looking for in Tier 4 applications. These include information that enables the defendant to answer the question, “is the applicant dependable and reliable?” As stated in paragraph 64:

“In order to judge this, they will look at the history and background of the organisation, its key personnel and of the people who control it. Any history of dishonest conduct or immigration crime will be viewed seriously and may lead to refusing an application.”

Once granted, the licence holder is expected to maintain certain standards, including as to administration and reporting; and, if not, it may find itself suspended. Amongst other things, if for example the sponsor “has been dishonest in its dealings with us”. But before taking that action, however, the guidance makes clear that the sponsor will be given an opportunity to explain its case (see paragraph 16).

Applicants outside the system of public reviews, i.e. those that are not publicly funded, must show that they are accredited from an approved accreditation body.

Similar guidance is set out for withdrawing a licence once granted. Thus, paragraph 365 of the guidance deals with circumstances when a licence will be withdrawn; paragraphs 367 to 370, when a licence will “normally” be withdrawn; and paragraphs 371 to 373, when a licence “may” be withdrawn. Again, certain parts of paragraph 367 are relevant for present purposes and provide as follows:

“367.

Sponsors will also normally lose their sponsorship licence if… [it] or another relevant person, are dishonest in any dealings with the UKBA. This includes, among other things:

making false statements, or failing to disclose any essential information, when applying for a sponsorship licence…”

This is relevant, since the defendant sought later to justify its decision to refuse the claimant a sponsor licence also on this ground; in short, had a licence been granted, it would have been justified in withdrawing it. Paragraph 367 is, however, it seems to me, merely the mirror of paragraph 126, and as such it seems to me to add nothing separate, save that paragraph 368 clearly envisages that some explanation will be sought, in that it provides as follows:

“368.

We cannot define precisely in which exceptional circumstances we may not withdraw your licence when one of the above circumstances applies. However, we regard this seriously and would look for evidence that you were either not responsible for what happened or that, if you were, that you took prompt and effective action to remedy the situation when it came to light.”

Two things, therefore, emerge at this stage. First, the whole process, whether by regarding it as an application for a licence or the circumstances prevailing once a licence is granted, is circumscribed on all sides by an expectation of a high degree of integrity and trust on the part of a sponsor applicant and sponsor. Indeed, in signing the application form the authorised officer on behalf of the claimant, Mrs Reehaina Saddique, acknowledged that she had read, understood and agreed to comply with her sponsor declaration and duties. Second, it is also clear that the whole process of establishing a college and achieving accreditation and licensing must be a substantial and potentially costly undertaking. Failure to obtain a licence can have serious financial and personal implications for the college and its proprietors. Holding a licence is a valuable asset, as was recognised in the case of R (on the Application of the London Reading College Ltd) v SSHD [2010] EWHC 2561 (Admin), a decision of Mr Neal Garnham QC sitting as a Deputy Judge of the High Court, to which I shall have to return. The claimant in this case was incorporated on 11 November 2009. So far as I understand it, it carries on business as a college offering training courses for non-English speaking locals as well as overseas students, aimed at equipping them for English-speaking jobs in the United Kingdom. The principal shareholder and controller of the claimant, as I have said, is a Mrs Reehaina Saddique.

On 4 October 2010 the claimant submitted an application for a Tier 4 sponsor licence to the UKBA. At this stage it held a number of accreditations from approved accreditation agencies, including one called Edexcel, the organisation on behalf of whom the claimant proposed to offer certificates to local, i.e. not overseas, students successfully passing the various courses on offer. In November 2010, whilst the claimant application for a licence was as yet not determined, its accreditation through Edexcel was suspended following a visit by officers from that agency and its approval as a centre of study was withdrawn. In consequence, the claimant could no longer run courses approved by that agency.

There were a number of grounds specified in a letter dated 25 November 2010; I do not think it is necessary to spell them out in any detail. One of the allegations concerned an accusation of selling certificates and another contained an implication that Mrs Saddique had not been entirely accurate in her provision of information concerning her association with another college. Mrs Saddique took the view that this impacted on her honesty and might seriously affect her application for Tier 4 sponsorship; she wanted to clear her name. In consequence, the claimant appealed against this decision by Edexcel in accordance with its procedures to an internal but, as I understand it, independent, panel. In the meantime the UKBA, not having determined the claimant’s application in the meantime, once it heard about the decision of Edexcel, put the claimant’s application on hold pending determination of the appeal.

