The London College of Finance & Accounting, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 1688 (Admin)

Case No CO/4451/2014

[2015] EWHC 1688 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16/06/2015

Before

MR JUSTICE COBB

Between

RClaimant

(on the application of theClaimant

London College of Finance & Accounting)Claimant

Secretary of State for the Home DepartmentDefendant

Michael Biggs (instructed by Mayfair Solicitors) for Claimant

Rory Dunlop (instructed by The Government Legal Department) for Defendant

Hearing Hearing dates: 19 and 20 May 2015

Judgment

Introduction and Summary of outcome

[1]By a Claim issued on 24 September 2014, the Claimant seeks permission to apply for judicial review and quashing orders in relation to the Defendant’s decision(s) to suspend its Tier 4 sponsor licence. Since the claim was issued, the Defendant has taken the more significant step of revoking the licence; this decision was first communicated to the Claimant on 21 October 2014, was re-stated and maintained for further reasons on 25 November 2014 and 29 April 2015. The claim now focuses on those revocation decisions.

[2]The Claim has been listed as a ‘rolled up’ hearing for determination of permission, with application to follow if permission is granted. This is the second attempt at this hearing.

[3]This judgment is divided up as follows: 1 Introduction and Summary of outcome 1-4 2 Preliminary issue: Case Management: filing of evidence 5-11 3 Legal Framework 12-16 4 Background Facts 17-27 5 The issues for determination 28 6 Issue (1): Approved qualification: accreditation and registration 29-37 7 Issue (2): CAS issued to TOEIC cheats 38-44 8 Issue (3): Relief 45-46 9 Issue (4): Revocation and Published Guidance 47-51 10 Conclusion 52-53

[4]For reasons set out and discussed below, I have reached the clear conclusion that the Defendant was acting neither unreasonably nor unlawfully when she revoked the Claimant’s Tier 4 Sponsor licence. The Claimant’s case does not approach the requirement of being sufficiently arguable so as to justify the grant of permission to apply for judicial review.

Preliminary issue: Case Management: filing of evidence

[5]Immediately prior to this hearing, a litigation skirmish erupted between the parties concerning the timing, admissibility, and relevance of a bundle of new material on which the Claimant wished to rely in support of its claim. The new material comprised examples of academic course work which had apparently been undertaken by 21 of the Claimant’s students. The material filled a lever arch file, and had been served on the Defendant on 14 May (i.e. two working days before the hearing). Service of the material provoked correspondence from the Defendant’s Legal Department directly to the Court seeking urgent pre-hearing relief namely: either a strike out of the entire claim under CPR 3.4(c), or a direction refusing the Claimant permission to file the material, &/or an adjournment or vacation of the forthcoming hearing, or a direction that the hearing be used for the purposes of permission only. I declined to accede to any of the Defendant’s alternative applications on paper (particularly in the absence of any representations from the Claimant) but informed the parties that I would deal with this issue at the outset of the case.

[6]By way of background, it should be noted that the first attempt at a ‘rolled up’ hearing of this claim (on 16 April before Walker J) was ineffective as a consequence of the failure of the Claimant to comply with case management directions, specifically its failure to file a trial bundle or skeleton argument, or bundle of authorities on time. For this hearing, the Claimant again failed to provide the authorities bundle on time, and when it was provided it was deficient. While the Defendant for her part has not been innocent in this litigation of case management breaches, they have been of a lesser seriousness.

[7]Mr Biggs for the Claimant explained the late service of the coursework material by asserting that the potential significance of coursework was not truly apparent in this evolving area until the handing down of the judgment of Andrews J on 29 April 2015 in the decision of R (Cranford College) v SSHD

[2015] EWHC 1090 (Admin)

(“the Cranford case”); only then (it was argued) was it clear that a suspicion about non-compliance which had not been allayed by a college could justify revocation. I am not sure that’s right, but in any event, the Defendant had since 24 June 2014 put the Claimant on notice that she had considerable suspicions about the good faith of the students at the Claimant’s college who had apparently cheated in the English language tests, and that these suspicions needed to be allayed; the provision of coursework was (or would have been) one reasonable way of attempting to meet the point. The apparent gap in the evidence was further pointed up in the Defendant’s skeleton argument for the last ineffective hearing (16 April 2015), and this material could therefore have been filed by 23 April (the final date by which the Claimant was permitted to file its final evidence). Indeed, coursework had in fact been filed in the Cranford case (above) and in R (City of London Academy) v SSHD

[2015] EWHC 749 (Admin)

for just such a purpose; the Claimant here is represented by the same counsel as in those two cases. The Claimant accepted that it had given no warning to the Defendant that it proposed to serve this material, which was additionally acknowledged to have been unhelpful.

[8]The Defendant opposed the admission of this material at this stage of the case; she argued that she had had no meaningful opportunity to consider it before the hearing, and submitted that it would be unfair if the material were to be taken into account, given its late service. The Defendant drew attention to the Claimant’s solicitors’ repeated failures to comply with case management directions in this case and in parallel litigation all relating to colleges whose licences had been revoked in similar circumstances. From his cursory review of the disputed documentation, Mr Dunlop was nonetheless able to draw attention to some superficially surprising features of the contents of the coursework and the manner by which it had been appraised by the Claimant’s staff. (It is perhaps noteworthy that in City of London Academy and Cranford (above),production of coursework in fact undermined rather than enhanced the Claimants’ claims).

