If you found BAILII useful today, could you please make a contribution?

Your donation will help us maintain and extend our databases of legal information. No contribution is too small. If every visitor this month donates, it will have a significant impact on BAILII's ability to continue providing free access to the law.

Thank you very much for your support!


BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales High Court (Administrative Court) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> London College of Business Management and Information, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 3215 (Admin) (07 July 2015)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/3215.html
Cite as: [2015] EWHC 3215 (Admin)

[New search] [Context] [View without highlighting] [Printable RTF version] [Help]


Neutral Citation Number: [2015] EWHC 3215 (Admin)
CO/1587/2015

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London WC2A 2LL
7 July 2015

B e f o r e :

MRS JUSTICE SIMLER
____________________

Between:
THE QUEEN ON THE APPLICATION OF
LONDON COLLEGE OF BUSINESS MANAGEMENT AND INFORMATION Claimant
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT Defendant

____________________

Computer-Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)

____________________

Mr Michael Biggs (instructed by Law Lane Solicitors) appeared on behalf of the Claimant
Mr Jack Holborn (instructed by the Government Legal Department) appeared on behalf of the Defendant

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. MRS JUSTICE SIMLER: This is a rolled-up hearing of an application by the London College of Business Management and Information Technology ("the College") for judicial review of the defendant's decision by letter dated 5 January 2015 revoking the College's Tier 4 sponsor licence.
  2. The College was established in 2005 as a provider of higher education based in Sutton. It offers courses in business management, health and social care, IT and English, all accredited by, among others, Edexcel, ATHE and Pearson. It was granted a Tier 4 sponsor licence in 2009, and although that licence was suspended and revoked in 2012, the revocation decision was withdrawn on 5 March 2013 and the licence reinstated.
  3. As a consequence of its Tier 4 status, the College was entitled to grant aspiring students who it wished to enrol onto its courses a certificate known as a Confirmation of Acceptance for Studies (CAS) certificate. Colleges permitted to issue such certificates are expected to take rigorous steps to check to ensure that only bona fide students are accepted. They have a responsibility as a consequence to check that the student has complied with, and will continue to comply with, the requirements both of the College and the Immigration Rules in having the appropriate academic qualifications for the course, sufficient funds to meet study and living costs, and, importantly, that they speak English and can write in English to the required standard.
  4. Prior to the current revocation that is the subject matter of this judicial review application, the College held an allocation of 1,697 Confirmation of Acceptance of Study certificates and it had over 1,700 students. This application was commenced on 7 April 2015, and in addition the College sought urgent interim relief on the basis that students of the College would be forced to change course partway through the academic year or to leave the UK. As a consequence of that application, Her Honour Judge Walden-Smith, sitting as a deputy High Court judge, directed a rolled-up hearing to be listed as soon after 11 May as possible. Unfortunately, because that order was not served promptly, it was not reasonably practicable for the parties to comply with the directions that were then made, and the result has been that this hearing on a rolled-up basis has been delayed until now.
  5. The revocation decision of 5 January 2015 relied on a number of grounds as justifying revocation both individually and cumulatively. The summary grounds of defence focused on two only of those grounds: firstly, the ETS student issue, and secondly, the approved qualification issue. Before me, the latter justification has been abandoned. Mr Biggs, on behalf of the College, said, without contradiction, that it was not a sustainable ground for revocation in any event. The result is that only the ETS student issue ground is relied on for the decision; that is to say, on behalf of the defendant Secretary of State Mr Holborn submits that, given that 313 students enrolled at the College and sponsored by it had invalid ETS certificates, that is a sufficient reason on its own to justify revocation. I shall return in due course to the developing reasons for revocation in this case.
  6. The facts
  7. Students wishing to study in the UK must show an adequate competence in English by obtaining a successful result in a Secure English Language Test. One of the providers of such a test is an organisation known as ETS. That organisation administers two relevant tests: the Test of English for International Communication ("TOEIC") and the Test of English as a Foreign Language ("TOEFL"). Those tests are used internationally for a variety of purposes other than immigration control.
  8. ETS administers the TOEIC through a network of local providers. It devises and marks the tests, but they are delivered locally at different test centres organised by local providers. In other judicial review cases dealing with the fraud in relation to the ETS TOEIC tests, the Secretary of State has relied on a witness statement prepared by Mr Millington, who explains the sophisticated digital techniques used by ETS to eliminate as far as possible biases which might arise from human marking and the difficulties that that poses in relation to cheating at individual test centres.
  9. Sara Oates, who is the decision maker on behalf of the Secretary of State in this case, explains the background to the revocation of the claimant's licence, starting with the fact that the BBC's Panorama programme made the Home Office aware in January 2014 that it had uncovered evidence of systematic fraud and abuse in relation to the use of English language test certificates. That led to a decision by the Home Office to suspend ETS's licence and to investigate. Applicants who had applied using an ETS test, and those continuing to apply relying on such tests, were given the chance to withdraw their applications and to take tests with different providers. That Panorama programme was broadcast on 10 February 2014, and thereafter, at the behest of the defendant, ETS examined voice recordings from previous tests to investigate how widespread the problem might be.