On 17 March 2011 the claimant’s appeal was heard and determined by a panel under the internal procedures of Edexcel; Mrs Saddique attended, together with her solicitor. On 21 March 2011 the panel issued its determination. The panel upheld Edexcel’s decision to withdraw recognition of the claimant in these terms:

“13.

Having heard the evidence from both sides we share Edexcel’s concerns about the need for the College to review its management, administrative and quality assurance procedures with the aim of introducing a greater degree of control over the conduct of the courses it wishes to offer its students. The incident involving the Birmingham sub-site is of particular concern and proper and robust procedures will have prevented it happening.

14.

Accordingly, we uphold Edexcel’s decision to withdraw its recognition of the College at the present time.

15.

However, if the College can satisfy Edexcel that it has identified areas of its procedures that require improvement and has remedied them, and if Edexcel is satisfied with the results, the College should not have to wait until November 2015 before applying to have its recognition reinstated. In pursuit of that aim, we strongly recommend that the College should work closely with Edexcel.

16.

We have also considered Edexcel’s decision to have certificates issued to students in years 2009-10 and 2010-11 withdrawn.

17.

We recommend that Edexcel reconsiders this decision, given the seriousness of the consequences for these students who are being penalised for matters completely outside their control.

18.

Finally, over the issue of what Centres should be required to do should they wish to establish sub-sites, we recommend that this is reviewed by Edexcel as a matter of urgency and the outcome promulgated widely to all of the Centres it recognises, and to only apply for recognition.”

The written decision, issued the same day, was in the same or substantially the same terms.

Subsequently, and very quickly, the parties did get together. As Mrs Saddique explained in paragraph 6 of her first witness statement in these proceedings:

“When the panel decision arrived from Edexcel, I discussed briefly the same with Mr Capaldi. I was glad that any suggestions of dishonesty or acting knowingly were not made out. I was jubilant given the decision did clear the college of any wrongdoing of a dishonest nature. The decision essentially raised issues of an administrative nature which I accept I had sorted out long before the decision was promulgated. I was delighted that the panel lifted the 5 year bar and allowed the college to seek reaccreditation immediately on the proviso that we had systems in place. We indeed had systems in place, and therefore within week were back accredited with the Edexcel board.”

Although Mr O’Brien, representing the defendant, took issue with the statements made in that paragraph, particularly as to whether or not they were back accredited with the Edexcel Board, as I have previously indicated no evidence was submitted by or on behalf of the defendant, and in those circumstances it seemed to me to be perfectly appropriate to treat that statement at its face value, i.e. as a true and unchallenged statement. In any event, it seems to me to be borne out by other material before the court.

It is clear that the panel were not impressed with the quality of the allegations made by Edexcel against the claimant, particularly as regards the selling of certificates, which they regarded as hearsay, and as regards her association with the other college, to which I have referred, the evidence of which they regarded as unclear. They acknowledged in particular that Mrs Saddique had given a very full account of the administrative and quality assurance arrangements at the college and that she had conceded before the panel that the claimant may not, in certain areas, have implemented matters perfectly. The panel was in short, as Mrs Saddique explained in paragraph 6 of her witness statement, concerned about the quality or lack of quality of administrative control. Whilst they, strictly speaking, did indeed uphold Edexcel’s decision, they recognised that matters could quickly be improved with cooperation on both sides, which is precisely what seems to have happened.

Following the hearing Mrs Saddique received a copy of the decision in writing by email. She tried to contact the defendant by phone to tell them, but unsuccessfully. At 17:14 on 21 March 2001 Mrs Saddique sent an email to the UKBA referring to the appeal, and informing them as to Holland, who had been dealing with the case throughout, that:

“I have tried to contact you via phone today, so that I can update you on the Edexcel panel hearing heard on Thursday, 17 March 2011. We were exonerated on all accounts. I would appreciate a conclusion on our Tier 4 general application now. I look forward to your confirmation.”

She also verbally authorised her solicitors to release the written decision to the defendant. Edexcel itself also sought permission from the claimant to disclose the decision to the defendant.

Notwithstanding Mrs Saddique had authorised its release, the decision in fact was not sent to the defendant until 29 March 2011 by the claimant’s solicitors. On that day Mrs Saddique sent a further email to the defendant addressed in particular to Mr Holland, stating:

“I have instructed Mr Capaldi at Runhams Solicitors to release the panel report. I believe this will help us move forward, as we have EDI (ESOL and SIA) at Trinity College, London (ESOL) already in place, and are working positively with Edexcel for centre approval. If you need to speak to me, please call on...”

And then she specified the telephone number on which they might contact her.

