London College of Business Ltd v The Secretary of State for the Home Department

This is a claim for damages for alleged harm caused by five separate acts or omissions of the defendant administering the Tier 4 licensing scheme in relation to the claimant. The claimant claims that the defendant’s conduct amounted to a breach of the claimant’s rights under Article 1 of Protocol 1 (“A1P1”) of the European Convention on Human Rights (“ECHR”).

Mr Paul Simms, director of legal affairs of the claimant, sought the permission of the court to represent the claimant at the trial pursuant to CPR 39.6. Mr Simms provided details in accordance with paragraph 5.2 of the PD39A including his familiarity with the subject matter of these proceedings. Permission was granted there being no particular and sufficient reason why it should be withheld.

The part of the Home Office responsible for monitoring and regulating the Tier 4 licensing scheme was the UK Border Agency (“UKBA”) which changed its name in 2013 to the UK Visas and Immigration (“UKVI”). References in this judgment to UKBA and UKVI should therefore be deemed to be references to the defendant.

The claimant is a college in the business of providing higher education courses, predominantly to non-EEA nationals and to do so requires a Tier 4 sponsorship licence. The claimant provided courses which were validated by the University of Wales. These courses led to awards granted by the University of Wales and included both BA Honours and MBA degrees. The claimant entered into a validation agreement with the University of Wales for this purpose. The college also offered a range of diploma courses awarded by Edexcel.

The defendant is responsible for the administration of the Tier 4 licensing system including issuing, suspending and revoking licences.

The claim was originally bought as a claim for judicial review on 17 September 2015 by which the claimant sought judicial review of the Secretary of State’s failure to undertake its review of revocation of the licence following the refusal of permission in its previous claim on 23 June 2015 on the basis it would be reconsidered.

On 6 January 2016 the claimant was granted permission to amend the grounds of judicial review to assert that it sustained continuing detriment and financial loss including a breach of property right under A1P1 of the ECHR.

By a consent order dated 25 May 2016 the parties agreed that the claim was limited to the damages claim and agreed a transfer to the Queen’s Bench Division. The claimant’s Grounds for Judicial Review stands as its particulars of claim.

On 21 November 2016 Master Yoxall ordered that a preliminary issue should be tried on liability.

The claimant challenges as unlawful the decision to suspend its licence on three occasions: 29 March 2012 (the “2012 Suspension”), 2 August 2013 (the “2013 Suspension”) and 22 December 2014 (the “2014 Suspension”). The claimant also challenges the decision to revoke the claimant’s licence on 19 March 2015 (“the Revocation Decision”) and the failure of the defendant to conclude a review of the revocation decision as soon as practically possible after 23 June 2016 (the “Failure to review”).

The defendant has accepted that the Revocation Decision was unlawful on public law grounds.

The claimant asserts that the defendant’s conduct is in breach of A1P1 of the ECHR which provides:

“every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

In R (New London College) v the Secretary of State for the Home Department [2012] EWCA Civ 51 the Court of Appeal held that a Tier 4 sponsor licence was not a possession for the purposes of A1P1 but that the “marketable goodwill” of a business is a “possession” for those purposes. Consequently, the revocation or suspension of a Tier 4 licence will only amount to an interference with A1P1 if it has an adverse effect on the marketable goodwill of the business.

Both parties have obtained expert reports. In the joint statement prepared by the experts dated 8 November 2017 the experts agree that the claimant had goodwill capable of being valued immediately prior to the first suspension in 2012 although the experts note they have a very different view on the level of the quantum. Both experts also agree that the appropriate date to value goodwill is immediately prior to the first suspension in 2012 and that any loss of goodwill cannot be valued at the remaining dates because of the impact of the first suspension on the business.

I deal below with the detailed evidence in relation to each of the suspensions under challenge but in outline the chronology was as follows:

For the claimant I heard evidence from Dr Basha, director of the claimant and the sole shareholder.

For the defendant I heard evidence from Mr Pamnani, an assistant Director with responsibility for Tier 4 Sponsorship Compliance. He only joined the sponsorship team in June 2015. His evidence in cross-examination was that in order to prepare his witness statement he had not liaised with the individuals who were named as the signatories for the decisions under challenge; he looked at the evidence of the contemporaneous documentation and the relevant guidance at the time. He accepted that it was therefore his “surmise” from reading the file. Whilst therefore Mr Pamnani did his best to assist the court and his evidence provides helpful background he can provide no direct evidence as to the reasons why decisions were taken at the relevant time.

The evidence of Rebecca Collings, Peter Millington and Adam Sewell was admitted as hearsay. The evidence related to the ETS test results but the detailed evidence of these individuals was not referred to in submissions for either party or in the course of cross-examination of the live witnesses. Accordingly I have not found it necessary to refer to such evidence in this judgment. The evidence of Professor French was not admitted as, in my view, it was not relevant to the issues before the court.

As is set out in the defendant’s Guidance, Tier 4 of the Points Based System was the primary immigration route available to students who wanted to study full-time in the UK. They had to be sponsored by an education provider that had a sponsor licence. The sponsor was an education provider that offered courses of study within the UK and had a licence to sponsor migrants so they could take those courses. Sponsorship provided evidence that the migrant would study for an approved qualification and placed duties on the sponsor that it must abide by. According to the guidance in force at the material time, sponsorship was based on two principles: namely that those who benefited most directly from migration i.e. employers and education providers helped to prevent the system being abused and that those applying to come to the UK to study were eligible to do so and a reputable education provider genuinely wished to take them on.

The Guidance as in force from 5 September 2011 for sponsoring students under Tier 4 of the Points Based System provided that the right to suspend a licence arose in the following circumstances:

“we will immediately suspend your licence while we make further enquiries if we have reason to believe that you are breaching your sponsorship duties and/or are a threat to immigration control (for example, assigning CASs to students who do not enrol or fail to complete their course) to the extent that we may have to revoke your licence.” [Para 504]

The procedure for suspending a licence so far as material to the issues is set out in the guidance as follows:

“We start from one of two positions.

If we are satisfied that we have enough evidence to suspend your licence without the need for further investigation, we will write to you giving detailed reasons for suspending your licence.

If we have evidence that warrants your licence being suspended pending a full investigation, we will write to you giving our initial reasons for the suspension and informing you that an investigation will take place. It may not be possible at that point to say how long the investigation will take,…”[Para 514]

“When we write to you giving detailed reasons for suspending your licence, you will then have 28 calendar days from the date of that written notification, to respond to us in writing.…” [Para 515]

“When we receive a response from you, we will consider it…we will notify you of our decision within 28 calendar days of receiving your response.” [Para 517]

“If after an investigation, we decide not to revoke your licence we will lift the suspension and reinstate your entry on the register of sponsors on our website.” [Para 507]

The effect of a suspension was that:

“Students you are sponsoring at the time of the suspension will not be affected, unless they need to apply for an extension of stay and you have not already assigned a CAS to them. Students will be affected if we decide to revoke your licence.” [Para 508]

The duties of a sponsor as set out in the guidance included a duty to inform the defendant if

“students did not arrive for their course,

students were absent without permission for a significant period,

they left their course earlier than expected or

[the sponsor] asked them to leave the course.” [Para 24]

The background leading to the first suspension in March 2012, so far as material to the issues, was as follows: in 2010 the claimant obtained accreditation from the British Accreditation Council with capacity for 2250 students. In August 2010 accreditation was obtained for its Birmingham site and the defendant undertook a compliance visit. HTS status was approved in November 2010. In December 2010 the claimant’s CAS allocation was increased from 250 to 2250. However new measures were introduced which applied throughout the sector in March 2011 and as a result the increased CAS allocation became redundant and in April 2011 an interim limit of 134 CAS was set. In mid-January 2012 the claimant applied to renew its CAS allocation but its application was not processed before the deadline in February 2012 and the CAS limit was reduced to zero. The claimant sought an urgent allocation of 100 CAS until the renewal application had been considered. However the decision was delayed as “the claimant College had attracted wider Home Office interest” (paragraph 128 of Mr Pamnani’s witness statement).