  10. In her witness statement, Sara Oates explains that as the investigation progressed and the scale of the systematic deception became apparent, the Home Office began to match individuals involved in the abuse to their Tier 4 sponsors. This was a phased and continuing process as data was provided in batches. She goes on to say that from the first 16,000-odd invalid scores, 876 sponsors associated with those scores were identified. There were differences in the numbers attached to each institution, from low numbers of one or two students through to institutions that had several hundred invalid scores related to them. In total, she says that 876 sponsors were matched against the first batch, of which 396 still held a licence.
  11. She continues that it became apparent as the analysis progressed that these individuals appear to have clustered around certain Tier 4 sponsor institutions in considerable numbers. She advances two possible reasons for this: firstly, that the individuals were deliberately being funnelled to certain institutions by the organisations that had engineered the systematic abuse of the language testing system; or secondly, that the sponsors were targeted because the recruitment practices that the institution used were seen as being less robust than others. The Home Office has a duty to inspect patterns such as that, she says, to determine whether the sponsor either deliberately or unwittingly is posing a threat to immigration control, and whether they are otherwise properly fulfilling their sponsor duties.
  12. Consequently, so far as this claimant is concerned, between 19 and 23 June 2014 officers of the defendant carried out a number of inspection visits to the College. The officers made notes recording a number of deficiencies in the Tier 4 sponsorship standards relevant to the College. It identified files for various students missing relevant documents such as visas and academic certificates; that many of the students lived, according to their registered addresses, very far from the College, in places like Manchester, Huddersfield or even Edinburgh; that some of the students' addresses were incomplete; and that several students who did not appear to have attended or been in contact did not have anything on their file to suggest that any attempt to contact them had been made.
  13. Following the inspection visits, by a letter dated 27 August 2014 the defendant informed the College that it was suspending the College's licence and considering revocation. The grounds identified were, first, that the College had assigned CAS certificates to 439 students who had TOEIC certificates withdrawn by ETS. Of those, 313 were marked as "invalid" and 126 as "questionable". Secondly, the limited files shared by the College indicated lax recruitment practices. Thirdly, many of the College's supposed students did not live within a practical distance of the College. Fourthly, concerns were expressed about the College's record keeping.
  14. The College brought in independent auditors in the form of chartered accountants, AD Williams & Co, to assess the College's recruitment processes with a particular focus on the TOEIC issue, and that was notified to the defendant. By a letter dated 20 September 2014 the College made representations as to why its sponsor licence should not be revoked. It attached many documents and a number of witness statements to that letter, and it responded to the allegations made in the letter of 27 August. Thereafter, on 21 October 2014, there was a meeting between the College representatives and senior members of the UKBA to discuss these issues. There are notes of that meeting available to me. In the course of that meeting, action points were agreed, including that the College would make proposals as to how it might improve its recruitment processes and would submit those immediately.
  15. In the event, that was done by letter of 22 October 2014 which included a recruitment plan. The recruitment plan (at pages 638 to 641 of the bundle) indicates a number of important matters: firstly, that the College was proposing to enhance its random sample for assessing new students so that the sample would be 30 per cent rather than just 20 per cent of the students. The assessments would not be focused simply on English but on admissions testing more generally to ensure that the students were able and committed to the education being offered. The first hundred new students would all be tested, but thereafter it would be dealt with on a random 30 per cent sampling basis. Secondly, the College was proposing a very significant reduction in the number of CAS certificate allocations it had. It was proposing to recruit only 50 per cent of its existing allocated quota. Thirdly, there was a proposal to increase the English language requirement to level 6 in circumstances where the defendant's minimum level was 5.5. These steps were designed to improve the margin of error.
  16. The recruitment plan identified the review conducted by AD Williams & Co on 10 September 2014 and the recommendations made by AD Williams & Co to improve the processes, including (i) devising a new test which included questions verifying the Secure English Language Test score that the students reported as having achieved; (ii) more robust and broader questions being included in the admissions test which would specifically assess the students' English competency at a higher level; (iii) a bank of questions being prepared enabling questions in the admissions test to be varied so that students could not copy one another, thus avoiding detection; and (iv) points made about the increase in the random test sampling levels.
  17. By a letter dated 24 October 2014, the defendant raised a new issue relating to approved qualifications. The letter asked for further information in relation to a course which it was said did not appear to lead to an approved qualification. The College's solicitors, Khans, responded by letter dated 28 October, confirming that the course did lead to an approved qualification for the reasons there stated, including reference to an articulation agreement.
