London College Of Management Ltd v Secretary of State for the Home Department [2012] EWHC 1029 (Admin)

Case No CO/9612/2011[2012] EWHC 1029 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 3rd April 2012
Strand
London WC2A 2LL
B e f o r e:
Between
THE QUEEN ON THE APPLICATION OF LONDON COLLEGE OF MANAGEMENT LIMITEDClaimant
HER HONOUR JUDGE ALICE ROBINSON
(Sitting as a Judge of the High Court)
v
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr P Haywood (instructed by Quist Solicitors) appeared for ClaimantMr R Dunlop (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]In these proceedings the claimant challenges decisions of the defendant given by letters dated 7th July and 12th September 2011 from the UK Border Agency ("UKBA") to suspend and then revoke the claimant's Tier 4 sponsor licence. Permission was granted on the papers on 2nd November by Geraldine Andrews QC, sitting as a deputy High Court Judge. On 23rd November 2011 the claimant's licence was reinstated and it was common ground at the substantive hearing of the application for judicial review on 23rd March 2012 that the challenge to those decisions is now academic.[2]In the meantime, by a letter dated 17th January 2012, the UKBA refused the claimant's application for "highly trusted sponsor" status under the Tier 4 licensing regime. In consequence, on 8th March 2012 the claimant's Tier 4 licence was revoked. On 9th March Deputy Master Knapman granted permission for the claimant to rely on amended grounds seeking to challenge the decision dated 17th January. Thus argument at the substantive hearing concentrated on the issue now to be decided, namely the lawfulness of that decision dated 17th January 2012. Factual background[3]The claimant ("the College") is a private college established in 2008 which offers a variety of courses. In order to offer courses to students from outside the European Economic Area ("EEA") the College must have a Tier 4 sponsor licence granted by the UKBA on behalf of the defendant (“the Secretary of State”). In order for such a student to enrol on a course provided by a licensed sponsor, the sponsor must issue the student with a Confirmation of Acceptance of Studies ("CAS"). A CAS may only be issued if the sponsor has carried out specified enquiries and is satisfied that the student both intends and is able to follow the course of study concerned. The CAS is then used by the student in support of an application for entry clearance to come to the UK or, if already in the UK, in support of an application for leave to remain.[4]The legislation and Immigration Rules which form the background to this challenge and make provision for the licensing of sponsors and requirements which non-EEA students have to meet in order to be able to come to the UK to study are not directly relevant to the issues in the case. They were not referred to by the parties and it is not necessary for me to set them out. They are referred to in detail in R(New London College Ltd) v Secretary of State for the Home Department [2012] EWCA Civ 51, together with the background to the introduction of the sponsor licensing regime in 2009. As the UKBA evidence in that case stated, licensed sponsors are central to the regime and play a part in ensuring that only genuine students enter the UK (paragraph 9).[5]Guidance as to the grant of Tier 4 sponsor licences and the obligations of licence holders is published by the Secretary of State and periodically revised. Relevant to this claim is guidance issued in October 2010, April 2011, July 2011 and September 2011.[6]On 24th September 2009 the College was first granted a Tier 4 sponsor licence with an "A" rating. That means it had all the necessary systems in place to meet its duties with no evidence of abuse, as opposed to a "B" rating, where systems are not in place or are inadequate or where there is previous evidence of abuse. In addition, there is a rating, then optional, called "highly trusted sponsor" ("HTS") which offered a number of additional benefits. The College maintained its "A" rated licence until the events to which I refer in a moment.[7]On 21st April 2011 the Tier 4 sponsor guidance was revised. An addendum to the guidance stated that from April 2012 all Tier 4 sponsors must acquire HTS status and that those who failed to meet the requirements would be able to retain current students only. The Secretary of State was putting all Tier 4 sponsors on notice that, in order to continue to offer courses to new non-EEA students and issue them with a CAS, they must become HTS by April 2012.[8]On 22nd June 2011 officers of the UKBA conducted an unannounced visit to the College, where they conducted a detailed inspection. Following this, on 7th July 2011, the UKBA wrote to the College suspending its sponsor licence for four reasons. The letter gave the College an opportunity to make representations as to why its licence should not be revoked, which it did by letter dated 1st August. On 12th September the UKBA wrote stating (with reasons) that the representations did not adequately address the reasons for suspension and revoked the College's licence.[9]As I have already said, following the issue of these proceedings and grant of permission to apply for judicial review, on 23rd November 2011 the UKBA reinstated the College's sponsor licence. The letter refers to the four areas of concern and states "from the information received, we are now satisfied that you have addressed our concerns". It is right to point out that the only information which had been received was the representations dated 1st August and the matters set out in the grounds of challenge, supported by a witness statement from the College's principal, Mr Kandasamy.[10]The College having previously failed to take any steps towards applying for HTS status and the deadline for applications having expired during the period of licence revocation, the UKBA also extended the time within which the College could apply for HTS status. The UKBA also indicated that the College could apply notwithstanding the requirement that an applicant must have held a Tier 4 licence for 12 consecutive months prior to the application. On 29th November the College duly applied. Representations in support of the application dated 4th January 2012 were sent to UKBA.[11]On 17th January 2012 the UKBA wrote refusing the application on two grounds:
