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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> London College of Business Ltd v The Secretary of State for the Home Department  EWHC 3144 (QB) (19 December 2017)
Cite as:  EWHC 3144 (QB)
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QUEEN'S BENCH DIVISION
Rolls Building, 7 Rolls Buildings,
Fetter lane, London EC4A 1NL
B e f o r e :
| LONDON COLLEGE OF BUSINESS LIMITED
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Colin Thomann (instructed by Government Legal Department) for the Defendant
Hearing dates: 23-24 November and 27 November 2017
Crown Copyright ©
Mrs Justice Moulder :
The five matters under challenge
"every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
i) 2006 the claimant commenced operations and in 2009 was granted a Tier 4 licence to assign Confirmations of Acceptance for Study ("CAS").
ii) November 2010 the claimant was issued with an HTS licence (Highly Trusted Sponsor Status).
iii) 26 March 2012 compliance visits were carried out at the three campuses, Barking, Oxford Street and Birmingham.
iv) 29 March 2012 the claimant's licence was suspended.
v) 1 June 2012 judicial review proceedings issued by the claimant
vi) 30 August 2012 the claimant's licence was reinstated.
vii) 18 June 2013 visit by the defendant sponsor licensing unit.
viii) 11 July 2013 the claimant's Tier 4 licence and HTS licence were renewed until 17 March 2017 and 18 November 2013.
ix) 2 August 2013 the claimant's licence was suspended.
x) 18 October 2013 the claimant was permitted to amend its grounds of claim.
xi) 4 November 2013 Secretary of State reinstated the licence.
xii) 25 March 2014 the judicial review proceedings were withdrawn by consent.
xiii) 29 September 2014 visit by the defendant's sponsorship licensing unit. The officer recommended suspension.
xiv) 22 December 2014 the claimant's licence was suspended.
xv) 22 January 2015 the claimant challenged the suspension by way of judicial review.
xvi) 30 January 2015 the defendant maintained the suspension.
xvii) 19 March 2015 the Secretary of State revoked the claimant's licence.
xviii) 31 March 2015 the claimant challenged the revocation by way of judicial review.
xix) 14 May 2015 permission refused on the basis that the defendant offered to reconsider the decision rendering the proceedings academic.
xx) June 2015 permission for judicial review refused in the linked claims.
xxi) 19 September 2015 a further judicial review commenced.
xxii) September 2015 the defendant offered to reinstate the claimant to the register but did so as a probationer.
xxiii) April 2016 permission granted.
Tier 4 Points Based System
"we will immediately suspend your licence while we make further enquiries if we have reason to believe that you are breaching your sponsorship duties and/or are a threat to immigration control (for example, assigning CASs to students who do not enrol or fail to complete their course) to the extent that we may have to revoke your licence." [Para 504]
"We start from one of two positions.
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.
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. It may not be possible at that point to say how long the investigation will take,…"[Para 514]
"When we write to you giving detailed reasons for suspending your licence, you will then have 28 calendar days from the date of that written notification, to respond to us in writing.…" [Para 515]
"When we receive a response from you, we will consider it…we will notify you of our decision within 28 calendar days of receiving your response." [Para 517]
"If after an investigation, we decide not to revoke your licence we will lift the suspension and reinstate your entry on the register of sponsors on our website." [Para 507]
"Students you are sponsoring at the time of the suspension will not be affected, unless they need to apply for an extension of stay and you have not already assigned a CAS to them. Students will be affected if we decide to revoke your licence." [Para 508]
"students did not arrive for their course,
students were absent without permission for a significant period,
they left their course earlier than expected or
[the sponsor] asked them to leave the course." [Para 24]
Period to first suspension in 2012
"this has come in today. We do not appear to have visited this college for around 18 months.… We do not have an awful lot of information on London College of Business so could you have a look for me. We need to task this out for a visit."
"18 IRs relate to London College of Business, the most recent from October 2011.
The majority refer to students working in breach but one dated 06/07/2011 records that the college is involved in illegal activities and facilitation.