[9]Having heard argument, I considered that I should receive this file of material but consider it only if, or when, required to do so, and then decide (if at all appropriate) whether (and if so on what terms, and for what purpose) it should be formally filed in these proceedings. In fact, when Mr Biggs addressed in oral argument the issue of the competence of the students in the English language, he conceded that the coursework material was of limited relevance; he did not ask me to consider it, and placed no reliance upon it. Mr. Dunlop sought to make some capital out of the limited discoveries he had made about its surprising content; however without a proper review of the totality of the material, I could reach no conclusions one way or another.

[10]In this case, as in others which raise similar issues, I recognise that the Defendant will continue to monitor compliance by colleges with the Sponsor Guidance where licences for those colleges have been suspended. That may indeed lead (as happened here) to further evidence coming to light which affects the view taken of the gravity of the alleged breaches; it may cause the Defendant to lift the suspension, or convert a decision to suspend into a decision to revoke, or a decision to revoke on one ground into a decision to revoke based on further or other grounds. As Andrews J observed in Cranford, a failure to reconsider the situation in light of further evidence could give rise to a justifiable complaint of unfairness. While this process may be vexing for the Claimants and their lawyers, and can disrupt the carefully laid case management directions where proceedings are afoot, it nonetheless calls for pragmatic responses and a degree of flexibility on all sides (see [47-50] below). Provided that the Claimant knows the case it has to meet, and no injustice is done, then the court should take a practical stance in relation to the evolution of the claim and the evidence.

[11]However, this skirmishing, which raised the temperature and probable cost of the litigation and represented an unwelcome diversion from the main suit, would have been avoidable if only a few simple points had been observed: i) CPR 54.16 could not be clearer. It provides that no written evidence may be relied on unless it has been served in accordance with any rule, or direction of the Court, or the court gives permission. This rule must be faithfully and strictly observed; ii) Specific orders had been made in relation to the filing of evidence in this claim. Walker J on 16 April had directed that:

“[t]he Claimant has permission to file and serve further evidence, provided that it is filed and served by 4.30pm on 23 April 2015”

(emphasis by underlining added). The material on which the Claimant wished to rely was sent to the Court and served on the Defendant well outside that time limit. Orders, including interlocutory orders, for the filing and service of evidence must be obeyed and complied with to the letter and on time. As Sir James Munby P said at [51] of Re W

[2013] EWCA Civ 1177

, court orders “…are not preferences, requests or mere indications; they are orders”; there is a public interest in enforcing compliance with court orders, particularly where the breach is serious &/or significant (see Mitchell v News Group Newspapers Ltd

[2013] EWCA Civ 1537

; Denton v TH White Ltd & Others

[2014] EWCA Civ 906

); iii) Any party in a judicial review claim who seeks to adduce evidence outside the parameters of CPR 54.16 is under an obligation to apply to the court to adduce that evidence or where relevant for a variation of the order granting permission to file: see [53] of Re W (above):

“A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired.”

(emphasis in the original); iv) If it is possible and practicable, any application for permission to rely on new evidence should be determined before the substantive listed hearing, so that the parties and the Court know where they stand and what they have to read; v) If it is not possible or practicable to make a decision on the admissibility of the new evidence before the hearing, the court may have to consider converting the substantive or rolled-up hearing to a case-management hearing; costs orders may follow; vi) In order to promote the efficient and proportionate conduct of litigation, parties are not merely required to comply with the rules and court orders, they are also obliged to co-operate with each other; vii) Within the framework of the Rules, the Administrative Court retains powers to manage its cases flexibly and in accordance with the overriding objective; in this regard it will ensure that no unfairness is caused to the parties.

The Legal Framework

[12]The Defendant’s power to issue and regulate Tier 4 Sponsor licences is one of a range of ancillary and incidental administrative powers vested in the office of Secretary of State for the Home Department. The regime is effectively run by the ‘UK Visas and Immigration’ (‘UKVI’) section within the Home Office and its operation is governed not by the Immigration Act 1971 itself, but within policy guidance documentation (‘Sponsor Guidance’) which is issued and amended on behalf of the Secretary of State with “bewildering frequency” (per Lord Sumption in New London College [below]).

[13]The Sponsor Guidance lays down mandatory requirements governing(i) the criteria for the award of a sponsor's licence,

(ii) the obligations of those to whom a licence has been awarded,

(iii) the criteria to be applied by a licensed sponsor in issuing a CAS (Confirmation of Acceptance for Studies) (see [14](iv) below), and

(iv) the procedure and criteria for suspending, downgrading or withdrawing a sponsor's licence. The grant of a CAS by an educational institution is not tantamount to leave to enter or remain, but it is believed to be strong (albeit not conclusive) evidence of some of the matters which are relevant to the migrant's application in that regard. Leave to enter or remain continues to be the responsibility of immigration officers and the Secretary of State, who retain the last word in each individual case (see generally Lord Sumption at [6]-[19] of New London College).

