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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kato & Anor, Re Judicial Review [2012] ScotCS CSOH_146 (11 September 2012)
URL: http://www.bailii.org/scot/cases/ScotCS/2012/2012CSOH146.html
Cite as: 2012 GWD 32-652, 2013 SLT 74, [2012] ScotCS CSOH_146, [2012] CSOH 146

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OUTER HOUSE, COURT OF SESSION


[2012] CSOH 146

P493/11

OPINION OF LORD STEWART

in the Petition of

(1) SEIKO KATO formerly residing at the Findhorn Foundation aftermentioned and (2) FINDHORN FOUNDATION, The Park, Findhorn, by Forres, Morayshire IV36 3TZ

Petitioners

for judicial review of a decision made on 28 April 2011 by an immigration officer acting for the Secretary of State for the Home Department that the first-named petitioner should be refused entry to the United Kingdom

and Answers for

The Secretary of State for the Home Department,

Respondent

________________

Petitioners: Caskie, advocate; McGill & Co, solicitors

Respondent: McIlvride; Office of the Solicitor for the Advocate General

11 September 2012


[1] This petition is about the treatment of persons who visit the
United Kingdom for the purpose of attending alternative lifestyle courses provided by the Findhorn Community. The first petitioner, a female Japanese national, arrived at Aberdeen airport on a flight from Amsterdam on the morning of 28 April 2011 and attempted to gain entry to the United Kingdom. As a non-European Union [non-EU] national, the first petitioner required leave to enter the United Kingdom. The purpose of the petitioner's visit was to attend an alternative lifestyle course in gardening for four weeks at the Findhorn Community, Findhorn, by Forres, Morayshire. It seems from the copy visa page of her passport that the first petitioner applied for a visa as "a religious migrant" worker in terms of Part 6A of the Immigration Rules, Tier 5 [K 6/21]. The Immigration Rules describe this as the route "for certain types of temporary worker whose entry helps to satisfy cultural, charitable, religious or international objectives including volunteering and job shadowing".


[2] On
28 April 2011 at 10.15, when the first petitioner declared to an immigration officer of the United Kingdom Border Agency [UKBA] that the purpose of her visit was to attend the alternative gardening course, she was refused leave to enter. The immigration officer treated the first petitioner as a would-be "student visitor" in terms of the Immigration Rules. The officer decided, for reasons which will be explained in detail below, that the first petitioner did not satisfy the requirements of what the officer saw as the applicable rule. The officer then issued removal directions for the first petitioner to be removed from the United Kingdom to Amsterdam at 16.35 on the same day.


[3] On an undertaking given that an application to the Court in terms of the present petition would be made on
3 May 2011, the first petitioner was granted temporary admission to reside at Findhorn; and the removal was not implemented. The first petitioner attended the course and has long since left the United Kingdom. The issue has ceased to be a live one for her personally. The issue remains of practical importance for the Findhorn Foundation, who are the second petitioners, by reason of the fact that the Findhorn Foundation is reliant to a material extent on income earned from the provision of alternative lifestyle courses to non-EU nationals. The first petitioner's complaint, though now completely academic in itself, is being used as a vehicle for obtaining a judicial decision on the issue and I am prepared to entertain the application on that basis.


[4] The issue as it is presented to me is not about the lawfulness of the Immigration Rules: the issue is about the rationality and thus the lawfulness of the way in which the rules are being applied to non-EU nationals seeking to enter the United Kingdom for the purpose of pursuing courses which do not lead to an "approved qualification". At one point the question was also said to be about the meaning of the Immigration Rules. I heard submissions on behalf of the parties in this case and the related case of Heather Anne Nugent and the Findhorn Foundation together on 29 February and
1 March 2012 and made avizandum. Mr Caskie represented all the petitioners and Mr McIlvride appeared for the Secretary of State in both cases. Having reflected on the matter I have decided that the petition must be granted and that it is proper to set aside the decision complained of.