"For a sponsor to be considered for HTS status they must first meet all the mandatory requirements as detailed below…:- Mandatory requirements … Refusal Rate Your refusal rate must be less than 20% … We have been unable to approve your application for the following reason(s):- Our records indicate that your refusal rate is greater than 20%. The total number of leave applications made was 61. Of these 25 were refused giving a percentage of 40.98%. Two applications were refused due to your sponsor licence being revoked, even removing these two still gives a refusal rate of 37.7%." "
In addition, you have also failed to meet the requirements of paragraphs 276 and 94 of the Tier 4 Guidance. In particular, we are not satisfied that you have the processes you need to comply with your sponsorship duties, as we have found evidence that you are not currently meeting your responsibilities as a licensed sponsor in regards to reporting migrant activity. We have identified 19 students for whom appropriate migrant activity reporting has not been made, in accordance with Paragraph 463 of the Tier 4 Guidance. All 19 students were refused entry clearance and therefore could not have enrolled, within the enrolment period stated, however no migrant activity reports have been made in this regard."[12]Counsel for the College, Mr Phil Haywood, submitted that both reasons given for refusing the HTS application were flawed, as a result of which the decision was unlawful. The guidance[13]The April 2011 guidance, which, as I have already said, indicated that HTS status would be compulsory from April 2012, set out the eligibility criteria which applied to HTS status:• you must have in place recruitment practices to ensure as far as possible genuine students only are accepted and issued with confirmation of acceptance for studies (CAS) ...• you must have in place practices to minimise the number of refusals of leave for migrants applying with a confirmation of acceptance for studies (CAS). We are not publishing a target percentage rate for refusals at this time and will instead look at how far refusal rates deviate from the 'norm' for that location and part of the sector. We expect to be able to publish a clearer statement of our expectations on refusals in due course ...[109]The criteria above have been designed to provide clarity on our expectations of you and student compliance. Should you not achieve the standards above in just one or two areas our staff will decide whether this level of performance should result in your HTS status being refused or being removed. In doing so our staff will consider the whole picture of your compliance record and not just that criterion alone. However, where just one of the criteria is not met we have the right to refuse any application or remove HTS status." Sponsors with an "A" rating were already supposed to have in place practices to minimise the number of refusal of leave for migrants applying with a CAS from their organisation (October 2010 guidance paragraph 164).[14]No fixed percentage threshold for refusal rates was introduced at that stage, but the guidance states the number of refusals would be taken into account. Although it refers to practices to minimise the number of refusals, there is no indication that the Secretary of State would look at the reasons for refusal in individual cases. Refusal rates for location and sector would be considered. The guidance foreshadowed the introduction of a specific threshold figure in due course.[15]Under the heading "what happens if my HTS application is unsuccessful", the guidance states:
"You may also be given notice of an intention to review your sponsor licence rating"
. This is consistent with the fact that, although HTS status would be compulsory by April 2012, at that stage it was optional.[16]The April 2011 guidance relating to reporting migrant activity stated:
"REPORTING DUTIES • if a sponsored student does not enrol on their course within the enrolment period. The report must be provided within 10 working days and must include any reason given by the student for their non-enrolment (for example a missed flight)…"
It is common ground that the guidance as to reporting duties was not materially different from that which existed before April 2011.[17]On 4th July 2011 revised guidance was issued, but there were no material changes to the April 2011 guidance quoted above. On 18th July 2011 the UKBA published proposed mandatory criteria for HTS status to replace the "criteria and values" against which applications for HTS status were being "measured". These included fixed percentages for a number of requirements, including a refusal rate of less than 20 per cent. On 30th August the UKBA indicated that it had received almost 400 responses to the consultation exercise which had been carefully considered and revised guidance would be issued in September. The UKBA stated: "We will be incorporating your suggestions so that, where possible, we can achieve a balance between the needs of the sector with the need to maintain a robust immigration control and protect our border".[18]The revised guidance was published and took effect from 5th September 2011. It states: "Eligibility requirements for highly trusted sponsor status[268]You must meet all the requirements set out in this section ...[270]At the first stage we assess you against the mandatory requirements in table (iv). We base our assessment only on students sponsored under Tier 4 and whose application to come to, or stay in the UK was supported by a CAS assigned by you.[20]Table (iv) … Refusal Rate Your refusal rate must be less than 20% This means that of all the CAS you have assigned which students have used to support an application for a visa or permission to stay, the total number of applications we refused must be less than 20 per cent. We will assess this using CAS data from the [sponsorship management system] for the 12-month period immediately before you apply. We will take into account all the CASs that students have used and applications we refused during this 12 month period. ... When we will refuse an application for highly trusted status ...[276]We will also refuse your HTS application for any of the reasons set out in the section called 'When we will refuse a sponsor licence application'.