  18. By letter dated 27 November 2014, the defendant raised a yet further issue, this time regarding Mr Qureshi. The defendant had become aware that Mr Qureshi, the Principal of the College, was on bail for a potential prosecution for fraud and similar offences, and questions were asked about that. Again, Khans responded explaining that Mr Qureshi had not been charged and that in any event he had been replaced as CEO of the College. It is notable that in these further letters, dated 24 October and 27 November 2014, the defendant raised no issue and made no comment on the recruitment plan and other proposals submitted by the College on 22 October.
  19. The chronology ends with the defendant's letter dated 5 January 2015, whereby the defendant revoked the College's Tier 4 licence. The letter contains seven headings reflecting the broad reasons for the suspension as follows: (i) the impending prosecution; (ii) assigning CAS for a qualification which is not approved; (iii) Educational Testing Services (ETS); (iv) student assessments; (v) student addresses; (vi) record keeping; (vii) compliance visits and issues regarding decision makers. Under the heading "decision" at paragraph 91 of the letter, it said that the College had failed adequately to address the majority of the reasons for suspension and that the issues identified represented a serious risk to immigration control. The letter continues:
  20. i. "Your overall compliance with sponsor duties has led us to conclude that nothing short of revocation would be a reasonable response to the issues identified."
  21. At paragraph 92, the letter identified a mandatory ground for revocation in the approved qualification issue which is no longer relied on.
  22. At paragraph 93, by reference to paragraph 167 of the Tier 4 sponsor guidance issued by the Secretary of State, four headings are set out by reference to which discretionary revocation could follow, including: (d) a failure to comply with any of the sponsor's duties; (e) as a result of information available to compliance officers not being satisfied that the sponsor is using processes or procedures necessary to fully comply with sponsor duties; (g) finding that students sponsored had not complied with the conditions of their permission to stay in the UK; and (i) assigning a CAS stating that the course represents progression but without being able to show how that progression has been assessed or whether the assessment is authentic, or, after having been assigned a CAS stating that there is academic progression, that there is in fact no academic progression.
  23. At paragraph 94, by reference to paragraph 169 of the guidance document, the defendant explained that not revoking a sponsor licence in circumstances where discretionary grounds arise is only done in exceptional circumstances, and paragraph 169 is set out in full. At paragraph 95, the letter states that, having considered the College's representations, the decision maker could see no basis on which to consider not revoking this sponsor licence. It continues:
  24. i. "You have not demonstrated that you have robust processes and procedures in place. You have not offered an adequate explanation for the issues identified. With this in mind we consider revocation to be a reasonable response to the risk posed by the college. We have also considered a lesser sanction such as reducing or zeroing your CAS. However, this would mean allowing you to remain on the sponsor register as a highly trusted sponsor. Given the concerns we continue have to have we believe the sponsor register would be severely compromised by your remaining on it and as such as lesser sanctions was not appropriate."
  25. At paragraph 96 the letter concludes:
  26. i. "We consider that each of these reasons for revocation individually and cumulatively justify revocation. As a result your sponsor licence has been revoked with immediate effect."
  27. The legal framework
  28. Section 1(2) of the Immigration Act 1971 provides that those who have no right of abode in the UK may live, work and settle here by permission but subject to provisions imposed by the Act. Section 1(4) provides that the rules laid down by the Secretary of State as to the practice to be followed in the administration of the Act for regulating the entry into and stay in the UK of those who do not have the right of abode must include provision, for example, for admitting people for the purposes of study. Section 3(2) requires that these rules be laid before Parliament. The Immigration Rules consequently contain detailed provisions for leave to enter as a Tier 4 student.
  29. So far as sponsoring colleges are concerned, provisions regulating them are not in the Immigration Rules but are in published guidance, which changes from time to time. This is known as the Tier 4 Points-based System: Guidance for Sponsors. In New London College v Secretary of State for the Home Department [2013] UKSC 31, the Supreme Court held among other things that these provisions are not required to be set out in the Rules because they do not set out conditions for obtaining leave to enter or remain.
  30. Document 3, to which I have already referred and to which the defendant made reference in her letter of 5 January 2015, is called 'Sponsor Duties and Compliance'. Paragraph 1 of section 1 explains why sponsors have duties: licensed sponsors benefit directly from immigration and are expected to play their part in ensuring that the system is not abused. The aim of the duties imposed on sponsors is, among other things, quickly to find and to address patterns of student behaviour causing concern, to address weak processes which can cause such concern, and to monitor compliance with the rules. Paragraph 13 provides:
  31. i. "In addition to your duties as a Tier 4 Sponsor, you are expected to contribute to supporting immigration control. In particular, you must take reasonable steps to ensure that every student at your institution has permission to be in the UK. Failure to do this may lead to the revocation of your licence."
  32. Paragraph 94 of document 3 provides:
  33. i. "The introduction of this policy does not in any way change your ongoing responsibilities as a Tier 4 sponsor. 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 Confirmation of Acceptance for Studies to them."

