This is a “rolled-up” hearing of the Claimant’s application for permission for judicial review against decisions made by the Defendant to suspend and then revoke its Tier 2 and Tier 4 sponsor licences, with the substantive hearing to follow if permission is granted. The most recent decision under challenge was taken on 10 February 2015, although the Defendant has considered further evidence submitted by the Claimant under cover of a letter dated 27 March 2015 and responded to it in a letter dated 9 April which, in essence, maintains her position.

The Claimant (“Cranford”) is a company which trades as a college of higher education based on a large campus in Hounslow. It offers courses in Business, Management, Health and Social Care, IT and English accredited by, among others, Edexcel, ATHE and Pearson. Cranford was granted a Tier 4 sponsor licence on 8 August 2011 and a Tier 2 sponsor licence on 22 November 2013. On 30 April 2013 it was granted Highly Trusted Sponsor (“HTS”) status. Cranford was entitled to grant would-be students Confirmations of Acceptance for Studies (“CAS”). A Tier 4 sponsor has the responsibility to check that the student has complied with, and will continue to comply with, the requirements of the college and the immigration rules.

In June 2013 the Quality Assurance Agency for Higher Education (“QAA”) reviewed Cranford and said that there could be confidence in how it managed its stated responsibilities for the standards of the programmes it offered on behalf of Pearson, the Institute of Administrative Management and ATHE, the Management Awarding Organisation. There was also confidence in how it managed its stated responsibilities for the quality and enhancement of the learning opportunities it offers on behalf of these awarding institutions. A monitoring visit in June 2014 led to QAA confirming that the college had made “acceptable progress” with implementing an action plan from the June 2013 review. However, this case is not about the quality of the teaching or the standard of the courses provided by Cranford.

At the time the claim for judicial review was issued on 18 July 2014, the college had 236 enrolled full time students (most of them non-EEA foreign nationals) and 16 employees. The Chief Executive Officer is a Mr Ejaz Ashraf Chowdary, who has made three witness statements in support of the claim.

On 24 March 2014, the Defendant’s officers visited the college. In consequence of what was discovered in the course of that visit, the Defendant (“the SSHD”) informed Cranford in a letter dated 2 May 2014 that she had suspended its licence and was considering revoking it on the grounds set out in the letter. A further unannounced visit to the college took place on 19 May 2014. On that occasion, no students were found to be present. Cranford said that this was because all its students were on vacation from 18 April to 27 May.

In a letter dated 29 May 2014 Cranford made representations to the SSHD as to why its sponsor licence should not be revoked. The SSHD considered those representations, but her concerns were insufficiently allayed, and by letter dated 24 June 2014 she decided to revoke Cranford’s Tier 2 and Tier 4 sponsor licences.

These proceedings for judicial review were commenced on 18 July 2014 and Cranford sought urgent interim relief. In the light of the obvious concern that withdrawal of Cranford’s licence midway through the academic year would have an unfairly negative impact on the students enrolled on its courses, Mostyn J made an order on 29 July treating Cranford as if its licence had been suspended rather than revoked, and gave directions for a rolled-up permission hearing.

The SSHD raised additional concerns in a letter to Cranford dated 17 September 2014. This led to the consensual vacation of the date originally set for the hearing, and to Cranford filing and serving Amended Grounds of Claim on 22 December 2014, together with a second witness statement from Mr Chowdary and three lever arch files of supporting documents. It was the SSHD’s consideration of this additional material that led to the decision of 10 February 2015 which understandably became the focus of Counsel’s submissions before me. That material has since been updated by Cranford.

Cranford initially complained that the SSHD kept unfairly “changing the goal posts” and that she was not entitled to reconsider the revocation of the licence or make further decisions. However Mr Biggs, who represented Cranford, wisely took a pragmatic approach at the hearing and did not press the complaint. It seems to me that even if the status of a sponsor college’s licence has reverted to suspension in consequence of an interim order of this court, that does not prevent the SSHD from continuing to monitor its performance of its duties or from raising enquiries with it as and when further information comes to light. Indeed a failure to reconsider the situation in the light of fresh information provided by the college concerned could give rise to a justifiable complaint of unfairness. In any event, a similar objection to a series of decisions on revocation was rejected by the Court of Appeal in R(New London College) v SSHD [2012] EWCA Civ 51 at [71] and by McGowan J in R (London St Andrews College) v SSHD [2014] EWHC 4328 at [33] and [34].