On 9 February 2012 internal emails at the defendant show that a “Crimestoppers” report was received on 8 February 2012 alleging that the claimant was issuing fake degrees/diplomas. The internal email reads:

“this has come in today. We do not appear to have visited this college for around 18 months.… We do not have an awful lot of information on London College of Business so could you have a look for me. We need to task this out for a visit.”

There is a response to that email (in material part) as follows:

“18 IRs relate to London College of Business, the most recent from October 2011.

The majority refer to students working in breach but one dated 06/07/2011 records that the college is involved in illegal activities and facilitation.

However, one dated 30/09/2009 records that:

the college is a visa factory and staff who complain are forced to leave…

If you want me to do a profile as matter of urgency, please let me know.”

A Target Profile was produced which was dated 9 February 2012 [1/81]. Under the heading “Premises – what we know” the report stated:

“London College of Business Ltd (LCB) is allegedly providing false documents on a large scale to migrants wishing to travel to the UK who have no intention to study, using the Tier 4 route of the PBS.”

A member of staff, Shaik Basha… is recorded as being involved in people smuggling, facilitation and money-laundering and is alleged to sell false documents to migrants in order for them to obtain FLR.…”

Under the heading “Inference – what could be happening” the report stated:

“It is suspected that LCB is facilitating overseas nationals entry into the UK and further leave to remain to stay in the UK. They are using Tier 4 of the PBS to facilitate entry and are providing false enrolment and attendance documents to migrants who have no intention to study in the UK but who wish to seek full-time employment…”

The report sets out the information taken from intelligence. It is noted that four of the sources referred to are graded as unreliable and unable to be evaluated.

Under the section “Identified intelligence gaps”, the intelligence gap is stated to include the number of students who were actually enrolled with the college as well as the current capacity of the college. There is also reference to the relationship of the claimant with another college. The section concludes:

“further investigation into possible links may uncover further abuse of the PBS and identify the level of criminal organisation involved.”

The “Recommendations” at the conclusion of the report, are to conduct an unannounced visit to all three of the claimant’s campus addresses. During such visit the steps recommended to be taken include: interview directors and students present and establish the college’s capacity to accommodate students; select students to check against attendance registers; investigate how the college verifies student qualifications; take copies of all relevant documents which appear to indicate anomalies.

The final recommendation under “Post visit activity” is stated to be:

“review all information gathered from the above recommendations and recommend further action if necessary such as prosecution, suspension or revocation.”

A “Tasking referral form” was prepared for the visit to each of the claimant’s campuses. The Target Profile was attached to the referral form. There was also attached an email dated 3 March 2012 from an unidentified sender to the defendant which alleged a tax fraud on the part of the claimant. Specific students were identified to be checked. The visit officer was also tasked to check that all accreditation with course awarding bodies was current and up-to-date.

An unannounced visit took place on 26 March 2012 at each of the three campuses. A compliance report was produced by the officer conducting the visit. At Barking the representatives present for the claimant were recorded as Mr Venkoba and Mr Taylor. The report records in particular (so far as material to the issues):

“the sponsor stated that they have not reported any students issued with a CoS and refused a visa to the UK Border Agency via the Sponsor Management System (SMS). They stated that this is due to a change in management. Key contact Zenon Adamek left the organisation on 22/09/2011. The sponsor stated that he was the person responsible for updating the SMS. When he left they stated that no members were aware of the reporting procedures.…”

In relation to Birmingham, the report for Barking notes that the sponsor stated that the Birmingham campus does not hold lectures as there are currently only three students and the Oxford Circus campus closed in mid-2010 as there was not enough business generated in the area.

The recommendation was “suspend/revoke”.

The visit to the Oxford Street campus found that the campus was no longer operating. The officer was unable to gain access to the Birmingham site as the premises were closed and the administrator was away looking after her ill son.

On 27 March 2012, the day after the visit, it would appear from the evidence of an internal email from the Chief Executive’s Office at the UKBA, that Sky News told the defendant that they were going to release an undercover report into alleged activity at the claimant. Sky News told the defendant that they had evidence which showed that the claimant was issuing diplomas and English proficiency certificates to people who had not studied at the college so that they could get visas. In addition it alleged that people at the college had got hold of professionally written dissertations not written by students and submitted them to the University of Wales for marking. Finally it was alleged that staff at the college had offered to sponsor students who they knew had no intention of studying on the course.

The email said:

“Sky is looking for a statement to address the following:

1 what is the vetting system for the college?

2 why does this college have highly trusted status?

3…

4 having received a complaint at least five weeks ago, what steps have been taken in response to the complaint?

…

Can you confirm if the college is already under investigation? If so what is being done? Are you aware of a complaint being made?

If we cannot address the allegations directly, would you be content with the following:

Immigration Minister Damian Green said:

“We are determined to crack down on abuse of the student Visa system, which has gone on for far too long. This government has brought in radical changes across the board, which are beginning to bite.”

We take all allegations very seriously and be/are already investigating the London School of Business in Barking.”

The issues identified in the defendant’s letter of 29 March 2012 which are stated to have led to the suspension of the claimant’s sponsor licence with immediate effect were, in summary, as follows:

The issue in relation to a failure to report using the sponsor management system was stated as follows in the letter dated 29 March 2012 [1/165]:

“During our visit we provided you with a list of students and asked why they had not been reported to the UK Border Agency. You informed us that your Level I User Zenon Adamek left in September 2011 and that since then no one has been aware of reporting procedures. Our records show that you have not reported any students using the sponsor management system for the entire history of your licence, predating Mr Adamek’s departure.

You are currently both Authorising Officer and Level I User for the sponsor licence and responsible for all reporting obligations. Your failure to report contravenes paragraphs 461 – 479 of the Tier 4 Sponsor Guidance and paragraph 473D of the Tier 2 sponsor guidance states that you must report certain events to us relating to your sponsored employees and students. Such events include:

a student/employee fails to enrol or start work

contact with your employee/student stops

address of work/study changes

sponsorship ends”

Whilst the closure of Oxford Street and the position in relation to Shaik Abdul have now been accepted by the defendant not to be valid reasons for suspension, the defendant also relied on the closure of Birmingham. The letter stated:

“we also visited your Birmingham campus… The college was closed. When our officers made enquiries with the administrator of the campus, they were told that it was closed because she was off work sick. The entire campus being closed due to the illness of one staff member leads us to doubt that there is a trading presence at this site. Our officers must have access to your premises. This is a breach of paragraph 485 of the Tier 4 sponsor guidance… [You must allow our staff access to any of your premises on demand] …”

The defendant had a right to suspend under the guidance:

“if we have reason to believe that you are breaching your sponsorship duties and/or are a threat to immigration control”

The paragraphs of the guidance referred to in the 2012 suspension letter (so far as relevant to the issues before the court) are as follows:

“[461] unless stated otherwise, you must report the following information to us within 10 working days using the sponsor management system. It tells us about students who do not attend, do not comply with our requirements, or disappear. We use the information to take enforcement action against them when necessary…

[463] you must tell us if a student you have assigned a CAS to does not enrol on their course within the enrolment period. You must report this no later than 10 working days the enrolment period has ended (sic). You must include any reason the student gives for not enrolling for example if they:

missed their flight;

have decided not to come to the UK;

have decided to take up a course with a different sponsor; or

have had their application for permission to come to or stay in the UK refused.

