“The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached to different circumstances …. If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying …, then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution ….”
“57. The requirements to be met by a person seeking leave to enter the United Kingdom as a student are that he: (i) has been accepted for a course of study, or a period of research, which is to be provided by or undertaken at an organisation which is included in the Register of Education and Training Providers, and is at either: (a) a publicly funded institution of further or higher education which maintains satisfactory records of enrolment and attendance of students and supplies these to the [United Kingdom Border Agency] when requested; or (b) a bona fide private education institution; or (c) an independent fee paying school outside the maintained sector which maintains satisfactory records of enrolment and attendance of students and supplies these to the [United Kingdom Border Agency] when requested; and (ii) is able and intends to follow either: (a) a recognised full-time degree course or postgraduate studies at a publicly funded institution of further or higher education; or (b) a period of study and/or research in excess of 6 months at a publicly funded institution of higher education where this forms part of an overseas degree course; or (c) a weekday full-time course involving attendance at a single institution for a minimum of 15 hours organised daytime study per week of a single subject, or directly related subjects; or (d) a full-time course of study at an independent fee-paying school ….”
“4. … The new system was designed to consolidate the various routes of entry into the United Kingdom into five different tiers. Central to the new system were ‘sponsors’ who would play a part in ensuring that only genuine students and workers entered the United Kingdom …. 5. Prior to the introduction of the PBS, extensive consultation took place, including with the education sector. That consultation took place against the background that for many years prior to the introduction of PBS, Entry Clearance Officers (ECOs) tested the suitability, credibility and intentions of an international student when applying to come to the UK. If the ECO was not satisfied about these matters, they had the power to refuse an application for leave to enter. The education sector had historically seen this as a fetter on their activities since genuine students were said to be refused entry clearance. This assessment was also seen as a duplication of that already done by the sponsoring educational institution. 6. In light of the above responses, a key change brought about by the consultation was UKBA’s agreement to remove an ECO’s power to make refusals on ‘credibility and intention’ on the basis that the education provider was best placed to make judgments as to the genuineness, or otherwise, of a prospective student and their ability to follow a course of study. The agreement was that UKBA would not make ‘academic judgments’ under PBS because the sector gave assurances that they would sponsor only genuine students who they had assured themselves were fully intending to study. A further … key change was that sponsors (of both students and workers) took on responsibility to monitor the compliance of the students or workers whom they had sponsored with immigration rules while in the UK. 7. Thus, once the educational provider has issued a visa letter/ confirmation of acceptance for studies (‘CAS’) to the migrant, UKBA’s opportunity for further checks and its grounds for refusal are based on an objective assessment of whether an applicant has a valid offer from a registered UK based sponsor for an approved course, and an ability to maintain and support oneself without recourse to public funds. … 8. … Assessing a student’s intention and ability to follow a course of study is a fundamental aspect of maintaining immigration control. … 9. The principal basis for an education provider to have a role in maintaining the integrity of immigration control is through the duties imposed via a licence to issue Confirmation of Acceptance for Studies (previously visa letters). The introduction of the concept of a licensed sponsor was a further key feature of PBS. Sponsorship makes those who benefit financially from non-EEA migrants coming to the UK for work or study (i.e. employers or educational establishments) legally responsible for the migrants that they bring to the UK. Sponsorship underpins nearly all of PBS …. Prospective sponsors of non-EEA migrants must first be licensed by UKBA.”
“245AA. Documentary evidence (a) Where Part 6A or Appendices A to C, or E of these Rules state that specified documents must be provided, that means documents specified by the Secretary of State in the Points Based System Policy Guidance as being specified documents for the route under which the applicant is applying. If the specified documents are not provided, the applicant will not meet the requirement for which the specified documents are required as evidence. … (c) Where Part 6A or Appendices A to C, or E of these Rules refer to the United Kingdom Border Agency guidance, this means guidance published by the United Kingdom Border Agency for use by Sponsors or migrants to ensure compliance with these Rules. If the Sponsor or applicant does not satisfy the requirements set out in guidance and referred to in these Rules, the applicant will not meet the related requirement in these Rules.”
