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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Goldsmith International Business School, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 1232 (Admin) (02 May 2014) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2014/1232.html Cite as: [2014] EWHC 1232 (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) ![]() ![]() |
Claimant |
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- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Mr R Kellar (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 5 March 2014 and 16 April 2014
____________________
Crown Copyright ©
Mr Justice Irwin :
Introduction
"[1] What would be the understanding of the reasonable and literate individual as to the meaning of the relevant passages in the "Guide to Sponsoring Students under Tier 4 of the Points-Based System" of 5 September 2011, and in particular of the obligation described in paragraph 386 that the Sponsor "must assign a separate CAS for any stage of the course that leads to a recognised qualification in its own right?"
The second question is as follows:
"Was the application by the SSHD of the relevant guidance to the facts in this case Wednesbury unreasonable because it was based on an erroneous understanding of the meaning of the relevant guidelines?"
The third questions is:
"If, and to the extent that, the relevant guidance was ambiguous in its meaning, and the decision of the Secretary of State was based on a rational, but not the only rational, interpretation of her own guidance, is that application unlawful."
"Was the decision of the Secretary of State to refuse HTS status to the Claimant irrational in that she paid undue regard to the Claimant's past record of failure to report students to whom they had assigned a CAS to enrol on their course within the enrolment period and as a consequence paid insufficient regard to the current capacity and performance of the Claimants in reporting such students?"
Background
"to assign CASs, update their own information, report on student activity, make payments and request an additional allocation of CAS if they are not subject to the interim limit." (See Shirley, paragraph 8)
Mr Shirley points out that –
"since the introduction of CAS every version of the guidance has set out that the sponsor should only assign a CAS to a student who, to the best of the sponsor's knowledge, will meet the requirements of the Tier 4 category under which the CAS is assigned and is likely to comply with the conditions of his or her leave." (See Shirley, paragraph 11)
"the PBS system unequivocally transferred the task of assessing whether an applicant had the intention and ability to study the proposed course from the UKBA to the Tier 4 sponsoring institution." (See Shirley, paragraph 15)
He also emphasises –
"for the system to be effective, we must be confident that the sponsor will fulfil its duties scrupulously as otherwise there is a risk to immigration control." (See Shirley, paragraph 17)
Background relating to the Claimant
"We formally lodged our official complaint with your London office…. via emails … on 10 March 2011 and followed up with additional evidence on 15 March 2011. This complaint related to refusals between December 2010 and May 2011, to which a formal response was received from your Croydon office on 11 April 2011. …. We presented further compelling evidences in support of our complaint on 15 March 2011 but have had no substantive response … for several months now, even after several reminders. … The CAS letters issues … were identical in relation to the course title, awarding body and the duration, which was typically over three (3) years' duration. I am keen to ensure that you fully understand the nature of the above refusals which were, in our opinion, fundamentally flawed due to the fact that the course in question is, in fact, one (1) course which leads to one (1) qualification… I am equally keen to ensure that the refused applications, given their nature, are not taken into account in the UKBA quality audit, which is to take place from 9 October 2011, as they present a rather false and misleading image of our institution's refusal rate, which must not exceed 19.99 per cent according to the current HTS guidelines."
"Our records indicate that your refusal rate is greater than 20 per cent. The total number of leave applications made was 643. Of these, 177 were refused giving a percentage of 27.53 per cent.
In addition to the above you have also failed to meet the requirements of paragraphs 276 and 94 of the Tier 4 Sponsor 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 regard to reporting migrant activity.
We have identified 169 students who have had their applications for entry clearance/leave to remain refused and did not gain further leave for the same course start date, and thus fail to enrol within the enrolment period stated. No reporting has been received to inform UKBA of their failure to enrol. As such we have identified that appropriate migrant activity reporting has not been made, in accordance with paragraph 463 of the Tier 4 guidance."
The Defendant's Guidance
"When we will refuse an application for Highly Trusted Sponsor status
275. We will refuse your application for Highly Trusted Sponsor status in any of the circumstances below:
- You do not meet one or more of the mandatory requirements."
"Refusal Rate Your refusal rate must be less than 20 percent.
This means that all of the CASs 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 SMS for the 12-month period immediately before you apply. We will take into account all CASs that students have used and applications we refused during this 12-month period."
"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 License Application"
When we will refuse a sponsor licence application
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."
"HOW TO SPONSOR MIGRANT STUDENTS
296. All students who wish to come to the UK under Tier 4 of the points-based system must obtain a visa before they travel. Students who are already in the UK under Tier 4 can apply for an extension of their permission to stay. We call this "further leave to remain".
297. They cannot apply for a visa or extension of stay without a confirmation of acceptance for studies (CAS). When you give a student an unconditional offer of a place on a course, you will issue the CAS using the sponsor management system. For details of the sponsor management system, see "becoming a sponsor".
298. The CAS will not guarantee that we will grant a student a visa or permission to stay longer in the UK. Before you assign a CAS, you should ensure that the student will meet the requirements for a visa or permission to extend their stay. You can find details of these on our website…
299. A student cannot apply to us under Tier 4 more than three months before their course starts.
…
Full time and leads to approved qualification
308. The course must be full-time, which we define as:
- A full time course of study that leads to a UK-recognised qualification at Level 6 or above on the QCF or NQF or equivalent;
….
- A course of study below UK degree level that involves a minimum of 15 hours a week of classroom-based day time study.
…
309. The Course must lead to an approved qualification. We define an approved qualification as one that is:
- Validated by Royal Charter;
…
- In England, Wales and Northern Ireland on the Register of Regulated Qualifications … at QCF or NQF level 3 or above.