[464] these reporting duties are not compulsory if we gave the student permission to come to the UK on the basis of a visa letter. These letters were a paper version of what is now the confirmation of acceptance of studies. They were phased out on 22 February 2010 when the sponsorship management system was fully implemented.

[465] however, if you wish to report on the students you can do this by emailingMigrantReporting@UKBA.GSI.gov.uk...

[476] you must tell us within 10 working days:

if there are any significant changes in a sponsored students circumstances, for example if:

the location they are studying at changes.

Their start date is deferred and they have not yet entered the UK…”[emphasis added]

For the claimant it was submitted that the guidance was unclear in relation to the requirement to report refusals of entry clearance or leave prior to the guidance change in September 2011 which, as set out above, explicitly set out the sponsor’s responsibility to report refusals and in a witness statement dated 6 July 2012, Dr Basha stated that the 14 students who were refused entry clearance were refused clearance prior to the publication of the September 2011 sponsor guidance. It was also submitted for the claimant in opening that the UKBA would be aware of refusals and the claimant would have been notified by the UKBA and therefore there would be no need to rely on notification from the sponsors. However the evidence of Dr Basha, in cross examination, was that the claimant would be notified by the relevant student if entry clearance was refused.

It was submitted for the claimant that the defendant should have adopted the alternative route provided for in the guidance of writing to the claimant giving initial reasons for the suspension but carrying out an investigation first. It was submitted that, following the Sky News publication, the University of Wales carried out an investigation and the defendant should have adopted a similar approach. Further Mr Simms relied upon the dictum of HHJ Keyser QC in its judgment in the claimant’s action with the University of Wales at paragraph 82:

“If I had considered that the University had a power of suspension,… I should also have taken the view that there were no reasonable grounds for either suspension.”

For the claimant it was said that Birmingham had not been closed it was only a temporary move of three remaining students for the purposes of their dissertations so there was no obligation to notify its closure.

The claimant submitted that the visit identified “minor and technical” issues and the UKBA gave undue weight to the allegations of criminality from an unknown source; that the evidence suggests that the real reason for the suspension was the investigation being carried out. The claimant points to the fact that the suspension decision was made only a couple of days after the visit: the letter was dated 29 March and the visit was on 26 March whereas, by contrast, the decision to suspend in December 2014 took from the visit at the end of September 2014, and further that the evidence of Mr Pamnani in cross examination, was that usually it would take 3-4 months on average at that time to review the evidence from a visit. It was submitted that it lacked credibility to assert that the only matters taken into account were those in the suspension letter. The claimant relied on statements in Mr Pamnani’s witness statement that (paragraph 134):

“The defendant used the intelligence and information received to inform its actions in relation to the nature and extent of its monitoring of the claimant college. It also provided a context in which key decisions were taken…”

and (paragraph 363):

“[concerns about the integrity of immigration control, the undercover Sky News expose, a criminal investigation] called for varying degrees of regulatory oversight and action, some of which impacted on the whole sector, and others which were more specific to the claimant college and other third parties. This created a particular climate for the decision-maker…”

The claimant submitted that the defendant acted unreasonably by taking the decision to suspend on the basis of untested intelligence as set out in the Target report and the Tasking report was looking for evidence to suspend.

For the claimant it was submitted that the inference from the Target report including in particular the final recommendation under “Post visit activity” set out above, was that the defendant had already decided to suspend the claimant’s licence.

It was submitted that the defendant failed to consider the claimant’s history of providing courses and compliance and Mr Simms referred to the Quality Assurance Agency for Higher Education review in February 2012 which concluded that there could be confidence in how the claimant managed its responsibilities for the standards of the awards that it offered on behalf of the University of Wales and Edexcel.

Counsel for the defendant conceded that the timing of the 2012 suspension was influenced by the intelligence and the concurrent investigation by the Crime and Financial Investigations Team of the defendant but submitted that the decision to suspend was lawful.

Counsel for the defendant submitted that the Target report does not indicate that the defendant prejudged the evidence as the intelligence was clearly recorded as “cannot be judged”.

Counsel submitted that the claimant’s interpretation of the guidance, that it did not require sponsors to notify students for whom entry clearance was refused, was not persuasive. He put to Dr Basha in cross examination that on the claimant’s interpretation, if a student lied about being refused entry clearance, the student could enter the UK, go underground and the defendant would not know what had happened to the student.

Counsel also submitted that the failure to make reports in respect of students refused entry clearance were indicative of a wider problem. He submitted that no one at the claimant was aware of the procedure for reporting even though there were a number of instances, such as the closure of Oxford Street, where reports through the SMS would have been expected. Counsel for the defendant submitted that although it might make sense for the three students in Birmingham to be transferred to Barking, under the Guidance the defendant has to be told of a change of location of students.

I note the passages from the judgment of Silber J in R (on the application ofWestech College) v Secretary of State for the Home Department[2011] EWHC1484 (Admin) that

“[13] …the persistent misuse of the immigration system by those who initially enter as students is a factor of importance in ascertaining if UKBA and the Secretary of State have acted in breach of their public law duties.”

Further:

“[14]…a fundamental principle of the sponsorship system requires the UKBA to trust the sponsor to a very substantial extent....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.”

In his submissions on the law, Mr Simms accepted that cases involving suspension and revocation are fact sensitive. However he sought to argue that the authorities established that the grounds for suspension must reach a certain threshold to justify suspension because suspension has very serious repercussions for the college and its students. (However as referred to above, current students are unaffected by a suspension unless they need to renew their CAS during the period of the suspension.) Mr Simms referred to two judgments both on a permission hearing: Mostyn J in City of London Academy v Secretary of State for the Home Department[2014] EWHC 3755 and Cobb J in London College of Finance and Accounting v SSHD [2015] EWHC 1688 (Admin). Neither of these rulings (even if of any persuasive authority) are in my view authority for the proposition which Mr Sims advances; Mostyn J in the City of London Academy was dealing with revocation not suspension; Cobb J is clear that the test is whether the Secretary of State has acted in a way which was Wednesbury unreasonable or procedurally unfair.

It seems to me on the evidence of the emails concerning the Crimestoppers report and the Target report that the defendant was concerned by the intelligence reports and therefore decided to visit the claimant’s campuses which , as stated, it had not visited for around 18 months. In my view it is clear from the Target report that the defendant’s view was that the intelligence was largely not capable of being evaluated and the proposed action in response to the intelligence received, was a visit to gather information and evidence about the matters of concern. The action to be taken following the visit was to review the information gathered and then to recommend further action “if necessary”. There was no assumption or presumption in my view that the claimant’s licence would be suspended.

