“Sponsorship is based on two fundamental principles: i. those who benefit most directly from migration (that is, the employers, educational providers or other bodies who are bringing in immigrants) should play their part in ensuring that the system is not abused; and ii. we need to be sure that those applying to come to the United Kingdom to do a job or to study are eligible to do so and that a reputable employer or educational institution genuinely wishes to take them on.”
“To obtain a Standard Tier 4 licence, a prospective sponsor must apply to us, supplying 7. specified documents to show that it is eligible. These documents are listed in Appendix A which is separate to this guidance booklet. We will carry out appropriate checks before deciding whether to grant the licence. We may refuse the application if there is anything in the sponsor body’s history or the Key Personnel’s history, that suggests that it could be a threat to immigration control or that it would be unable or unwilling to carry out its duties.”
“In order to judge this, they will look at the history and background of the organisation, its key personnel and of the people who control it. Any history of dishonest conduct or immigration crime will be viewed seriously and may lead to refusing an application.”
“We will normally refuse an application if you, or another relevant person, have been dishonest in any of your previous dealings with us (or the former Immigration and Nationality Directorate or Border and Immigration Agency). Examples of dishonesty include, but are not limited to: • applying for work permits despite not having, or being in the process of establishing, an operating or trading presence in the United Kingdom; • having had work permit applications refused on the grounds that your facilities were not large enough to cope with the increased staff and there were no plans to expand to take account of that increase; and • making false statements in any application to us, including an application for a work permit. We can grant a licence in exceptional circumstances, such as if a former employee of your organisation was wholly responsible for the dishonesty and was dismissed when it was discovered. However, if we do grant you a licence in exceptional circumstances, we may award a B rating at first.”
“367. Sponsors will also normally lose their sponsorship licence if… [it] or another relevant person, are dishonest in any dealings with the UKBA. This includes, among other things: making false statements, or failing to disclose any essential information, when applying for a sponsorship licence…”
“368. We cannot define precisely in which exceptional circumstances we may not withdraw your licence when one of the above circumstances applies. However, we regard this seriously and would look for evidence that you were either not responsible for what happened or that, if you were, that you took prompt and effective action to remedy the situation when it came to light.”
“13. Having heard the evidence from both sides we share Edexcel’s concerns about the need for the College to review its management, administrative and quality assurance procedures with the aim of introducing a greater degree of control over the conduct of the courses it wishes to offer its students. The incident involving the Birmingham sub-site is of particular concern and proper and robust procedures will have prevented it happening. 14. Accordingly, we uphold Edexcel’s decision to withdraw its recognition of the College at the present time. 15. However, if the College can satisfy Edexcel that it has identified areas of its procedures that require improvement and has remedied them, and if Edexcel is satisfied with the results, the College should not have to wait until November 2015 before applying to have its recognition reinstated. In pursuit of that aim, we strongly recommend that the College should work closely with Edexcel. 16. We have also considered Edexcel’s decision to have certificates issued to students in years 2009-10 and 2010-11 withdrawn. 17. We recommend that Edexcel reconsiders this decision, given the seriousness of the consequences for these students who are being penalised for matters completely outside their control. 18. Finally, over the issue of what Centres should be required to do should they wish to establish sub-sites, we recommend that this is reviewed by Edexcel as a matter of urgency and the outcome promulgated widely to all of the Centres it recognises, and to only apply for recognition.”
“When the panel decision arrived from Edexcel, I discussed briefly the same with Mr Capaldi. I was glad that any suggestions of dishonesty or acting knowingly were not made out. I was jubilant given the decision did clear the college of any wrongdoing of a dishonest nature. The decision essentially raised issues of an administrative nature which I accept I had sorted out long before the decision was promulgated. I was delighted that the panel lifted the 5 year bar and allowed the college to seek reaccreditation immediately on the proviso that we had systems in place. We indeed had systems in place, and therefore within week were back accredited with the Edexcel board.”
“I have tried to contact you via phone today, so that I can update you on the Edexcel panel hearing heard on Thursday,17 March 2011 . We were exonerated on all accounts. I would appreciate a conclusion on our Tier 4 general application now. I look forward to your confirmation.”
“I have instructed Mr Capaldi at Runhams Solicitors to release the panel report. I believe this will help us move forward, as we have EDI (ESOL and SIA) at Trinity College, London (ESOL) already in place, and are working positively with Edexcel for centre approval. If you need to speak to me, please call on...”
“In this case, we received an email from you dated21 March 2011 which stated Burnley Training College had been exonerated on all counts in an Edexcel appeal and requested a speedy decision on your application. On reviewing the Edexcel appeal transcript it is clear that Burnley Training College were not exonerated in its outcome. We therefore conclude this email was dishonest and that paragraphs 64 and 126 apply. Therefore, we are unable to approve this application.”
“Your client made a false statement, and also failed to disclose the essential information from the Edexcel hearing. It was only because you provided this information that it was discovered that your client had made a false statement.”
