IN THE HIGH COURT OF JUSTICE
QUEENSBENCH DIVISION
ADMINISTRATIVE COURT
SITTING AT MANCHESTER CIVIL JUSTICE CENTRE
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
Before:
HIS HONOUR JUDGE PELLING QC
SITTING AS A JUDGE OF THE HIGH COURT
Between:
MANCHESTER COLLEGE OF HIGHER EDUCATION AND MEDIA TECHNOLOGY | Claimant |
- and - | |
SECRETARY OF STATE FOR THE HOME DEPARTMENT | Defendant |
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Mr McDonald appeared on behalf of the Claimant.
Mr Dunlop appeared on behalf of the Defendant.
Judgment
His Honour Judge Pelling QC:
Introduction
This is the hearing of the claimant's claim for judicial review of decisions by the defendant, by which she first suspended and then prospectively revoked the claimant's Tier 4 licence by which, among other things, the claimant was entitled to sponsor students to enter the United Kingdom for the purpose of studying at the claimant's college.
This case has a long and, in some ways, unfortunate procedural history, in which various decisions have been taken which have led in turn to the commencement of judicial review proceedings, which have then altered in scope over time as further decisions have been taken and further grounds identified to challenge the further decisions. The result has been that there are no less than four bundles of papers before the court that run to nearly nine hundred pages. Happily, however, the issues with which these proceedings are concerned are now in reality only those that relate to a prospective decision taken on the 5 November 2012 to maintain the decision first taken on 28 June 2012 to revoke the claimant's Tier 4 sponsor's licence. The decision has only not taken effect because of the agreement of the defendant that it would not take effect until after completion of these proceedings.
In paragraph 1 of his written submissions Mr Macdonald QC, on behalf of the claimant, identified a total of five issues that arise in these proceedings. This present judgment is concerned however solely with the second issue he identifies in that paragraph, namely whether the defendant was entitled to revoke the claimant's Tier 4 licence on the ground that the claimant was in breach of the guidance governing the grant of such licences by having sponsored foreign students by issuing CASs (a Confirmation of Acceptance of Studies) in respect of courses that did not lead to an approved qualification.
The reason why this issue has been heard separately from the other issues is essentially that identified by Mr Dunlop, who appears for the defendant, at paragraph 52 of his written submissions, namely that this alleged breach is the most serious of the alleged breaches of sponsorship duties relied upon by the defendant, and if the defendant is correct then in practice that is likely to be decisive. Mr MacDonald QC agrees in principle to this approach being adopted.
Framework
Somewhat surprisingly, the framework principles that apply to the grant renewal, suspension and revocation of Tier 4 sponsorship licences is not contained in either primary or secondary legislation but depends upon the discretion of the defendant which is, however, exercised in accordance with the policies set out in guidance issued by the UK Borders Agency with effect from 5 September 2011 in a document entitled "Guide to Sponsoring Students under Tier 4 of the Points-Based System". This guidance has been replaced with effect from 9 July 2012 by guidance issued by the UKBA entitled "Tier 4 of The Points Based System – Policy Guidance". It is common ground that there have been no changes of substance effected by the 2012 guidance that affect these proceedings. It is also common ground that the 2011 guidance applied to the decisions to revoke the claimant's Tier 4 licence taken on 28 June 2012 but that the 2012 guidance applied at the time supplemental reasons for that decision were given on 9 August 2012 and at the time of the the decision to maintain the original decision following further representations from the claimant, dated 30 October 2012.
The events with which this part of this case is concerned commenced with a formal visit of the defendant's officials to the claimant in March 2012. At that time the 2011 guidance was applicable. Insofar as is material to the issue I am now considering, the guidance provided as follows:
"Requirements for Tier 4 (General) students
What course may a Tier 4 (General) student take?
Level of course
You can only assign a confirmation of acceptance of studies (CAS) to Tier 4 (General) students for courses at the minimum level of:
∙ Qualifications and Credit Framework (QCF) or National Qualifications Framework (NQF) level 3 or above in England and Wales…
We will take action against you if you assign a CAS for a student to take courses under Tier 4 (General) that are:
∙ below QCN or NQF level 3; or
∙ below level B2 for English language students…
Full time and leads to approved qualification.
The course must lead to an approved qualification. We define an approved qualification as one that is:
∙ validated by Royal Charter;
∙ awarded by a body that is on the list of recognised bodies produced by the Department of Business, Innovation and Skills …
∙ recognised by one or more recognised bodies through a formal articulation agreement with the awarding body;
∙ in England, Wales and Northern Ireland, on the Register of Regulated Qualifications … at QCF or NQF level 3 or above …
∙ covered by a formal legal agreement between a UK-recognised body and another education provider or awarding body. An authorised signatory for institutional agreements within the recognised body must sign this. The agreement must confirm that the recognised body's own independent assessment at the level of your or the awarding body's programme compared to the NQF (or its equivalents). It must also state that the recognised body would admit any student who successfully completes your or the awarding body's main course into a specific or range of degree level courses it offers …
It is our duty to protect the border and to protect sponsors who are meeting all of the requirements we expect of them. If we believe you have not been complying with your duties,have been dishonest in any dealings with us or are a threat to immigration control we will take action against you.
We may:
revoke your licence;
suspend your licence pending further investigation;
reduce the number of CASs you are allowed to assign.
We also reserve the right to suspend your licence while we carry out further checks to find out if any failure on your part is serious enough to potentially lead us to revoking your licence…
Revoking your lincence
We will revoke your licence immediately for any of the following reasons …
the courses you offer to sponsored students under tier 4 general are below the level allowed according to whether you are an A-rated sponsor or have highly trusted sponsor status unless the student is exempt because they applied before 5 October 2009. This does not apply to supplementary studies which can be at any level …
you have offered places to tier 4 general students and the main course of study does not lead to an approved qualification for our purposes …
We may not always revoke your licence in the circumstances above, but we cannot precisely define the exceptional circumstance in which we would not. However, we may immediately suspend it and may withdraw any CAS that you are assigned but which have not yet been used to support an application for leave to come to or stay in the UK. We will look for evidence that you are either not responsible for what happened, or, if you were, you took prompt and effective action to remedy the situation when it came to light; for example, if one of your employees was wholly responsible for what has happened and that person was dismissed when it came to light."