If we refuse your application for HTS

[277]If we refuse your application for highly trusted sponsor status we will revoke your licence. This is because you will have failed to meet the minimum standards we have set out for sponsors who have held their licence for 12 months or more." The section headed "When we will refuse a sponsor licence application" states:
"94. We will refuse your application in any of the circumstances below ... • we find information that suggests you do not have the processes you need to comply with your sponsorship duties."
[19]The sponsorship duties include the reporting duties, the wording of which changed in the September 2011 guidance as follows:• 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."[20]I now turn to the grounds of challenge. Refusal rate[21]As to the first reason for refusal of the HTS application, Mr Haywood submitted that in the context of the change to the guidance in September 2011, introducing new criteria and the consequences of failure to achieve HTS status, and given the requirements of certainty and fairness, there was clear rigidity in the consideration of the College's application. He conceded in oral submissions that it was rational for the Secretary of State to adopt a policy whereby an applicant for HTS status had to satisfy mandatory criteria and that such criteria could include a refusal rate of less than 20 per cent. However, he submitted that the Secretary of State had acted unlawfully by applying the policy inflexibly and unfairly. There was a general obligation to act fairly, particularly given the harsh consequences which would follow if the College lost its Tier 4 sponsorship licence.[22]Mr Haywood relied upon the general principles of fairness set out in Doody v Secretary of State for the Home Department [1993] 3 All ER 92 per Lord Mustill at page 106 E-H. Further, the terms of UKBA policy may not necessarily determine what is fair, see R(New College Ltd) v Secretary of State for the Home Department [2011] EWHC 856 (Admin) paragraph 60, a passage in the judgment of Wyn Williams J which was not challenged in the Court of Appeal, see [2012] EWCA Civ 51 at paragraphs 59 and 60. As to fairness, Mr Haywood also relied on a number of passages in R v Secretary of State for Health, ex parte US Tobacco International Inc [1992] 1 All ER 212.[23]Further, it was submitted that a policy must not fetter the exercise of a discretion and the particular circumstances always require to be considered: R(Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] All ER 116 per Lord Clyde at paragraph 143. I note this is a planning case where there is a statutory duty to have regard to all material considerations in addition to any relevant planning policies so that the particular circumstances of the case must always be considered.[24]Mr Haywood submitted that the reasons students issued with a CAS were refused entry clearance or leave to remain were varied and could not necessarily be attributable to any fault on the part of the College, in the sense that they should have been anticipated and if appropriate addressed before a CAS is issued. The reasons which applied to the students on whom the UKBA relied in this case were examined. These included failure to meet financial requirements, inadequate or false documentation and poor understanding of English, which it was submitted were not attributable to any fault by the College which had systems in place to ensure students were genuine. The UKBA had unfairly applied its policy inflexibly by failing to have regard to the particular reasons why the students were refused and the fact that those were not the result of any failures by the College.[25]Mr Rory Dunlop, counsel for the Secretary of State, submitted that, in the light of the concession that the Secretary of State is entitled to adopt mandatory criteria including a refusal rate of less than 20 per cent, the College's case amounted to no more than an assertion that an exception should have been made. However, there was nothing exceptional about this case. It was entirely normal for some reasons for refusal to be ones the College should have anticipated (and by implication addressed in advance) and others to be unanticipated. That was why a generous threshold of 20 per cent had been adopted. It was much simpler and clearer to have a percentage threshold, otherwise it would be necessary to debate in every case the reason for each refusal and whether that refusal should count against the sponsor or not.[26]Further, Mr Dunlop submitted that even if it was appropriate to look at the reason for each refusal, that did not assist the College because the number of refusals which they should have anticipated exceeded 20 per cent.[27]There was a substantial dispute between the parties as to the total pool of students against whom the number of refusals should be judged, the number of refusal decisions and the extent to which the reason for refusal in individual cases could be attributable to any fault by the College. Happily, it is not necessary for me to resolve any factual dispute for reasons which will become apparent.[28]The UKBA relied upon a pool of 61 students of which 24 had been refused, i.e. 39%. The College relied upon a pool of 82 students of which 36 had been refused, i.e. 44%. Putting the College's case at its highest, i.e. including only refusals which the College should have anticipated, Mr Haywood said that the number of refusals was 13, i.e. 16% of 82 or 21% of 61. It follows that, unless the College's figure of 82 as the pool of students from which the percentage is calculated is correct, all the refusals exceed 20 per cent. Mr Haywood conceded that if the pool should be 61, his challenge to this aspect of the decision letter failed. I therefore turn to the issue as to whether the pool should be 61 or 82. This turns not on a factual dispute, but on the proper construction of the HTS criteria in the September 2011 guidance.