“328. If we have reason to believe that a sponsor is seriously breaching its duties and poses a major threat to immigration control (for example, assigning confirmations of acceptance for studies or issuing visa letters to students who do not qualify to come to the United Kingdom), we may suspend its licence while we make further inquiries ….”
“329. If we have reason to believe that a sponsor is breaching its duties and/or poses a threat to immigration control (for example, assigning Confirmation of Acceptance for Studies to students who do not fully intend to undertake, and complete their course), we may suspend its licence while we make further inquiries.”
“350. We may withdraw a sponsor's licence if: • It fails to comply with any of its duties; • As a result of information available to our visiting officers, we are not satisfied the sponsor is using the processes or procedures necessary to comply fully with its duties; … • We find that students that it has sponsored have not complied with the conditions of their permission to stay in the United Kingdom and the sponsor has not been following good practice guidance set out by us or a sector body; ….” • It fails to comply with any of its duties; • As a result of information available to our visiting officers, we are not satisfied the sponsor is using the processes or procedures necessary to comply fully with its duties; … • We find that students that it has sponsored have not complied with the conditions of their permission to stay in the United Kingdom and the sponsor has not been following good practice guidance set out by us or a sector body; ….”
“You now have 28 days to make representations including submitting evidence in response to this letter. If you fail to make representations, or to adequately address these issues within this time, your licence will be revoked and you will no longer be able to sponsor migrants.”
“28. The reason lies in questions (1)(b) and (c). A policy is precisely not a rule: it is required by law to be applied without rigidity, and to be used and adapted in the interests of fairness and good sense. To take the present case, the policy guidance standing alone would not only permit but require a decision-maker to consider whether, say, a week’s dip below the£800 balance during the three-month period mattered. This would in turn require attention to be given to the object of the policy, which is to gauge, by what is accepted on all sides to be a very imprecise rule of thumb, whether the applicant will be able to support him- or herself without recourse to public funds. If that object was sensibly met, the law might well require the policy to be applied with sufficient flexibility to admit the applicant, or would at least require consideration to be given to doing so. But if the requirement is a rule – and it is the Home Secretary’s case that by incorporation it becomes a rule – then there is no discretion and no judgment to be exercised. 29. This in itself would in my opinion require the three-month criterion to form part of the rules laid before Parliament if it were to be effective. But the objection goes deeper. Albeit the first version of the policy guidance was brought into being within the 40 days allowed by section 3(2) for the parliamentary procedure, it has been open to change at any time. It is this, rather than the fact that it has in the event been changed, which, in answer to question (1)(c), is in my view critical. It means that a discrete element of the rules is placed beyond Parliament’s scrutiny and left to the unfettered judgment of the rule-maker. … 33. But the operation of the rules qua rules is one thing; what they contain as a matter of law is another. In my judgment the statutory recognition of rules which are to have the character and, on appeal, the force of law requires such rules to be certain. That does not shut out extraneous forms of evidence of compliance, so long as these are themselves specified, but it does in my judgment shut out criteria affecting individuals’ status and entitlements which – coming back now to the questions in paragraph 23 above – (a) have not themselves been tendered for parliamentary scrutiny, and (c) even if ascertainable at that point of time, may be changed without fresh scrutiny. As to (b), while the fact that the criterion absorbed into the rules comes from a policy document makes nonsense of the notion of policy, this is not critical: the vice would be the same if the reference in the rules were to a categorical criterion in some external but impermanent or undetermined source. … 35. … The answer has to be that ministers are to be expected to do what is required of them: Parliament will expect the Home Secretary to lay before it any rules by which he or she proposes to manage immigration; the courts will expect such rules, like any other source of law, to be those and only those which have Parliament’s approval; and appellate tribunals will expect to find in the rules the certainty which rules must have if they are to function as law ….”