The Facts.
The claimant was incorporated in April 2009 and was first granted a Tier 4 licence in October 2009. It commenced operations in January 2010. It is unnecessary that I take up time with the events that took place prior to March 2012 other than to say that a decision by the defendant to suspend the claimant's licence in 2010 was quashed by an order of this court made on 8 December 2010.
The present dispute starts with a visit to the claimant's premises on 22 March 2012. Various issues arose from that visit. Only one matters for present purposes. The defendant's officials asked for, and were given, a list of courses that were offered by the claimant. The list provided by the claimant to the defendant identified eleven courses in these terms in table form in three columns headed from left to right number, list of courses and awarding bodies:
“1 - Graduate diploma in business administration - EBMA, QNUK (integrated with HND Edexcel);
2 - Graduate Diploma in accountancy and finance. EBMA, QNUK, (integrated with HND Edexcel);
3 - Graduate Diploma in ESOL and teaching - EBMA, QNUK (Integrated with City and Guilds teacher training – DTLLS, ESOL diploma with City and Guilds)
4 - Graduate diploma in interactive media - EBMA, QNUK (integrated with HND Edexcel)
5 - Graduate diploma in IT and Computer Science - EBMA, QNUK (integrated with HND Edexcel)
6 - Graduate diploma in travel and tourism - EBMA, QNUK (integrated with City and Guilds)
7 - Graduate diploma in fashion and management - EBMA, QNUK (integrated with HND Edexcel)
8 - Graduate diploma in law and legal practice - EBMA, QNUK (integrated with HND Adexel)
9 - Graduate diploma in health and social care - EBMA, QNUK, (integrated with City and Guilds HBD)
10 - Post graduate diploma in education training and management - ABE / ABP (integrated with City and Guilds teacher training and DTLLS)
11 - Postgraduate diploma in business management - ABE / ABP."
The claimant maintains that the effect of the list was that, in relation to courses 1 to 9, the awards resulting from successful completion was dual qualifications being, first, a qualification awarded either by EBMA or QNUK, which, it is accepted, would not fulfil the requirements of paragraph 309 of the relevant guidance; and, secondly, an HND or equivalent qualification, which would satisfy the requirements, so it is said, at paragraph 309. The claimant maintains that courses numbered 10 and 11 were courses leading to qualifications that satisfied paragraph 309. It will be appreciated that the document from which I have quoted so far is self-serving, in the sense that it asserts what the claimant maintains to be the position but does not prove what is asserted is correct.
Following that visit, the claimant's licence was suspended. On 23 May 2012 the defendant wrote to the claimant to explain the basis of that decision. As might be expected, there were a number of issues on which the defendant placed reliance, including what it maintained was a breach of paragraph 309 of the relevant guidance. The basis of the defendant's decision in relation to that issue was that the courses supposedly accredited by EBMA and QNUK did not satisfy the requirements of paragraph 309 of the guidance. The basis of this assertion at that stage was that the courses offered by the claimant were not shown as approved by those organisations on their respective websites. The claimant's case before me is that the status of EBMA and / or QNUK approval is immaterial because the relevant courses also lead to approved qualifications, as I have described. If correct, that was a complete answer to the point being made by the defendant in relation to the validity of qualifications. It is not, however, what the claimant said in its response letter. The claimant's response letter is dated 31 May 2012 and, insofar as is material, it said as follows:
Courses provided
The courses delivered by the college have been accredited by the QNUK and EBMA, which is clearly evident from the approval letter issued by those organisations. The decision as to the publication of any course information on their website rests with the QNUK and EBMA. The college can in no way be held responsible for any information or lack of it on other organisations websites. However, we understand that information regarding our courses was not displayed on the EBMA and QNUK websites due to customised nature of these programmes, as those are originally developed by the college which also owns the copyrights over these qualifications. We strongly believe that the office has failed to make distinction between customised and non-customised courses."
The only explanation offered as to why the point now relied on was not mentioned in the letter is that the letter was addressing the specific point made by the defendant in its letter under reply. However, that is not a satisfactory answer to the point that I am now considering. If the claimant is right in what it now says, then what is said provided a complete answer to the points being made by the defendant concerning the validity of qualifications, because the claimants' courses would, on this analysis, have led to an approved qualification as required by paragraph 309 of the guidance, irrespective of the true position concerning QNUK and EBMA.
The defendant was not satisfied with the response it received and on 28 June 2012 she wrote to the claimant saying that she was of the view that the claimant's licence should be revoked. In relation to the qualification issue the letter said as follows:
You have not supplied any evidence of the validity of the above mentioned qualifications. The Ofqual website does not feature any courses by EBMA and those awarded by QNUK are NQF level 2. As an A-rated sponsor you cannot offer courses below NQF level 4. Whilst not provided with either your representations or judicial review bundle you state that you hold approval letters from these awarding bodies. Such letters would not meet our requirements as they do not meet any of the definitions outlined in …”
the Guidance. The relevant paragraph of the guidance was then set out in the letter. The letter then went on to note the effect of an email dated 6 April 2012 from the claimant to the defendant, by which the claimant had said that the students had been transferred to other awarding bodies with effect from that date. As to this, the defendant then said as follows:
The email was sent after our visit when the validity of the courses you provided was queried.
You have not provided any explanation for offering ineligible courses up to the 6 April 2012.
Whilst you have provided a list of apparently acceptable awarding bodies, you have not provided the course names for these to be verified as approved qualifications meeting the definitions of paragraph 350.
The email does not negate your duty to notify us of each individual student's change of course …
The quality assurance agency conducted a review for educational oversight in relation to the college in February 2012. Your appeal to review for educational oversight was refused in May 2012. The review noted the following of particular concern:
'reliance cannot be placed on the accuracy and completeness of the information that the provider is responsible for publishing about itself in the programmes it delivers'.
Based on the findings of our visit in March, our inquiries into the validity of your courses and the QAA report we are not satisfied that you are offering courses which lead to approved qualifications. Even if the other reasons for suspension were mitigated your licence would be revoked for this reason alone. Paragraph 570 of the tier 4 sponsor guidance states that we will revoke your licence immediately if:
'you have offered places to tier 4 general students in the main courses studied does not lead to an approved qualification for our purposes '."