[29]Paragraph 270 table (iv) refers to all the CAS "which students have used to support an application" in a 12 month period and states "We will take into account all CASs that students have used and applications we refused during this 12 month period". Mr Haywood submitted that "used" meant used in support of an application, whether determined or not. The wording was clear and there was no requirement that the application had been dealt with. On the other hand, Mr Dunlop submitted that the only sensible meaning which could be given to "used" was "used up" or spent, i.e. the CAS has been considered when making a decision to refuse or grant leave and as a result cannot be used again.[30]In my judgment, the guidance can only sensibly refer to a CAS which has been used by a student whose application has been determined. The rationale for the refusal rate criteria is to judge the extent to which the investigations carried out by a sponsor ensure that students to whom a CAS is granted genuinely intend and are able to follow their intended course of study and the number of refusals is minimised. This is clear from the April 2010 guidance which had not yet set a fixed percentage of refusals. If the pool of students from which the refusal rate is calculated includes applications as yet undetermined, the refusal rate will not reflect the effectiveness of the College's practices. Mr Dunlop gave an example to illustrate the point: if in a 12 month period 100 applications are made and only ten determined, all of which are refused, on the College's interpretation the refusal rate is ten per cent, whereas in reality every application considered has been refused.[31]Of course there will be refusals which the College could not reasonably anticipate and cannot be attributed to any fault on their part, so the refusal rate is not a precise measurement of the merit of the College's practices. But to inflate the pool of applications from which the refusal rate is calculated to include undetermined applications would give an even less accurate indication of the effectiveness of the College's practices. Thus, in my judgment, even if reasons are taken into account in each case, the number of refusals exceeds 20 per cent and the Secretary of State was entitled to refuse the HTS application on this ground.[32]Because of this it is not necessary to decide whether the Secretary of State's decision to apply the criterion to the total number of refusals without looking at the reasons in each case was lawful. However, the point was fully argued and is clearly of some importance so I will give my views on it.[33]As far as reliance on Doody, New London College and US Tobacco is concerned, it should be noted that Mr Haywood at no stage argued that it was unlawful for the Secretary of State to refuse the College's application without first giving it an opportunity to make representations on the grounds on which she was minded to refuse the application or because there is no right of appeal. Further, there was no challenge to the September 2011 guidance itself on the grounds that there had been no opportunity to comment on it.[34]Mr Haywood's skeleton argument made the point that, because the HTS application fell to be judged by reference to the College's performance in the preceding 12 months when different policies applied, it was important that there was a level of certainty as to the criteria to be applied so the College could regulate their conduct (paragraphs 22 and 23). However, the requirement to have practices in place to minimise refusals applied to "A" rated Tier 4 sponsors during the relevant period. The April 2011 guidance made clear that HTS status would be compulsory by April 2012 and foreshadowed the introduction of a fixed percentage refusal rate. As I have already said, the UKBA undertook a consultation exercise in July before introducing it in September 2011. Further, the Tier 4 sponsor guidance is, like the Immigration Rules themselves, no more than an indication of how at any particular time the Secretary of State will exercise her discretion, in this case whether to grant a Tier 4 licence, see Odelola v Secretary of State for the Home Department [2009] UKHL 25.[35]If the Secretary of State was entitled to adopt a mandatory criterion that refusals should not exceed 20 per cent, it is difficult to see why she should not apply the policy to this case but instead regard it as an exception such that the reason for each refusal should be looked at. The reasons for refusal identify precisely the sort of issues you would expect to arise in Tier 4 student cases: whether financial requirements are met, whether documentation is appropriate or genuine and the standard of the student's English. Of course refusal of the HTS application had serious consequences for the College's business as the Secretary of State's new policy is that to enrol non-EEA students the educational provider must have HTS status, but the same would be true of all existing Tier 4 sponsors so that is not a justification for making an exception in this particular case.