“37. I accept Mr Swift’s submission [for the Secretary of State] that the defendant’s intention in laying HC 59 and HC 96 before Parliament was to change the Rules so as to give her the power, not merely to determine the limits for Tier 1 and Tier 2 and incorporate those limits into the Rules by cross-reference to UKBA website and PBS Guidance in existence at the time, but also to be able thereafter to alter them at will by making such alterations to the website and/or the Guidance as she saw fit. 38. I also accept Mr Drabble’s submission [for the claimant], that that is precisely what Pankina says that the Secretary of State may not do. …. 39. We are bound by Pankina, but, perhaps unsurprisingly, I would follow Pankina even if we were not so bound. The Secretary of State has to administer the 1971 Act. The Act recognises that the Secretary of State will be laying down rules as to the practice that she will follow in administering the Act, and requires those rules to include provision for certain matters (see section 1(4)). The Act also requires the Secretary of State to lay before Parliament any changes in the rules as to the practice to be followed (see section 3(2)). The purpose of laying the changes before Parliament is to give Parliament an opportunity within a period of 40 days, of expressing its disapproval of the changes. 40. It would frustrate the statutory purpose if the Secretary of State was able to lay before Parliament a change in the rules, which said in effect, that the practice to be followed will be set out in guidance, or be published on a website, which the Secretary of State would be free to change from time to time at her discretion. Far from giving effect to the statutory purpose, such a rule would be a deliberate evasion of the statutory purpose: an attempt to place the exercise of ministerial discretion beyond the bounds of Parliamentary scrutiny as required by the 1971 Act. … 43. I readily accept that there is a spectrum and that in enacting section 3(2) Parliament did not intend that every alteration to the Secretary of State’s practice, however minor, should be subject to the scrutiny of Parliament. It is unnecessary to consider the precise point in the spectrum at which Parliamentary scrutiny is not required because the quantification on the limits on the number of applicants who may be admitted under Tier 1 and Tier 2 is, on any basis, at the top end of the spectrum. Alterations to the limits of those who may be permitted to enter under Tiers 1 and 2 … are precisely the kinds of substantive changes that should be laid before Parliament ….”
“151. Finally, I deal very shortly with the suggestion that there has been a breach ofArticle 6 ECHR . In summary and assuming that Article 6 is engaged (which may not be a safe assumption) I am in no doubt that the availability of judicial review provides an adequate remedy for the determination of any issue relating to the Claimant's civil rights. Before reaching a decision the officers of UKBA were engaged in much more than a purely fact finding inquiry. Certainly, the officers had to grapple with factual issues; however, they were also and importantly drawing upon their own expertise (and that of UKBA as a whole) in respect of the operation of the sponsor scheme. They were also exercising broader judgments relating to both policy and expediency. In any event, had either party considered that the legality of the decisions made by Ms Cram in this case could not be tested on the basis of the documents and the written witness statements provided to this court an application could have been made for oral evidence to be adduced. Although such applications are unusual in judicial review, in an appropriate case such an application can be granted.”
“In the instant case the decisions would be unlawful if they were unreasonable in the Wednesbury sense. I also accept that they would be unlawful if the decision maker failed to have regard to a material consideration when making the decision. So, too the decisions would be unlawful if the decision maker made an important error in her consideration of the relevant facts or the information provided to her. Finally, the decisions would be unlawful if they were disproportionate. As it seems to me, however, these are the parameters within which I must work. It is not open to me, for example, to reach contrary conclusions of fact to those reached by Ms Cram, Mr Knight and Mr McKenzie – unless their findings were irrational or unreasonable or mistaken in a clearly identified way. Further, it is not for me to substitute my own view as to an appropriate “sanction”; if I conclude that the decision to withdraw the Claimant's sponsor licence was proportionate and reasonable I cannot declare the decision to be unlawful simply because I would have reached a different conclusion from that reached by Ms Cram.”