Two points emerge from this part of the defendant's letter. First, it was clearly not an answer to the point being made simply to provide a list of awarding bodies that had authorised the claimant to offer its courses leading to its awards without identifying the course that was said to lead to the award of the relevant approved qualification. More particularly, however, the letter makes it entirely clear that the defendant was not satisfied that the claimant had offered courses which lead to appropriate qualifications. It was, or ought to have been, apparent to the claimant that if that was an error on the part of the defendant the claimant would have to identify in relation to each course identified on the March list precisely what approved qualification would result. That would involve not merely identifying a relevant approved qualification, but also that, in fact, those who successfully completed the relevant course would gain that relevant approved qualification.
Following that decision, the claimant formulated additional grounds for challenge, which now included a challenge to the revocation decision to which I have referred. The issue concerning qualifications was addressed in the statement of Mr Rana, dated 6 July 2012, at paragraph 24 and following. Insofar as is material, Mr Rana said this:
"Validity of Qualifications.
The defendant has stated that the courses offered did not lead to approved qualifications. This conclusion is contrary to the weight of evidence. EBMA is approved by QNUK, which is a registered body of Ofqual. The courses were approved. Each customised qualification would not be listed on the website due to their very nature…"
This is now accepted by the claimant to be wrong. Indeed, it is the opposite of the case the claimant now seeks to advance. In paragraph 24 Mr Rana was asserting that the qualifications offered by EBMA and / or QNUK were approved qualifications, whereas now it is accepted by the claimants that those qualifications are not approved qualifications. Critically, however, Mr Rana then contended as follows:
Whether the defendant accepts the EBMA qualifications comply with the requirements or not the courses offered are dual qualifications. Tier 4 students also obtain City and Guilds Adexel BTech HND Chartered Management Institute of Qualifications. The defendant failed to consider the relevant consideration.
The qualifications were also approved by ASIC and the claimant college took the precaution of also seek approval from Tribal, Consultants to QAA and a number of other bodies as an exemption route.
The other qualification (dual qualifications) such as BTec, HND and City and Guilds courses, ABE and ABP are fully approved and are on the websites of the appropriate bodies therefore the assumptions of the claimants are wrong.
The visiting officers were provided with the list of dual qualifications offered and there were no discussions in the validity of these questions…"
This was, as far as I can see, the first detailed express assertion of the dual qualification point as being an answer to the defendant's view that the claimant was not offering courses leading to approved qualifications. It is noticeable even at this stage that no attempt had been made to meet the points made by the defendant in the 28 June letter, which I have summarised above. Attached to the statement of Mr Rana at HAR/2 is a letter from Mr Peter Lewis; it is not dated. Mr MacDonald placed some reliance on that letter. Insofar as is material, that letter says as follows:
"I have been invited to act as a private consultant by Dr Malik of Manchester College of Higher Education and Media Studies MCHE to act as external verifier to confirm that the procedures and policies for the assessment and verification of the qualifications approved by qualification network for awards and accreditation QN are in place.
My inspection of such procedures confirms that the procedures for an assessment and verification are in place. All the assessment and internal verifiers have the appropriate City and Guilds TQA qualifications to undertake quality procedures, including acceptance of the programme specification and content of the customised awards. These awards in most cases will allow for dual accreditation through City and Guilds and the Association of Business Practitioners…"
The letter then summarises the various awards that are offered by MCAG that he said had been accepted by QN and that such had been confirmed by an email from a Ms Peterson of the 31 July. The letter went on to say that MCHE had been approved to offer these awards by EBMA. It then said that the PTLLS, CTLLS and DTLLS awards are also offered through the City and Guilds awarding organisation. There was then a reference to staff training, which I need not take up time rehearsing, and that the examples of sampling plans and verification procedures had been produced. The letter then says this:
"MCHE has also successfully offered and completed the ESOL International Diploma with a pass rate of 73 per cent which then enables students to progress onto the graduate professional diploma in education and training which incorporates both the certificate in teaching and the lifelong learning sector, PTLLS, and diploma in teaching and the lifelong learning sector, DTLLS, therefore offering a clear progression pathway.
Students also have an opportunity to progress onto a variety of level 7 awards through City and Guilds, APP, amongst others.
I conclude this report by stating that the evidence presented to me was accurate and in accordance with what one would expect from a centre offering these awards. The information and detail of the programmes was also available through their website and students were offered a variety of blended learning to help them achieve these awards. A module/ VLE system is available for all students along with a variety of support systems which encourages a high academic standard from the participants."
That letter does not address the issue that led to the defendant prospectively to revoke the claimant's licence on the 28 June. Its focus primarily is on the QE and EBMA issues. It does not identify the course to which the writer might be referring when implying that the courses lead to approved qualifications and does not in terms verify that each course identified in the 22 March schedule leads to an approved qualification. It does not set out any material made available to the writer by which he could have tested the proposition that each course led to such an approved qualification.
The defendant undertook a further review of all the material provided by the claimant in the judicial review proceedings. She concluded that the material did not address the reasons for deciding to revoke the claimant's licence. She explained why in her letter of 12 October 2012, and in relation to the validity of qualifications issue she did so in these terms:
"Validity of qualifications.
You offer eleven qualifications awarded by Education for Business Managers and Administrators (EBMA) and Qualifications Network (QNUK). These qualifications do not lead to an approved qualification.…."
The substance of paragraph 3 and 9 of the guidance is then set out, and then the letter continues as follows:
As none of the qualifications offered appear in the Ofqual register there are two other possible ways non-QCF qualifications could meet our requirements
An articulation agreement is an agreement entered into by an awarding body such as EBMA or QNUK, a recognised body which recognises the level of the qualification and offers preferential entry terms to students who hold that particular qualification. You do not appear on the Department for Business Innovation Skills lists of recognised bodies, neither does EBMA or QNUK. As a result, the qualifications you offer do not meet the requirements of the third bullet point in paragraph 309.