In relation to the claimant’s submission that in the period prior to the change to the guidance in September 2011, it was not clear that there was a requirement to report refusals of entry clearance, the courts have taken the view that the obligation to report if a student did not enrol was unqualified and was not limited to the specific example provided in the earlier guidance of where a student missed a flight: The Queen on the application of London College of Management Ltd v Secretary of State for the Home Department [2012] EWHC 1029 (Admin)

“[45]… The wording of the guidance is clear, sponsors must report a student who does not enrol. The example given in the guidance of missing a flight is just that, an example of why a student may not enrol. … Further, the fact that there are also circumstances in which a student who has already enrolled must be reported does not assist in determining which students who have not enrolled should be reported.

[46] Most importantly, if the obligation does not apply to all students but only to those who have been granted entry clearance, the college would not necessarily know why a student had failed to enrol... ”

A similar argument to that advanced by the claimant in this case, was advanced and rejected by Jackson LJ in The Queen (on the application of WGGS Ltd trading as Western Governors Graduate School) v Secretary of State for the Home Department [2013] EWCA Civ 177 at 41).

Further the claimant’s argument that the UKBA did not need to rely on notifications from sponsors for information on refusal of entry clearance was rejected by the Court of Appeal in WGGS. Moreover the evidence from Mr Pamnani in cross examination was to the effect that students could be granted leave to enter but then tell the college they had been refused leave and thus enter the country and not take up their studies without the defendant being aware of what had happened. Accordingly Mr Pamnani did not accept that it was a “technical” breach of the sponsor’s duties and he said that there was a threat to immigration control in this regard.

It is also clear that the breaches of sponsorship duties relied upon for the 2012 suspension were not limited to a failure to report students who did not obtain entry clearance but was a concern that no students had been reported by the claimant using the sponsor management system for the entire history of the licence. The obligation to report events under the guidance extended not only to a student who failed to enrol but also extended to other situations such as a change in the place of study or a failure to complete the course.

From the evidence subsequently supplied to the UKBA it would appear that some reporting did take place by email rather than through the sponsor management system and this was accepted by counsel for the defendant in closing submissions.

Dr Basha said in cross examination that he did not report through the SMS because he was told by the defendant to report through the migrant reporting inbox (used for the paper visa system), alternatively the SMS was not working on occasions, and that it took six months to appoint a successor responsible for reporting after Mr Adamek left. However these explanations were not explanations advanced in his witness statement and were contrary to the published guidance which referred to the SMS being in operation from 2010. Further I note alternative explanations put forward by Dr Basha in paragraph 59 of his witness statement in July 2012: that in relation to 5 students whose sponsorship was withdrawn, they were reported by email. Two were reported by email because Dr Basha had withdrawn Mr Adamek’s access to the sponsor management system and Mr Venkoba was unaware of the requirement to report the students. In relation to the other three students who were reported by email, Dr Basha did not know why they were not reported through the SMS although he suggested there was no option on the SMS to note non-payment of fees as the reason for withdrawal. I do not therefore accept his evidence in cross-examination to this court, as providing a credible or reliable explanation which would render the decision of the defendant irrational or Wednesbury unreasonable. The claimant denied that any of the claimant’s employees told the compliance officer at the visit that they were unaware of reporting procedures since the departure of Mr Adamek. However given the conflicting evidence which Dr Basha gave to the court on other matters as referred to above, I prefer the contemporaneous evidence of the visit report as more likely to reflect the conversations which took place between the compliance officer and those present. Accordingly whatever the explanation for the claimant’s failure to report matters, the evidence before the defendant at the time of making the decision to suspend in 2012 was that no reports had been made through the SMS and that the defendant understood that since Mr Adamek left in September 2011, no one at the claimant had been aware of the reporting procedures.

Further in reviewing the decision of the defendant, the other reasons given in the 2012 suspension letter have to be taken into account and the decision looked at in the round. The Birmingham campus appeared to be closed and it was not irrational for the defendant to take such a view at the time. The explanation subsequently provided that the campus was not closed but that students had been temporarily transferred would not establish that the claimant had been complying with its duties in this regard as, assuming this to be the true position, it would then have been in breach of its obligation to notify the defendant of the change of location of the students. I note that Dr Basha’s evidence in this regard in cross examination was unsatisfactory: in his witness statement (para 122) he states that the defendant was told that the three existing students at Birmingham were attending the Barking campus “in order to continue with their studies”. In cross-examination he said that these three students were merely “visiting” the Barking campus for “temporary guidance for a few weeks or days” until January. He appeared to be tailoring his answers in cross-examination to avoid a conclusion that the students had moved to the Barking campus thus triggering the obligation to notify their change in location.

In my view the defendant was entitled in accordance with the policy guidance to suspend the licence rather than adopt the alternative route under the guidance of investigating further on the basis that that it was satisfied that there was enough evidence to suspend the licence without the need for further investigation. Suspension is an interim measure and it was a route which was open to the defendant in the circumstances. The decision was not irrational or Wednesbury unreasonable.

Further I accept the submission that the position of the UKBA was different from that of the University of Wales in that once students arrived in the UK, if they disappeared it was too late for the Home Office to find and trace them. The breach of sponsorship duties which entitled the defendant to suspend the sponsorship licence under the terms of the Tier 4 guidance were entirely different from the considerations which the University of Wales took into account in deciding to suspend its validation agreement with the claimant and the (obiter) dictum of HHJ Keyser QC referred to above has to be read in that light.

As to the allegations raised by Sky News on 27 March 2012 and referred to above, it seems likely that this put pressure on the UKBA to take a decision on its investigation into the claimant. The fact that a decision was made by letter of 29 March, far quicker than would be usual, confirms this inference and it is conceded by the defendant that its timing was influenced by these external matters.

However the evidence does not establish that the decision to suspend was taken on the basis of the allegations. The Target Report recommended a visit followed by a decision based on the results of that visit. The recommendation of the Visiting Officer as set out in the Compliance report referred to above was to “suspend/revoke”. This conclusion was prior to the exchange of emails in relation to Sky News and is evidence that the Visiting Officer was of the view that the breaches noted in his report were sufficient to warrant suspension/revocation. Although the Visiting Officer was not the decision-maker, it supports the defendant’s submission that the Sky News allegations influenced the timing of the decision but not the grounds for the decision to suspend.

Further support for this conclusion can in my view be drawn from a draft report which was prepared by the head of PBS Sponsorship for the Minister for Immigration in June 2013. [2/471] The purpose of the report was stated to be to provide information to the Minister about concerns raised about the sponsor status of the claimant given the investigation into the college by the Criminal and Financial Investigation Team which, it is acknowledged in the report, was instigated by Sky News. Paragraph 10 of the report states:

“LCB was suspended on 29 March 2012 as a result of a visit to their premises a few days earlier.… The reason for suspension was LCB’s failure to comply with their sponsorship duties including a failure to:

comply with reporting duties;

report a change in circumstances (closure of the Oxford Road campus);

notify the end of employment of a staff member;

give UKBA officers access to the college premises.

