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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> English Speaking Board (International) Ltd, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 1788 (Admin) (12 July 2011) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2011/1788.html Cite as: [2011] EWHC 1788 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN (on the application of ENGLISH SPEAKING BOARD (INTERNATIONAL) LTD) |
Claimant |
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- AND - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Adam
Heppinstall
(instructed by Weightmans LLP) for the Claimant
Susan Chan (instructed by Treasury Solicitor) for the Defendant
Hearing date: 16 June 2011
____________________
Crown Copyright ©
Mr Justice Wyn Williams:
"The Secretary of State shall from time to time….lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and staying in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances….
If a statement laid before either House of Parliament under this sub-section is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying…. then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution…..."
The changes
"Knowledge of language and life in the United Kingdom
33B A person has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom for the purpose of an application for indefinite leave to remain under these rules if –
(a) he has attended a course which used teaching materials derived from the document entitled "Citizenship Materials for ESOL Learners"….and he has thereby attained a relevant accredited qualification; or
(b) he has passed the test known as the "Life in the UK Test" administered by an educational institution or other person approved for this purpose by the Secretary of State;….."
Paragraph 33C defined a "relevant accredited qualification" so as to include "an ESOL "Skills for Life" qualification in speaking and listening at Entry Level approved by the Qualification and Curriculum Authority".
The acronym ESOL stands for English for Speakers of Other Languages.
"(a)(i) he has attended an ESOL course at an accredited college;
(ii) the course used teaching materials derived from the document entitled "Citizenship Materials for ESOL Learners"…
(iii) he has demonstrated relevant progress in accordance with paragraph 33F; and
(iv) he has attained a relevant qualification;"
Paragraph 33C was amended so that it reads:-
"33C In these rules, "an accredited college" is:
a) a publicly funded college that is subject to inspection by the Office for Standards in Education, Children's Services and Skills (if situated in England), the Education and Training Inspector (if situated in Northern Ireland), Her Majesty's Inspectorate of Education (if situated in Scotland), ESTYN (if situated in Wales); or an inspection programme that has been approved by the Islands Government (if situated in the Channel Islands or Isle of Man); or
b) a private college that has been accredited by Accreditation UK, the British Accreditation Council (BAC), the Accreditation Body for Language Services (ABLS), the Accreditation Service for International Colleges (ASIC)."
"(1) A person has sufficient knowledge of the English language and sufficient knowledge of life in the United Kingdom for the purpose of an application for naturalisation as a British citizen under section 6 of the Act if –
a) he has attended a course which used teaching materials derived from the document entitled "Citizenship Materials for ESOL Learners"….and he has thereby attained the relevant accredited qualifications; or
b) he has passed the test known as the "Life in the United Kingdom Test" administered by an educational institution or other person approved for this purpose by the Secretary of State; or
c) in the case of a person who is ordinarily resident outside the United Kingdom, a person designated by the Secretary of State certified in writing that he has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom for this purpose."
As from 7 April 2010 Regulation 5(A) reads:-
"a)
i) he has attended a course at an accredited college;
ii) the course used teaching materials derived from the document entitled "Citizenship Materials for ESOL Learners";
iii) he has demonstrated relevant progress in accordance with paragraph (ii);
iv) he has attained a relevant qualification."
There follow further provisions including a definition of an "accredited college" which is identical to that contained within the Immigration Rules.
The Claimant and its complaints
"It has come to notice that a limited number of private sector providers have been assessing applicants at a lower level of competence than they have already achieved. This means they can attend a very short (but often expensive) course in order to obtain an ESOL certificate and meet the letter of the law (but not the spirit). There are no concerns with public sector providers who undertake diagnostic assessments in language to ensure a learner is allocated to an appropriate course and are already subject to an inspection regime.
The amended rules seek to reduce the possibility of abuse and of exploitation of applicants, by specifying that evidence progress from one level to the next is required and that qualifications can only be obtained through attendance at a college that is subject to inspection by [accreditation bodies]."
The grounds of challenge
"It is acknowledged that mistakes were made in the process before the changes were implemented. In particular, the Defendant believed that because there had been a full public consultation for Tier 4 accreditation (which included consultation with the accrediting bodies), requiring private ESOL providers to be accredited by those same accrediting bodies would require minimal adaptation….. the Defendant acknowledges that it was arguably irrational not to make greater inquiries of the accreditation bodies before implementing the changes."