A formal legal agreement can be entered into by a recognised body, an awarding body or education provider. You are not a recognised body and neither is EBMA or QNUK, therefore the qualifications you have offered do not meet the requirements stated in the final bullet point in paragraph 309.
Paragraph 521 states we will revoke your licence immediately for any of the following reasons:
'you have offered places to tier 4 general students and the main course of study does not lead to an approved qualification for our purposes'.
Even if all the other reasons for revocation are addressed, your licence would fall for immediate revocation for this reason alone."
This letter does not address the dual qualification point at all, as was emphasised by Mr McDonald. By now the relevant guidance had become what is set out in paragraph 350 of the 2012 guidance, but nothing turns on that, because as I have paragraph 350 is in the same terms as the equivalent paragraph in the earlier guidance.
On 30 October 2012 the claimant filed a witness statement made by Mr Saeed, a lecturer at the claimant’s college. His evidence at paragraph 3 of his statement was as follows:
"Validity of Qualifications
I have read the UKBA's reasons for suspension on this issue. Clearly there has been confusion or misunderstanding. The eleven courses referred to as customised awards are not stand alone qualifications; they are dual qualifications, as you will know from the list provided. The college is accredited by a number of bodies approved by Ofqual and recognised within paragraph 3 of the Tier 4 Guidance 2011 as offering courses for the academic year 2011–2012 leading to a main approved qualification by one or more of the following…"
There then follows a table which sets out under the heading "Qualifications" a number of course descriptions and refers in relation to each to a "regulated / Ofqual registered awarding body". There is a column that is entitled "Customised additional awards non-regulated". No attempt had been made to cross-reference any of the courses described in the table to which I have referred to the list of courses provided by the claimant to the defendant on 22 March. Thus this evidence does not actually meet the point made by the defendant nearly four months previously in the letter of 28 June, by which the reasons for the decisions to revoke had been given.
Mr Saeed said at paragraph 6 of his statement:
"Regulated Qualifications
During the academic year 2011 – 12 the college was offering the following main approved qualification regulated, approved and recognised by one or more of the approved awarding bodies appears in the Ofqual register…"
There then appears a list of various awarding bodies, including QNUK. There is then exhibited an extract from the Ofqual register confirming the bodies as being registered and recognised. The statement then continues at paragraph 8 in these terms:
The college is offering dual pathway awards. The students dual qualifications are composed of existing standard units of our awarding bodies APB, ABE, ATHE, BCS, City and Guilds, Adexel, IM, CMI, CLC, NOCN, NON. Students can gain a recognised qualification from one or more of the above bodies for the pathway in which they wish to specialise."
Mr Saeed concluded on this issue by saying this at paragraphs 18 and 19 of his witness statement:
"The list of all the main approved courses as listed on the college's website and visiting officers could easily have carried out a check to establish this fact.
UKBA visiting officers did not discuss or provide any opportunity to clarify these issues in respect of qualifications or course approval with any member of staff from the college. There has been no prior consultation before the decision to suspend. The UKBA should have provided the opportunity where relevant documents could have been inspected with explanation without the need for litigation. The college do hold the relevant accreditations and offer the main approved qualifications in accordance with paragraph 309 of the tier 4 sponsor guidance 2011."
Exhibited to Mr Saeed's first statement is a certificate certifying that the claimant was appointed to offer BTec qualifications awarded by Edexcel, a letter from Edexcel dated 2 August 2011, which confirms that as of that date the claimant was approved to offer two courses, being course MR016 entitled Interactive Media, which was said to be at the level BTec level 4 HNC Diploma and it was said to have been approved to the date 28 February 2015, and course code MRO 17, which was again called Interactive Media and offered a qualification of Edexcel BTec level 5 HND diploma and again was approved to the 28 February 2015. Also attached was what appears to be a printout which is dated the 11 October 2012, which runs to six pages and lists a large number of Edexcel qualifications. The weight I can attach to that document is limited because it is not clear whether the "approved from" dates are backdated from a later date and, perhaps more importantly, because there is a column headed "active" which contains either "N" or "Y". Clearly those referred to "no" or "yes", even though on instructions counsel for the claimant offered an alternative explanation yesterday afternoon. As to the first point, it is at least a possibility that backdating has occurred for entirely legitimate reasons, but as to the second point the number of no entries far exceeds the number of yes entries; indeed the only yes that I can identify is for course MRO 17 Interactive Media. None of this is explained in the evidence that has been filed on behalf of the claimant. I regard this document as one that does not assist on the issues that arise in the absence of such explanation, preferably from Edexcel, as to precisely what it means and what the significance of the entries in it is.
There is a letter dated 18 August 2012 that refers to a large number of qualifications offered by Edexcel. It does not contain any "approved from" information and so it does not assist as to the position as at the date of revocation. I should add that this morning I was handed a letter dated 14 November 2012 -- that is, dated yesterday -- that refers to seven qualifications offered by Edexcel, which suggests that the claimant was approved to offer courses leading to those qualifications from the 1 September 2011. However, the backdating issue arises once again and the letter is not consistent with the other Edexcel material to which I have referred.
The final document attached to Mr Saeed's first statement, to which I need to refer at this stage, is a letter dated 2 October 2012, which is from ABP and is to the following effect:
"The Association of Business Practitioners (ABP) is a sister body of the association of business executives (ABE), an Ofqual-recognised awarding organisation. By virtue of an Ofqual-endorsed strategic alliance between ABP and ABE, ABP delivers a range of Ofqual regulated qualifications – these qualifications are awarded by ABE not ABP and appear in the Ofqual Register of Regulated Qualifications as ABE qualifications.
At the time of writing Manchester College of Higher Education and Media Technology, 57–63 Tutin Hill Road, Manchester, is an approved ABP centre approved to run the following Ofqual regulated programmes…" [emphasis supplied]
There then follows a list of titles of various qualifications, from level 5 to level 7, including a level 7 diploma in international human resource management, which is said to have the qualification number 600/1935/9. This letter does not assist because it is dated 2 October 2012 and refers to the position "as at that date"; thus it does not address at all the issue that arises in this case, namely the position as it was at the date of revocation.