What to consider before you assign a CAS
380. If you wrongly assign a CAS, we may take action against you.
…
383. You may only assign a CAS under Tier 4 if the course the student intends to follow leads to an approved qualification.
…
386. You must not assign one CAS to cover more than one course (unless the student is taking a pre-sessional course). You must assign a separate CAS for any stage of the course that leads to a recognised qualification in its own right. For example:
- If a series of modules leads to a certificate or diploma, each of which is a recognised qualification in its own right; or
- If a student will do a HND and then a Bachelor's degree.
387. You must assign a new CAS before each stage starts.
…
Reporting duties
461. Unless stated otherwise, you must report the following information to us within 10 working days using the sponsor management system. It tells us about students who do not attend, do not comply with our requirements, or disappear. We use the information to take enforcement action against them when necessary.
462. You must report on students even if they are on a pre-sessional course at a partner institution named on their CAS or a work placement which forms part of their course.
Students who do not enrol
463. You must tell us if a student you have assigned a CAS to does not enrol on their course within the enrolment period. You must report this no later than 10 working days the enrolment period has ended (sic). You must include any reason the student gives for not enrolling for example if they:
- 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."
What would be the understanding of the reasonable and literate individual as to the meaning of the relevant passages in the "Guide to Sponsoring Students under Tier 4 of the Points-Based System" of 5 September 2011, and in particular of the obligation described in paragraph 386 that the Sponsor "must assign a separate CAS for any stage of the course that leads to a recognised qualification in its own right"?
"A quality or accomplishment which qualifies or fits a person for a certain position or function; (now esp.) the completion of a course or training programme which confers the status of a recognised practitioner of a profession or activity."
Was the application by the SSHD of the relevant guidance to the facts in this case Wednesbury unreasonable because it was based on an erroneous understanding of the meaning of the relevant guidelines?
"The Fundamental Level Certificate was not a qualification in its own right however formed the Fundamental Stage of the ACCA qualification, which has now been replaced with an Advanced Diploma in Accounting and Business."
"Dear Sir/Madam,
We have received a student visa application by ….. to study BSc (Hons) in Management and Business Administration atGoldsmith
International Business School. We found the mention of this course on college website…. The college states that they are accredited by Oxford Brookes University.
We would be grateful if you could please advise us of the following:
- This looks like a joint ACCA/Uni qualification and the website suggests that F1-F9 need to be successfully completed before moving on to the desertion (sic) part of the programme and the part assessed by the university. Please confirm if this is correct.
- Is it a pathway programme.
We would be grateful for a reply by Tuesday 12 January 2011…."
"Thank you for your interest in Oxford Brookes University.
We currently run the BSc (Hons) in Applied Accounting degree in partnership with ACCA which is available to ACCA students who have completed papers F1-F9 and the ACCA professional ethics module. After this time a student becomes eligible to submit a Research and Analysis Project to the university as the final component of the degree programme.
For more information on this programme please visit [the ACCA student website]. I can further confirm that this is a full undergraduate degree. It is of the same standard as any campus-based BSc degree offered by the university.
If you have any further queries relating to this please do not hesitate to contact me again."
"I do remember this concern. It was our assertion that the "combined" course was in fact two courses, requiring two CASs and could not be combined in this manner. This appears to be confirmed by the correspondence received by Oxford Brookes University."
The Entry Clearance Manager then quotes the email I have set out above of January 2011. Mr Sinclair-Jones goes on:
"So the reasoning behind the refusals is that whilst it may be possible to gain the BSc (Hons) once the student has completed the relevant ACCA modules by submitting additional work, they would only be eligible for this option once they have completed papers F1-F9. So the sponsor cannot offer this as a combined course, because whether a student can proceed on to the BSc aspect of the course is conditional on them completing ACCA modules F1-F9.
The information I have …. refers to Jan-March 2011 and confirms that our position at that time was that we were not accepting the course be valid. Mumbai were also of the same opinion.
I do not have anything after this date, either from regional colleagues, policy colleagues orGoldsmith
to confirm that this course was acceptable."
"Does this not imply a tacit acceptance that the course is not valid for Tier 4 purposes? Additionally, if the sponsor thought that the refusals were incorrect, why did the applicant not resubmit a request for an Administrative Review at the time?"
If, and to the extent that, the relevant guidance was ambiguous in its meaning, and the decision of the Secretary of State was based on a rational, but not the only rational, interpretation of her own guidance, is that application unlawful.
Was the decision of the Secretary of State to refuse HTS status to the Claimant irrational in that she paid undue regard to the Claimant's past record of failure to report students to whom they had assigned a CAS to enrol on their course within the enrolment period and as a consequence paid insufficient regard to the current capacity and performance of the Claimants in reporting such students?
"It should not be forgotten that under the PBS, colleges are performing functions which used to be undertaken by Entry Clearance Officers or other UKBA officials. There is a clear responsibility to show that they deserve the trust which is being placed in them."
"Highly Trusted Sponsor Status… is designed to ensure that all education providers are taking their obligations on immigration compliance seriously. It recognises sponsors who show a good history of compliance with their sponsor duties and whose students meet the standards of compliance with the terms of their visa or permission to stay in the UK."
"… information that suggests you do not have the processes you need (emphasis added) to comply with your sponsorship duties."
"The application was initially refused on 10 April 2012 due to the sponsor not being able to meet the mandatory criteria for HTS (emphasis added). One of the reasons for this was that more than 20 per cent of the students to whom the Claimant had assigned a CAS had applications for a visa or permission to remain in the UK refused."
It should be remembered that the reporting criteria was not strictly one of the "mandatory criteria" for HTS.
Conclusions