The reconsideration gave rise to the concerns which became the SSHD’s primary justification for maintaining the decision to revoke the licence in the present case. The SSHD relied on three main grounds:

The failure by Cranford to properly vet applicants before issuing CAS’s or to monitor and report those who were not attending and pursuing their courses satisfactorily;

The provision of information and explanations to the SSHD that were inconsistent and which suggested ignorance, incompetence and/or dishonesty on the part of Cranford;

The failure by Cranford to register students with the relevant awarding bodies, with the result that the students were unable to obtain their qualifications despite payment of fees, attending the courses and completing their assignments.

Since the last of these grounds only emerged in the course of the litigation in consequence of evidence recently provided by Cranford in order to seek to rebut the first (and primary) ground of revocation, it was raised for the first time in the SSHD’s letter of 9 April 2015. Mr Dunlop took the position that this was a mandatory ground of revocation under the Defendant’s policy; Mr Biggs disputed this. Counsel agreed that if I concluded that the ground was not mandatory, it would be premature for the SSHD to rely upon it for the purposes of this claim; however, if the claim for judicial review failed on either of the other grounds, the point would become academic.

I was addressed by both Counsel on the basis of the Defendant’s policy guidance in force at the time when the June 2014 and February 2015 decisions were made, and taken to the version as at March 2015 (“the Guidance”). That guidance ceased to be in force with effect from 6 April 2015, but the changes are of marginal relevance to the issues I have to decide. Paragraph 135 of the Guidance stated:

The legislative framework is comprehensively set out by Stephen Richards LJ in R (New London College) Ltd v SSHD [2012] EWCA Civ 51 at [4]-[20]. As has been said in other cases of this nature, the Tier 4 system can only function because the SSHD reposes a high degree of trust in the educational establishment concerned to fulfil its responsibility to implement and police immigration policy in respect of the students to whom it issues a CAS. There is far too much scope for abuse for it to be otherwise. Therefore the SSHD is entitled to expect a very high degree of vigilance on the part of the college. As Silber J put it in R(Westech College) v SSHD [2011] EWHC 1484 (Admin) at [14]: “In essence, the Secretary of State and UKBA entrust to sponsors such as the claimant the vital function of monitoring compliance of its students with immigration law.”

Mr Biggs submitted that although reasonable suspicion by the SSHD that a college might be in breach of its sponsor duties was enough to justify its suspension, the revocation of a licence required a reasonable (in the Wednesbury sense) belief that the college was in breach of its sponsor duties. On behalf of the SSHD, Mr Dunlop submitted that because of the high level of trust necessarily reposed in the sponsor, a reasonable suspicion that it was in breach of its duties leading to a breakdown in trust was sufficient to justify the revocation of its licence. However, the debate about the threshold test for revocation was academic because if, as in the present case, the college failed to provide sufficient evidence to allay a reasonable suspicion, it would necessarily crystallise into a reasonable belief. He further submitted that it sufficed to show that the SSHD had a reasonable belief that the college posed a risk to immigration control, even if it was compliant with all its sponsor duties.

I agree with Mr Dunlop: the matter was put clearly by Silber J in the Westech College case (above) in the passage at [16]-[19]. That case is authority for the SSHD’s entitlement to revoke a college’s licence and HTS status if there are reasonable grounds for suspecting that a breach of immigration control might occur, or if there is a risk that the college might not be complying with its duties, provided that the SSHD (or the relevant agency) comply with their public law duties. In such cases the court, being a court of review, must apply the appropriate deference to the expertise and experience of the UK Border Agency (“UKBA”) in being able to detect the possibility of a risk of non-compliance. Silber J expressly approved the approach of Mr Neil Garnham QC in the earlier case of R (London Reading College) v SSHD [2010] EWHC 2561 (Admin) when he said that the SSHD and the UKBA were “entitled to maintain a fairly high index of suspicion as they go about overseeing colleges and a light trigger in deciding when and with what level of firmness they should act.”