On 12 October 2012 the defendant requested the claimant to make any further representations it wished to make concerning the intended revocation of the prospective revocation of its licence. The claimant responded on 30 October 2012. It asked that the defendant consider Mr Saeed's statement of that date, the effect of which I have summarised above. In relation to the validity of qualifications issue the letter of the 30 October from the claimant was to the following effect:
“1. Validity of Qualifications
The 11 courses referred to as customised awards are not stand alone qualifications. They are dual qualifications as you will note from the list provided. The College is accredited by a number of bodies approved by Ofqual or recognised....within Para 3 of the Tier 4 Guidance 2011 was offering courses for the academic year 2011 - 12 leading to a main approved qualification by one or more of the following … "
There is then a list running between (a) and (k) of various awarding institutions. The letter continues:
Dual Awards Pathway
The college is offering dual pathway awards. The students qualifications are composed of existing standard units are awarding bodies ABP, ABE ATHE, BCS, City & Guilds, Edexcel, IAM, CMI, CLC, NOCN, NON. Students can gain a recognised qualification in any of one or more of the above bodies for the pathway in which they wish to specialise.
Customised Awards (Non-Regulated) NCFE, EBMA and QNUK
In order to enhance the learning of the international students the college was also offering the additional qualifications customised (non-regulated) validated by NCFE and then transferred to EBMA and QNUK …
These awards are the minimum standard set by the awarding organisations. These are customised for overseas students to help them with the general and broader understanding of the various vocational occupations. The college is committed to enhancing these approved qualifications by undertaking additional teaching and learning. EBMA is an awarding organisation offering higher education awards and linked to the Qualifications Network (QNUK) - an established awarding body. EBMA & QNUK are offering dual brand awards for the customised awards therefore, it will not sit on the UK national framework and will not be accredited or regulated by Ofqual. However, these customised awards have been discontinued from 1st April 2012. This does not affect the studies of the students as the units are of the same standard and integrated with the main qualifications which are on the Ofqual register."
There is then a point made that the visiting officers failed to take account of the fact that the college is offering dual qualifications and identifying a list which lists the main approved qualifications that were integrated and making the point again that the visiting officers failed to take into account that the customised programmes for additional qualifications remain approved qualifications. The letter also made the point that the college had held accreditations from the main approved qualifications that were on the Ofqual register, and a reference was made to the report of Mr Lewis referred to above. The letter then continued:
"It appears there is confusion between customised integrated courses. UKBA visiting officers did not discuss or provide any opportunity to clarify these issues in respect of qualifications or course approved with any member of staff from the College. There has been no prior consultation before the decision to suspend. The UKBA should have provided the opportunity where relevant documents could have been inspected with explanations without the need for litigation. The College do hold the relevant accreditation and offer the main approved qualifications in accordance with paragraph 309 of the Tier 4 Sponsor Guidance 2011."
This led the defendants on 5 November 2012 to send the claimant a letter entitled "Final decision letter regarding Manchester College of Higher Education and Media Technology". It affirmed the defendant's decision to revoke the claimant's licence. Insofar as material, it was to the following effect:
"…
We gave you a final opportunity to comment on the reasons for intended revocation and gave you five days to respond. This was being offered outside our published process. Your representative indicated by way of a letter dated 22 October that you were unwell and that you would be in a position to provide further representations by 30 October. We agreed to extend the time frame for further representations and they were ultimately provided to us on that date. Your representations referred to your recent health problems and stated that as a result you were unable to provide full detailed representations. While we acknowledge that you have been unwell we are disappointed to note that despite it being approximately 23 weeks since your licence was suspended you have stated that you were unable to provide full detailed representations …
Whilst we sympathise with the health problems you have recently experienced our published guidance states that sponsors have 28 days in which to make representations. You have had more than five times this period in order to adequately address the reasons for suspension predating your recent health issues. Having reviewed your recent representations we are still not satisfied that the information provided addresses the original reasons for revocation for the following reasons.
Validity of qualifications
Since May 2012 we have explained that the courses that you were offering did not lead to approved qualifications under paragraph 309 of September 2011 sponsor guidance …
Previously you have claimed that the courses which are listed on page 256 of the trial bundle did lead to ' approved qualifications ' because ' EBMA could award approved qualifications by reason of paragraph 309(c) because through an articulation agreement QNUK they were authorised to give qualifying awards by reason of 309(d).” (Paragraph 93 of your skeleton argument of 18 September 2012).
In other words it was your case that the courses lead to approved qualifications because they were recognised by an articulation agreement between yourselves and the two awarding bodies EBMA and QNUK.
In our letter of 12 October 2012 we explained that this did not meet the requirements of paragraph 309 because an articulation agreement needs to be between an awarding body such as EBMA and QNUK and a recognised body ie a body that is on the list of recognised bodies produced by the Department for Business Innovation and Skills. Neither EBMA nor QNUK nor you is (sic) a recognised body.
Your letter of 30 October 2012 does not provide a satisfactory response to this. You appear to be now offering a different explanation to the explanation you provided previously - ie you are no longer relying on the third bullet point in paragraph 309 (in relation to articulation agreements) but instead on the fourth - you seem now to be arguing that all the courses you provided lead to the qualification on the Register of Regulated Qualifications at QCF or NQF level 3 or above. In fact as we explained in our letter of 28 June the courses would have to lead to a qualification in NQF level 4 or above because you are an A-rated sponsor.
The problem with this explanation is that CAS can only be assigned to cover one course. That course must lead to an approved qualification. We accept that the awarding bodies you have listed in your representations have a number of approved courses recognised by Ofqual. We have no objection to CAS being assigned for any of the specific courses listed on the Ofqual register with the exception of those below NQF level 3 or 4 (dependent on your A or HTS rating). However having reviewed your CAS assignment history it is clear that you have assigned CAS for courses which do not appear on the Ofqual register and as a consequence do not lead to an approved qualification. For example you have assigned CAS to students to study the following qualifications which do not appear on the Ofqual register at all.
Graduate diploma in fashion and business management
HPD City and Guilds foundation degree integrated fashion and design
HND Fashion management
Graduate diploma in fashion management
The above are just four examples of the types of courses you have offered which do not lead to an approved qualification. Your explanation that students are studying for integrated diplomas is not supported by your CAS history and the above examples demonstrate that you have assigned CAS to students which were not ultimately lead to them obtaining a valid, recognised UK qualification.