  34. Under the heading "complying with the law" it continues at paragraph 101:
  35. i. "To ensure that you are complying with our immigration laws, you must only assign a CAS to a student whom you reasonably believe will:
    (b) meet the requirements of the Tier 4 category under which you assign the CAS; and
    (c) comply with the conditions of their permission to stay in the UK."
  36. Section 3 of document 3 is headed "compliance" and deals with regulatory action that may be taken against sponsors. Paragraphs 133 to 134 provide an overview as follows:
  37. i. "133. If we consider that you have not been complying with your duties, have been dishonest in your dealings with us, are being prosecuted for a relevant offence ... or you are a threat to immigration control in some other way, we will take action against you. This action may be to:
    (a) revoke or suspend your licence or
    (b) reduce the number of CAS you can assign.
    ii. 134. If we decide to take action against you, we will usually give you an opportunity to explain your case to us."
  38. A table is provided at paragraph 165 of document 3 of the situations in which the defendant will revoke a Tier 4 sponsor's licence. That table includes the following:
  39. i. "You have knowingly provided false statements or false information, or not provided information that you held when required to, to us (or the former Immigration and Nationality Directorate, Border and Immigration Agency or UK Border Agency) or any other Government Department."
  40. Paragraphs 167 to 168 of the document 3 guidance identify situations when the defendant will consider revoking a sponsor's licence. A table is provided at paragraph 167, which includes the following:
  41. i. "(d) You fail to comply with any of your duties.
    ii. (e) As a result of information available to our compliance officers, we are not satisfied that you are using the processes or procedures necessary to fully comply with your sponsor duties.
    iii. ...
    (i) You assign a CAS stating that the course represents progression but you cannot show how you assessed the progression, or we are concerned about how you have assessed it as authentic; or we find, after you have assigned a CAS stating that there is academic progression, that there is no academic progression."
  42. Paragraph 169 adds the following:
  43. i. "169. 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. However, we may immediately suspend it and may withdraw any CAS that you have assigned but which have not yet been used to support an application for leave to come to or stay in the UK. We will look for evidence that you were either not responsible for what happened or, if you were, you took prompt and effective action to remedy the situation when it came to light. For example if one of your employees was wholly responsible for what has happened and that person was dismissed when it came to light."
  44. The case law in relation to sponsor licences generally was summarised by Andrews J in R (Cranford College) v SSHD [2015] EWHC 1090 as follows:
  45. i. "13. The legislative framework is comprehensively set out by Stephen Richards LJ in R (New London College) Ltd v SSHD [2012] EWCA Civ 51 at [4]-[20]. As has been said in other cases of this nature, the Tier 4 system can only function because the SSHD reposes a high degree of trust in the educational establishment concerned to fulfil its responsibility to implement and police immigration policy in respect of the students to whom it issues a CAS. There is far too much scope for abuse for it to be otherwise. Therefore the SSHD is entitled to expect a very high degree of vigilance on the part of the college. As Silber J put it in R (Westech College) v SSHD [2011] EWHC 1484 (Admin) at [14]: '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.'
    ii. 14. Mr Biggs submitted that although reasonable suspicion by the SSHD that a college might be in breach of its sponsor duties was enough to justify its suspension, the revocation of a licence required a reasonable (in the Wednesbury sense) belief that the college was in breach of its sponsor duties. On behalf of the SSHD, Mr Dunlop submitted that because of the high level of trust necessarily reposed in the sponsor, a reasonable suspicion that it was in breach of its duties leading to a breakdown in trust was sufficient to justify the revocation of its licence. However, the debate about the threshold test for revocation was academic because if, as in the present case, the college failed to provide sufficient evidence to allay a reasonable suspicion, it would necessarily crystallise into a reasonable belief. He further submitted that it sufficed to show that the SSHD had a reasonable belief that the college posed a risk to immigration control, even if it was compliant with all its sponsor duties.