However, one dated 30/09/2009 records that:
the college is a visa factory and staff who complain are forced to leave…
If you want me to do a profile as matter of urgency, please let me know."
"London College of Business Ltd (LCB) is allegedly providing false documents on a large scale to migrants wishing to travel to the UK who have no intention to study, using the Tier 4 route of the PBS."
A member of staff, Shaik Basha… is recorded as being involved in people smuggling, facilitation and money-laundering and is alleged to sell false documents to migrants in order for them to obtain FLR.…"
"It is suspected that LCB is facilitating overseas nationals entry into the UK and further leave to remain to stay in the UK. They are using Tier 4 of the PBS to facilitate entry and are providing false enrolment and attendance documents to migrants who have no intention to study in the UK but who wish to seek full-time employment…"
"further investigation into possible links may uncover further abuse of the PBS and identify the level of criminal organisation involved."
"review all information gathered from the above recommendations and recommend further action if necessary such as prosecution, suspension or revocation."
Visits on 26 March 2012
"the sponsor stated that they have not reported any students issued with a CoS and refused a visa to the UK Border Agency via the Sponsor Management System (SMS). They stated that this is due to a change in management. Key contact Zenon Adamek left the organisation on 22/09/2011. The sponsor stated that he was the person responsible for updating the SMS. When he left they stated that no members were aware of the reporting procedures.…"
"Sky is looking for a statement to address the following:
1 what is the vetting system for the college?
2 why does this college have highly trusted status?
4 having received a complaint at least five weeks ago, what steps have been taken in response to the complaint?
Can you confirm if the college is already under investigation? If so what is being done? Are you aware of a complaint being made?
If we cannot address the allegations directly, would you be content with the following:
Immigration Minister Damian Green said:
"We are determined to crack down on abuse of the student Visa system, which has gone on for far too long. This government has brought in radical changes across the board, which are beginning to bite."
We take all allegations very seriously and be/are already investigating the London School of Business in Barking."
i) the claimant had not reported any students using the Sponsor Management System
ii) the claimant had failed to notify the closure of Oxford Circus campus
iii) the claimant had failed to report Shaik Abdul as a Tier 2 worker
iv) the claimant failed to allow access to the Birmingham site.
"During our visit we provided you with a list of students and asked why they had not been reported to the UK Border Agency. You informed us that your Level I User Zenon Adamek left in September 2011 and that since then no one has been aware of reporting procedures. Our records show that you have not reported any students using the sponsor management system for the entire history of your licence, predating Mr Adamek's departure.
You are currently both Authorising Officer and Level I User for the sponsor licence and responsible for all reporting obligations. Your failure to report contravenes paragraphs 461 – 479 of the Tier 4 Sponsor Guidance and paragraph 473D of the Tier 2 sponsor guidance states that you must report certain events to us relating to your sponsored employees and students. Such events include:
a student/employee fails to enrol or start work
contact with your employee/student stops
address of work/study changes
"we also visited your Birmingham campus… The college was closed. When our officers made enquiries with the administrator of the campus, they were told that it was closed because she was off work sick. The entire campus being closed due to the illness of one staff member leads us to doubt that there is a trading presence at this site. Our officers must have access to your premises. This is a breach of paragraph 485 of the Tier 4 sponsor guidance… [You must allow our staff access to any of your premises on demand] …"
Was the decision of the defendant to suspend in 2012 lawful?
"if we have reason to believe that you are breaching your sponsorship duties and/or are a threat to immigration control"
" 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…
 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.
 these reporting duties are not compulsory if we gave the student permission to come to the UK on the basis of a visa letter. These letters were a paper version of what is now the confirmation of acceptance of studies. They were phased out on 22 February 2010 when the sponsorship management system was fully implemented.
 however, if you wish to report on the students you can do this by emailing MigrantReporting@UKBA.GSI.gov.uk...
 you must tell us within 10 working days:
if there are any significant changes in a sponsored students circumstances, for example if:
the location they are studying at changes.
Their start date is deferred and they have not yet entered the UK…"[emphasis added]
"If I had considered that the University had a power of suspension,… I should also have taken the view that there were no reasonable grounds for either suspension."