This remains our primary reason for revoking your sponsor licence and none of the representations you have submitted adequately address this issue "
The point about one CAS for one course is at least arguably misplaced because what the claimant says was being offered was one course (therefore needing only one CAS) that led to two qualifications, one of which satisfied the Guidance requirements. However, the remaining points are those that had been alive since at least June 2012, namely that there was no material provided which established what approved qualification would result from the successful completion of each of the courses identified in the schedule of courses provided on 22 March 2012 by the claimant to the defendant's officials.
Following the decision letter of 5 November the claimant filed two further witness statements, a second statement from Mr Saeed dated 6 November 2012 and a further statement, the fourth statement, from Mr Rana. The common feature of these statements is that they attempt for the first time to identify the linkage between the courses offered, as identified in the 22 March schedule and an approved qualification - see paragraph 7 of Mr Saeed's second statement in relation to the four examples given in the letter of 5 November 2012 and paragraph 16 of Mr Rana's fourth statement, which sets out in table 4 each of the courses identified in the 22 March schedule and, under the heading "regulated qualification", what approved qualifications it is alleged that these courses lead to.
The cross-referencing is to pages 706 and 14, 731 to 732 in the bundle. The cross-referencing appears in principle to be to an Edexcel printout dated 11 October 2012, a letter from City & Guilds dated 14 September 2012, which I have not so far referred to but which confirms the claimant was authorised to offer courses leading to certain qualifications, being or including the diploma in health and wellbeing relevant to course 9 of the 22 March schedule and the DTLLS qualification that is said to be relevant to courses 3 and 10 on that schedule and to a letter from ABP to which I referred at length earlier in this judgment.
Claimant's case
The claimant maintains that all the decisions but including, in particular, the decision of 5 November 2012 ought to be quashed on the grounds that the conclusions that had been reached were based on a mistake of fact amounting to a mistake of law. Although no authorities relevant to the principle were cited by Mr McDonald, it is common ground before me that the relevant principles are those set out by Carnwath LJ (as he then was) in E v SSHD [2004] QB 1044. The particular facts of that case do not matter for present purposes. The principles identified in that case are derived from R v The Criminal Injuries Compensation Board ex parte A [1999] 2 AC 330, a judicial review case. That case was concerned with an error of fact resulting from relevant evidence not being available to the Criminal Injuries Compensation Board due to what appears to have been a misunderstanding. The decision was described by Carnwath LJ in these terms at paragraph 63 of his judgment in E:
“The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that ‘objectively’ there was unfairness. On analysis, the ‘unfairness’ arose from the combination of five factors: (i) an erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case); (ii) the fact was "established", in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence; (iii) the Claimant could not fairly be held responsible for the error; (iv) although there was no duty on the Board itself, or the police, to do the Claimant's work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result; (v) the mistaken impression played a material part in the reasoning.”
As Carnwath LJ observed at paragraph 65 of his judgment:
“The apparent unfairness in the Criminal Injuries Compensation Board case [1999] 2 AC 330 was accentuated because the police had in their possession the relevant information and failed to produce it. But, as we read the speeches, "fault" on their part was not essential to the reasoning of the House. What mattered was that, because of their failure, and through no fault on her own, the Claimant had not had ‘a fair crack of the whip’.”
Carnwath LJ summarised the principles that applied in this area of the law in paragraph 66 of his judgment in these terms:
“In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."
Defendant's case
It was submitted that the claimant's grounds, as revised, do not identify properly or at all the mistake that is relied upon. Mr McDonald submitted that the point was clear even if unexpressed, namely that the defendant had proceeded on the basis that the courses identified in the 22 March schedule did not lead to an approved qualification when in fact they did. This point concerning an absence of particularity would only assist if it could be said that the defendant was taken by surprise, in which case the remedy would have included an adjournment in order to allow the defendant sufficient time to respond to the point, probably combined with an adverse costs order. In fact the defendant has met the substantive arguments advanced, has not at any stage sought an adjournment either on grounds of surprise or otherwise and thus this point concerning lack of particularity is one that I can safely leave to one side.
The key point advised by the defendant is that set out in paragraphs 61 to 62 of the defendant's skeleton and is in these terms:
(Checked to audio – document unavailable)
As a result in the letter of 28 June 2012 the defendant made clear its position that the claimant had failed to provide evidence that the courses for which it was assigning CASs led to qualifications which were 'approved' for the purposes of paragraph 309 of the 09.11 guidance. The defendant made the point that it had looked at the Ofqual website in coming to this decision.
The defendant's position has not changed since the letter of 28 June 2012 it is still the defendant's case that the claimant has not provided evidence to demonstrate that its qualifications were approved for the purposes of paragraph 309. The only thing that has changed in the meantime has been the claimant's attempt to explain how and why the qualifications it offered were approved for the purposes of paragraph 309."
Analysis
Paragraph 62 of the defendant's skeleton imperfectly states the real issue. What was paragraph 309 and what is now paragraph 350 of the relevant guidance makes clear that any course offered by a sponsor must lead to an approved qualification. The phrase "approved qualification" is defined. It includes a qualification that is on the register of recognised qualifications maintained by Ofqual. Thus the defendant maintains that the claimant has failed to provide evidence that the courses for which it has assigned CASs, being those listed on the 22 March schedule, are courses that lead to a qualification that is on the register of regulated qualifications. The claimant's case is that it has provided such evidence and that the defendant has made a mistake of fact amounting to a mistake of law by proceeding on the erroneous basis that the courses concerned did not lead to such qualifications.
In my judgment the dispute in reality goes to the first of the questions identified by Carnwath LJ in E, namely whether the evidence has established an existing fact of which a mistake can be said to have been made. It is to that issue that I now turn.