[36]Mr Haywood submitted that the College had done what could reasonably be expected of it which should be taken into account and has not been. It is right that the College wrote to the UKBA by letter dated 4th January 2012 making representations to the effect that although the number of refusals exceeded 20 per cent, the reasons for refusal did not reflect any shortcomings on the part of the College. Those representations are not referred to in the 17th January decision letter because, as Mr Dunlop explained at the hearing, the 4th January letter had not made its way to the relevant decision maker. Mr Haywood did not then submit that the decision was unlawful by virtue of a failure to take into account those specific representations. His argument was that the information as to why students are refused entry or leave is within the UKBA's knowledge already and as there is no right to make representations or appeal, the information as to refusals should therefore be taken into account before a decision is made as to whether the refusal rate criterion is met.[37]Put this way, the argument is in effect one that the reasons for refusal should be taken into account in almost every case. That is inconsistent with the concession that the Secretary of State is entitled to adopt a mandatory criterion that the refusal rate does not exceed 20 per cent. Moreover, to require the reasons for each refusal to be considered in every case would wholly undermine the purpose of having what Mr Dunlop described as a "bright line" policy. The April 2011 guidance said the UKBA would look at how far refusal rates deviate from the "norm" but expected to be able to publish a clearer statement in due course. Following the consultation in July 2011 the 20 per cent threshold was adopted. There are plainly administrative advantages to having a fixed threshold. These would be negated if individual cases had to be examined. As well as having regard to information in the hands of the UKBA, a judgment would have to be formed as to whether the refusal should be taken into account. This would involve considering whether the College should have anticipated the reason for refusal, which may in turn require information from the College. Decision making would take longer, be more complicated and costly.[38]An indication of that can be gained from this case. The College produced a spreadsheet with all 82 applications listed and an analysis of those applications. The applications have been considered exhaustively in the College's Amended Grounds, the Detailed Grounds of Defence, Mr Haywood's Skeleton Argument and Mr Dunlop's Skeleton Argument, which contains an eight-page Appendix analysing the factual issues relating to refusals.[39]In my judgment, it would entirely defeat the purpose of adopting a criterion with a fixed threshold if individual cases routinely had to be examined as well. That is not to say there will not be occasions when an exception should be considered and made. Those should be decided on a case by case basis. In my judgment, there is no unfairness in this case such as to render the decision not to have regard to the individual reasons for each refusal unlawful.[40]The Secretary of State has in fact made an exception in this case because all the refusals during the period while the College's licence was revoked between September and November 2011 have been discounted. The fairness of that approach is obvious. But it also shows that the decision maker has had regard to the circumstances of this particular case so far as appropriate to do so, rather than unthinkingly applying the guidance. Therefore, this is not a case where the policy has fettered the exercise of a discretion. Reporting duties[41]As to the second reason for refusal of the HTS application, failure to report students who did not enroll, Mr Haywood submitted that if the applicable guidance was properly interpreted there had been no breach of the sponsor duties. He submitted that the guidance was not intended for lawyers but for everyday use by education providers and that the guidance must clearly, comprehensively and unambiguously set out the obligations imposed on sponsors. There was a clear change of wording and meaning in September 2011. Before that the only obligation was to notify UKBA of students who had been granted entry clearance and were in a position to enrol but failed to do so, whereas from September 2011 it was clear that any student who failed to enrol should be reported.[42]In support of that submission he relied on a number of points. First, the guidance stated the purpose of reporting was so enforcement action could be taken. If the student had not been granted entry clearance, by definition they had not entered the UK and no enforcement action was necessary. Second, the example give in parentheses of the reason for non-enrolment being a missed flight would only apply to a student who had been granted entry clearance. Further, the subsequent bullet points (which I have not quoted) all relate to events which occur after a student has enrolled, for example missing classes or dropping out of college.[43]Mr Dunlop made a number of points in reply. He submitted that the wording of the guidance was clear: before and after September 2012 sponsors "must report ... if a sponsored student does not enrol" and there was no warrant for implying any qualification. A student with entry clearance might miss their flight, they would not be in the UK, no question of enforcement action would arise, yet this was clearly an instance where failure to enrol should be reported as it was the specific example given. He also submitted that the qualification which the College sought to imply was unworkable because the College would not necessarily know whether entry clearance had been granted or why the student failed to enrol.