Students from overseas who seek permission to come to the UK to study at degree level must establish a certain level of understanding of and proficiency in the English language. One of the ways in which this may be demonstrated is by passing the Test of English for International Communication (“TOEIC”). One approved provider of the TOEIC is a highly reputable establishment named Educational Testing Service (“ETS”), which administers the TOEIC through a network of local providers. In R(360 GSP College Ltd) v SSHD [2015] EWHC 526 (Admin) Elisabeth Laing J set out at [3]-[14] an excellent summary of the background to the discovery of widespread cheating by students in TOEIC tests at certain ETS approved test centres, and the ensuing investigation. This led to ETS declaring TOEIC certificates invalid where ETS believed they had sufficient evidence of fraud, and declaring others “questionable” where ETS believed the certificates may have been fraudulently obtained, but did not have the definitive evidence to declare them invalid.

In this case, the main ground for revocation of the sponsor licences was the issue by Cranford of large numbers of CAS’s to students who had apparently cheated in their TOEIC tests (and to others whose results were questionable) which called into question whether the college had adequately assessed the suitability of those students to follow their chosen course of study before assigning them CAS’s. Over half the students enrolled at the college (138 out of 236) fell into one or other of these categories.

There is now a substantial body of cases dealing with the revocation of licenses of educational establishments in such circumstances, the most similar to the present case being the two recent decisions of McGowan J. in R (London St Andrews College) v SSHD (above) and R(City of London Academy) v SSHD [2015] EWHC 749 (Admin) and the decision of Elisabeth Laing J in R(360 GSP College Ltd) v SSHD (above). So far, no claim for judicial review of the relevant decision has been successful.

Of course each case is highly fact-specific. However, the following general principles can be distilled from them:

If a Tier 4 sponsor has assigned CAS’s to a significant number of students with “invalid” ETS TOEIC results, and then failed to report them as having inadequate English, that gives grounds for reasonable suspicion that the sponsor was failing in its duties to:

Adequately assess the ability and intention of the students to study on the chosen course before assigning CAS’s to them and

Monitor, and report bogus students to the UKBA.

The onus is on the sponsor to allay that suspicion, for example by providing examples of coursework demonstrating that the students did in fact speak/understand English to the appropriate standard;

If the SSHD takes a Wednesbury reasonable view that the evidence is insufficient to allay that suspicion, she is entitled to revoke the Tier 4 licence.

The matters of concern which led to the initial suspension of Cranford’s licences following the visit on 24 March 2014 included the unexplained absence of over half the 127 students scheduled to attend classes on that day. In one class, Level 7 Healthcare, there were only three students (although it appeared that 10 students from that class were in the IT room), and in another class there was only one student present. When the tutor in that room, Mr Shah Alam, was asked the reason for such absence he said he had “no idea where students are”. According to the handwritten notes of the compliance officers, two students then walked in to that class over an hour late.

The initial explanation given by Cranford in its letter of 29 May 2014 was that the students were required to attend a tutor led assignment preparation workshop/tutorial which comprised a “one to one” session with the tutor which was designed to help the students to prepare for their assignment. There was no course teaching scheduled on that day. All of the missing students were said to have had an overall attendance rate of over 80%. However, the “one to one” explanation did not tally with the presence of more than one student in other classes, and (perhaps in recognition of that impediment to credibility) it was not persisted in for very long.

In the original Grounds of Claim it was no longer suggested that the classes were “one to one” sessions preparatory to commencement of the assignments. Instead it was asserted that Mr Shah Alam had told one of the compliance officers that “as the course syllabus is complete and the students are in the process of doing the course work as the submission date for assignments is approaching … as per the scheme of work the day was tutor led workshop on the assignments and could be a reason for the low attendance.” Since that version of Mr Alam’s explanation for the non-attendance of students in his class conflicted with the notes made by the compliance officers and their report of what he told them, the SSHD asked to see a witness statement from Mr Alam confirming this, and identifying the person he spoke to, but no witness statement was forthcoming. Cranford’s Amended Grounds of Claim contained a footnote explaining that the quotation was “taken from Mr Shah Alam’s statement made in his debriefing to the college” (on an unspecified occasion). No supporting documents were ever produced. Mr Alam has apparently left the college permanently, and I was told by Mr Biggs that he is now overseas and there are no means of contacting him.