    iii. 15. I agree with Mr Dunlop: the matter was put clearly by Silber J in the Westech College case (above) in the passage at [16]-[19]. That case is authority for the SSHD's entitlement to revoke a college's licence and HTS status if there are reasonable grounds for suspecting that a breach of immigration control might occur, or if there is a risk that the college might not be complying with its duties, provided that the SSHD (or the relevant agency) comply with their public law duties. In such cases the court, being a court of review, must apply the appropriate deference to the expertise and experience of the UK Border Agency ('UKBA') in being able to detect the possibility of a risk of non-compliance. Silber J expressly approved the approach of Mr Neil Garnham QC in the earlier case of R (London Reading College) v SSHD [2010] EWHC 2561 (Admin) when he said that the SSHD and the UKBA were 'entitled to maintain a fairly high index of suspicion as they go about overseeing colleges and a light trigger in deciding when and with what level of firmness they should act.'"
  46. As Mr Holborn reminded me, this is an area in which the Secretary of State, not the courts, has the experience and expertise necessary to decide in which cases it is appropriate to revoke a sponsor licence. Her decisions in this regard must accordingly be accorded considerable deference. This is a system in which the Secretary of State places great trust in sponsors, since sponsors issue the CAS certificate. The courts have repeatedly emphasised that the grant of a sponsor licence is a privilege. As McGowan J said recently in the St Andrews College case:
  47. i. "It must be understood that the grant of HTS status is a fragile gift, constant vigilance about compliance is a minimum standard required of such colleges. 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."
  48. Also, as Mr Holborn reminded me, there is now a substantial body of cases dealing with the revocation of licences of educational establishments in similar circumstances to the present case. He emphasised that no claim for judicial review of a relevant decision in these cases has yet been successful. He recognised, however, that each case is highly fact-specific, and it is clear from evidence adduced in the form of a witness statement of Bernard Evans that even colleges with very high levels of invalid ETS certificates remain licensed and fully active.
  49. Against that background, Mr Biggs' essential submissions on behalf of the College, as developed orally, are as follows. First, he submits that the TOEIC issue is not and cannot be the be-all and end-all in circumstances where, as I have just mentioned, the evidence shows that other colleges with a higher number of invalid certificates remain licensed. Here, he says that the College's consistent answer to the level of invalid certificates identified in its case has been its belief that it has been the victim of targeting by organised criminals. Moreover, he points to the proactive role that Mr Qureshi, the Principal of the College, played in relation to the Panorama programme, as evidenced by the letter from Mr Watson, one of the programme makers.
  50. In answer to the specific concerns raised in relation to the level of invalid certificates, he submits that the College provided a deal of evidence capable of rebutting the inference that the College itself was at fault. He accepts that the evidence that has been provided subsequently, which is more extensive, was not evidence before the decision maker and is accordingly not evidence that he can rely on. But so far as concerns evidence available to the decision maker as at January 2015, he points (i) to the 16 students who had CAS certificates issued on the basis of other approved English language tests; (ii) to the fact that 71 of the students implicated were interviewed and gave answers recording competent English skills, as reflected in written documents produced to the defendant; (iii) to the fact that 128 students implicated had their sponsorship withdrawn as not showing the requisite ability or intention in relation to the College's courses (albeit not on the basis of English language ability) and were reported to the defendant before the relevant decision; and (iv) to the fact that 71 others also had their sponsorship withdrawn. He submits that this evidence showed the College "weeding out bad apples", as he put it, and taking its responsibilities very seriously. In tandem with that material, he submits that so far as the admissions processes and procedures are concerned, there were concrete proposals to improve these as evidenced by the recruitment plan following the independent audit I have referred to.
  51. With that in mind, Mr Biggs submits that the decision letter of 5 January is itself flawed, even by reference only to the narrow ground of decision now sought to be relied upon.