[14]The version of the Sponsor Guidance in force at the time of the relevant decision in this case (November 2014) was [11/2014] (the earlier version [7/14] was in force when the suspension of the licence was imposed, but the substance is not materially different; indeed, newer guidance has been brought in on 6 April 2015 [04/2015]). The Sponsor Guidance is extensive, and for the purposes of this judgment, it is necessary to highlight below some of its key provisions which were relevant at the time of the decision: i) Sponsorship is based on the principle that those who benefit most from migration (including education providers) must help to prevent the system from being abused. Tier 4 is the primary immigration route available to students who wish to study full-time in the UK. Any licensed sponsor is expected to play its part in ensuring that the system is not abused; ii) A Tier 4 sponsor licence lasts for four years unless it is revoked or surrendered; each sponsor is obliged to apply for Highly Trusted Sponsor status no later than 12 months from the date of the grant of the licence; iii) Licence to sponsor Tier 4 (General) applies to migrants aged over 16 coming to the United Kingdom for study (as opposed to Tier 4 (Child) for those aged 16 and under); iv) Essential to the student’s ability to enter the UK for study is the Confirmation of Acceptance for Studies (‘CAS’). The CAS is not an actual certificate or paper document, but is a virtual document similar to a database record. This record will be generated by the Tier 4 sponsor for each student who they will be sponsoring. Each CAS has a unique reference number, and contains information about the course of study for which it has been issued (including the start and end dates of the course) and the student’s personal details. Having a valid CAS does not guarantee that the student’s application will necessarily be successful but it goes a considerable way to achieving this; v) Crucially, a Tier 4 Sponsor must assess the student’s level of English language competence as part of the academic assessment of the student’s ability to follow a particular course; before issuing a CAS, the Tier 4 sponsor must be satisfied that “the student intends and is able to follow the course of study concerned” (11/2014 Doc. 2 §131) (emphasis by underlining added). vi) There are various ways in which potential students can demonstrate their English language ability for the purposes of applying for a CAS; they may do so by passing an English language test approved by UKVI (at the appropriate level) or their sponsoring educational institution can judge their English language ability. A small group of suppliers of the Secure English Language Test (SELT) is approved by, and work under licence to, the Defendant. ‘Educational Testing Services’ (ETS), an American based company and one of the world’s largest educational testing and assessment organisations, was one of the providers operating under licence granted by the Defendant; vii) The English language tests are all expected to conform with the Common European Framework for Reference (CEFR); the relevant test for Tier 4 students was the ‘Test of English for International Communication’ (TOEIC) which examines in listening, reading, speaking and writing; viii) Under the points based system introduced in 2009, students applying for Tier 4 study require 40 points in order to be considered favourably by the Defendant; 30 of those points derive from having a valid CAS from a fully licensed Tier 4 sponsor, the remaining 10 points are satisfied by proof of financial independence; ix) If studying with a Tier 4 sponsor, a student must obtain a CAS for a course that leads to an approved qualification for Home Office purposes and approved at level 3 or above on the National Qualifications Framework (NQF) or Qualifications and Credits Framework (QCF) in England, Wales and Northern Ireland; x) Where a student is following a course of study at NQF 6 or QCF 6 or above with a sponsor which is a UK Higher Education Institute, the sponsor may choose its own method to check that the student is competent in English language at a minimum of CEFR level B2 in each of the four components. The sponsor must confirm that the student is proficient to the required level on the CAS.

[15]In relation to suspension and revocation of a sponsor’s Tier 4 licence, the specific provisions of the Sponsor Guidance (which are relevant to this claim) are as follows: i) The Defendant (by UKVI) reserves “the right to take action against [the sponsor] if [it has] reason to believe [the sponsor] pose[s] a threat to immigration control” (See Sponsor Guidance: Doc.1 §10 / Doc. 3 §96); ii) A licence will be suspended if the sponsor “cannot meet the standards [UKVI has] set for HTS status…” (Sponsor Guidance: Doc.1 §11); this sets a timetable running, giving the sponsor 20 working days from the date of the notification to submit representations; if following that period, the sponsor still fails to meet the criteria the HTS licence will be revoked; iii) There are exacting requirements for sponsor compliance: “we expect you to continue to thoroughly assess each student’s intention and ability to undertake their course of study with you before you assign a CAS to them” (Sponsor Guidance: Doc.3 §94) iv) If UKVI “consider that [the sponsor has] not been complying with [its] duties, [has] been dishonest in [its] dealings with [UKVI], … or [it is] a threat to immigration control in some other way, [UKVI] will take action against [the sponsor]” which may be by way of suspension or revocation (Sponsor Guidance: Doc. 3 §133); v) Suspension will occur if UKVI “have reason to believe that [the sponsor] is breaching [its] sponsorship duties and/or are a threat to immigration control… to the extent that [UKVI] may have to revoke [the sponsor’s] licence” (Sponsor Guidance: Doc.3 §141); vi) While suspended, a sponsor is unable to issue any new CAS (Sponsor Guidance: Doc.3 §142); students already sponsored will not be affected; vii) Suspension can take effect in one of two ways (per Sponsor Guidance Doc 3): a) “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” (§153(a)); b) “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 … when we have finished our investigation we will write to you again, giving detailed reasons for suspending your licence.” (§153(b)); viii) Where §153(a) is invoked (see (vii)(a) above), the sponsor is given 20 working days from the date of the written notification to respond to UKVI in writing (including sending in evidence) (Sponsor Guidance Doc. 3 §154); where §153(b) is invoked (see (vii)(b) above) there is a built-in provision for the sponsor to make representations during investigation; ix) If further reasons are identified for the suspension during the 20-day period, UKVI will write again to the sponsor giving an additional 20 days to respond (Sponsor Guidance Doc.3: §155); x) UKVI will notify the sponsor of its decision within 20 working days of receiving the sponsor’s response, unless there are grounds for delaying the response (Sponsor Guidance Doc. 3 §156); xi) In certain circumstances UKVI will implement revocation of the sponsor licence (Sponsor Guidance Doc.3 §162). Mandatory revocation will occur for any “single” reason (of the twenty possible reasons) set out in a table in the Guidance, including when: “[the sponsor has] offered places and assigned CAS for students who are not from the countries we define as ‘majority English-speaking countries’, without first properly assessing their English language ability” (§165(i)); And “[the sponsor has] offered places to Tier 4 (General) students and the main course of study does not lead to an approved qualification for our purposes” (§165(k)). And xii) The summary and final nature of the revocation is underlined by §166 which provides that: “If any of the circumstances in the table above arise, we will revoke your licence immediately. We will write to tell you that we have revoked your licence. There is no right of appeal…” xiii) The discretionary route to revocation of the licence is provided for in §167 of the Sponsor Guidance which provides that consideration will be given to the revocation of licence where (among twenty-seven possible reasons): i) The sponsor has failed to comply with any of its duties (§167D); ii) “[UKVI is] not satisfied that [the sponsor is] using the processes or procedures necessary to fully comply with [its] sponsor duties” (§167E). xiv) This discretionary route is further explained by §169 which provides: “We may not always revoke your licence in the circumstances set out in the table above. Whilst we cannot precisely define the exceptional circumstances in which we will not, this decision will be based on such factors as the number of breaches, previous history and the efforts you have made to address these issues”.

