School of Business & Commerce Ltd, R (on the application of) v Secretary of State for the Home Department

The Claimant’s application for Judicial Review came before me following the grant of permission to apply by Stadlen J.

The Claimant is a Limited Company trading as a private educational institution. It was established in 2008 with the capacity to enrol 580 students. By 2012 it had just under 60 students on its nominal roll.

The Claimant offers academic courses in business management, hotel management, hospitality and tourism management. The courses range in length from 3 months to 1 year. They lead to recognised qualifications.

The Claimant has been accredited by several umbrella bodies, for example the Confederation of Tourism and Hospitality.

On the 30 June 2009 the Claimant applied for a sponsor licence under Tier 4 of the then new immigration Points Based System (PBS).

After a visit by appropriate UK Border Agency [UKBA] staff to the Claimant’s premises to see the systems and procedures that had been put in place, on the 2 September 2009 the Defendant issued the College with a sponsor licence under Tier 4.

The Claimant was granted a “B” rating. They sought the better “A” rating and the court was told that they worked and took administrative steps to achieve that A rating and status.

To that extent they were successful. On the 1 June 2010 UKBA on the Defendant’s behalf granted the Claimant an “A” rating.

This did not last long. On 8 October 2010 the Defendant suspended the sponsor licence entirely. The grounds of suspension relied upon by the Defendant were that, following a visit to the Claimant’s College on 8 July 2010, along with an analysis of student information provided on the 23 June 2010, there were areas of concern relating to the following:

First, the Claimant pursued a challenge to the lawfulness of the Tier 4 PBS scheme itself. This has been the subject of Judicial Review applications in other cases. The most recent of note was litigated in the Court of Appeal in R on the application of New London College v SSHD [2012] Imm AR 563. The Court of Appeal dismissed the appeal, but the issues are of importance and permission to appeal has been granted by the Supreme Court. That permission was granted on the 17 October 2012.

The current state of the law binding on this Court is founded on the judgement of the Court of Appeal in Pankina [2011] QB 376.

Secondly, the Claimant refuted the assertion made by the Defendant that there has been systemic failure on the part of the Claimant to declare students to the UK Border Agency.

Thirdly, when using the Defendant’s Policy Guidance of October 2010, the Claimant asserted that non-attendance was within the limits acceptable to the Defendant. Nonattendance should not have been relied upon as a ground for revocation of the licence.

Fourthly, the Defendant had taken an unreasonable approach to the term “enrolment”. Enrolment does not mean that the course has to have actually begun, which is what the Defendant contended for. The Defendant had confused enrolment with attendance at courses.

Fifthly, the Defendant had acted unlawfully in her approach to the case of the Pakistan national referred to in paragraph 2(ii) above, a student named David Wilson. The Claimant’s position was that the student had made an application to extend his leave (including a letter from the UKBA of 7 May 2009 confirming that a valid application had been made). Therefore, based on that student having made a valid application for leave to remain, it was argued that there was no legitimate basis upon which it could be said that the College was required in law to have done more in respect of this student.

Sixthly, although the Claimant’s college had operated without planning consent, the grant of planning permission was in the process of being obtained on appeal at the time of the Defendant’s revocation decision. The College currently has planning consent on an appropriate ‘D1’ planning use basis.

Thus, argued the Claimant, the Defendant’s suspension and, thereafter the revocation of the Claimant’s Tier 4 sponsor licence, was unlawful. It was based on an inaccurate appraisal of the relevant facts by the Defendant. The Defendant took into account irrelevant matters and failed to take relevant matters into account.

First, the Defendant argued that the absence of planning consent was determinative of the whole case. Running any college from premises without the requisite permission was unlawful, and sufficiently serious to justify revocation.

Secondly, the non-attendance rate by students was above the level of 11 percent acceptable to the Defendant for an A rated sponsor.

Thirdly, David Wilson had no leave to remain in the UK. That he was allowed to study at the college was a serious breach of immigration control.

Counsel for the Claimant was commendably brief in his arguments before the Court. In the first instance, he applied for an adjournment pending the decision of the Supreme Court in R on the application of New London College v SSHD. Given the possibility that the Supreme Court may find that Pankina is no longer good authority, it was suggested that it would make sense to await the Supreme Court’s ruling.

I was referred to the Supreme Court decision in R (Alvi) v SSHD (Joint Council for the Welfare of Immigrants intervening) [2012] UKSC 33, [2012] 1 WLR 2208. From paragraph [43] Lord Hope of Craighead analysed the Pankina line of cases. At [52] His Lordship noted the issue in New London College, as being whether the removal of a Tier 4 General (Student) Sponsor Licence issued by UKBA lacked the necessary legislative authority because the system under which the decision was taken was contained in policy guidance, not in the Immigration Rules. The particular issue was whether a substantive criterion laid down in the rules could be qualified by changeable policy guidance.

