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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  EWHC 3215 (Admin) (07 July 2015)
Cite as:  EWHC 3215 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF
|LONDON COLLEGE OF BUSINESS MANAGEMENT AND INFORMATION
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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 Jack Holborn (instructed by the Government Legal Department) appeared on behalf of the Defendant
Crown Copyright ©
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."
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."
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 As a result your sponsor licence has been revoked with immediate effect."
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."
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."
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."
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."
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."
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.
(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."
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."
i. "13. The legislative framework is comprehensively set out by Stephen Richards LJ in R (New London College) Ltd v SSHD  EWCA Civ 51 at -. 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  EWHC 1484 (Admin) at : '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 -. 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  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.'"
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."
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."
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."