And

[16]Issues surrounding the suspension and/or revocation of Tier 4 sponsor licences have been considered in a number of recent judgments to which my attention was specifically drawn in argument, including R (London Reading College Ltd.) v SSHD

[2010] EWHC 2561 (Admin)

; R (Westech College) v SSHD

[2011] EWHC 1484 (Admin)

; R (New London College Ltd) v SSHD

[2012] EWCA Civ 51

; R (New London College Ltd) v SSHD

[2013] UKSC 51

; R (London St Andrews College) v SSHD

[2014] EWHC 4328 (Admin)

; R (360 GSP College Ltd) v SSHD

[2015] EWHC 526 (Admin)

; R (City of London Academy) v SSHD

[2015] EWHC 749 (Admin)

; R (Cranford College Ltd) v SSHD

[2015] EWHC 1090 (Admin)

. Insofar as the regime is not sufficiently set out above, reference should also be made to the judgment of Richards LJ in New London College (C/A), from [4]-[21] which I do not propose to reproduce here. I nonetheless distil the following propositions from the case law which are relevant to this particular case: i) The status of a licensed sponsor is central to the operation of the points-based system for international students; for institutions with a high proportion of non-EEA students, the status of licensed sponsor may be essential to enable them to operate as functioning businesses (London New College (SC) [1]); ii) The Defendant must be able to repose very substantial trust in sponsors (such as the Claimant here) in the vital function of monitoring compliance of its students with immigration law (Westech [14], London St Andrews College [12], Cranford [13]); iii) The Defendant rightly have “stringent” powers to suspend or revoke a sponsor if they become concerned that the sponsor is not complying with its obligations (Westech [16]); iv) The Defendant “can and indeed should” take steps to suspend or revoke if it has reasonable grounds for suspecting that “a breach of immigration control might occur” (Westech [17]); v) The Courts must respect the particular experience and expertise of UKVI in detecting the possibility that a sponsor might not be, or might be at risk of not, complying with its duties (Westech [18]; London St Andrews College [14]; 360 GSP College Ltd [62]); the exercise of the Secretary of State’s discretion should not be interfered with lightly (London St Andrews College [14]); the court is exercising a supervisory jurisdiction (London St Andrews College [18]); vi) The Defendant can take steps to revoke or suspend if she has reasonable grounds for suspecting that a breach of immigration control might occur, provided of course that she complies with her public law duties (Westech [17]; London St Andrews [14]); vii) Authorisation to grant a CAS is a “privilege”, and carries with it significant responsibility (London St Andrews [13]); a sponsor, such as the Claimant here, therefore has a substantial duty to ensure that the rules relating to immigration control are adhered to strictly and properly (Westech [19], City of London [29]); colleges need to be “assiduous” and “vigilant” in meeting their responsibilities (London Reading College [60], Cranford [13], London St Andrews College [13]/[36]); interestingly, the current version of the Sponsor Guidance ([04/2015]) refers to sponsorship as a “privilege and not a right” adding that “those who benefit most directly from student migration (education providers) must help to prevent the system from being abused”; viii) Even if some of the cases give rise to consideration of the same regulatory territory, each case is fact-specific (St Andrews [2]; Cranford [19]).

Background Facts

[17]The Claimant is a college offering higher education courses in IT, Business & Administrative Management, Strategic Management, and Healthcare Management to foreign students who are non-EEA nationals. In 2009 it applied for, and was granted by the Defendant, a Tier 4 licence. In December 2012 it acquired the status of “Highly Trusted Sponsor”. In December 2013, the Claimant made a ‘change of circumstances request’, as it indicated that it had merged with another college, and had transferred a large number of students there. The Defendant rejected the Claimant’s change of circumstances request and indicated that the Claimant was not entitled to transfer its students.

[18]In February 2014 following a BBC Panorama investigation it came to light that there had been widespread cheating on the part of candidates sitting the TOEIC test at ETS test centres; the ETS licence for in-UK testing was immediately suspended. Following its own comprehensive internal investigation, ETS then produced evidence from analysis of individual tests which confirmed the cheating (i.e. proxy test-taking, impersonation and the provision of correct answers for those sitting written tests). The level of cheating was found to be “incredibly high” (per Defendant’s written evidence: Rebecca Collings). ETS cancelled or withdrew large numbers of its test scores for having been obtained by deception.

[19]On 24 June, the Defendant wrote to the Claimant suspending the Claimant’s Tier 4 sponsor licence. She did so for a number of reasons, prominent among them was that the Claimant had granted CAS to 32 students in respect of whom the TOEIC English language certificates had been cancelled or withdrawn by ETS. The Defendant said that these students “have directly and deliberately posed a threat to immigration control”, adding that: “… we believe that any student willing to go to such lengths to obtain a certificate is unlikely to be compliant with their visa conditions. It leads us to question their genuine intention to study, ability to speak English to the level they have claimed and consequently their ability to follow their course of study”.