Paragraph 11 states:

“The allegations by Sky News were largely unsubstantiated and did not have a bearing on the decision on compliance…”

This draft report was an internal document and there is no apparent reason advanced as to why the reasons given for suspension in March 2012 in this draft internal report by the Head of PBS Sponsorship would be anything other than the genuine reasons.

The fact that the claimant had been found to have been operating in accordance with its duties when a visit took place in August 2010 and the recommendation at that time, that the claimant be awarded an increased number of CAS, does not affect the lawfulness of the decision by the defendant in March 2012. The defendant had an ongoing duty to monitor compliance by the claimant with its duties under the guidance. Further the fact that the review by the QAA in February 2012 found that the claimant was meeting its responsibilities for the awards that it offered and the learning opportunities is also irrelevant in my view to the lawfulness of the decision by the defendant to suspend in March 2012 as it was a review of different matters. Similarly the acknowledged delay in the claimant’s application for HTS in early 2012 as a result of the fact that the claimant

“had attracted wider Home Office interest” (paragraph 128 of Mr Pamani’s witness statement)

does not render the suspension decision in March 2012 unlawful.

For the reasons set out above in my view the decision to suspend in 2012 cannot be said to be Wednesbury unreasonable or procedurally unfair.

On 30 August 2012 the UKBA made a decision to reinstate the claimant’s sponsor licence:

“having now considered your representations and additional information provided with your application for judicial review.”

The letter stated under a heading “Reporting duties”

“you have reported a few students using the migrant reporting mailbox. This mailbox is not the correct way to report students assigned CAS by you. We expect you to report all events using the Sponsor Management System (SMS) and will consider any continued use of this mailbox to be a breach of your sponsor duties.

You failed to report the closure of your Oxford Circus campus.…”

Under the heading “Birmingham campus” the letter stated:

“We do not accept that the closure of this campus on the day of our visit was reasonable. The registrar was not a tutor and therefore not responsible for teaching the remaining students attending the campus.… Should this campus close due to low student numbers, we expect to be informed in a timely manner using the correct process as described above.”

In response to the suspension letter, the claimant’s then solicitors made representations on 5 April 2012 and threatened to issue a claim for judicial review. Further representations were made on 10 April 2012.

On 22 April 2012 a further intelligence report was produced by the defendant. On 9 May 2012 an internal email of the defendant (the identities of the senders and recipients including their departments have been redacted) referred to an investigation into Javed Akhtar being widened to extend to Dr Basha. There is a response to the following effect:

“can you review this job with particular focus on whether the cases should be linked and whether you feel the investigation is proceeding at the right pace and whether other tactics such as disruption by withdrawing licences should be applied.”

On 10 May 2012 the UKBA indicated to the claimant that it was making further enquiries and would revert by 18 May 2012. On 25 May 2012 the defendant wrote outlining the continuing reasons for suspension and giving a further opportunity for the claimant to comment. The period for representations was extended until 6 July 2012. As a result the defendant was due to issue a decision by 3 August 2012, being 28 days after receipt of the representations. In fact the decision was not made until 30 August 2012 and it was submitted on behalf of the claimant, that this decision to lift the suspension was only made following the order of Dobbs J on 24 August 2012 requiring the defendant to file summary grounds of defence by 30 August 2012 to the judicial review claim brought by the claimant.

Counsel for the defendant conceded that the delay to the decision to lift the suspension was caused by the concern arising from the criminal investigation which was then being pursued and there is nothing in the guidance which allows for further delay. However counsel submitted that the period of the delay was not sufficient to establish that the ongoing suspension was unlawful.

Although it is a relatively short period, it seems to me that there is no basis in the circumstances for concluding that the delay from 3 August to 30 August 2012 was lawful. The reason for the delay is admitted to be for a reason which was unconnected to the reasons for the suspension and was not as a result of considering the representations and information provided in response by the claimant and further it was not within the 28 day period provided for in the guidance.

An announced visit took place by UKVI on 25 October 2012. The recommendation was for further investigations.

On 30 November 2012 Dr Basha was arrested and interviewed on suspicion of conspiracy to facilitate and conspiracy to launder money.

On 15 February 2013 and 18 June 2013 the UKVI made further visits to the claimant’s premises.

In the February Compliance report it was noted that the claimant stated that the college had made a request for a total of 750 CAS and sent a detailed explanation with floorplans by email to the Home Office. The compliance officer noted that the request for 750 was erroneous as the current capacity would be approximately 220. The compliance officer also queried how the college could offer places to new recruits on any University of Wales programmes since the validation agreement between the two institutions had been formally suspended. The recommendation was to “suspend/revoke”.

In the June Compliance report discrepancies were noted between the fingerprint system and the paper attendance records. It was also noted that the sponsor was asked about the financial health of the college and

“the sponsor stated that [X] a Tier 1 migrant has not been paid for one year and that various suppliers to the college have not been paid due to its poor financial position. This raises concerns about the college’s future financial viability.”

The recommendation was to remove HTS status.

On 30 July 2013 Neil Hughes, the National Lead for Temporary Migration at the UKVI, was sent the suspension letter for the claimant for authorisation. The email stated:

“this is another college who have been part of a criminal investigation undertaken by London Met police and officers from the Crime and Financial Investigations team. They have been extremely keen for us to proceed with a suspension as soon as possible.”

Mr Hughes responded approving the letter with amendments and stating

“more generally, I am concerned about how this establishment:”

achieved HTS status; and

became accredited by IS (or whoever)

can we please investigate both our own handling of this establishment; and the accreditation report for this organisation.

Cases like this have the potential to undermine credibility and to embarrass the Department and ministers. I want to know what we are doing to ensure that no other such colleges can survive on the register.”

On 2 August 2013 the claimant’s sponsor licence was suspended again. The reasons given in that letter were that the issues identified had led the UKVI to believe that the claimant “may be posing a significant risk to immigration control”.

In particular three matters were identified which in summary were as follows:

The claimant challenged the decision to suspend. In relation to the issue of capacity, the claimant pointed out that the college had provided floorplans with their application in January 2013 to support its request for 750 CAS.

In relation to the ability to deliver education to a greater number of students the claimant pointed out that in the past the college had a CAS allocation of 2250 and between January 2009 and September 2011 a student body of more than 1000 students. In relation to the financial position the claimants submitted that it was wholly unrelated to its ability to uphold its duties as a sponsor.

It was accepted by counsel for the defendant that the Court of Appeal in R (on the application of Raj and Knoll Limited) v Secretary of State for the Home Department [2016] EWCA Civ 770 did not find it necessary to decide whether the Secretary of State could revoke a licence if she had reasonable grounds for a “suspicion” that a breach of immigration control might occur, which was expressed in the alternative as a “light trigger” approach.

Counsel for the defendant accepted in closing submissions that the claimant may be able to gear up its staff and accreditation as it had done so in the past. However he submitted that the financial position was capable of posing a risk to immigration in the same way that a failure to have planning permission posed a risk in the Westech case. Counsel submitted that the email exchange referred to above with Neil Hughes, showed that the timing was urgent but not that the decision was influenced by a desire to keep the claimant off the register. He submitted that the letter contained matters which gave rise to a concern and justified suspension.