The claim for relief
"The relevant law on relief
40. At its para 48 the Divisional Court cited, and apparently were much influenced by, some observations of Webster J in R v Secretary of State for Social Services, ex p Association of Metropolitan Authorities [1986] 1WLR 1, 15. This passage was strongly relied on by the Secretary of State before us. It reads:
"it is not necessarily to be regarded as the normal practice, where delegated legislation is held to be ultra vires, to revoke the instrument, that …..the inclination would be the other way, in the absence of special circumstances making it desirable to revoke that instrument….in principle I treat the matter as one of pure discretion…."
41. It has proved difficult to find other authority on the specific point. Webster J's dictum does not seem to be discussed, much less adopted, in any of the standard works on administrative law, and for my part I would not wish to endorse it. As with any administrative decision, the Court has discretion to withhold relief if there are pressing reasons for not disturbing the status quo. It is, however, wrong to think that delegated legislation has some specifically protected position in that respect. If anything, the imperative that public life should be conducted lawfully suggests that it is more important to correct unlawful legislation, that until quashed is universally binding and used by the public as a guide to conduct, than it is to correct a single decision, that affects only a limited range of people."
The Learned Judge then proceeded to identify the reasons why the Divisional Court had felt it inappropriate to make a quashing order and why he considered that such a conclusion had been wrong.
"The only issue is, therefore, whether quashing remained an appropriate remedy in view of events that have occurred in the 5 months since the hearing before the Divisional Court."
Having considered the relevant events the Learned Judge decided that quashing was still appropriate.
"85. I also agree, and I add only a few comments of my own. First, I firmly endorse the views expressed by Buxton LJ at para 41 about the appropriate course to be taken by a Court when delegated legislation is found to be ultra vires. Such a finding should normally lead to the delegated legislation being quashed, and only in unusual circumstances would one expect to find a Court exercising its discretion in such a way as to allow such legislation to remain in force. Such legislation normally changes the law for the public generally or for a class of persons. It should not generally be allowed to stand if it does not come into being in accordance with the law, and certainly not merely because certain checks which should have been carried out beforehand are to be made subsequently. Such a course may well prejudge the outcome of those checks, and yet the public is expected to conduct its life in accordance with such delegate legislation in the meantime. That cannot normally be appropriate.
86. ….I too agree, therefore, that the Divisional Court was wrong not to quash the Amendment Rules in the light of its conclusions on consultation and the carrying out of an REI.
87. I would have been more hesitant about the exercise of this Court's powers to quash the Amendment Rules given what has happened since the Divisional Court decision, had it not been for the conclusions which I, like Buxton and Tuckey LJJ, have reached about Article 3 and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms……"
"In any event, the Court should not countenance expensive proceedings which have no real purpose and where the supposedly vindicatory benefit to the Claimant is on the facts illusory."
"All those who attended the meeting were aware of certain abuses in the ESOL qualification award system and therefore supported in principle the rationale for the changes. However, the main concern of all those who attended was that the changes were introduced without consultation and without notification. The speed of introduction of the changes had a similar effect as if it had been introduced retrospectively. All those present noted that the changes were unfair to those individuals who had studied for but had not submitted a settlement application or who at that point studying for the ESO Skills for Life qualification, and paid the appropriate fee, now found that they were in a position where the qualification was effectively worthless unless accreditation could be achieved. The accreditation bodies at the meeting expressed concerns about their capacity to accredit organisations swiftly given the need to maintain their usual quality requirements and processes……"
"The changes had a detrimental effect on us as a centre delivering ESOL Skills for Life courses. As a result of the changes we came very close to having to close down our centre. That is because our core business had been affected by UKBA's decision to enact the changes without any consultation whatsoever. "
At paragraph 12 he says:-
"The effect of the above that small centres, such as ours, have struggled to manage the anger and indeed the barrage of insults and vilifications which we have suffered. Our reputation has been damaged in the business community and that has also affected our personal lives. Students believe that we intentionally misled them and took their fees. The students were upset when their certificates were refused and said that we were a "bogus centre" and that we had not informed them of the changes when we booked their examination. Of course we did not know of the changes."
In this paragraph Mr Islam was referring to events which occurred immediately following the changes.