[20]On 22 July 2014, the Defendant wrote again to the Claimant confirming the suspension and indicating that she was considering revoking the Claimant’s Tier 4 sponsor licence adding reasons to her previous letter; the Defendant referred to the fact that it now emerged that the Claimant had sponsored 54 (rather than 32 as previously thought) students who had cheated on their TOEIC tests (“[a]s these students, whose suitability you assessed, have resorted to fraudulently obtaining an English language certificate we would question their genuineness”). The Defendant invited the Claimant to make representations in accordance with the Sponsor Guidance. The Claimant did so by letter (with attachments) on 14 August 2014.

[21]The Defendant’s response to the Claimant’s submission was due (in accordance with the Guidance – see [15(x)] above) on the 16 September. No such response was sent. However on 18 September 2014 the Defendant sent a further letter indicating that the Claimant’s submission of the 14 August had raised additional points of concern about the operation of the Claimants’ Tier 4 sponsor duties (and their grant of a CAS to a number of students), justifying continued (or perhaps more accurately renewed) suspension, and attaching witness statements which provided information about the investigation of alleged abuse into the English language testing. It was further said:

“… it is our view that any individual who has attempted to circumvent immigration control in such a serious fashion as to fraudulently obtain a SELT (Secure English Language Test) score cannot be classed as a genuine student wishing to further their education…. a compliant sponsor adhering to their duties would have in place enough effective systems to have prevented a large proportion from enrolling.”

[22]The Claimant replied fully to this last letter from the Defendant on 22 September 2014, and on the following day lodged this application for judicial review of the decision to suspend, and a claim for interim relief (i.e. to lift the suspension and re-instate the licence). Lang J declined to determine the Claimant’s claim for interim relief in the absence of representations from the Defendant. On 13 October, the Defendant served her Acknowledgement of Service and Skeleton Argument.

[23]On 21 October 2014, the Defendant communicated her decision (‘the first decision’) to revoke the Claimant’s Tier 4 sponsor licence. The decision was based on the following factors (among others): i) The Claimant was offering courses which did not lead to an approved qualification as they were not approved by Ofqual, in breach of the Tier 4 Sponsor requirements; ii) The Claimant had breached its Tier 4 sponsor duties by recruiting (and issuing CASs to) a large number of students who had cheated in order to obtain TOEIC language certificates; and iii) The Claimant did not assess or monitor the academic progression, attendance or immigration status of some of its students.

[24]On 3 November 2014, the Claimants responded to this letter, challenging the Defendant’s assertions. At a hearing of the Claimant’s claim on 5 November, Patterson J gave the Claimants permission to amend its Grounds of Claim to challenge the first decision. On the day before her detailed grounds of defence were due, namely 25 November 2014, the Defendant sent an “updated” letter to the Claimant issuing further and other reasons for her decision to revoke the licence (‘the second decision’); she withdrew some of the reasons earlier given (though not those set out above). In this letter the Defendant raised for the first time that the Claimant had assigned CAS to students for a course (Level 8 Diploma in Strategic Direction and Leadership) in respect of which the Claimant was not accredited by the relevant body (CMI – the Chartered Management Institute); she indicated that she was satisfied that the Claimant had:

“… offered places to Tier 4 (General) students for a course of study that does not lead to an approved qualification. … this issue in isolation would have led to the immediate revocation of your sponsor licence”

(emphasis in the original). She went on to re-state her concern that, given the large numbers of the students who had obtained the SELT by fraud, the Claimant had obviously failed to note the students’ incompetence in English either at the recruitment stage or at the studying stage. The Defendant contended that the Claimant’s representations of 22 September 2014 had represented a further cause for concern as they highlighted weaknesses in the Claimant’s monitoring processes.

[25]On 3 December 2014, the Claimant replied, challenging the second decision. Professor Gupta, Principal of the College, contended that although the Claimant had not been registered with the accrediting body (CMI) between May 2012 and February 2013 (when it had been assigning CASs for CMI courses), it was ‘provisionally approved by the CMI pending final approval’. CMI was contacted, and denied the grant of provisional approval to the Claimant. On 10 December, the Government’s Legal Department communicated with the Court that it intended to rely on the new point (not referred to in the 25 November 2014 letter) relating to accreditation of the courses on offer; as this acquires significance in the current determination, I refer to this as ‘the third decision’. On 6 January 2015, Carr J gave the Defendant leave to file an amended defence, and directed a rolled up hearing. She required the Defendant to file and serve further detailed grounds of defence with additional grounds within 14 days. The Defendant did not in fact do so.

[26]The rolled up hearing was fixed for 16 April 2015 before Walker J., however the Claimant failed to file its Skeleton Argument, trial bundle and bundle of authorities in time. Accordingly, the hearing had to be vacated, with the Claimant being penalised in costs. Following that hearing, and pursuant to directions given by Walker J, on 23 April 2015, the Claimant filed further evidence from Professor Gupta in which he stated, that none of the students issued CASs before the Claimant had been accredited with CMI had actually started their courses until after the Claimant had been accredited by CMI.

[27]On 29 April 2015 (following the publication of the judgment in Cranford), the Defendant issued a further letter setting out further grounds for revocation (‘the fourth decision’). In particular, she maintained that failing to register students with CMI (with the result that they could not obtain an approved qualification) was ‘wholly unacceptable’. Even if it did not provide a ground for mandatory revocation, it was a ‘serious failing’. She acknowledged that there would be insufficient time between that date and the date for the final hearing for the Claimant to respond, and proposed that the issue be resolved at this hearing. In fact the Claimant did respond in writing (supported by documents) on 5 May. On 14 May 2015, the Claimant served the file of coursework (referred to above).