The delay in sending the written decision to the defendant had been to do with circumstances in the solicitors’ offices. The defendant, however, once it had got the decision, acknowledged receipt and indicated it would consider the application in light of the decision. In any event, Mrs Saddique throughout was under the impression that the defendant would obtain the decision, or could obtain the decision, direct from Edexcel. Some ten days later, on 11 April 2011, the defendant communicated its decision to refuse the claimant’s application. At no stage between the receipt of the email of 21 March, nor indeed after the receipt of the email of 29 March offering her telephone number and this letter of 11 April did, so far as I can tell, anyone from the defendant seek to contact Mrs Saddique direct.

The grounds set out in the letter of refusal were as follows. The letter referred to paragraph 64, that is to say the question “was the applicant dependable and reliable”, and referred specifically in terms to paragraph 126, and then stated:

“In this case, we received an email from you dated 21 March 2011 which stated Burnley Training College had been exonerated on all counts in an Edexcel appeal and requested a speedy decision on your application. On reviewing the Edexcel appeal transcript it is clear that Burnley Training College were not exonerated in its outcome. We therefore conclude this email was dishonest and that paragraphs 64 and 126 apply. Therefore, we are unable to approve this application.”

The letter, to say the least, is curious in that it was expressed in terms that the department was unable to approve the application, having regard to the application at paragraphs 164 and 126, not that in the exercise of its discretion it had failed to approve the application. A clear basis of the decision, however, is that they regarded the claimant as having been dishonest.

Mr O’Brien also sought to rely on that aspect of the decision, that the claimant had requested a speedy decision of the application. But, as I pointed out to Mr O’Brien during argument, there is no doubt the claimant did want a speedy decision; but Mrs Saddique would have known, and it must have been obvious to anybody concerned with the application, that no decision would have been taken by the defendant until it received the terms of the actual decision of the panel. From the outset the defendant had made clear it was going to await the outcome of the appeal before making a final decision.

Following the letter of 11 April, pre-action letters and correspondence ensued, but the defendant refused to alter its decision leading to the present application. Indeed, in a longer letter dated 27 May 2011, the defendant sought to maintain its stance. This time it added to the particular passages in the guidance previously refused to paragraph 367, and concluded:

“Your client made a false statement, and also failed to disclose the essential information from the Edexcel hearing. It was only because you provided this information that it was discovered that your client had made a false statement.”

How they were able to say that she had failed to disclose essential information from the Edexcel hearing I simply do not understand, given that she had asked her solicitors to send it, and they had sent, it just over a week after the hearing.

The claimant, however, seeks now to quash the decision, and damages. It is agreed that if I find for the claimant I should adjourn the proceedings for the assessment of damages. Also at the outset an application was made to cross-examine the defendant’s witness, specifically Mr Holland; but this in the end was unnecessary, since, as will be seen, the issue was not whether Mrs Saddique was in fact dishonest in her email of 21 March 2011, despite the attempts of the defendant to argue almost to the contrary, but more realistically and in reality whether the defendant was reasonably and rationally entitled to assume that she was dishonest without more.

Moreover, the defendant has filed no evidence; hence, the application to cross-examine the defendant’s witnesses fell away. There was no application on behalf of the defendant to cross-examine Mrs Saddique. Expedition was ordered by HHJ Gosnell since the claimant hoped to acquire “highly trusted” status on the strength of six months’ performance as a Tier 4 sponsor; otherwise apparently it would be able to continue in business after 31 March 2012. To do this, it had to commence business and receive its licence before the end of 2011, if not earlier.

The essential basis of the defendant’s decision to refuse a licence, as I have previously indicated, was that Mrs Saddique in her email of 21 March 2011 had incorrectly, but more importantly dishonestly, stated that the college had been exonerated on all counts. The defendant, as I have indicated, therefore took the view that in the words of paragraph 126 of the guidance the claimant had been dishonest in its dealings with the defendant. To meet a case that there had been no “previous” dealings with the defendant before the application in question, the defendant then relied on paragraph 367 in the letter of 27 May 2011; that of course, however, only applies where a licence has been granted.

HHJ Gosnell granted permission to apply on 1 August 2011, giving the following observations, or as an indication of his reasons for so doing:

“1.

The consequences for the claimant of refusal of their application for Tier 4 sponsor status were clearly economically catastrophic.

2.

Whilst it is clear that Ms Saddique’s statement that the college were ‘exonerated on all counts’ was inaccurate the Defendants decision to refuse the application can only be justified if the statement was dishonestly made. It may be arguable that this distinction was not sufficiently considered, given the confirmation that the appeal decision was subsequently disclosed with the Claimants consent.”