“1. The consequences for the claimant of refusal of their application for Tier 4 sponsor status were clearly economically catastrophic. 2. Whilst it is clear that Ms Saddique’s statement that the college were ‘exonerated on all counts’ was inaccurate the Defendants decision to refuse the application can only be justified if the statement was dishonestly made. It may be arguable that this distinction was not sufficiently considered, given the confirmation that the appeal decision was subsequently disclosed with the Claimants consent.” 23. The grounds on which judicial review are sought were summarised as follows: “The decision of the defendant is challenged on the following grounds. 1. The failure to allow the claimant a procedurally lawful and open opportunity to challenge the decision. 2. The failure to consider alternative sanctions, if indeed any finding was made subsequent to having heard from the claimants. 3. The decision was irrational and disproportionate based on the five points. 4. The defendant failed to consider with care and properly interpret the findings of the Edexcel decision. It therefore resulted in issuing an irrational decision.” 24. Stripped down to its essentials, the claimant in reality and substance complains of procedural unfairness. Mr Gulraiz, on its behalf, accepts that the email of21 March 2011 was inaccurate, in that the claimant had not been exonerated on all counts. But, is the gist of his submission, context is everything; a point not disagreed with, as I understood it, by Mr O’Brien. Accordingly, Mr Gulraiz submits, looking at the email in its context, even if it was strictly speaking factually inaccurate, it was entirely understandable. Allegations of dishonestly had apparently been made against the claimant and particularly against, or involving by implication, Mrs Saddique, and had been rejected. He points out that Mrs Saddique made every effort to keep the defendant informed. She did not seek to hide the terms of the decision from the defendant. He complains that the defendant acted procedurally unfairly and not in accordance even with its own guidelines, as indicated by circumstances where an application would “normally” be refused or, if granted, withdrawn. 25. On behalf of the Secretary of State, it is argued that the role of the court in these matters is simply supervisory and that essentially the defendant was entitled to reach the decision it did in accordance with that guidance that it had issued. Mr O’Brien submitted that the defendant was entitled to regard Mrs Saddique as being dishonest in her email of21 March 2011 and in that light the decision was not irrational or perverse to refuse a Tier 4 licence. In response to direct questioning from me, Mr O’Brien, on behalf of the Secretary of State, still sought to categorise Mrs Saddique as dishonest. I was helpfully referred by both sides to the previous decision of Mr Neil Garnham QC in the London Reading College Limited case to which I have referred. That was a case in which a licence had been granted and was then withdrawn, but many of the points he makes in the judgment are, as I understood it, common ground in matters of this nature where an application is being made. Thus, as Mr Garnham said in paragraph 9 of his judgment: “It should be understood that establishing a college and achieving both accreditation and licensing is a substantial undertaking for an establishment. Having achieved this status and opened for business teaching students, the college will inevitably have made substantial financial commitments. The loss of a license would have the most serious professional and financial consequence for the college and its proprietors. It would also have a serious impact upon both its students and its prospective students because, without a visa letter or a "Confirmation of Acceptance for Studies" document from a licensed college, the students' immigration status is undermined. It follows that a license is a very valuable thing.” 26. It is true, as I say, he was referring there to the loss of a licence once granted, but one could equally appositely say that the failure to obtain a licence might well in most circumstances have serious and professional and financial consequences for the college and its proprietors. In paragraph 10, the learned Deputy Judge added this: “It is plain from the Guidance that the scheme operates by imposing on the sponsor colleges serious and onerous duties in return for the grant of what for the college is a valuable license.” 27. It is right to point out that the learned Deputy Judge was there having regard to the guidance, the terms of which and the version of which has been superseded by the one before me at the relevant time. But the point there made in paragraph 10 is equally apposite to the facts of this case. 28. As in the London case, so here it is common ground that public law decisions, particularly those that affect an individual’s rights, are subject to common law requirements of procedural fairness. Both sides have referred me to the well-known observation of Lord Diplock in O’Reilly v Macnan[1983] 2 AC 237 at 279F to G, that: “The two fundamental rights accorded to the individual in question by the rules of natural justice or fairness include the right to have afforded to him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it.” 29. Mr Garnham also said in the Reading case at paragraph 37: “What matters is whether, before taking their decision, the Claimant's had been given fair notice of what was concerning the Defendants so that the Claimants could attempt to deal with the points. That was necessary both as a matter of fairness but also to ensure that the Defendants were in a position to take a rational decision, a decision based on a proper appreciation of all the facts.” 30. Finally, in paragraph 60 the Deputy Judge indeed accepted a submission, as I do, similar to the point made by Mr O’Brien in this case, that: “It has to be remembered that the primary judgment about the response to breaches of a College's duty is the Defendant's, and the Court's role is simply supervisory. It has also to be remembered that the underlying principle behind this scheme is that the UKBA entrusts to Colleges the power to grant visa letters on the understanding, and with their agreement, that they will act in a manner that maintains proper immigration control. The capacity for damage to the national interest in the maintenance of proper immigration control is substantial if Colleges are not assiduous in meeting their responsibilities. In those circumstances, it seems to me that the Defendants are entitled to maintain a fairly high index of suspicion as they go about overseeing colleges and a light trigger in deciding when and with what level of firmness they should act.”