“the SSHD imposes a high degree of trust in the establishment to fulfil its responsibility in implementing and policing immigration policy in respect of the students whom it grants Confirmation of Acceptance for Studies… It must be understood that the grant of [sponsor] status is a fragile gift, constant vigilance about compliance is a minimum standard required for such sponsors. The burden of playing an active role in the support of immigration control is a heavy one. The SSHD is entitled to review purported compliance with a cynical level of supervision.” ii) R (on the application of Westech College) v. Secretary of State for the Home Department[2011] EWHC 1484 (Admin) per Silber J: the “fundamental principle of the sponsorship system requires the UKBA to trust the sponsor to a very substantial extent... a significant reason why the trust imposed on the sponsor is considerable is the wish and determination of many students to act in breach of their leave conditions… In return for this trust imposed in the sponsor, UKBA has to monitor the performance of the sponsor with great care as any failures by the sponsor could lead to interference with immigration control”
“There are substantial advantages for sponsors in participating [in the Tier 4 scheme], but they are not obliged to do so. The rules contained in the Tier 4 Guidance for determining whether applicants are suitable to be sponsoring institutions, are in reality conditions of participation, and sponsors seeking the advantages of a licence cannot complain if they are required to adhere to them.”
“5.21. The academic progression rule is in place to ensure that students are progressing academically if they wish to study a further course in the UK, and are not merely seeking to extend their stay in the UK. … How can a student demonstrate academic progression? 5.23. To demonstrate academic progression, the student’s new course must normally be above the level of the previous course for which they were given Tier 4 leave. For example, if a student’s previous course was at QCF or NQF6 (and equivalents) their next course should be at least at level QCF or NQF7. 5.24. If the student’s new course is at a lower level than the previous course, it will not represent academic progression and any application to extend their leave will be refused. 5.25. In order to demonstrate academic progression a student must have either successfully completed (meaning they have achieved the qualification for which they were studying) the course for which they were last granted Tier 4 leave or, if they have changed courses with the same sponsor, the course they changed to. A student can demonstrate this by having received the award or through formal written confirmation from their sponsor. 5.26. If a student has failed to successfully complete their previous course, they will not be able to demonstrate academic progress and will have to apply from overseas if they wish to make a Tier 4 application to study a new course… ... 5.30. The following circumstances are examples of where the student meets the academic progression rule: • Student is progression from A-levels (AQF 3) at an independent school to bachelor’s degree (NQF 6) at an HEI • Student is progressing from a bachelor’s degree (NQF 6) to a master’s degree (NQF 7) Studying at the same level 5.31. If the student’s new course is at the same level as the previous course, it may exceptionally be considered to represent academic progression if the course is at degree level or above; the sponsor teaching the course is an HEI with Tier 4 Sponsor Status and; a. the new course is related to the previous course for which the student was given Tier 4 leave (meaning that it is either connected to the previous course, part of the same subject group, or involves deeper specialisation); or b. the student’s previous and new course combined, support the student’s genuine career aspirations. … 5.33. In order to establish whether or not a student applying to study a course at the same level meets this requirement, UKVI will take into account all relevant factors, including the following points. This is not an exhaustive list, and will not be appropriate in every case: • The level of the course • The subject matter of the new and previous courses. • The applicant’s education history • The credibility of the applicant’s rationale for wishing to study the new course. • Whether the HEI sponsor sufficiently explains why the student is applying to study a course at the same level. 5.34. The following circumstances are examples of where the student is likely to be considered to meet the exception to the academic progression rule, as long as their sponsor provides a strong justification: • Student has completed a master’s degree in Modern Languages (NQF 7) and wishes to study a master’s degree in Latin American Studies (NQF 7) in order to deepen their specialist knowledge or to better prepare for doctoral study or a career in academic and research. In this case, there is a clear connection between the previous course and the new course. • Student has completed a master’s degree (NQF 7) in Environmental Policy and wishes to study a Master of Business Administration 5.35. An example of where the study is unlikely to meet exception to the academic progression rule is where a student has completed an accountancy qualification (NQF 7) and is applying to study a master’s degree (NQF 7) in music, as the two fields are unrelated. Sponsor duties 5.36. When assigning a CAS to a student required to show academic progression, the sponsor must conform on the CAS that the student meets the requirement and how. Where the sponsor is an HEI which has chosen exceptionally to assign a CAS to a student wishing to extend their leave is applying to study a second course at the same level, the HEI must justify its decision by explaining its rationale on the new CAS. This explanation must include confirmation that either a. or b. in paragraph 5.31 applies and why. Abuse of this exception to the requirement to be moving up an academic level will be regarded as immigration abuse and compliance action may be taken against the sponsor. 5.37. UKVI may take compliance action against a sponsor if: • They assign a CAS without properly assessing a student’s academic progression • They are required to confirm a student’s academic progression on the CAS, and do not • They abuse the exception to the requirement to be moving up an academic level.”