At [53] Lord Hope specifically stated that he would make no comment as to whether decisions not before the Court were rightly decided. He noted that New London College was pending [a permission hearing at that stage], and that further consideration might be needed for the thorny question described in the last sentence of paragraph 22 of this judgment.

I remind myself that in R (Joint Council for the Welfare of Immigrants) v SSHD [2010] EWHC 3524 (Admin) Sullivan J stated [38] that the court was bound by Pankina, which he said he would have followed in any event. I take a similar view, to the extent that the law currently seems to me to be sufficiently settled and clear for this case to be determined without an adjournment.

Therefore I refuse the application for an adjournment.

The remainder of Mr Mahmood’s oral argument was extremely brief. He submitted that the whole basis of the intervention of UKBA had been wrong, contrary to the interests of justice. He sought to distinguish the judgment of Silber J in R (Westech College) v SSHD [2011] EWHC 1484 (Admin), another case in which an educational establishment had functioned without planning consent for its activities. After considering the importance of planning consent at [45-47] and [59], the learned judge said [89]:

“.. this was a valid concern of the UKBA and although by the time when the revocation decision was taken, the Claimant had applied for retrospective permission [which] had not been granted and it could not be presumed that it would be successful. So the Claimant was using its premises unlawfully. As I have explained, this was a matter which UKBA was entitled to regard as a very serious matter.”

The basis of the distinction asserted by counsel was that in the present case UKBA had never raised the issue of planning consent, and therefore that it was unjust to use this as the basis for revocation of the licence. In addition, the Claimant by the time of the hearing was operating from premises with planning consent and therefore lawfully.

Mr Waite for the Defendant argued that the present case falls squarely within the rationale of the decision in Westech. He submitted that this issue was determinative of the whole case, and that no other issues required consideration.

Colleges like that provided by the Claimant meet important public policy criteria. They are an important part of the UK’s role in the wider world, bringing in foreign funds by providing skills and training to students from many countries. On completion of their studies, students in most cases return to their country of origin to deploy those skills, often in developing countries where they will prove of great value. Some remain in the UK as significant parts of the workforce here. The reputation of higher education facilities in the UK is strong. It is an implicit assumption that all prospective and actual students can make that they enter a lawfully run institution working from premises in which they are entitled to operate.

There may be some exceptional cases, for example where a minor error has been made about the nature of a planning consent, or where the local planning authority has made an erroneous decision. This is not an exceptional case: at the material time the Claimant was operating without planning consent and probably would have continued so to do. The judgment of Silber J in Westech is in point in this case, and I follow the same approach.

I therefore accept the argument for the Defendant that her decision on the planning issue was reasonably within her discretion, and is determinative of the case.

That said, for completeness I shall deal briefly with the additional issues raised in the written pleadings and skeleton arguments.

UKBA sought information from the Claimant concerning the attendance record of students at their college. Information was provided by the Claimant on a spreadsheet. That information indicated that of 81 potential students with visa letters, 44 had enrolled and 37 had not. 2 of the 44 had not attended and had been ‘expelled’.

However, UKBA established from their own enquiries that the information provided was incorrect. An additional 14 students had to be considered, all of whom had entered the UK with student visas for study with the Claimant. Further and correct analysis by UKBA demonstrated that not 44 but 54 enrolled students had to be considered.

The end result of the analysis was that the non-attendance rate was above 16 percent, almost 50 percent above an acceptable rate of non-attendance for such courses. In addition, there had been material non-disclosure by the Claimant. Without UKBA’s independent records, the Defendant would have had no idea of the actual attendance rate at the college.

In order to maintain trust and sound policy application, it is essential for colleges to provide the Defendant with full and accurate information when UKBA is assessing whether there has been compliance with sponsor duties. The Claimant did not do so, and the decision to revoke the sponsor licence was reasonable as a result of these failures. The decision on these grounds was certainly within the discretion of the Defendant, as described in detail by Silber J in Westech (cited above) in paragraphs [5] to [19]. In particular, at [19] the learned judge said:

“An entity which holds ... the power to grant visa letters and CASs has substantial duties to ensure that the rules relating to immigration control are adhered to strictly and properly. Indeed the importance of the role performed by sponsors means that if UKBA were concerned that a sponsor is not complying with those duties, it would entitle, if not oblige, UKBA to prevent that sponsor from either granting more CASs or revoking its licence.”

In my judgement the discretion of the Defendant was exercised properly and lawfully in revoking the sponsor licence on these grounds.

In relation to the Pakistan national David Wilson, the evidence in my judgement makes it clear that Mr Wilson was given a position at the college at a time when the Claimant knew that Mr Wilson’s leave to remain had expired (on the 4^th November 2008). Despite the assertion by the Claimant that Mr Wilson had made an in-time application for an extension of his leave, the evidence on the balance of probabilities shows no such in-time application. That said, this issue was not explored at all in oral argument, and I do not regard it as determinative of the case.

For the reasons set out above, this application for Judicial Review is refused.