The Findhorn Community, Findhorn Foundation and Findhorn College

[5] The Findhorn Community operates through charitable bodies, the Findhorn Foundation and the
Findhorn Foundation College, known as the Findhorn College. An extract from the Scottish Charities Register shows that the Findhorn Foundation is a charitable trust having the following objects:

"The prevention and relief of poverty. The advancement of education. The advancement of religion. The advancement of civic responsibility or community development. The advancement of arts, heritage, culture or science. Any other purpose that may reasonably be regarded as analogous to any of the other preceding purposes. The advancement of environmental protection and improvement. The promotion of human rights, conflict resolution and reconciliation. The promotion of racial or religious harmony"

Counsel for the respondent placed emphasis on the "advancement of education" object. Findhorn College is a company, presumably limited by guarantee, established for exclusively charitable purposes. The Scottish Charities Register gives the following information about the company's objects:

"... the advancement of holistic education, in particular but not exclusively the establishment of a college which shall run courses in adult education including further and higher education, vocational training, continuing professional education, personal and professional skills development, lifelong learning programmes and education for the third age."

The annual-return submission histories show that the average gross income of the Foundation in the three years ending 31 January 2011 was about 2,500,000 and of Findhorn College about 250,000. The trading activities of the Foundation are carried on through a subsidiary company, New Findhorn Directions Limited. The trading company manages the Foundation's caravan park.


[6] The financial statements of the Findhorn Foundation for the year ending
31 January 2010 offer insights into the organisation's own perception of its educational mission. Two of the ten-person management group are designated as having responsibility for "education". The Foundation's trustees appoint the board of trustees of the College. The College "develops and offers accredited courses in further and higher education and professional development" [my emphasis]. The "vision statement" describes the Foundation as "an international centre for holistic education, helping to unfold a new human consciousness and create a positive and sustainable future". The educational activity of the Foundation is described as follows:

"The Foundation is a major centre of adult education. Each year we welcome around 3,500 residential visitors from over 70 countries and a further 10,000 short term visitors. Guests take part in a variety of holistic education courses and trainings which include the application in everyday life of spiritual principles common to all religious, and ecological practices designed to promote sustainability.

Each year the Trust produces brochures with its educational courses..."

The financial review for the year [N 6/19] describes "education income" as the Foundation's "principal funding source". Gross income from all "charitable activities" was 1,305,869. Note 5 to the financial statements gives the following breakdown:

Core programme course income 453,539

Workshop course income 215,221

Conferences and events income 161,098

Long term income programme 264,734

Other educational income 211,277

1,305,869

The review states: "General reserves are mostly held in land and buildings on a long term basis as necessary to fulfil the Trust's educational and charitable aims by providing accommodation and teaching facilities." As at 31 January 2010 the net assets of the Foundation were valued at 4,594,114.


[7] Counsel for the petitioners explained that the difference between the Findhorn Foundation and
Findhorn College as regards the provision of courses is that the courses offered by Findhorn College are "accredited courses" which lead to qualifications. All courses that can be brought under the aegis of Findhorn College had been transferred. The courses that continue to be offered by the Findhorn Foundation are courses that do not lead to any qualification and cannot be accredited. Participants are not subject to assessment and there are no examinations. Counsel for the respondent did not comment directly on this difference. He asked me to draw the following conclusions: (1) the Findhorn Foundation believes that it is, and holds itself out as being a provider of educational courses; (2) the Findhorn Foundation charges fees for the education it provides; and (3) the Findhorn Foundation generates a substantial income from providing what it represents to be educational courses. Counsel for the respondent submitted that it was open to the Findhorn Foundation to seek accreditation for the courses provided by them.

Findhorn Foundation courses, programmes and workshops

[8] The meaning of "accreditation" is explained below. At this point it may be helpful to have some understanding of the courses, programmes and workshops offered by the Findhorn Foundation. Counsel for the petitioners submitted that the education involved is "experiential" and that there is no sense of a graded progression that can be scored by assessment or examination for the purpose of achieving qualifications. Counsel referred to a printout of the www.findhorn.org/programmes page for the actual course attended by the first petitioner, "Being with Nature - Gardening at The Park" [K 6/2 of process]:

"Being with Nature - Gardening at the Park

The Park Garden Team

Whether you are new to gardening or have some experience, the Park Garden team invites you to help them bring our beautiful gardens in the Park into bloom!