"The defendant used the intelligence and information received to inform its actions in relation to the nature and extent of its monitoring of the claimant college. It also provided a context in which key decisions were taken…"
and (paragraph 363):
"[concerns about the integrity of immigration control, the undercover Sky News expose, a criminal investigation] called for varying degrees of regulatory oversight and action, some of which impacted on the whole sector, and others which were more specific to the claimant college and other third parties. This created a particular climate for the decision-maker…"
" …the persistent misuse of the immigration system by those who initially enter as students is a factor of importance in ascertaining if UKBA and the Secretary of State have acted in breach of their public law duties."
"…a fundamental principle of the sponsorship system requires the UKBA to trust the sponsor to a very substantial extent....In essence, the Secretary of State and UKBA entrust to sponsors such as the claimant the vital function of monitoring compliance of its students with immigration law."
"… The wording of the guidance is clear, sponsors must report a student who does not enrol. The example given in the guidance of missing a flight is just that, an example of why a student may not enrol. … Further, the fact that there are also circumstances in which a student who has already enrolled must be reported does not assist in determining which students who have not enrolled should be reported.
 Most importantly, if the obligation does not apply to all students but only to those who have been granted entry clearance, the college would not necessarily know why a student had failed to enrol... "
A similar argument to that advanced by the claimant in this case, was advanced and rejected by Jackson LJ in The Queen (on the application of WGGS Ltd trading as Western Governors Graduate School) v Secretary of State for the Home Department  EWCA Civ 177 at 41).
"LCB was suspended on 29 March 2012 as a result of a visit to their premises a few days earlier.… The reason for suspension was LCB's failure to comply with their sponsorship duties including a failure to:
comply with reporting duties;
report a change in circumstances (closure of the Oxford Road campus);
notify the end of employment of a staff member;
give UKBA officers access to the college premises.
Paragraph 11 states:
"The allegations by Sky News were largely unsubstantiated and did not have a bearing on the decision on compliance…"
"had attracted wider Home Office interest" (paragraph 128 of Mr Pamani's witness statement)
does not render the suspension decision in March 2012 unlawful.
The failure to lift the 2012 suspension
"having now considered your representations and additional information provided with your application for judicial review."
"you have reported a few students using the migrant reporting mailbox. This mailbox is not the correct way to report students assigned CAS by you. We expect you to report all events using the Sponsor Management System (SMS) and will consider any continued use of this mailbox to be a breach of your sponsor duties.
You failed to report the closure of your Oxford Circus campus.…"
"We do not accept that the closure of this campus on the day of our visit was reasonable. The registrar was not a tutor and therefore not responsible for teaching the remaining students attending the campus.… Should this campus close due to low student numbers, we expect to be informed in a timely manner using the correct process as described above."
"can you review this job with particular focus on whether the cases should be linked and whether you feel the investigation is proceeding at the right pace and whether other tactics such as disruption by withdrawing licences should be applied."
"the sponsor stated that [X] a Tier 1 migrant has not been paid for one year and that various suppliers to the college have not been paid due to its poor financial position. This raises concerns about the college's future financial viability."
The recommendation was to remove HTS status.
"this is another college who have been part of a criminal investigation undertaken by London Met police and officers from the Crime and Financial Investigations team. They have been extremely keen for us to proceed with a suspension as soon as possible."
Mr Hughes responded approving the letter with amendments and stating
"more generally, I am concerned about how this establishment:"
achieved HTS status; and
became accredited by IS (or whoever)
can we please investigate both our own handling of this establishment; and the accreditation report for this organisation.
Cases like this have the potential to undermine credibility and to embarrass the Department and ministers. I want to know what we are doing to ensure that no other such colleges can survive on the register."
i) the financial position of the college, that there were only two teachers and one had not been paid a salary for one year.
ii) the lack of teachers to offer courses to a potential 700 students
iii) the presence of students according to the attendance records even though their courses had been due to end in April 2013.