The issues for determination

[28]It will be apparent from the recital of the facts above that some of the issues on which the Defendant initially suspended and revoked the Claimant’s Tier 4 licence have fallen away, leaving four main issues for determination, as follows: i) Was the defendant’s conclusion that the Claimant had offered courses which did not lead to an approved qualification (namely, level 8 Diploma in Strategic Direction and Leadership awarded by the Chartered Management Institute) vitiated by a material public law error? ii) Was the Defendant’s decision to revoke the Claimant’s Tier 4 sponsor licence on the basis that it had issued 54 Confirmation of Acceptance for Studies (CAS) to students who she alleged to have cheated on TOEIC English language tests vitiated by material public law error or errors? iii) In the event that the answer to only one of either questions(1) or

(2) is ‘yes’, so that only one of these issues is decided in favour of the Claimant, what relief if any should the court grant? iv) Has the Defendant, in reconsidering its (sic.) decision to revoke the Claimant’s licence acted inconsistently with its published guidance? If so, was there good reason for doing so? If not, what relief, if any should be granted?

The first issue: Approved qualification: accreditation and registration

[29]The first issue is whether the Defendant was entitled to conclude that the Claimant had offered courses to students which did not lead to an approved qualification (namely, level 8 Diploma in Strategic Direction and Leadership awarded by the Chartered Management Institute [‘CMI’]).

[30]There are two separate complaints in relation to this issue: i) 11 CAS were issued to students between May 2012 and February 2013 reflecting attendance on the Diploma in Strategic Direction and Leadership course, but the Claimant was not accredited by CMI during this period (“the ‘accreditation’ issue”); And that ii) Of the 26 students who had been assigned CAS to undertake the Diploma in Strategic Direction and Leadership between March 2013 and April 2014, none had not been registered with CMI (“the registration issue”).

[31]The accreditation issue: Accreditation is the process by which an awarding body decides whether or not a course, or courses, provided by a given college meets its standards. If a college offers a place on a course leading to a qualification for which it has not been accredited, it is, in essence, offering its own course and its own qualification. It is accepted by the Claimant that it was not accredited by CMI to offer the level 8 Diploma in Strategic Direction and Leadership until 13 February 2013, well after the time at which the Diploma course had been advertised (“offered”) to students, following which students had been accepted on the course and issued with CAS by the Claimant. The Claimant’s argument is that as long as the course was accredited by the time it was actually provided and/or completed, then the sponsor had complied with the expectation of the Guidance. The Defendant argues that the accreditation must be in place before the course is offered.

[32]In my judgment, the sponsor must be in a position to ensure that “the main course of study” should lead to “an approved qualification” at that time that it is “offered to Tier 4 (General) Students” in order to comply with the Sponsor Guidance (emphasis by underlining added). It is not appropriate, or in the spirit of the Sponsor Guidance, for sponsors to offer the course on the basis of a hope or expectation of accreditation at some point further down the line. What if the course is not ultimately accredited? It would mean that the students would not be engaged in a course of study which leads to an approved qualification. When I posed the question raised above to Mr. Biggs in the course of argument, he conceded, rightly in my view, that the sponsor would be “in trouble”. He further conceded, again rightly, that Professor Gupta had “in hindsight… taken a dangerous course”. Indeed, he had. Where any doubt exists about the interpretation of the Sponsor Guidance (even though no doubt exists in my view here), in light of all that I have outlined at [14(i)], [15(iv)/(v)], and [16(vii)] above, the guidance should be interpreted strictly.

[33]In any event, on the evidence, the Defendant was entitled to reject the Claimant’s assertions of fact about the commencement of the course and the participation of its students. The evidence reveals that a CAS was issued for a student, Miss K, who was due to start her Diploma in Strategic Direction and Leadership course on 9 July 2012, with an end date of 12 July 2013 (the CAS having been issued in May 2012). Some time later (7 December 2012) the Claimant informed the Defendant (through the Sponsor Management System) that it had withdrawn sponsorship from this student on the basis that the ‘[s]tudent is in breach of Tier 4 immigration rules as he [sic] is working full time. Sponsor has decided to withdraw student from the course.’ Ten days later, the Claimant retracted the previous notification, stating that the ‘[s]tudent has assured that she will be regular in the class in future.’ All of this material clearly points to the fact that Miss K had started her course well before 7 December 2012 (i.e. before accreditation in February 2013). This conclusion is supported by further evidence which emerged during the investigation that the Claimant had allowed Miss K “leave on medical grounds” from 27 August 2012 to 21 September 2012. ‘Leave’ from what? The only legitimate inference is that this was ‘leave’ from the course of studies which she had of course already started. This evidence does not support Professor Gupta’s assertion that Miss K’s studies (or, for that matter, any other students’ studies on this particular course) were deferred until accreditation came through on 13 February 2013. Furthermore (and a matter which would be relevant to the exercise of discretion of the Defendant in deciding on revocation), on the Claimant’s own case (if it were reliable, which it is not), it had failed to comply with the duty to report changes in student circumstances (i.e. by failing to report that Miss K’s studies had been deferred to 13 February 2013).

[34]Professor Gupta deposes to the fact that he believed that the Claimant had received ‘provisional’ accreditation from CMI in 2012 while the application for full accreditation was being considered; Mr Biggs took me through the documentation on which Professor Gupta relied, but none of it in my judgment supported the contention he made.

[35]In view of the fact that the Claimant “offered places to Tier 4 (General) students and the main course of study does not lead to an approved qualification for our purposes” (see Sponsor Guidance §165(k) and [15(xi)] above), this required the Defendant to revoke the Tier 4 licence, and the claim therefore fails on this basis alone.