  52. So far as that is concerned, the decision letter deals with Educational Testing Services (ETS) under that heading at paragraphs 23 through to 33 inclusive. Reference is made to information received by the defendant that the College had assigned 439 CAS certificates to students who had their TOEIC certificates withdrawn by ETS, of which 313 were invalid and 126 were questionable (paragraph 23). Of the 313 students with invalid certificates, the College had advised that 128 had already been withdrawn under normal procedures, and the remaining 185 had been withdrawn subsequently (paragraph 24). Three students were identified as apparently still studying at the College despite that reporting activity, and the letter says that it is notable that rather than withdrawing sponsorship due to the invalid TOEIC issue, the College had reported through SMS that a number of students (47) were due to complete their courses on 27 September and 31 October and therefore withdrew sponsorship on 3 and 4 September. The letter expresses surprise and concern about that. Reference is then made to the high number of students linked to invalid certificates which called into question the calibre of the students being recruited by the College bearing in mind the need to assess students properly prior to assigning CAS certificates, and the guidance at paragraph 131. At paragraph 29 the letter refers to representations provided by the College, giving details of processes currently operated and how those processes are to be revised to make them more robust. Those are then set out in bullet points under paragraph 29. At paragraphs 30 and 31, the letter states:
  53. i. "30. You also advised that 71 of the 313 students identified as having invalid TOEIC certificates had been randomly selected to undertake the written admissions assessment at the time of their admission and all had either met or exceeded standards expected by LCBMIT [the College]. This in itself is somewhat concerning as, if the test failed to identify the potential issues surrounding the genuineness of these students, it is difficult to see how increasing the sample size will prove any more successful.
    ii. 31. You say that the test itself involves asking the students questions relating to the college, the course, why the course was selected and future plans; the responses from the students are recorded by a member of staff. It is therefore difficult to understand how this can be a 'written assessment test', given that students are not in fact required to write anything at all."
  54. The letter continues at paragraph 32 identifying a further failure by reference to the 126 students with questionable TOEIC certificates. It states:
  55. i. "You have also provided no information relating to what you intend to do with regards to the 126 students that ETS deemed to have questionable TOEIC certificates. For example you are undertaking no further investigation into their recruitment; you have not required them to provide alternative SELT evidence or any additional evidence to assess their ability to study the course for which you have assigned CAS."
  56. At paragraph 33, reference is made to paragraph 167 of document 3 of the Tier 4 sponsor guidance which provides that a sponsor licence may be revoked where under (d) the sponsor has failed to comply with any of its duties.
  57. Mr Biggs submits that, even if one focuses only on the section of the letter dealing with "Educational Testing Services", the letter gives no consideration to the meeting of 21 October and the proposals that were made, or to the recruitment plan that was submitted to the defendant on 22 October. Whilst on a fair reading of the letter I am satisfied that there was a reference to the meeting of 21 October, paragraphs 29 to 31 of the 5 January letter reflect Mr Qureshi's witness statement summary of what was being proposed in September before that meeting.
  58. I agree with Mr Biggs, however, that the 5 January letter does not reflect anywhere the recruitment plan itself. There is a close correlation between the bullet points in paragraph 29 and Mr Qureshi's witness statement, and no reference whatever to the decision voluntarily to reduce the number of CAS certificates below the allocation number, or to the increase to level 6 beyond level 5.5, or to other specific matters identified in the recruitment plan.
  59. Secondly, Mr Biggs submits that the letter is wrong at paragraph 25 when it says that three students had still not been withdrawn. He has shown evidence to support that submission at pages 805 to 806 of the bundle, and he submits that it was discussed in the October meeting and is a clear factual error. Mr Holborn did not say otherwise, and I accept that this was an error.
  60. Thirdly, he submits that the letter is wrong when it says at paragraph 32 that "You have also provided no information relating to what you intend to do with regards to the 126 students [with] questionable TOEIC certificates. For example you are undertaking no further investigation ... you have not required them to provide alternative SELT evidence ..." To the contrary, the College had made clear its proposal to require the 126 students with questionable ETS TOEIC certificates to take a further SELT test within a specified period or face mandatory withdrawal of their sponsorship if they failed to produce a satisfactorily completed test or failed to take a further test at all. I accept that submission, and indeed again Mr Holborn did not seek to justify paragraph 32 as factually correct.
  61. Mr Biggs contends that the decision by reference to the TOEIC issue is accordingly vitiated by these material errors that reflect a failure to give proper consideration to the representations made by the College, and further reflect a failure adequately to consider the College's proposals in relation to its recruitment processes and its recruitment plan.