"…all of the reasons for suspension were addressed, from a sponsor licence perspective LCB were functioning as they should and therefore their licence was reinstated on 30 August 2012.
… We have suitability requirements in deciding whether to revoke a sponsor's licence, which include the assessment of systems to enable the sponsor to meet the sponsorship duties, and compliance with immigration rules. When we make a decision on whether to suspend or revoke a sponsor licence we rely upon the evidence we have from a visit and the report thereafter.
Further visits to LCB (Barking) have been undertaken on 25 October 2012 and 15 February 2013, after consulting CFI and no substantial compliance issues were found during these visits…
...Our compliance officers, along with CFI, conducted an unannounced visit at the premises of LCB on 18 June 2013. Early findings are that there is potential non-compliance with their sponsor duties.
Alongside the findings from the visit we are reviewing from a sponsorship perspective the evidence that CFI gathered. Once this is complete a decision will be made on the status of the licence based on both this review and the recent visit."
" The 2013 suspension decision, whilst taken independently of the 2012 decision, cannot be divorced from it given the impact of the Sky News investigation in March 2012 which was to subsequently generate additional intelligence and, more significantly, a joint Home Office/police investigation into serious criminal offences, including money laundering. Given the defendant's residual concerns in relation to the claimant college as detailed in the 2012 reinstatement letter, and the developments with the criminal investigation following the Jason Farrell, Sky News report, there was, in the circumstances a heightened interest and vigilance on the part of the defendant with regards to the claimant college. This resulted in a number of visits to the claimant college in October 2012, February 2013 and then in June 2013 each generating visit reports alongside receipt of some of the evidence gathered during the criminal investigation…"
" By the end of July 2013 the defendant decided to suspend the claimant's licence based on its assessment of the evidence and also mindful of the fact that it had granted the claimant college HTS, its decision could cause potential reputational and political damage and embarrassment." [emphasis added]
Although Mr Pamnani goes on to say (paragraph 378) that the suspension was imposed in light of concerns in relation to the building/teaching capacity, the attendance of certain students at the college whose courses had ended in April 2013 and the poor financial position, the inference I draw from the evidence, including the draft ministerial report and his witness statement is that matters other than non-compliance with the duties on sponsors were taken into account in deciding whether or not to suspend. Accordingly in my view the decision to suspend in August 2013 was unlawful.
The failure to lift the suspension until 4 November 2013
"allegation that the college is recruiting students and allowing them to leave and work full time so that they can produce false document for a price to enable students to gain a Visa."
Allegation that when staff complain they are forced to leave the college, with 24 staff forced to leave in the last two years."
"at some point used deception to stay in the UK "
"by sponsoring the student before, during or after the offence took place,… [the claimant had] contributed to the risk of immigration control."
The letter continued:
"Individuals who have gone to the lengths of fraudulently obtaining an ETS certificate are unlikely to act as genuine students attempting to further their academic careers. We would expect a compliant sponsor who was properly assessing a student's English language ability to identify such poor quality regardless of any supposedly high score they claim to have achieved. If these individuals obtained their SELT package for a different reason than masking their poor English, it is logical that they were intending to use their stay in the UK for another purpose and we would expect you to have discovered that at least a portion were not acting as honest and genuine students. You are expected to make rigorous assessments before assigning a CAS and by failing to do this you have contributed to the immigration journey of 18 dishonest individuals who were prepared to fraudulently obtain a SELT presumably in order to gain sponsorship and remain in the UK." [Emphasis added]
"if ground 7 (1) falls away, it is far from certain that the other two grounds would have been sufficient in the Secretary of State's mind to justify either suspension or revocation, and indeed I have had helpful submissions from Miss Barnes on behalf of the Secretary of State to concede as much."
Failure to lift the 2014 suspension
Section 7 Human Rights Act
"(a) the period of one year beginning with the date on which the act complained of took place or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances."