[44]As a fall back he also submitted that even if the College's interpretation of the pre-September 2011 guidance was correct, the UKBA still had concerns about the College's reporting arrangements because there was no evidence that the failure to report relied upon in the decision letter arose out of a conscious decision not to report because entry clearance had been refused. In the light of the way the case was put in these proceedings, the College was either unaware of the obligations to report or had failed to put in place a system to meet that obligation.[45]In my judgment, the proper interpretation of the guidance is that relied upon by Mr Dunlop. The reporting duties are important. Quite apart from the criteria for grant of an HTS licence, non-compliance with them could result in the revocation of any Tier 4 sponsor licence. For this reason I fully accept that the obligations they impose need to be clear and unambiguous. However, the construction of them advanced on behalf of the College would be the very antithesis of that. 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. There may be a number of circumstances in which no need for enforcement arises even though entry clearance had been granted, so the reference to enforcement does not support the interpretation contended for by the College. 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. Paragraph 43 of the Amended Grounds state that:
"(iii) A College will either obtain partial information regarding a refusal or in some cases none at all. Information may come from students who have been refused entry clearance or leave or from the recruiting agents used by the Colleges in overseas countries. The UKBA or the relevant Entry Clearance Officers do not inform colleges about refusals; (iv) A College may be given a reason for refusal by these informants but in some case they are not; they will rarely have information on the date an entry clearance application is made or decided; where they do have this information it is clear that there may in many cases be a sizeable gap, depending on the overseas post between the CAS interviews by the College and the entry clearance application being dealt with by UKBA."
[47]At the hearing I asked Mr Haywood how the College would find out whether entry clearance had been refused, and his answer was from the student. As Mr Dunlop pointed out in his Skeleton Argument, the student may not be honest. The whole system would be undermined if UKBA's only information as to what has happened to a student came from the student him or her self. However, notwithstanding that answer and the extract from the Amended Grounds quoted above, in reply Mr Haywood sought to say that the College is given formal notice of refusals of entry clearance. That was hotly disputed by Mr Dunlop, and in my judgment there is no evidence to support it. On the contrary, in a witness statement dated 21st March 2012 Mr Kandasamy, the College's principal, states in paragraph 44, "I am not sure that it would be helpful to add to what is set out in the amended grounds" on the issue of reporting refusals of entry clearance, clearly endorsing what is said in the Amended Grounds.[48]As Mr Dunlop put it, the duty to report cannot be triggered by an event which the person subject to the duty has no knowledge of, namely the grant or refusal of entry clearance or leave to remain. It would be manifestly unfair to impose a duty, breach of which could lead to revocation of the sponsor's Tier 4 licence, the existence of which was uncertain and could not necessarily be ascertained.[49]It is therefore not strictly necessary to deal with Mr Dunlop's fall back argument. However, I just add this observation. There is no indication in the decision letter that the application was refused because the College was unaware of its obligations or did not have the correct systems in place independently of its failure to report students who had failed to obtain entry clearance. If the College's interpretation of the guidance had been correct, failure to report those students would not be evidence of any underlying problem. Licence revocation[50]In an amendment to his Skeleton Argument, Mr Haywood sought in addition to challenge the letter dated 8th March 2012 revoking the College's existing licence as a result of refusal of the HTS application, applying paragraph 277 of the September 2011 guidance. The Skeleton Argument asserts that it was unfair to apply new guidance given that refusal of an HTS application would lead to revocation of a Tier 4 licence. However, at the hearing he abandoned that point, rightly in my view. Sponsors were informed in April 2011 that they must become HTS by April 2012. It follows that the revocation, which followed inexorably from refusal of the HTS application, stands as lawful.[51]For all these reasons the application for judicial review is dismissed.[52]MR DUNLOP: I am grateful, my Lady. I have spoken to my learned friend and I think we are agreed as to the position on costs. I seek my costs and the order should be to be assessed if not agreed because we do not have before us at the moment a costs schedule, although I understand from my solicitor that one was previously served, but that is by the by. I think we are in agreement, subject to your approval, that costs should be assessed if not agreed.