“The inaccuracy of your records, the high level of undeclared visa letters and the number of individuals who have entered the UK and failed to study indicates that the college poses a threat to immigration control. The above indicates a failure to meet your sponsor obligations and would normally lead to withdrawal of your licence under paragraph 324 of the Tier-4 sponsor guidance. I would now like to give you the opportunity to explain the above before we make a final decision.”
“Although, as I have found, the initial decision to suspend was unlawful it does not follow that the maintenance of the suspension was necessarily unlawful. The Claimant sent written representations to UKBA on22 December 2009 and4 January 2010 explaining why suspension was unjustified. UKBA sought information from the Claimant on23 December 2010 and5 February 2010 . The Claimant responded promptly to each request. In my judgment, by5 February 2010 , at the latest, the procedural unfairness which had vitiated the decision to suspend taken on18 December 2009 had been cured. That does not mean, of course, that the maintaining of the suspension was not unlawful because it was in breach of published policy, irrational or disproportionate. It seems to me, however, that it is difficult to argue that maintaining the suspension was unlawful once the guidance in relation to suspending a licence had changed (as it did on3 March 2010 ) so as to relax the test to be applied for suspension. Be that as it may it becomes impossible to argue that it was unlawful in the light of the letter of25 March 2010 . On any view, in my judgment, that letter provided cogent reasons which justified the suspension. That was the view of Holman J who refused permission to apply for judicial review in the first proceedings on the basis that UKBA were justifiably pursuing legitimate inquiries. It is also worth recalling that there was no attempt to renew an application for permission to proceed with the first judicial review and it was those proceedings which were primarily concerned with the events which followed the decision to suspend on18 December 2009 . In my judgment, as from26 March 2010 , at the latest, the suspension of the Claimant's sponsor licence became lawful and has remained lawful since that date.”
“I have reached the conclusion that Ms Cram was entitled to conclude as she did upon the issue of student attendance. I appreciate that it was no part of the guidance published by UKBA that in the event that a college failed to ensure that its students attended 80% of their classes there would be a breach of sponsorship duties on that account. However, that is not the point. It was the Claimant’s failure to follow the guidance (if guidance it was) of its accrediting body and, just as importantly, enforce its own policy which was of legitimate concern and placed it in breach of its duty as a sponsor.”
“…I am persuaded that Ms Cram was entitled to conclude, as she did, that the Claimant had failed to do all that it reasonably could to ensure that evidence was obtained or retained to demonstrate a student’s entitlement to study. I appreciate that as of5 July 2010 the numbers of students concerned with this issue was very small. However, on any view, ensuring that a student is entitled to remain in the UK must be a very important aspect of a sponsor's duty. In my judgment, it cannot be said that Ms Cram was unreasonable in taking into account the fact that it had been demonstrated that 4 students were studying at the Claimant's college when they had no leave to remain in the UK.”
“123. In my judgment this is, classically, an issue which cannot be looked at in isolation. If the only complaint made by UKBA against the Claimant was that its staff had failed to transpose information properly and accurately from a data base to a spread sheet that would be one thing; the reality is that this failure has to be considered in the context that it was first denied that there was any material discrepancy between the information held by the Claimant and the information supplied to UKBA and also in the light of the other criticisms made against the Claimant. On that basis I accept that it was reasonable for Ms Cram to take this issue into account in reaching her decision. 124. This last issue is part of a recurring complaint about the Claimant’s record keeping. In her letter of 5 July Ms Cram dedicated a complete section to that topic. It was obviously an important consideration as of5 July 2010 . Ms Cram explains why when she says in her letter that there is a clear and direct correlation between poor record keeping and immigration abuse.”
“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 a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ….”