The case put forward by Cranford in the original Grounds of Claim was that the compulsory classes required by the awarding bodies had ended and these were simply revision classes (not “assignment preparation”). Mr Chowdary said in paragraph 37 of his first witness statement that these classes were not optional because they were not regarded by the college as such, and that Cranford was “very keen that students should attend them”. Yet he added that they were classes at the end of a course of study which in his experience students at all types of institution tend to treat less seriously than classes where primary material is taught. The implication was that Cranford, or at least Mr Chowdary, was not particularly concerned about the failure of students to attend classes which, on his evidence, the college regarded as compulsory and which the students had no reason to assume were optional. That displays a remarkably cavalier attitude towards attendance.

In the SSHD’s letter of 10 February 2015 it was pointed out that according to the timetable on the College website, the teaching end date for the first semester was given as the week of 14 April 2014 and the final date for assignments was 1 May. Cranford was asked how that could be reconciled with the latest evidence from Mr Chowdary that the course syllabus was complete by the date of the visit, 24 March, and the students were already working on their assignments by that date. Those questions have never been answered, even in Mr Chowdary’s 3^rd witness statement.

After the initial suspension, it came to light that Cranford had assigned 101 CAS’s that were declared invalid by ETS and 37 that were declared “questionable”. There is a possibility that the latter group have been tainted by association in the sense that they took their tests at centres where there was evidence that cheating was rife. The names of all 138 students were supplied to Cranford under cover of the Defendant’s letter of 17 September 2014. For present purposes, it suffices to concentrate upon the 101 students who were established to have cheated in their TOEIC. According to Cranford some of these did not rely on a TOEIC when the CAS was assigned, but it would appear that they were a small minority. Even making allowances for them and for “false positives” in the ETS tests, the group is still a large one.

Cranford relies upon a body of documentation that Mr Chowdary now says establishes that the majority of these students successfully completed their courses and were awarded the qualifications for which they were studying. According to Mr Chowdary’s latest evidence, following the grant of interim relief the college adopted an expedited procedure and increased per week attendance hours for all of its existing students so that they completed their course tuition before 9 December 2014. Since completion of their courses, he says that the majority of the students have been awarded their chosen qualification by the respective awarding body. This evidence modifies Mr Chowdary’s evidence in his second witness statement, served prior to the decision in February 2015, that all the students had been awarded their chosen qualification - even though the documents and table he then used to support that assertion strongly indicated the contrary, and on the face of it, the courses for some students would not then have been completed.

However, the award of qualifications did not involve the students passing any examination or having their coursework marked by an external assessor. On the evidence, it appears that in order to attain the qualifications for which they were enrolled, the students had to attend classes and satisfactorily complete a certain number of modules of coursework (though apparently not necessarily all the modules that they undertook – one student was certified as having attained the qualification despite apparently failing to complete three modules). Their attendance and satisfactory completion of the coursework was assessed and certified by Cranford itself.

The awarding bodies only look at samples of student coursework before verifying the award by Cranford of particular qualifications. It was not entirely clear how, and by whom, the samples were selected, but there was certainly a strong possibility that Cranford itself rather than the external assessor chose what samples to put forward.

Moreover, it emerged during the latest round of evidence that the only reason why certain students who completed their courses well before December 2014 have not yet been awarded their qualifications is that there is what is described in the table annexed to Mr Chowdary’s 3^rd witness statement as an “awarding body registration issue”. Mr Biggs explained that this meant that for whatever reason (possibly a failure to pay fees) Cranford had failed to register the student concerned with the relevant awarding body. It was accepted that registration was Cranford’s responsibility and not, as in the case of some awarding bodies, the responsibility of the students themselves.

Although Mr Biggs told the court on instructions that it is possible to register a student at any time prior to completion of the course, even late in the day, it appears that failure to register the student before completion means that he or she cannot obtain the relevant qualification. Thus these unfortunate students will have attended classes and done the work with no prospect of getting a qualification at the end of the course, however diligent they were.