The draft report prepared by the Head of PBS Sponsorship for the minister in June 2013 and referred to above, provides evidence of the approach taken by the defendant. As stated above, the report notes that the allegations by Sky News were largely unsubstantiated and did not have a bearing on the decision on compliance. In relation to the reinstatement of the licence in August 2012 the report states:

“…all of the reasons for suspension were addressed, from a sponsor licence perspective LCB were functioning as they should and therefore their licence was reinstated on 30 August 2012.

… We have suitability requirements in deciding whether to revoke a sponsor’s licence, which include the assessment of systems to enable the sponsor to meet the sponsorship duties, and compliance with immigration rules. When we make a decision on whether to suspend or revoke a sponsor licence we rely upon the evidence we have from a visit and the report thereafter.

Further visits to LCB (Barking) have been undertaken on 25 October 2012 and 15February 2013, after consulting CFI and no substantial compliance issues were found during these visits…

...Our compliance officers, along with CFI, conducted an unannounced visit at the premises of LCB on 18 June 2013. Early findings are that there is potential non-compliance with their sponsor duties.

Alongside the findings from the visit we are reviewing from a sponsorship perspective the evidence that CFI gathered. Once this is complete a decision will be made on the status of the licence based on both this review and the recent visit.”

The weak financial position of the claimant did not amount to a breach of its sponsor duties. However in my view, had the decision of the defendant to suspend been on the basis that it believed that the claimant’s financial position posed a threat to immigration control this would not have been a decision which would have been held to be Wednesbury unreasonable. However the evidence suggests that it is likely that the decision to suspend was taken for reasons other than those stated in the suspension letter: in his witness statement Mr Pamnani said:

“[372] The 2013 suspension decision, whilst taken independently of the 2012 decision, cannot be divorced from it given the impact of the Sky News investigation in March 2012 which was to subsequently generate additional intelligence and, more significantly, a joint Home Office/police investigation into serious criminal offences, including money laundering. Given the defendant’s residual concerns in relation to the claimant college as detailed in the 2012 reinstatement letter, and the developmentswith the criminal investigation following the Jason Farrell, Sky News report, there was, in the circumstances a heightened interest and vigilance on the part of the defendant with regards to the claimant college. This resulted in a number of visits to the claimant college in October 2012, February 2013 and then in June 2013 each generating visit reports alongside receipt of some of the evidence gathered during the criminal investigation…”

“[377] By the end of July 2013 the defendant decided to suspend the claimant’s licence based on its assessment of the evidence and also mindful of the fact that it had granted the claimant college HTS, its decision could cause potential reputational and political damage and embarrassment.” [emphasis added]

Although Mr Pamnani goes on to say (paragraph 378) that the suspension was imposed in light of concerns in relation to the building/teaching capacity, the attendance of certain students at the college whose courses had ended in April 2013 and the poor financial position, the inference I draw from the evidence, including the draft ministerial report and his witness statement is that matters other than non-compliance with the duties on sponsors were taken into account in deciding whether or not to suspend. Accordingly in my view the decision to suspend in August 2013 was unlawful.

Counsel for the defendant conceded that the claimant responded to the suspension with representations on 9 August 2013 and the 28 day period for a decision whether or not to lift the suspension therefore expired in early September. However the suspension was only lifted in November 2013 when I note that the defendant had been required to file Summary Grounds of Defence to the judicial review proceedings.

In my view there is no lawful basis advanced for the failure to lift the suspension in early September having received the representations on 9 August 2013. That failure to follow its own policy can therefore only be regarded as unlawful.

In February 2014 a Panorama investigation resulted in a broadcast about corruption in ETS (Educational Testing Service) test centres.

In July 2014 the Tasking Referral form stated that the claimant was being tasked as a proportion of their students had taken their English language test at an ETS testing centre, 21 students had had their test score withdrawn and for each individual who had been indicated as having a withdrawn score, detailed checks were required to assess whether they were a genuine student. Evidence of attendance and course progression was needed to satisfy this requirement. The checks to be made included checks of the relevant student files, their attendance and their coursework/examinations. The form included under the heading “Intel information provided”:

“allegation that the college is recruiting students and allowing them to leave and work full time so that they can produce false document for a price to enable students to gain a Visa.”

Allegation that when staff complain they are forced to leave the college, with 24 staff forced to leave in the last two years.”

On 29 September 2014 the defendant made an unannounced visit to the claimant. The visit report identified failures in relation to the hours of study per week, concerns with the claimant’s assessment of student progression and attendance records. In particular the compliance officer was told that Dr Basha conducted face-to-face interviews with all students to assess their genuineness, English language ability, study history and progress but was told that no records were kept of this interview. The compliance officer was told that courses offered involved a maximum of 15 hour study per week whereas the CAS stated that students would be studying 21 hours per week. This was treated as a false statement on the CAS. The compliance officer requested attendance registers for classes running on that day, the morning session had nine students scheduled to attend but only one student was present. The afternoon session had the same nine students scheduled however only two students attended. The compliance officer did not accept the explanation that attendance was low because some students would have assignments on the first day of term. The compliance officer recommended suspension/revocation.

On 22 December 2014 the claimant’s licence was suspended. The reasons given were that the claimant was found to have assigned CAS to students who had had their TOEIC withdrawn by ETS with 18 classified as invalid and three questionable; the defendant accepted that whilst the student may not have presented the TOEIC as part of their application to the college, the students had

“at some point used deception to stay in the UK ”

and

“by sponsoring the student before, during or after the offence took place,… [the claimant had] contributed to the risk of immigration control.”

The letter continued:

“Individuals who have gone to the lengths of fraudulently obtaining an ETS certificate are unlikely to act as genuine students attempting to further their academic careers. We would expect a compliant sponsor who was properly assessing a student’s English language ability to identify such poor quality regardless of any supposedly high score they claim to have achieved. If these individuals obtained their SELT package for a different reason than masking their poor English, it is logical that they were intending to use their stay in the UK for another purpose and we would expect you to have discovered that at least a portion were not acting as honest and genuine students. You are expected to make rigorous assessments before assigning a CAS and by failing to do this you have contributed to the immigration journey of 18 dishonest individuals who were prepared to fraudulently obtain a SELT presumably in order to gain sponsorship and remain in the UK.” [Emphasis added]

Other reasons were also given as “student assessment” and “attendance issues”. The letter noted that the claimant was required to assess any potential student’s ability and intention to follow a course of study. The letter stated that records showed that the claimant had not adequately assessed academic progression or intention and ability to follow a course of study and gave a list of individual students with respect to whom there was a concern. The letter referred to Dr Basha conducting face-to-face interviews but stated that there was a concern that contrary to the guidance, the claimant had not retained any evidence of such interviews. In relation to attendance, the compliance officer found that a session scheduled to have nine students had only one in attendance and the defendant was not satisfied was with the reason given for the low attendance. The defendant therefore concluded that the claimant did not have in place a system which could adequately monitor attendance.

On 2 January 2015 the claimant’s legal representatives submitted representations and a pre-action protocol letter.

The claimant lodged an application for judicial review and on 27 January 2015 the defendant was ordered to file an acknowledgement of service.

On 19 March 2015 the defendant revoked the claimant’s sponsor licence. Revocation was based on concerns raised in relation to the ETS students and a failure to satisfy the defendant in relation to issues raised in relation to assessment of prospective students.