I have no desire at all to disagree with anything that is stated in that paragraph, even though as I have said London was a case where the college already had a licence, which the Secretary of State sought to remove. This case is an application for a licence. Mr O’Brien submits that a case for removal may have greater implications and hence more is expected of the defendant, but I am inclined to disagree. It seems to me that the government, in its dealing with the rights of its citizens, has a duty simply to act fairly. It may well be that the defendants are entitled to maintain a fairly high index of suspicion, but that does not mean that they can disregard established laws of natural justice or ride roughshod over a person’s reasonable expectations in conformity with the tenor of the guidance they themselves have issued that appropriate enquiries will be made. Given that the holding of a licence is a potentially substantial asset, and given also I should say the desire of the defendant to maintain and put in place proper immigration control in return for an expectation of a high degree of trust from the applicant, the applicant has in turn a right to expect a degree of fairness from the defendant in its dealings and an equal measure of trust that its application and considerations connection with its application will be dealt with seriously, carefully, responsibly, properly and, above all, fairly.

In particular, I have three points to make about the guidance. First, they are not holy writ or statute to be interpreted or applied rigidly. They are guidance to assist both sides with establishing the procedure for making applications, how they may expect it to be reasonably dealt with, and how, if an application is granted what is expected in return from the sponsor. In short they are, one might say, a spelt out way of one side perfectly reasonably saying to the other. “In return for us giving you a licence, this is what we expect from you. You in turn may expect from us the following”: i.e. as set out in the guidance.

Secondly, and in no way detracting from the foregoing, I have already drawn attention to the fact that the guidance in two places in two situations draws a distinction between circumstances in which a licence will be refused, will normally be refused and may be refused. There are accordingly, clearly, grades one might say, of situation. The word “normally” gives at least the impression that admits there may well be exceptions. Indeed, paragraph 368 of the guidance to which I have already referred itself spells out in that context that withdrawal would not be applied without further investigation. Thirdly, as I have already indicated, in my judgment the guidance cannot overrule the established laws of natural justice.

An allegation of dishonesty against any person is a grave and serious charge; it may have very serious implications for the accused; it may affect their insurance or accreditation with other agencies or departments. Instinct and natural justice immediately leads one to think that the charge should not be levelled, still less assumed, without proper and due and responsible care and consideration; certainly not without giving, at the very least, the accused an opportunity to explain the inaccuracy or charge, or the circumstances that have led the accuser to believe that the accused is being dishonest. More so where the finding may have, as potentially it does here, potential disastrous consequences for the claimant.

On receipt of the decision of the panel, it would have been the simplest thing in the world even for a busy government department or agency to at least have phoned Mrs Saddique and asked for an explanation. She had, after all, given them her telephone number and virtually invited contact if anything concerned them. But the defendant did nothing except after ten days, that is to say between 29 March and 11 April, decided that she was dishonest without even asking for any kind of explanation or making any kind of investigation, as I say as envisaged by their own guidance by analogy, for example in paragraph 368. Not only did they persist in the allegation of dishonesty in their letter of 27 May 2011, but they have maintained it down to today’s date; a matter which, I have to say, I find somewhat surprising.

In my judgment, the defendant was wrong not have asked for or given Mrs Saddique an opportunity to explain her email. It was, strictly speaking, as I have said, inaccurate, and she accepts that. She saw the panel decision as a vindication of her honour. I accept that she did not in any shape or form seek to hide the panel decision from the defendant. The language in her email was unfortunate, to say the least, but in the exuberance as she no doubt saw matters at the conclusion of her appeal, and I am at least prepared so to assume or infer, it was understandable. She felt, it genuinely seems to me, she had been exonerated. Subsequent events show that Edexcel was satisfied, and reasonably quickly.

In my judgment, particularly having regard to the potential consequences to the claimant, and the seriousness of a charge of dishonesty levelled against her, the defendant was over-hasty in its decision. It applied its own guidance blindly, or apparently so, without consideration even of whether the normal procedure in paragraph 126, or 367 for that matter, should apply. Most significantly, the claimant was not given a full or fair opportunity to lay all the facts before the defendant and accordingly the defendant’s decision was based on not having the full facts before them, and in ignorance of any explanation, and accordingly was in my judgment procedurally flawed, unfair, unlawful, and ought therefore to be quashed. I will discuss with counsel what consequential steps accordingly arise.