Mr Biggs submitted that the evidence produced by Cranford negates the adverse inference to be drawn from the TOEIC cheating, because the high percentage of students who did obtain qualifications could not have obtained them without demonstrating a sufficient knowledge of English.

Mr Dunlop produced a very helpful table distilling the results of the information provided by Cranford on the 101 TOEIC cheats up to the date of the hearing before me (and eliminating some duplicate entries in Mr Chowdhary’s table that were very properly drawn to the court’s attention by Mr Biggs). 12 students out of the 101 had their sponsorship withdrawn, either because leave to remain was refused, or because there were 10 consecutive absences from classes. In one further case, the student moved to another sponsor and changed his immigration status. Only 12 of the remaining students seemingly failed to obtain their qualification on completion of the course; however in each of those cases, that was because of lack of registration by Cranford, not because they failed the course. Two more were said to have completed their courses and obtained qualifications, but no evidence was produced in support of that assertion.

Cranford adduced no evidence to show that any of the “successful” students in the group had been chosen for sampling and that his or her coursework was vetted by an external examiner. There was some documentary evidence that Pearson carried out an independent sampling exercise on 19 May 2014 and concluded that “the internal verification process is compliant with awarding organisation and regulatory requirements”. However it is clear from reading the document in full that the verification in question is of the assignment briefs, rather than of the coursework produced by the students. The briefs were described as “clear” and “closely related to the assessment criteria, with tasks at the appropriate level and appropriate scenarios and case studies”. Pearson’s focus, rather like QAA’s, is on the teaching tools and materials. The internal verification of “completed learner work” described in the Pearson document appears to consist of sampling completed learner work “at least once a year” – which is somewhat disconcerting if the college is supposed to be assessing whether the student is making sufficient progress in the chosen area of study. Moreover the four students whose work was considered by Pearson are not among the group of 101 TOEIC cheats.

The evidence adduced by Cranford to rebut the inference that it either failed to properly vet the students to whom it issued CAS’s, or that it failed to properly monitor them during the course of their studies and to report any whose English was so poor as to be unintelligible included samples of coursework from some (but by no means all) of the group of students who had cheated in their TOEIC. No student from Cranford was reported to the UKBA for poor English. Although, as Mr Biggs submitted, even a college which takes rigorous steps to accept bona fide students can still find a small number of people slipping through the net at the acceptance stage, one would expect students who did not have the requisite understanding of English to be easily identified by any college which was serious about its duties and which actually considered and marked the coursework that the students were producing.

The coursework that was produced and relied on by Cranford as demonstrating that it was complying with its obligations in fact demonstrated the precise opposite – or at least raised sufficient grounds for concern to enable this court to say that the decision to revoke the licence cannot be impugned on public law grounds. Mr Dunlop referred me to various examples taken from coursework exhibited in the three volumes of evidence relied on by Cranford. I have read through all the samples of coursework exhibited in those volumes, and I am satisfied that the selection made by Mr Dunlop was not unfair or unrepresentative, though in some cases the English is not so mangled that the basic drift of the argument is obscured. Others, however, are truly dreadful; it is well-nigh impossible to understand phrases such as “assuming that organizations hold a decently arranged and easily changeable constitution, then it might be of incredible pith for them to thrive in various zones” or “the implication of effective enterprise flair is for the being for the clarification. This is probably for why that these expert charms bring about organization of shops.”

One of the worst examples is taken from coursework for a Level 5 Diploma in Management (QCF) where the student was assessed as having achieved 60 credits and passed the course, subject to verification from the awarding body:

It has to be borne in mind that these are courses that are at degree level. Cranford’s reliance on the QAA assessments is misplaced. There is no evidence that QAA had any knowledge of such examples of poor English. In any event QAA is primarily concerned with the quality of the teaching and the course materials, not with the work produced by the students.

Mr Biggs submitted that whilst these exemplars might show laziness on the part of a student who has been overly reliant on “Google Translate” they are insufficient, without further inquiry, for the Defendant to discount what he described as the objective evidence. He pointed out that there was no context given to the coursework in question, and that the examples quoted above might have been in a piece of work that failed an assessment. If that were so, I cannot see why Mr Chowdary would wish to put that coursework in evidence as signifying Cranford’s compliance with its duties – at least without also including evidence to show that the student concerned had failed the assignment, and of concerns about his or her standard of English being reported to the UKBA. There is no evidence of Cranford reporting any such concerns about students producing this type of shoddy coursework to the UKBA. Indeed in all the evidence produced by Cranford there was only one example given of a student failing an assignment – and that was someone in the “questionable” group, not the 101 TOEIC cheats.