There are a number of immaterial issues of detail that arose in the course of the argument that I need to mention only to put to one side. Thus I accept that in principle there is no reason why the claimant should not offer a single course leading to both a regulated and an unregulated qualification, as long as in fact it leads to both. Secondly, there is no doubt that the qualifications that the claimant seeks to rely on as being approved qualifications are and were at all material times approved qualifications. Thus if, for example, the evidence established at least to a good arguable level that those studying for a "graduate diploma in business administration" would, if successful, obtain Edexcel BTec level 4 HND in Business then the threshold test that I have identified would be satisfied. The key question at this stage in the inquiry is whether the evidence establishes the fact. In my judgment the evidence does not.
It is only the most recent evidence filed by the claimant that seeks to address this issue at all. It is an issue where all of the relevant primary evidence will be in the hands of the claimant. It is the claimant who devises the syllabus for each of the courses. It is the claimant who teaches the relevant courses. It is the claimant who admits students to its courses and who submits work product on behalf of its students to awarding organisations for assessment and it is the claimant who, in common with students, receives notification of the results of the assessment of such work. It is the claimant who will have records of those students who have been successful in obtaining relevant qualifications.
Proving what has been asserted by the claimant ought not to be difficult for the claimant in those circumstances. It is a startling obvious point that the claimant has not attempted to establish its case by any one of the evidential routes to which I have just a moment ago referred. Its case is that it has been authorised to offer courses by approved qualification-awarding authorities and that an assertion that in fact a particular course leads to one of those qualifications should be enough. In my judgment it is not, but even if that is wrong the evidence available does not realistically and reliably support the contentions made on behalf of the claimant.
It was submitted, therefore, that course no. 1 on the 22 March schedule entitled "Graduate Diploma in Business Administration" leads to an HND qualification. It was asserted that the relevant HND was coded AYB 10. The justification for this assertion was an assertion that the claimant was authorised to offer that course. However, the evidence does not show even that to be so. The document relied upon is the printout dated 11 October 2012. That suggests that the claimant had been appointed to offer the course I have mentioned a moment ago as an example from 1 September 2011. However, that is not consistent with the letter of 18 August 2012 unless the schedule reflects a backdating arrangement, which would mean that the claimant was not authorised to offer such courses when the original decision to revoke was first taken.
More to the point, however, the schedule suggests that the course is not active by the presence of the letter "N" in the "Active" column of the schedule. There is no evidence that the course offered by the claimant in fact leads to the HND qualification at all. Exactly similar considerations apply to course 2 on the 22 March schedule. Course 3 is said to lead to a City & Guilds qualification. The letter from City and Guilds suggests that the claimant was authorised to offer a DTLLS course leading to a City & Guilds qualification, but there is no evidence to suggest that the course offered in fact leads to such a qualification.
Course 4 is said to lead to the HND with code number MRO 17. The evidence identified by Mr McDonald as supporting that was the letter from Edexcel dated 2 August 2011. That suggests that the claimant was authorised to offer a course leading to such a qualification as at 2 August 2011. That is consistent with the printout dated 11 October 2012, because that is the only course identified as active on that schedule. However, there is no evidence that shows that those undertaking course 4 would in fact obtain that or any other HND.
Course 5 is described as being a “Graduate diploma in IT and Computer Science”. It was asserted that this led to an HND in Computing and Systems Development. All the criticism that I have made in relation to the assertions made concerning courses 1 and 2 apply to this assertion with equal force. Exactly similar criticisms could be made in relation to courses 7 and 8. Similar criticisms to those can be made of courses 9 and 10 as I have made in relation to course 3.
The position in relation to course 11 is particularly significant in the circumstances. In the course of his oral submissions yesterday I was told by counsel for the claimant, on instructions, that this course led to a diploma awarded by APP in international human resources management. That was justified by reference to the letter from ABP dated 2 October 2012 referred to above. That letter does not establish that the claimant was authorised in relation to that course at any date prior to 2 October 2012. However, today I was handed a supplemental bundle of documents. The material was irrelevant for the most part, because it was concerned to establish only that the qualifications offered by the bodies relied on by the claimant appeared on the register maintained by Ofqual. However, the significant point is that it was now being asserted that course 11 led to an ABE level 7 Diploma in Business Management. It is noteworthy that there is no mention of that course at all in the letter from APB of 2 October 2012.
Thus, I return to E v SSHD. For the reasons I have given, I am not satisfied that the claimant has established a mistake of existing fact sufficient to trigger this area of judicial review. If the allegedly existing fact in fact existed, it ought to have been capable of being established by objectively verifiable evidence but it has not been. As I have explained, the material that would have proved the existence of the allegedly existing fact is material that the claimant is uniquely well-placed to produce if it existed.. It has not done so. Thus I do not consider the mistake of fact ground of review has been made out in relation to the validity of qualifications issue. In those circumstances I will hear counsel as to what the consequences are that flow from that conclusion.
Mr Dunlop?
MR DUNLOP: My Lord …
JUDGE PELLING: Do you want five minutes?
MR DUNLOP:Well no I think I can make it fairly quickly. The claim should be dismissed.
JUDGE PELLING: Very good. Mr McDonald? Is that the outcome?
MR MCDONALD: Well, I also made a second and subsidiary submission that the … this was a case where the rules of fairness required that there should be a round table meeting of the defendant and the claimant so that the precise issues that the claimant wanted and the way in which the claimant would provide the evidence for them could in fact be thrashed out. And that is something which has not happened.
JUDGE PELLING: So this is what, this is a Dooley type point is it?
MR MCDONALD: Sorry it’s a …?
JUDGE PELLING: A Dooley type point, that is to say that the common law rules of fairness required a round table meeting. Is that how you put it?
MR MCDONALD: That's how I put it in my skeleton effectively and I take you to that.
JUDGE PELLING: Yes?
MR MCDONALD: And indeed n the supplementary ground …
JUDGE PELLING: Right. So what I was looking up was paragraph...?
MR MCDONALD: Paragraph 80, the supplementary grounds.
JUDGE PELLING: I was looking at paragraph 1 of your skeleton. Right, where are the supplementary grounds? How many grounds have been filed in this case?
MR MCDONALD: Quite a few.
JUDGE PELLING: It’s a little difficult to pin this one down. Can you tell me where they are to be found?
MR MCDONALD: I emailed them to you this morning.
JUDGE PELLING: Well so you might have done, but that is not the way it is dealt with, is it?
MR MCDONALD: Sorry.