This week is an opportunity to connect with nature and her intelligence by being with your fellow participants and our gardening team as they embark on a variety of garden projects, helping to prepare our flower and vegetable beds for the busy summer season.

We welcome you to a week of practical, hands-on service, while nurturing our own growth.

Service Weeks give you the opportunity to come to Findhorn and lend a hand while giving yourself the gift of practicing [sic] 'love in action'. The price charged for these weeks just covers your food, accommodation and admin fees, making it an affordable way to spend time in the community. We invite you to attune to a price on a sliding scale between 95 - 295. Includes 7 nights accommodation and all meals.

v     This course requires previous participation in Experience Week"

Counsel likened the course to a Tom Sawyerish scenario where volunteers have to pay for the privilege of digging someone else's garden. Counsel suggested that there was in a sense a compulsory levy in the form of the requirement to attend "Experience Week" before embarking on the course proper.


[9] Counsel referred to the description of the "Experience Week" attended by Heather Nugent [N 6/3 of process]:

"Changing the world from the inside out

This is the best way to come to Findhorn and find out about what it's like - it's seven days that can change your life and your world. It is the ideal way to meet, engage with and share in this ever-evolving journey of community living.

You join in most aspects of daily life here including spending four mornings in our service departments - the gardens, kitchen, dining room, homecare or maintenance - giving you many opportunities to experience our practice of 'love in action' and to interact with other people in the community. This week also includes meditation, sacred dance, a nature outing and being part of a supportive group, all combined with laughter, love and new ways of being.

Experience Week is an invitation to let go of your limitations, open to love, and to be the change you want to see in the world. It gives you a chance to experience the principles on which the community is based: inner listening, connection with all life, and inspired living and working.

We ask you to come willing to participate fully in this rich and active week, to give of yourself and engage with others. Our aim is to create an environment that enables you to deepen your connection with all of life, and to open to transformation within yourself and the group. All of these elements are also part of the Special Experience Weeks we offer.

[...]

Income related price [...]: 395 / 495 / 595

Includes 7 nights accommodation and all meals."


[10] Counsel also quoted from the description of the "Ecovillage Experience Week" [N 6/2 of process]:

"Following a similar structure to our original Experience Week, this special week has the added intention of deepening knowledge and experience of sustainable living on all levels.

What is an ecovillage? We look at the inclusive decision-making processes, cooperative economies, local food production, and cultural and spiritual diversity to deepen knowledge and experience of sustainable living on all levels.

When you book for our Ecovillage Experience Week, please write a letter telling us about yourself, your spiritual background if any, and why you want to visit. Most people write between one and two pages). [...]

Income related price [...]: 395 / 495 / 595

Includes 7 nights accommodation and all meals."


[11] I was then directed to the description of the "Spiritual Practice - Permaculture" course led by Craig Gibsone:

"This course requires previous participation in Experience Week.

This week is an alternative version of our Spiritual Practice programme with a special focus on permaculture.

We use permaculture principles to look at how we live our lives day to day, and to connect with the wisdom of the Earth and ourselves. This ecological design system can inspire and empower us to create and find answers within us.

Income related price [...]: 445 / 595 / 745

Includes 7 nights accommodation and all meals."


[12] Counsel for the respondent in turn referred me and to some course details in the Findhorn Foundation Workshops and Events brochure for 2012 [K 7/4].

"Spiritual Practice - Permaculture

21-27 April, 22-28 September

We use Permaculture principles to look at how we live our lives day to day, and to connect with the wisdom of the Earth and ourselves. This ecological design system can inspire and empower us to create and find answers within us.

Income related price 465 / 595 / 825

v   Experience Week prerequisite"

[...]

Findhorn intensive

A 15-month modular programme

[...]

When you are back home, in-between these weeks, you continue to deepen, ground and apply the learning. Regular peer group meetings, a mentor and resource materials support you in this.

[...]

Income related price: 2550 / 2950 / 3450

v   Experience Week prerequisite"

Counsel for the respondent referred to the fees charged and submitted that whatever the Findhorn courses are alternative to, they are not alternative to the money economy.