“The Court recalls its case-law that goodwill may be an element in the valuation of a professional practice, but that future income itself is only a ‘possession’ once it has been earned, or an enforceable claim to it exists …. The Court considers that the same must apply in the case of a business engaged in commerce. In the present case, the applicants refer to the value of their businesses based upon the means of earning an income from those businesses as ‘goodwill’. The Court considers that the applicants are complaining in substance of loss of future income in addition to loss of goodwill and a diminution in value of their assets. It concludes that the element of the complaint which is based upon the diminution in value of the business assessed by reference to future income, and which amounts in effect to a claim for loss of future income, falls outside the scope of Article 1 of Protocol No.1.”
“72. It seems to me that ‘goodwill’ in this context is not being used in the technical accounting sense of the difference between the cost of an acquired entity and the aggregate of the fair values of that entity’s identifiable assets and liabilities ….. It appears that ‘goodwill’ is being used rather in the economic sense of the capitalised value of a business or part of a business as a going concern which, according to modern theory of corporate finance, is best understood as the expected free future cash flows of the business discounted to a present value at an appropriate after tax weighted average cost of funds …. 73. The business has a capital value or goodwill only if the entity can be, and is, organised in a way that allows future cash flows to be capitalised …. [It] is clear on Strasbourg jurisprudence, now confirmed by high domestic authority, that article 1 of the First Protocol protects only ‘goodwill’, as a form of asset with monetary value, and does not protect an expected stream of future income which, for mainly organisational reasons, cannot be or is not capitalised. In other words, the Convention … protects assets which have a monetary value, not economic interests as such.”
“74. How should a licence or permission be treated under article 1? It seems to me that certain licences or permissions are ‘assets’, that is, they have a monetary value and can be marketed for consideration, either through outright sale, ‘leasing’, or sub-licensing. … A more difficult case is a licence which has been acquired at a ‘market’ price but which may not be assigned or sub-licensed …. 75. However, there are other licences or permissions that are neither marketable nor have been obtained at a ‘market’ price, that is, a price representing what is thought to be the value of net discounted future cash flows that the licence might generate. Such a licence in one sense has a value to the holder because, without it, he cannot carry on the licensable activities. However, such licences do not seem to me to be ‘assets’ having monetary value in the sense required for article 1. Such licences do not as such represent a distinct asset having a monetary value. 76. Furthermore, to treat such licences as ‘possessions’ would, in my view, risk introducing unjustified distinctions into what is already a fairly complex area of law …. 77. In the present application it is common ground that the permissions which the claimants enjoyed under the arrangements prevailing in their cases before the 2001 Act were not marketable and were not obtained at a ‘market price’, although the claimants may have paid fees, intended to cover the administrative costs of the grantor, to obtain them. They did not, therefore, represent any form of asset having a monetary value, although they were ‘valuable’ to the claimants because, without them, they could not work as door supervisors in the areas covered by the relevant arrangements. As I analyse the position, these permissions would not constitute possessions under article 1 of the Protocol.”
“[t]hus there will be no interference with possessions within article 1 of the First Protocol if the value of a business (including, presumably, its goodwill) declines only in so far as loss of future income is anticipated”
“While I do not find the jurisprudence on this subject very clear, I consider that the Court of Appeal [in Malik] reached a correct conclusion in that case basing itself as it did on the very convincing analysis of Mr Kenneth Parker QC in R (Nicholds) v Security Industry Authority[2007] 1 WLR 2067 , paras 70-76.”
“147. It seems clear that a sponsor licence, looked at in isolation, cannot constitute possessions or an asset for the purposes of Article 1. Further, such a licence is non-transferable and it is not suggested that it has monetary or market value. However, a sponsor can engage in the business of providing educational services to non EE[A] migrants if it has a sponsor licence; if its licence is withdrawn it is bound to have a very significant effect upon its business. I find it difficult to see what relevant distinction there may be between withdrawing a non-transferable liquor licence and withdrawing a sponsor licence for the purposes of Article 1 First Protocol.”