[36]The registration issue: The duty fell on the Claimant to register the students with the accreditation body (CMI) within 6 weeks of the start of their course; a failure to register with CMI within 6 weeks would almost certainly prevent students from being able to obtain a CMI approved qualification. The Claimant failed to register a single student, proceeding on the mistaken basis that the responsibility fell on the student (an error repeated in the Claimant’s solicitors’ letter of 5 May 2015). Such a failure on the part of the Claimant is “undoubtedly very serious” (as Andrews J found in Cranford; see [45]), but does not fall within the mandatory grounds for revocation. Andrews J in Cranford added (at [46]): “I am not persuaded that that phrase is apposite to cover a failure to register a student on the course. It is plainly aimed at a situation where the course on which the student is enrolled does not lead to an approved qualification, not a situation in which the course would have led to an approved qualification if the college had registered the student with the awarding body. However, the failure to register students, if there is no legitimate excuse for it, would undoubtedly fall within the ambit of the discretionary power of revocation where the SSHD is not satisfied "that you are using the processes or procedures necessary to fully comply with your sponsor duties."

[37]So while the failure to register would not lead to mandatory revocation, it does give cause to the Defendant to consider revocation on discretionary grounds, as she makes clear in the fourth decision; and given the context of the operation of the licence as a whole, it was not unreasonable for the Defendant to have revoked the licence on that separate ground.

The second issue: CAS issued to TOEIC cheats

[38]As I have discussed in the introductory section above, students who wish to study in the United Kingdom must demonstrate that they have an adequate understanding of English, and that they can communicate in English to a reasonable level (see [14(v)] above). The responsibility of the Tier 4 sponsor is to satisfy itself that at the point of application the proposed student has the ability (including the English language ability) and intention to undertake their course of study and that this is demonstrated to the satisfaction of the Tier 4 licence holder during the currency of the course (see §94 of Sponsor Guidance Doc.3 set out at [15(iii)] above).

[39]In this case, as in Cranford and other cases, a significant ground for concern was the issue by the Tier 4 sponsor of large numbers of CAS to students who had apparently cheated in their TOEIC test. As to the approach I should adopt to this particular issue, I respectfully follow Andrews J in Cranford thus: 19. “Of course each case is highly fact-specific. However, the following general principles can be distilled from [recent authorities]: i) If a Tier 4 sponsor has assigned CAS's to a significant number of students with "invalid" ETS TOEIC results, and then failed to report them as having inadequate English, that gives grounds for reasonable suspicion that the sponsor was failing in its duties to: a) Adequately assess the ability and intention of the students to study on the chosen course before assigning CAS's to them and b) Monitor, and report bogus students to the UKBA. ii) The onus is on the sponsor to allay that suspicion, for example by providing examples of coursework demonstrating that the students did in fact speak/understand English to the appropriate standard; iii) If the SSHD takes a Wednesbury reasonable view that the evidence is insufficient to allay that suspicion, she is entitled to revoke the Tier 4 licence.”

[40]Consistent with this approach is the fact that within the Sponsor Guidance, mandatory grounds for revocation include (see [15(xi)] above) that the sponsor has “offered places and assigned CAS for students … without first properly assessing their English language ability”.

[41]In this case, there is no doubt that the Claimant has assigned CAS to a significant number of students with "invalid" ETS TOEIC results. The Claimant has sought to allay the suspicions of the Defendant by reference to English language qualifications obtained otherwise than through ETS. A helpful table of data relevant to the 54 students under consideration has been prepared by Counsel, and annotated by each. The Claimant asserts that there is sufficient extraneous evidence of competence in English from other sources (including qualifications from an educational provider outside the UK or from a previous Tier 4 sponsor) which justified the grant of the CAS to the 54 students. By contrast, on the Defendant’s analysis and discussion of the data: i) Little confidence can be reposed in the fact that some of the students had obtained a qualification from a previous Tier 4 sponsor; this could have been one of the colleges (such as Cranford College for example: see Cranford above) whose licences have subsequently been revoked; ii) The same minimal confidence can be placed in the English language test certificates obtained from education providers outside the UK; iii) 11 students cheated in the ETS test even though they had (according to the Claimant’s data) apparently obtained a non-ETS SELT before their CAS was assigned; this begs the question why they would have cheated in the ETS test and/or of the reliability of the earlier test; iv) There are 26 other students (on the Defendant’s tally, which I accept) who had cheated in the ETS test and for whom there is no evidence provided as to competence in English other than the Claimant’s assertions; v) That there were students who were able to demonstrate that they could speak adequate English several months after they were assigned a CAS does not demonstrate that they could speak adequate English when they were first assigned a CAS; vi) It is superficially surprising that of the 54 English test cheats, not one of them was reported to the Defendant as having inadequate English; vii) The highly disputed coursework (discussed at [5]-[9] above) only covered 21 of the 54 students in any event (hence its negligible value in the claim).

[42]I accept the Defendant’s analysis (set out in the paragraph above), which demonstrates to my satisfaction the significant degree to which a large number of students issued with CAS by the Claimant fell short of the required standard of competence. If a student obtains any document in pursuit of his/her immigration application by deception, that person is not likely to be concerned with complying with the Immigration Rules. It is reasonable for the Defendant to have inferred that such individuals are more likely to be using a Tier 4 migrant visa as a means of getting into the UK for another purpose. This point comes back to the important and overarching expectation on sponsors to have identified and rejected (or reported) such persons either at the candidate selection stage or after enrolment.