  62. Further, he submits that this is a case where the decision to revoke was based on a series of reasons which are no longer relied on. Those reasons included a mandatory ground for revocation and a serious allegation of dishonesty against the Principal of the College. In those circumstances, he submits, it cannot be said that the revocation decision, if made on the narrow basis now contended for, would inevitably have been the same.
  63. On behalf of the defendant, Mr Holborn accepts, as I have indicated, the errors at paragraph 25 and 32 of the letter, but says that the proposals in relation to the recruitment process improvements were adequately, albeit briefly, addressed at paragraph 29 to 31 of the letter. Those proposals were implicitly found wanting and regarded as inadequate by the defendant. Mr Holborn relies on the fact that the decision letter itself says that each reason identified in the letter was relied on both individually and cumulatively to justify revocation.
  64. The essential case for the defendant is that the fact that there was such a high number of invalid TOEICs associated with students enrolled at this College was on its own sufficient to justify the revocation decision, and Mr Holborn relies not only on the letter itself identifying each reason as being sufficient individually to justify revocation but also on the witness statement made subsequently by the decision maker, Sara Oates, confirming that the invalidity issue by itself was sufficient and was a reason that would have resulted in revocation in this case on its own. The issue between the parties is, accordingly, a much narrower one than that which has been identified in some of the other cases.
  65. In my judgment Mr Holborn's submission amounts to an  ex post facto justification of the decision that is not adequately reflected in the decision letter itself. Whilst I accept Mr Holborn's point that paragraph 96 of the decision letter refers to each reason for revocation being sufficient individually to justify revocation, it is clear on a fair reading of the letter that the Educational Testing Services reason encompasses both the invalid certificate issue and the questionable certificate issue as a composite reason and does not distinguish between the two. As I have already indicated, the letter expressly identifies 313 invalid and 126 questionable certificates. Each group is then addressed, and points that were plainly regarded as material in relation both to the invalid certificates and the questionable certificates are made. There is nothing in the letter to suggest that the questionable certificate issue was anything other than a material consideration (forming part of the broader ETS reasons) for the decision maker.
  66. It is for the defendant to persuade me that the decision would inevitably have been the same, even on this much narrower basis. I am not satisfied that the paragraphs of the letter relied on, together with the references at paragraphs 91 and 95, to the College's overall compliance level and to the defendant looking at all the circumstances, demonstrate this to be the case. In my judgment, it cannot be said that the decision, even only on the narrow ETS issue, would inevitably have been the same.
  67. I also have concerns about the error at paragraph 25 and the apparent inadequate engagement in the 5 January letter with the College's recruitment plan. However, I have not reached my conclusion on that basis. These are matters that the defendant will have to consider again when considering whether the narrow ground for revocation remains and whether revocation is proportionate in all the circumstances. I cannot conclude, in a case where the defendant has abandoned so many reasons and where even on the narrow reason that continues to be relied on has abandoned one part of that reason, that the revocation decision would inevitably have been the same if based on all material considerations and without the factual errors that Mr Biggs has identified.
  68. For those reasons, I grant permission to apply for judicial review, and on the substantive application I order that the decision made by letter of 5 January to revoke the College's sponsor licence be quashed. That decision will have to be retaken, as I have indicated.
  69. MR BIGGS: Thank you very much, my Lady. There is the usual application for costs. I spoke to my learned friend. I think it is agreed that detailed assessment will be appropriate in this case.
  70. MRS JUSTICE SIMLER: Why is that? It is a one-day hearing.
  71. MR BIGGS: Yes. There has been a lot of documentation, there has been one missed hearing date. I acknowledge that normally summary assessment would be appropriate, but the parties, certainly my instructing solicitors, took the view that detailed assessment would not be appropriate and it was agreed before your judgment that we would proceed on that basis.
  72. MRS JUSTICE SIMLER: It is unfortunate, because detailed assessment simply adds to the costs, but I will go along with the approach that you have agreed. Can I say for my part that I regard the three additional bundles as entirely irrelevant.
  73. MR BIGGS: Yes.
  74. MRS JUSTICE SIMLER: They wasted my time and they have undoubtedly caused additional costs that I regard as not costs that you ought to recover. So I hope a realistic approach will be taken to the question of costs.