The defendant accepts that at the time of the September 2014 inspection, the officer did not raise ETS concerns with the claimant but that they were raised in the suspension letter. Further the defendant accepts that at the time of the compliance inspection in September the officer was provided with copies of 19 education certificates (paragraph 382 of Mr Pamnani’s witness statement).

Counsel for the defendant relied on dictum of Andrews J in R (on the application of Cranford College Ltd) v SSHD [2015] EWHC 1090 (Admin) to support a submission that the inference from the invalid/questionable TOEIC is that the claimant failed to properly vet the students to whom it issued CAS and the concern increased if it affected a significant proportion of the students. Counsel similarly sought to rely on McGowan J in City of London Academy that it is a significant gauge of the college’s ability or willingness to monitor its students if a significant number have obtained a language certificate by cheating and have not been discovered by the college to have inadequate English language skills.

However the factual situation was different in Cranford in that, in the large majority of the cases, Cranford relied on a TOEIC when the CAS was assigned. By contrast here the students (with one exception) were not admitted in reliance on the TOEIC. Counsel for the defendant accepted that a student may cheat for other reasons but submitted that it was a warning signal in relation to compliance by the college and although it may not justify revocation it was a legitimate concern to justify suspension.

Counsel submitted that the past intelligence reports were not a factor in the 2014 suspension even though there is reference to them in the Tasking referral report.

In my view the conclusion of the Secretary of State in relation to the ETS test results and its implications for the conduct of the claimant as set out in the suspension letter do not withstand scrutiny and are irrational. It cannot be said that the claimant has contributed to the “immigration journey” of students who fraudulently obtained an English language test “in order to gain sponsorship” when the sponsorship had already been granted in advance of them sitting the English language test. (The subsequent explanation that the false ETS tests are evidence that the claimant, although unaware of the fraud, failed to thoroughly assess the ability, intentions and previous academic progress in the letter of 30 January 2014 was not advanced in the original suspension letter and subsequently the defendant has accepted the evidence of the certificates of completion of their courses.)

The other matters relied on were that the claimant had not adequately assessed their academic progression and the attendance of students on the day of the visit and the records for subsequent days.

For the claimant it was submitted that these other grounds were insufficient to justify suspension and Mr Simms sought to rely on the permission hearing in its own judicial review claim in June 2015 before Mr Roger Ter Haar QC and the following dicta:

“if ground 7 (1) falls away, it is far from certain that the other two grounds would have been sufficient in the Secretary of State’s mind to justify either suspension or revocation, and indeed I have had helpful submissions from Miss Barnes on behalf of the Secretary of State to concede as much.”

Counsel for the defendant challenged the assertion that any concession had been made on the part of Secretary of State before the judge in relation to the issue. In any event the views of the judge in the permission ruling are not binding on me and insofar as he was considering the application for permission for judicial review of the decision to revoke the licence, his observation in relation to suspension were obiter. As stated above, there is a significant difference between suspension which is an interim measure, does not affect current students and which allows the claimant 28 days for representations in response, and revocation.

In my view disregarding the reliance on the ETS test results, the defendant’s decision to suspend the licence on the other grounds relied upon in the suspension letter cannot be said to be irrational. The concerns in relation to attendance are not, as the claimant sought to portray, an issue in relation to the policy for late arrivals but were of more significance in relation to the absence of students. Further the information given to the compliance officer concerning the assessment of academic progression and verification of qualifications before deciding whether to admit a student, caused concern and in particular when asked about the face-to-face interviews which the claimant said it conducted with prospective students, the claimant responded that it had not retained any evidence which was in breach of the guidelines.

Accordingly the decision of the defendant to suspend the licence for these reasons was not in my view irrational and the decision is not unlawful.

Counsel for the defendant conceded that by early 2015 the defendant should have considered the documentation that had been provided at the visit and reconsidered its decision. It was therefore unlawful at that point to continue the suspension.

Section 7 (5) of the Human Rights Act 1998 provides that proceedings against a public authority must be bought before the end of

“(a)

the period of one year beginning with the date on which the act complained of took place or

(b)

such longer period as the court or tribunal considers equitable having regard to all the circumstances.”

Counsel for the defendant submitted that if the court were to find that there was influence in the decision-making which affected the 2012 decision, that did not survive beyond 30 August 2012 when the suspension was lifted. In relation to the 2013 decision, counsel submitted that the conduct did not continue beyond the lifting of the suspension in November 2013 and accordingly limitation in respect of that decision expired in November 2014 and the present proceedings were brought only in September 2015.

For the claimant it is submitted that the acts complained of are to be regarded as a single continuing act rather than a series of discrete acts with continuing consequences. The claimant submitted that even though the conduct should have ended when the criminal investigation ended in May 2013, the second suspension then took place in August 2013 and the intelligence coloured the ETS decision to suspend in 2014. The claimant refers to the evidence of Mr Pamnani:

“[380] the 2014 suspension decision was largely underpinned by the 29 September 2014 compliance report butthe decision-maker would have been aware of the compliance history of the claimant college, most particularly the 2012 and 2013 suspension decisions. This, when combined with the revelations made in the Panorama programme broadcast in February 2014 about the corruption in ETS test centres (and the subsequent findings of the Home Office about the scale of the abuse). This brought into sharp focus the threat posed to immigration control which, whilst relatively small in the context of wider immigration, required robust action to ensure the integrity and fairness of the system.” [Emphasis added]

I was referred to the Court of Appeal decision in O’Connor v Bar Standards Board [2016] EWCA Civ 775. In that case the appellant sought to bring a claim for damages for alleged breach of her right to a fair trial under the ECHR. The appellant appealed the decision that her claim was barred by section 7(5) of the Human Rights Act. The appellant argued that there was a continuing act of prosecuting the appellant which started with the bringing of disciplinary charges and continued until the appeal was allowed. The appellant also sought to challenge the refusal to grant an extension of time under section 7 (5) (b).

The Master of the Rolls at paragraph 17 of his judgment, referred to the case of Somerville v Scottish Ministers, a case involving prisoners who were segregated at various times from other prisoners pursuant to monthly orders and authorisations that were made over a period of time. In that case it was unnecessary to decide whether the claims were brought within one year of the date on which the act complained of took place, however the question was considered by the House of Lords. The Master of the Rolls noted:

“[18] Lord Hope expressed the view that the phrase “the date on which the act complained of took place” means, in the case of what may properly be regarded as a continuing act of alleged incompatibility that time runs from the date when the continuing act ceased, not when it began… He reserved his opinion on whether the monthly orders and authorisations for segregation of the prisoners...should be viewed as one continuing act or as separate acts for the purposes of section 7 (5)....Lord Mance viewed them as separate acts in respect of which separate one year limitation periods would run, leaving a claimant seeking to challenge a period of segregation which had lasted more than a year to seek an equitable extension of time under section 7 (5) (b). Lord Rodger preferred to express no view but considered that Lord Mance’s approach was “at least arguable”… Lord Walker said he agreed on all issues with Lord Hope and Lord Rodger. Lord Scott noted the “act” includes “failure to act” and therefore concluded that the “one year beginning with the date on which the act complained of took place” should “simply be calculated back from the date on which the section 7 (1) (a) proceedings were commenced”…

[19]...it appears to be the only authority which sheds any light on the question that arises in the present case. As a matter of ordinary language, the wording of section 7(5)(a) contemplates that an “act” is a single event which occurred on a single date. No express provision is made for an act which extends over a period of time.…

[20] there are also cases like Somerville where the question is whether the acts complained of are to be regarded as a single continuing act or as a series of discrete acts with continuing consequences. The fact that there was a difference of opinion on this question in Somerville shows that it is not always easy to decide how to classify the acts in such a case. It will depend on the particular circumstances and the nature of the particular complaint.” [emphasis added]

In that case the Master of the Rolls held that a prosecution came to an end with the verdict and in opposing an appeal, the prosecution was not continuing the prosecution. A complaint about the conduct of the appeal was held to be different from a complaint about the decision to prosecute.