[43]The Defendant was also entitled to the view that where significant numbers of students had fraudulently obtained the TOEIC certificates it would be a “significant gauge” of the college's ability or willingness to monitor its students if they were not, during the course of their studies, discovered by the college to have inadequate English language skills (see McGowan J in City of London). McGowan J added in the same case at [30]:

“It is impossible to imagine that an applicant who does have adequate skill would need to cheat in such an examination. Having cheated to obtain the certificates the students were never identified by the college as not having adequate English. That is a significant failing on the college's part and responsibility cannot be shifted to ETS.”

[44]The Defendant asserts with force it seems to me that a trustworthy sponsor should notice if the student spoke inadequate English, or failed to turn up for classes or do their coursework. If a sponsor did notice such failures, they should withdraw sponsorship.

The third issue: Relief

[45]I have already concluded that the Claimant fell into the mandatory ground for revocation because of the ‘accreditation’ point – see [35] above.

[46]Following the approach of Andrews J in Cranford, and Elisabeth Laing J in 360 GSP College, I accept that continued sponsorship of cheating students with invalid ETS certificates demonstrates a breach of sponsor duties justifying revocation (see [38] and [39]) above. While this may be within the sphere of discretionary rather than mandatory revocation (see [15(xiii/xiv)]) above), the Defendant was entitled to consider as part of the whole picture “the number of breaches, previous history and the efforts [the sponsor has] made to address these issues”. Given the absence of good clear evidence by the Claimant of its relevant ‘efforts’ to allay the suspicions or address the issues (including by presenting cogent evidence of compliance with its Sponsor duties and/or taking steps to withdraw sponsorship for particular students for example), notwithstanding the extensive submissions of the Claimant throughout this process, the Defendant cannot be said to have acted unreasonably or unlawfully in concluding that the evidence justified revocation.

The fourth issue: Revocation and Published Guidance

[47]The chronology of the enforcement process has been summarised above (see [18]-[27]); it is apparent that over the ten months from June 2014 to April 2015, the Defendant issued no fewer than three suspension decisions and four revocation decisions to the Claimant. It is equally apparent that during this period the Defendant advanced and then withdrew reliance on certain grounds for its proposed enforcement actions. The Claimant asserts its frustration at what it asserts was an “erratic” and unfair range of assaults (some misplaced) on their Tier 4 sponsorship compliance. The Defendant counters this by maintaining that her communications with the Claimant, and the letters raising and (in some instances) abandoning particular points of concern, simply reflected the evolving nature of the investigation into the Claimant’s alleged non-compliance, including responses to the Claimant’s own submissions. The Defendant asserts therefore that the process was, paradoxically, more fair to the Claimant than if she had simply made one decision and stuck to it, giving it chance to comment on the concerns as they arose.

[48]A complaint similar to that raised by the Claimant here (and raised as this fourth issue in this case) was raised in London St Andrews College (above) and Cranford (above). In London St Andrew’s College McGowan J observed at [33]:

“When a Claimant raises points of principle or fact in its claim the Defendant would, properly, be open to criticism if those matters were ignored. In this case further consideration has properly been given to matters that have arisen along the course of the proceedings. As a consequence new areas have been covered in the latest letter. There is nothing contained in that letter which has meant that the Claimant has not been able to consider and respond to all matters. .... There has been no unfairness in these proceedings and the ability to respond and adapt is an essential part of the SSHD's duty to consider and review responses made by any Claimant to her decisions. Indeed, for reasons set out below, that element of flexibility can operate to the advantage of the Claimant. In any event, if such a rigid approach were to be followed it would simply ensure that a further decision would be made, a further claim for review would be issued and a further hearing would be required. There can be no merit in seeking to run parallel litigation, the costs would be unnecessarily increased and the delay and uncertainty would not assist the Claimant and would greatly harm the students of the college.”

[49]In Cranford Andrews J said at [9]:

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

(emphasis by underlining added).

[50]While to some extent I recognise the frustration of the Claimant, there is nothing in the Defendant’s approach which, in my judgment, indicates that she has acted inconsistently with the Sponsor Guidance. Nor was the Defendant’s approach inherently unfair or unreasonable; as both McGowan J and Andrews J have previously observed, the Claimant should be entitled to expect the Defendant to continue to review the evidence as it comes to light. The letter of 29 April 2015 was, indisputably, sent close to the date of this hearing, but was comprehensively answered by the Claimant on 5 May 2015. No unfairness arises from communication of these further grounds for revocation. Were I to have adopted the Claimant’s argument as to unfairness, this could, or more likely would, lead to repeat claims for judicial review arising from an evolving investigation which would be, from the court’s and the parties’ perspective, inefficient and incompatible with the overriding objective to deal with cases justly, proportionately and in a manner which is not wasteful of costs.

[51]Finally, while in some respects the revocation letters may have been more felicitously expressed, I concur with the approach of Elisabeth Laing J in 360 to “flaws in the decision letter[s]”, when determining (at [71]) that:

“…it is not to be construed like a statute. An intelligent, well-informed reader, such as the Claimant, could have been left in no doubt by the terms of the decision letter why the Secretary of State was revoking the licence. The letter is not, in my judgment, flawed by a material error of law”

Conclusion

[52]My function on this application is one of review, to ensure that the primary decision-maker, the Defendant, has operated within lawful limits. I am concerned with the lawfulness, the Wednesbury reasonableness, and the procedural fairness of the decision-making. I am satisfied, having reviewed the material, that the Defendant’s decisions are not susceptible of challenge, and that the Claimant has failed to make out a sufficiently arguable case to justify the grant of permission. The Claim therefore fails.

[53]That is my judgment.