  75. MR BIGGS: Certainly. I will pass that to those instructing me. My instructing solicitor is in court, so he is well aware of those observation.
  76. MRS JUSTICE SIMLER: All right. So you are asking for costs, subject to detailed assessment if not agreed.
  77. MR BIGGS: Indeed. In terms of the form of the order, there are just a couple of complicating factors, because there was an HTS, a Highly Trusted Sponsor status renewal application which had to be made during the process, or at least it was considered or should have been considered during the process of suspension and revocation here. So I have been asked just to raise that, and it may be that my learned friend and I can agree an appropriate formulation of order that just tidies up some of these complicated factors. So what I would propose, my Lady, is that the parties be given 48 hours or so to discuss the form of order and that any dispute can be put before you in writing to be resolved.
  78. MRS JUSTICE SIMLER: That sounds eminently sensible. I will hear what Mr Holborn says.
  79. MR BIGGS: I am grateful.
  80. MR HOLBORN: I am happy with discussing the order. The only issue is costs. Obviously the claimant is entitled to a large part of their costs, but I do bear in mind the large amount of paper that has been provided to you. A couple of things I would ask in that respect: firstly, if your Ladyship could make clear that the application for further evidence is refused, make crystal clear that that is not to be included. However, of course, we have spent a good deal of time reading certainly the three extra bundles. I would submit that a small reduction in the percentage of the claimant's costs is appropriate to represent the fact that we have had to spend quite an amount of additional time on them. I do not suggest more than a small one. An alternative would be for us to get a small amount of our costs, but that seems overly complicated.
  81. MRS JUSTICE SIMLER: So you are saying that that is not something that should be left to detailed assessment; you are inviting me to make an order.
  82. MR HOLBORN: Yes, because of course whilst, if you refuse the application, the claimant's costs of producing these bundles can quite easily be extracted, you cannot leave the fact that we have incurred additional costs, and you will see from my skeleton that we did read them. I sat down and spent some time reading them, as have my solicitors and my client did.
  83. MRS JUSTICE SIMLER: As have I.
  84. MR HOLBORN: Yes.
  85. MR BIGGS: My Lady, can I propose this. It does turn out that there was in fact an application to adduce this (Inaudible) material on 20 May. I have seen an electronic sealed copy of it, my instructing solicitors went up to the Administrative Court Office to find out what had happened. In light of that, a simple way to deal with this is simply to say that the defendant is to pay the claimant's costs of and occasioned by this claim, save that there be no order as to costs on the application of 20 May to adduce further evidence.
  86. MRS JUSTICE SIMLER: That does not quite address Mr Holborn's point, does it? It addresses the point that you should not recover your costs, but it does not compensate for the --
  87. MR BIGGS: The alternative is to make, in light of the refusal of the application to rely on further evidence, the defendant could have their costs of that. In reality we are talking about setting off a relatively small amount of costs against a larger sum.
  88. MRS JUSTICE SIMLER: Yes. That may be the best way to do that.
  89. MR HOLBORN: I am content with that.
  90. MR BIGGS: But, my Lady, I take on board the court's observations, so I leave it in your hands.
  91. MRS JUSTICE SIMLER: Yes, all right. Thank you very much.
  92. So far as the terms of the order is concerned, I am content to leave it to counsel to draw up an order within 48 hours, and if that could be emailed to me for my approval in order that these additional complicating matters can be tied up in that order. If agreement is not possible then I will require written submissions as to the terms of the order and that will have to be done by 4 pm on Friday this week, which is 10 July. I will then deal with that on the papers.
  93. So far as costs are concerned, it seems to me that the application to adduce further evidence was not justified and that that application ought to be refused. For clarity I refuse that application now, having heard the submissions and no reliance having been placed on the additional information at all.
  94. It seems to me in all those circumstances that, whilst the claimant is entitled to its costs of the judicial review, subject to detailed assessment if not agreed, the costs of and in connection with the further evidence application should be the defendant's costs in any event, again subject to detailed assessment if not agreed. Those costs can then be set off against the claimant's costs.
  95. MR BIGGS: Yes.
  96. MRS JUSTICE SIMLER: Does that cover it? It is not well expressed, but I hope you can improve on it in the order.
  97. MR BIGGS: Yes, thank you very much.
  98. MRS JUSTICE SIMLER: Thank you both for your assistance. I will leave all these bundles here.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/3215.html