JUDGE ROBINSON:

[53]Yes, I have a schedule of the defendant's costs for summary assessment. The rules do require summary assessment in one day cases so both of you should have served a schedule.[54]MR DUNLOP: The schedule was served, as I understand it, with the skeleton argument. I personally do not have a copy myself. I think that there is the possibility for the parties to agree that there be detailed assessment if not agreed. It is not compulsory to do a summary assessment, in other words.

JUDGE ROBINSON:

[55]No, but it is the normal expectation. Is there any reason why you do not want to rely on this schedule today?[56]MR DUNLOP: Only that I have not actually seen it, but if I look at it --

JUDGE ROBINSON: Do you have this?

[58]MR HAYWOOD: My Lady, I have seen a copy of an earlier schedule.[59]MR DUNLOP: My only concern -- and my learned friend may have concerns of his own -- is whether or not this includes the costs of today, the reading out, not that they will be substantial, Treasury panel rates, but they almost certainly would not have been anticipated in that costs schedule.

JUDGE ROBINSON:

[60]All right. I will make that an order that the costs are to be assessed if not agreed.[61]MR DUNLOP: I am grateful.

JUDGE ROBINSON: Can I have that schedule back.

[63]That is right, is it, Mr Haywood? What Mr Dunlop has just said, you do not object to that order being made?[64]MR HAYWOOD: No, I certainly do not.

JUDGE ROBINSON:

[65]Thank you. The claimant will pay the defendant's costs, to be assessed if not agreed.

Cited in 8 later judgments