“[46]. Whether a particular course constitutes academic progress is not a hard edged question. It involves comparing the new course with the student’s previous academic achievements and then making a value judgment. There is a degree of subjectivity which is inescapable. Paragraph 120B of Appendix A [of the Immigration Rules] makes it clear that it is for the college, not the Secretary of State, to carry out the assessment. It is unsurprising that colleges are trusted to make this particular decision. The colleges have the requisite expertise. Also they have been approved by the Secretary of State to act as sponsors under the PBS. If any college steps out of line, its authorisation will be withdrawn. See R (New London College Ltd) v. Secretary of State for the Home Department[2013] UKSC 51 ;[2013] 1 WLR 2358 and R (WGGS) v. Secretary of State for the Home Department[2013] EWCA Civ 177 . [47]. In the ordinary way the Secretary of State cannot go behind the college’s assessment of academic progress. The Secretary of State must accept that assessment and then go on to decide the various matters which lie within her own domain. I say “in the ordinary way” because different considerations might arise if, for example, there were fraud, or if the college made an assessment which was plainly inappropriate on the face of the documents. It would be better to leave further consideration of such situations to a case in which they arise.”
“Whether something amounts to academic progression is a question of judgement which the Sponsoring college is expected to make in a robust and cautious manner. Equally it is open to the SSHD to disagree with that assessment if she is not satisfied that the subsequent course does actually amount to academic progression. If the SSHD is not satisfied that all proper caution is being exercised then she must be entitled to call the Sponsor to account, as in the revocation letters in this case.”
“it is important to read such decision letters fairly and with common sense. They are generally written by busy non-lawyers, in an administrative office, who are seeking to impart the import of a decision, and the reasons for the decision, in a reasonably succinct, informative and readable manner. They are not a statute or to be read in a vacuum. They are also to be read in their proper context…” iii) Per Laing J in GSP College Ltd v. SSHD[2015] EWHC 526 (Admin) : “So there are undoubted flaws in the decision letter. But the decision letter was written by officials, not by lawyers. Like other such decision letters, it is not to be construed like a statute”
“The function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits…the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker, and so forth… The decision is unlawful only if it falls outside the limits of that discretionary area of judgment. ...if it falls outside the range of reasonable responses to the question of where a fair balance lies between the conflicting interests”. ii) London St Andrews College v. SSHD per McGowan J: the Court’s discretion is “only to interfere if the discretion has been exercised in any unlawful way... a decision was not necessarily unreasonable or irrational if subsequent inquiry demonstrates that the position on that individual ground is not as extreme as was first thought.”