" the 2014 suspension decision was largely underpinned by the 29 September 2014 compliance report but the decision-maker would have been aware of the compliance history of the claimant college, most particularly the 2012 and 2013 suspension decisions. This, when combined with the revelations made in the Panorama programme broadcast in February 2014 about the corruption in ETS test centres (and the subsequent findings of the Home Office about the scale of the abuse). This brought into sharp focus the threat posed to immigration control which, whilst relatively small in the context of wider immigration, required robust action to ensure the integrity and fairness of the system." [Emphasis added]
" Lord Hope expressed the view that the phrase "the date on which the act complained of took place" means, in the case of what may properly be regarded as a continuing act of alleged incompatibility that time runs from the date when the continuing act ceased, not when it began… He reserved his opinion on whether the monthly orders and authorisations for segregation of the prisoners...should be viewed as one continuing act or as separate acts for the purposes of section 7 (5)....Lord Mance viewed them as separate acts in respect of which separate one year limitation periods would run, leaving a claimant seeking to challenge a period of segregation which had lasted more than a year to seek an equitable extension of time under section 7 (5) (b). Lord Rodger preferred to express no view but considered that Lord Mance's approach was "at least arguable"… Lord Walker said he agreed on all issues with Lord Hope and Lord Rodger. Lord Scott noted the "act" includes "failure to act" and therefore concluded that the "one year beginning with the date on which the act complained of took place" should "simply be calculated back from the date on which the section 7 (1) (a) proceedings were commenced"…
...it appears to be the only authority which sheds any light on the question that arises in the present case. As a matter of ordinary language, the wording of section 7(5)(a) contemplates that an "act" is a single event which occurred on a single date. No express provision is made for an act which extends over a period of time.…
 there are also cases like Somerville where the question is whether the acts complained of are to be regarded as a single continuing act or as a series of discrete acts with continuing consequences. The fact that there was a difference of opinion on this question in Somerville shows that it is not always easy to decide how to classify the acts in such a case. It will depend on the particular circumstances and the nature of the particular complaint." [emphasis added]
" I would reject the submissions… The appellant did not ask the deputy master to exercise his discretion to extend time. He was not at fault in failing to consider whether to extend time on his own initiative. If the appellant had been a layperson and there were obvious grounds for extending time, it is perhaps arguable that the deputy master should have raised the issue and asked her whether she was to apply for an extension of time. But the judge was fully justified in holding that it was not reasonable for a legal professional such as the appellant to complain that the deputy master did not raise the issue on his own initiative on the facts of this case.…
 in my view, a party who wishes the court to grant an extension of time must make that clear to the court and to the opposing party and set out the grounds and any evidence on which he or she relies.…"
"time runs from the date when the continuing act ceased, not when it began"
and that the question therefore is
"whether the acts complained of are to be regarded as a single continuing act or as a series of discrete acts with continuing consequences."
"it seems to me that an alleged breach of proprietary rights may frequently require to be evaluated in the context of a course of conduct. Individual decisions may only be revealed as demonstrably unfair or irrational when consider cumulatively alongside a wider decision-making process. "
Extension of time
"taking into account all the background circumstances, as section 7 of the Human Rights Act requires me to do, I have come to the conclusion that it would be equitable to extend the period within which the claimant was entitled to proceed… The serious shortcomings in the investigation process and the impact upon D should be properly explored."
Since preparing my draft judgment the Supreme Court has handed down judgment in the case of O'Connor v Bar Standards Board  UKSC 78. At paragraphs 119 – 129 of the judgment I considered the issue of limitation under section 7 (5) of the Human Rights Act 1998 having regard to the Court of Appeal decision in O'Connor. At paragraph 128 of the judgment I assumed that the section was capable of being interpreted having regard to a continuing course of conduct but found on the facts that even if the 2012 suspension had been unlawful, any continuing course of conduct did not extend beyond November 2013 when the 2013 suspension was lifted and accordingly any claim would have had to have been brought by November 2014 unless an extension was granted under subsection (b). Accordingly on the evidence I found that the claimant had not established a single continuing act on the part of the defendant. The approach which I took of considering whether or not a continuing course of conduct had been established on the evidence is consistent with the approach which has now been endorsed by the Supreme Court and therefore in my view does not affect the conclusion which I reached on this issue.