The Master of the Rolls then considered the argument in relation to the extension of the period under section 7(5)(b). It was submitted that persons should not be required to bring satellite litigation if they cannot know whether criminal proceedings will provide them with relief because the proceedings have not run their course and the court is given a wide discretion to extend time having regard to all circumstances. Although in principle the burden is on the claimant to demonstrate that time should be extended, the reality is that the application of a burden of proof is rarely appropriate and a “holistic” approach is required. It was also submitted that matters such as the strength of the claim and its importance are potentially relevant and it was wrong to place weight on the absence of an application to extend time.

The Master of the Rolls held:

“[28] I would reject the submissions… The appellant did not ask the deputy master to exercise his discretion to extend time. He was not at fault in failing to consider whether to extend time on his own initiative. If the appellant had been a layperson and there were obvious grounds for extending time, it is perhaps arguable that the deputy master should have raised the issue and asked her whether she was to apply for an extension of time. But the judge was fully justified in holding that it was not reasonable for a legal professional such as the appellant to complain that the deputy master did not raise the issue on his own initiative on the facts of this case.…

[29] in my view, a party who wishes the court to grant an extension of time must make that clear to the court and to the opposing party and set out the grounds and any evidence on which he or she relies.…”

Mr Simms sought to rely on the words of Lord Hope cited in paragraph 18 above that

“time runs from the date when the continuing act ceased, not when it began”

and that the question therefore is

“whether the acts complained of are to be regarded as a single continuing act or as a series of discrete acts with continuing consequences.”

However in my view it is clear from the judgment of the Master of the Rolls that the House of Lords in Somerville took different approaches to the question so the words of Lord Hope cannot be said to represent the majority view, and it was not necessary for the Court of Appeal in O’Connor to decide the point. Nevertheless it would appear that in his obiter dictum, the Master of the Rolls appeared to take the view that notwithstanding the express language of the section, a continuing act of conduct could be brought within the section.

Mr Simms sought to rely on the decision of Hayden J on the permission hearing at [21]:

“it seems to me that an alleged breach of proprietary rights may frequently require to be evaluated in the context of a course of conduct. Individual decisions may only be revealed as demonstrably unfair or irrational when consider cumulatively alongside a wider decision-making process. ”

However Hayden J does not appear to be addressing the time limit in section 7 but rather the issue of abuse of process and neither Somerville nor O’Connor appear to have been cited.

On the assumption that the section is capable of being interpreted having regard to a continuing course of conduct, nevertheless on the facts it seems to me that, even if the 2012 suspension had been unlawful, any continuing course of conduct did not extend beyond November 2013 when the 2013 suspension was lifted and accordingly any claim would have had to have been brought by November 2014, unless an extension was granted under subsection (b).

Although there was ongoing monitoring by the defendant throughout the period and the defendant acknowledges that she had regard to the continuing and evolving background of intelligence, nevertheless in my view the decision to suspend in 2014 was a separate and discrete act which turned on the factual situation at the time. The nature of the licensing regime is that the defendant will monitor a college over a period of years and therefore accumulate a body of intelligence. This does not mean however that any decision is tainted by reason of that background body of intelligence. Although the decision to suspend in 2014 was not based on ETS results alone but also on the other issues discussed above, the defendant accepts that this was the principal motive leading to the 2014 suspension. My finding above that the suspension on this ground was irrational given the reasons advanced by the Secretary of State in her letter, does not amount to a finding that the reasons advanced were not genuinely held. Accordingly I am not persuaded that on the evidence the claimant has established a single continuing act on the part of the defendant such that it can be regarded as a single process during which the defendant takes many steps in the form of the decisions to suspend and then to lift the suspension.

Counsel for the defendant submitted that there has been no application to extend time under section 7 (5) (b) as required by O’Connor.

Counsel for the claimant relies on D vCommissioner of Police of the Metropolis [ 2012] EWHC 309 (QB) at 34:

“taking into account all the background circumstances, as section 7 of the Human Rights Act requires me to do, I have come to the conclusion that it would be equitable to extend the period within which the claimant was entitled to proceed… The serious shortcomings in the investigation process and the impact upon D should be properly explored.”

In so far as Mr Simms suggests that the court should exercise its discretion taking account of the background circumstances and without a specific application supported by evidence, the authority of D predates the decision of the Court of Appeal in O’Connor which is of course binding on me. Further the facts in that case were that reasons were advanced for the delay in bringing the claim under the Human Rights Act whereas no evidence has been advanced for the delay from November 2013. Although the claimant is acting in person through Mr Simms, Mr Simms has shown himself fully aware of legal issues and procedure to a level that would be expected from experienced counsel and although he has not disclosed any legal training, his approach and submissions clearly demonstrate in my view that that he would have had no difficulty grasping the point at issue. Counsel for the defendant expressly raised the absence of any application to extend time and any grounds being advanced by the claimant on which to base an extension of time. Mr Simms did submit that the claimant did not anticipate that when the licence was restored in 2012 it would again be suspended, but that does not explain why following the suspension in 2013, notwithstanding the reinstatement of its licence, the claimant withdrew its judicial review claim by a consent order dated 24 March 2014 without reserving its position in relation to damages.

In the circumstances therefore it seems to me, applying the principles set out by the Court of Appeal in O’Connor, there is no reason to grant an extension of time.

Accordingly even if I am wrong on the substantive question in relation to the 2012 suspension, any relief is barred under section 7. Further notwithstanding my finding in favour of the claimant in relation to the 2013 suspension, any relief is also barred under section 7.

Given my findings above on section 7, it is not necessary for me to decide whether the claim is also barred by estoppel/the rule in Johnson and Gore Wood. However had it been necessary for me to decide the point, I would have taken the view that the claimant had not made it clear when the earlier judicial review proceedings were withdrawn, that it was not intending to abandon the claim for damages under A1P1 in relation to the 2012 and 2013 suspensions and accordingly I would have held that it would have been an abuse of process to allow the claim to proceed in relation to the 2012 and 2013 suspensions (Spicer v Tuli [2012] EWCA Civ 845).

In relation to the 2014 suspension, permission was refused on 23 June 2015 by Roger Ter Haar QC and the linked claims including the A1P1 damages claims were dismissed. The defendant’s case is that the claimant did not appeal the order, however I accept that the claim was dismissed on the expectation that the defendant would conduct a speedy review of its decision to revoke and restore the claimant’s Tier 4 licence. In the circumstances had it been necessary to decide, I would not have held that it was an abuse of process to allow the claim to proceed in relation to the 2014 suspension.