“3.4. UKVI will always take action when it considers that a sponsor poses, or may pose, a risk to immigration control. ... 3.5. When UKVI reasonably believes that a sponsor has breached its sponsorship duties, UKVI will consider the nature of the suspected breach. 3.6. Where the breach is an isolated or minor issue, the sponsor is willing and able to correct it, and the sponsor poses no continuing threat to immigration control, UKVI will in most cases support the sponsor in making the relevant improvements by issuing an action plan, which sets out the steps that the sponsor must take in order to retain its Tier 4 licence. 3.7. However, where there is a serious breach indicating a significant of systematic failing, the sponsor no longer meets the eligibility or suitability requirements for holding a Tier 4 licence, or UKVI considers that the sponsor constitutes a serious threat to immigration control, UKVI may decide to revoke the sponsor’s licence. This may occur where there has been sustained non-compliance over a period of time, or where there have been a number of breaches which are isolated or minor in themselves but – taken together – indicate a serious or systematic failing. … 3.9. UKVI will take into account any representations that a sponsor makes. However, as set out above, UKVI places great weight on the importance of trust in the operation of the Tier 4 sponsorship system, and the need to ensure that sponsors take their duties seriously. 3.10. Accordingly, if UKVI believes: • A serious breach has occurred; and/or • That there has been sustained non-compliance over a period of time; and/or • That a number of isolated or minor breaches have occurred which taken together indicate a serious failing; It is unlikely to consider that the provider should retain its Tier 4 licence 3.11. As set out below, this is the case even if action is proposed, or has been taken, in order to remedy the situation, which means that the sponsor no longer poses, or will no longer pose, a risk to immigration control. This is because where a sponsor has breached its duties in the past, the sponsor may not be trusted to comply... … 3.14. Any breach of the sponsor guidance which suggests a serious or systematic failing, a sponsor is no longer eligible or suitable to hold a Tier 4 licence, or that a sponsor poses a risk to immigration control is likely to be regarded as a serious breach, including where this arise from the commission of a number of isolated or minor breaches. 3.15. The following is a non-exhaustive list of failings which are likely to be considered a serious breach: Compliance failings … • Assigning CAS to students without properly assessing… their academic suitability • Failure to properly assess a student’s academic progression, ... … • Giving UKVI cause to believe that you do not or cannot comply with a sponsorship duty, when failure to comply suggests a serious or systematic failing or indicates a threat to immigration control. Operating in a manner that poses a risk to immigration control, such as failing to take steps to ensure non-EEA students have leave to remain in the UK.”
“[37]. … on the facts of this case, it does not much matter whether the procedures adopted by the Defendants are seen as two separate procedures or a single complete whole. What matters is whether, before taking their decision, the [sic] Claimant’s had been given fair notice of what was concerning the Defendants so that the Claimants could attempt to deal with the points. That was necessary both as a matter of fairness but also to ensure that the Defendants were in a position to take a rational decision, a decision based on a proper appreciation of all the facts.”
“16 …It is important first to notice a distinction in this area of the law which is at the core of the debate in this appeal. It is between these two principles. (1) The exercise of public discretionary power requires the decision-maker to bring his mind to bear on every case; he cannot blindly follow a pre-existing policy without considering anything said to persuade him that the case in hand is an exception. See British Oxygen Co Ltd v. Board of Trade[1971] AC 610 , in which Lord Reid and Viscount Dilhorne cited the classic authority of R v. Port of London Authority, Ex p Kynoch Ltd[1919] 1 KB 176 , 184, per Bankes LJ. 17 But (2): a policy-maker (notably central government) is entitled to express his policy in unqualified terms. He is not required to spell out the legal fact that the application of the policy must allow for the possibility of exceptions. As is stated in De Smith’s Judicial Review, 7th ed. (2013), para 9-013: ‘a general rule or policy that does not on its face admit of exceptions will be permitted in most circumstances. There may be a number of circumstances where the authority will want to emphasise its policy … but the proof of the fettering will be in the willingness to entertain exceptions to the policy, rather than in the words of the policy itself.’” ‘a general rule or policy that does not on its face admit of exceptions will be permitted in most circumstances. There may be a number of circumstances where the authority will want to emphasise its policy … but the proof of the fettering will be in the willingness to entertain exceptions to the policy, rather than in the words of the policy itself.’”
“It is alleged that the defendant unlawfully fettered her discretion. I am not persuaded of that on the evidence… UKBA recognise that there may be instances when the circumstances of a case are so compelling that rigid application of a mandatory requirement may be disproportionate to the overall aim. In such cases UKBA would consider applying some form of discretion, but those instances would be limited to a small number of cases where the application of discretion can be clearly justified…”
“Based on the evidence provided, whilst it is accepted that LSST has a Student Attendance Policy & Procedure in place for the three hour lecture slot and for Home/EU Students, there still appears to be an issue with a failure to keep the correct documents, and as such, this brings into question your ability to effectively monitor student attendance…”
“Record of the migrant’s absence/attendance, this may be kept either electronically or manually.”