Immigration Rules and policy


[13] By way of context, t
ourists are admitted to the United Kingdom under Immigration Rules 40-46 as "general visitors". Crucially, in terms of Immigration Rule 41(v), it is a requirement for entry as a "general visitor" that the visitor "does not intend to undertake a course of study". There are specific provisions in the rules for other categories of visitor such as "business visitors including academic visitors", "sports visitors", "entertainer visitors", "entrepreneurs", "persons visiting with the intention of marrying or forming a civil partnership", "persons visiting for the purpose of receiving private medical treatment", etcetera, and, of course, for "student visitors". Rules 56K-M are the provisions for the "student visitors" category. The "student visitors" category can be seen as a derogation from the provisions generally applicable to adult students in the "students (general)" category under the points based system in Part 6A. By imposing somewhat less complicated requirements, the "student visitors" category offers an easier route to entry for students intending to stay in the United Kingdom for a period not exceeding six months.


[14] The rule that the immigration officer applied in Ms Kato's case was Immigration
Rule 56M, "Refusal of leave to enter as a student visitor". Rule 56M provides: "Leave to enter as a student visitor is to be refused if the Immigration Officer is not satisfied that each of the requirements of paragraph 56K is met." Conversely, Immigration Rule 56L, "Leave to enter as a student visitor", provides: "A person seeking leave to enter the United Kingdom as a student visitor may be admitted for a period of not exceeding 6 months, subject to a condition prohibiting employment, provided the Immigration Officer is satisfied that each of the requirements of paragraph 56K is met." The terms of Rule 56K, "Requirements for leave to enter as a student visitor", are therefore key.


[15] Rule 56K provides:

"56K. The requirements to be met by a person seeking leave to enter the United Kingdom as a student visitor are that he:

(i) is genuinely seeking entry as a student visitor for a limited period as stated by him, not exceeding six months; and

(ii) has been accepted on a course of study which is to be provided by an institution which is:

(a) the holder of a Sponsor licence for Tier 4 of the Points Based System, or

(b) the holder of valid accreditation from a UK Border Agency approved accreditation body, or

(c) inspected or audited by one of the bodies set out in guidance published by the UK Border Agency, or

(d) an overseas Higher Education Institution offering only part of their programmes in the United Kingdom, holding its own national accreditation and offering programmes that are an equivalent level to a United Kingdom degree...

[...]"

The sticking point for the first petitioner and visitors like her was and is the requirement of Immigration Rule 56K(ii) to have been "accepted on a course of study which is to be provided by an institution" falling into one of the four UKBA-approved categories. In the judgment of the immigration officer, the first petitioner failed to satisfy the requirement of Immigration Rule 56K(ii). I say "in the judgment of the immigration officer": in reality the judgment was made higher up in UKBA as a matter of policy.


[16] The policy was explained by Kate Carr, UKBA Acting Regional Operations Director, North East,
Yorkshire and Humber Region, in a letter to Angus Robertson MP dated 21 June 2011:

"The visitor routes offer a way for individuals to come to the UK for short periods usually no more than six months [...]

The general visitor route is intended for individuals wishing to come to the UK solely as holidaymakers. Those applying to enter the UK in this capacity must not intend to either study or work (including voluntary work) during their time in the UK. Where it is evident that an applicant intends to study whilst in the UK their application will fall to be refused.

The student visitor route is for those looking to come to the UK in order to undertake a short course of study [...] This requirement is to ensure that those offering courses to individuals using this immigration route comply with a minimum standard and therefore limit the likelihood of abuse.

The issue [...] appears to relate to several specific cases, where those attending the Findhorn Foundation have been found to be doing so as part of their overseas degree. As their attendance clearly constitutes a course of study, they have been required to meet the student visitor requirements, including those relating to the status of the establishment they plan to attend. Where they are not attending the Foundation as part of their studies they would be able to travel as a general visitor."

As I understood the submissions of counsel for the petitioners the problem that I have been asked to address is about non-EU national would-be visitors who wish to sample the Findhorn experience for itself and not as part of "an overseas degree", whatever that means.