Cranford has had ample opportunity to answer the SSHD’s concerns. However Mr Chowdary’s only answer to the complaint made about the standard of English displayed in the coursework provided as examples is that “I unequivocally reject the same to be simply opinionated and without substance. Indeed the college is best placed and independently approved (and subject of rigorous reviews) to assess students against the course curriculum”. That is not a good enough answer.

In my judgment the SSHD was plainly entitled not to accept the assertions of Mr Chowdary, unsupported by objective evidence, that the relevant students had “successfully completed” their courses and spoke adequate English, especially in the light of the background of non-attendance discovered by the compliance officers and the inconsistent explanations give for non-attendance or low attendance on those occasions. The evidence that was subsequently produced by Cranford, rather than allaying the SSHD’s legitimate concerns, understandably did the opposite.

I accept Mr Dunlop’s submission that the evidence suggests that Cranford was not interested or concerned in whether the foreign students enrolled on their courses could speak English or write an assignment on their supposed subject. It is no answer that the author of the poor coursework managed to obtain an academic certificate from an awarding body, because the coursework was marked by Cranford itself, and not by an independent examiner.

I am in complete agreement with McGowan J when she observed in the City of London Academy case, (in the context of 116 fraudulently obtained TOEIC certificates) at [30] that:

Faced with English of that abysmal standard in the coursework produced by students who had already been established to have cheated in their English language tests in order to obtain leave to enter the UK to study, it was plainly open to the SSHD to form the view that Cranford was not complying with its duties or at the very least was not taking its duties sufficiently seriously to be entrusted with HTS status any longer, and to revoke its licence.

Given that there is ample justification for the decision under challenge on that ground alone, it is unnecessary for me to dwell on the other two main grounds relied upon by Mr Dunlop. Suffice it to say that I take the view that the SSHD was entitled to be concerned about the various and inconsistent explanations being given for the absence of students from the college on 24 March, even if one of those various and contradictory explanations was truthful and the inconsistency was the result of a muddle rather than dishonesty. As the letter of 10 February 2015 stated, “as a sponsor at a basic level we expect you to know where your students are”. The SSHD’s belief, expressed in that letter, that the students may not be complying with their visa conditions (to undertake full time study) and that Cranford’s attendance monitoring was particularly lax, cannot be described as irrational.

The failure to register students with the accrediting body, which meant that they were unable to obtain the qualification for which they had studied even though they completed the course, was undoubtedly very serious, as was the fact that Cranford did not reveal that this had been going on until they were forced to explain why certain students out of the 101 had not received a qualification despite completing their courses, in some cases as long ago as 2013. Mr Dunlop submitted that this behaviour fell within the mandatory grounds for revocation of the Tier 4 licence in the Guidance under the following rubric:

I am not persuaded that that phrase is apposite to cover a failure to register a student on the course. It is plainly aimed at a situation where the course on which the student is enrolled does not lead to an approved qualification, not a situation in which the course would have led to an approved qualification if the college had registered the student with the awarding body. However, the failure to register students, if there is no legitimate excuse for it, would undoubtedly fall within the ambit of the discretionary power of revocation where the SSHD is not satisfied “that you are using the processes or procedures necessary to fully comply with your sponsor duties.”

The SSHD did not purport to exercise her discretionary power in this regard, but as her decision to revoke the licences was plainly justified and unimpeachable on public law grounds it is unnecessary for the purposes of this application to dwell on that issue further. There was already more than sufficient evidence to justify the conclusion that Cranford had not complied with the standards expected of its status as a HTS.

The essential question for the court to determine is whether the SSHD was irrational to consider that Cranford was unworthy of the high degree of trust reposed in it as a sponsor. The answer is plainly no. Despite Mr Biggs’ valiant efforts in the teeth of overwhelming obstacles, the application for permission to bring judicial review is therefore refused.