MR DUNLOP: My Lord I have got a copy with …
JUDGE PELLING: Are they in the bundle somewhere?
MR DUNLOP: No.
SPEAKER: They are at the end of bundle 3, my Lord.
JUDGE PELLING: End of bundle 3. Bundle 3 seems to have a lot of transcripts and the points-based system report by the Controller General. Right.
MR MCDONALD: Paragraph 8.
JUDGE PELLING: Yes. So you want me to resolve that as well, do you?
MR MCDONALD: Yes.
JUDGE PELLING: Well I am not sure I heard any submissions of detail from anybody on this, did I? Right. Your submissions are that, applying Lord Mustill's analysis of common law fairness, which is effectively a fact sensitive question depending on the circumstances, you say that the circumstances meant that there should have been a round table meeting between the parties in order to resolve this issue, is that the submission?
MR MCDONALD: That effectively is the submission.
JUDGE PELLING: Yes. Is there anything you want to say to develop it? I am not encouraging it but is there anything else beyond that that you want to say in relation to it?
MR MCDONALD: No. It is simply that, as Lord Mustill says, the rules of fairness are to some extent a matter of intuitive judgment and they vary from circumstance to circumstance
JUDGE PELLING: Very good yes. Anything you want to say about that?
MR DUNLOP: My Lord. My answer to that is set out in paragraph 57 to 68 of the skeleton argument. The short point is we have amply fulfilled the duty of fairness by giving the claimant far more opportunity than we normally give to meet the concerns of the 28 June letter and secondly in any event this is all academic and there is no ground for relief because the claimant has had every opportunity including this hearing to make the point he wants to make and has not succeeded.
JUDGE PELLING: Thank you. Do you want to say anything in reply?
MR MCDONALD: No. I think the whole course of the conduct of this that if, as your Lordship has determined in your judgment that these were matters which were within the province of the claimants to prove, it would have … we say that fairness was such that as these facts are, as I indicated to you already, are facts which are easily provable by the claimants but they were focussing on the straight matter of whether the actual course content fell within the category of approved qualifications and given that the progress of the correspondence did proceed on the basis of quite clearly misapprehensions, misunderstandings and it would have been quite straightforward and it would have in our submission required some kind of face to face consultation that “Look, this is what we want you to do”, and if it was done on the premises the particular matters could have been got hold of and presented and we would not have had to engage in this kind of litigation. And that was something which in our submission should have been done and in fairness ought to have been done because this goes so fundamentally to the -- it goes so fundamentally to the very educational purpose of the college and a case which turns on a lack of proof which will put this college completely out of business and strand those remaining students who are at it that because of the very serious and fundamental and drastic consequences, there ought to have been some kind of personal interaction. It hasn’t happened, and it didn’t happen and it is all very well saying that these things can be produced in legal proceedings but it is a very different thing legal proceedings from the nature of an inspection meeting and a round table meeting and that should have happened. So what effectively is going to result from your Lordship's judgment is that this college is going to go out of business and the students -- the few remaining students who are at it will be stranded and have to look elsewhere and that situation arises.
JUDGE PELLING: I think I am right in saying that the usual provision for a tier 4 student is that they are given, from memory, three months to find an equivalent –
MR MCDONALD: 60 days.
JUDGE PELLING: Well it might be, I thought it was three months, but it doesn’t matter which, they are given an opportunity to find alternative education providers.
MR MCDONALD: Oh yes but not all of them do. Those are my submissions.
JUDGE PELLING: Yes, thank you very much. I refer to the judgment I gave at some length just a few moments ago. Mr McDonald submits that there is an issue which I have not dealt with but which is linked with the issue I have disposed of concerning what is said to be an issue of fairness. Reference is made though not in the written submissions I think to the principle concerning common law fairness which have been outlined in a number of cases including the celebrated judgment of Lord Mustill in the case of Dooley. The general principle to be taken from cases like that is that common law fairness is an issue that is fact sensitive to the particular circumstances of the case. The submission which is made on behalf of the claimant is that fairness in this case at common law required that there should be a round table meeting between the regulators of the college and the college officials and managers for the purpose of thrashing out the issues with which I am concerned. I make it clear immediately that I reject that submission as wholly unfounded. The chronological summary contained in my judgment sets out at great length the numerous opportunities that were extended to the claimants to outline the case concerning the validity of the qualifications that were offered and it is necessary to go no further really for these present purposes than the 30 October and following for, as will be apparent from what I have set out in my earlier judgment, in the course of that period numerous witness statements were filed by witnesses on behalf of the college which focussed very heavily on the validity of qualifications issue. The issue that had to be addressed was obvious at that stage, as is apparent from the text of the witness statements which I have extracted and put in the judgment at some length. There were any number of opportunities at which the claimants could have identified what their case was in relation to the issues concerned. As I said in my previous judgment, all the relevant evidence concerning the issue is in the possession of the claimants or should be and the issue that has to be established could be established with relative ease by the claimants. They have steadfastly not done that but have focussed on other matters and in my judgment it is not open to them at this stage to complain that the common law rules of fairness require that additional opportunities were given to deal with the issue when already they had been given numerous opportunities to make further representations including, notably, in early October of this year which resulted in the statement of Mr Saeed and the letter of submission of that date.
There have been more than enough opportunities to deal with the issues with which I am concerned. Common law fairness does not provide any further opportunities be extended and therefore the claimant must fail in relation to this issue as he failed concerning the mistake of fact issue.
JUDGE PELLING: Yes?
MR DUNLOP: I again ask that the claim be dismissed and we be given our costs
JUDGE PELLING: Yes, do you accept that that is the outcome?
MR MCDONALD: That has to be the outcome.
JUDGE PELLING: Very good yes then that must be the case. Costs to be assessed on standard basis, detailed assessment, or do you want me to do a summary assessment?
MR DUNLOP: No, no.
JUDGE PELLING: Very good.
MR DUNLOP: The other thing I will just say in open court is we consider that we are now entitled to revoke the licence. There was a consent order but my learned friend has accepted (inaudible) that that would not patch the situation.
JUDGE PELLING: Yes very good. Thank you very much. Right any other business? Very good. Thank you very much.