Educational institutions, accreditation and approved courses of study

[17] The discussion centred on the rationality of applying Immigration Rule 56K(ii) (a) to the Findhorn Foundation. The Findhorn Foundation is not an institution that holds
"a Sponsor licence for Tier 4 of the Points Based System" in terms of that rule. Before considering the competing arguments, I should say something about the points based system. The points based system for migrant workers and students is contained in Part 6A of the Immigration Rules. The system was phased in from 2008. It has five tiers: tier 1 applies to entrepreneurs, investors and individuals recognised as having exceptional talent in science, the humanities, engineering and the arts; tier 2 is for skilled workers; tier 3 was designed for unskilled workers but, given the supply of labour from EU accession states, has not been required; tier 4 covers student visas; tier 5 relates to temporary workers. I am told that "sponsorship" is central to the operation of the points based system. The UKBA register of sponsors lists all organisations that are licensed to employ migrant workers or enroll migrant students. As I understand the submissions made to me, sponsorship licences in the education field are available to institutions that are "accredited" education providers of courses leading to "approved qualifications", that is , for example, courses accredited at level 6 or above in the Scottish Credit and Qualifications Framework (SCQF) by the Scottish Qualifications Authority.


[18] The courses offered by the Findhorn Foundation do not lead to qualifications; and I think the question for me is whether it is rational or correct on a proper understanding for UKBA to treat such courses as "courses of study" within the meaning of the Immigration Rules relating to visitors. The argument for the respondent is that the Findhorn Foundation presents itself as an educational institution offering courses and programmes so that logically the courses that it offers must be understood to be "courses of study" according to the ordinary meaning of the words. At least, it cannot possibly be irrational for UKBA to treat the Findhorn Foundation's courses as "courses of study" within the meaning of the rules.


[19] The argument for the petitioners is that Immigration Rules 56K-M apply to "courses of study capable of accreditation by one of the bodies approved by UKBA". Counsel referred to publicity material for some of the wide variety of what might be called "holiday courses" currently available in Scotland [N 6/24]:

"A4A Art for Architecture - Bronze Casting and Steel Sculpture Courses

The A4A Art for Architecture studio foundry is based on a small farm on the beautiful south-west coast of rural Scotland [...] Our 5-day bronze casting and steel sculpture courses have a maximum number of 4 persons per course to enable a methodical learning experience with much hands-on practical involvement. We keep the course numbers low to give each participant maximum tutor contact in what is a knowledge-intensive process, thus ensuring that learners are the main focus of the course.

[...]

Walker's Upholstery Courses

At Walker's Upholstery and Interiors, a family business established for 45 years, we run a selection of upholstery courses ranging from 2-3 days to a week to suit individual needs. Courses are held at our premises in [...] North East Fife...

[...]

Fiona Duncan Vocal Jazz Workshops

The Fiona Duncan Vocal Jazz Workshops provide a platform for singers, where seasoned professionals and total beginners alike can learn, grow and flourish together in a uniquely inspiring and supportive environment.

[...]

Climb 365 - Mountaineering Courses

Our summer courses in rock climbing and mountaineering activities run from the beginning of March to the end of December and are based in the Lake District, Cumbria. During the winter months we offer mountaineering and ice climbing courses in Scotland.

[...]

Owl & Lion

... The Owl & Lion offer the largest selection of bookbinding courses in Scotland. Our classes cater for all abilities and interests, and allow students to explore a wide variety of bookbinding techniques. The bindery is a relaxed and friendly venue where students can discuss ideas and progress at their own pace. Class sizes are small to allow students to benefit from close supervision and to put into practice what they may learn.

According to counsel, these are not accredited courses and are not capable of being accredited. If the respondent's argument is correct, said counsel, non-EU nationals cannot attend such courses. There would be a "massive impact" on the recreational and tourist industries.

Economic and financial impact


[20] Counsel for the petitioners supported his submission on "irrationality" by mentioning the potential adverse economic impact on the area and the region and the potential adverse financial impact on the Findhorn Foundation that would result from implementation of the respondent's policy by UKBA. Counsel referred to the "Findhorn Foundation: Economic Impact Assessment" commissioned by Moray, Badenoch and Strathspey Enterprise with the support of the Findhorn Foundation in 2002 [N 6/10]. The assessment placed the Findhorn Foundation and its associated organisations second only to RAF Kinloss in its positive impact on the local economy [N 6/15]. I learned that the Findhorn Foundation and associated organisations were reckoned to support 300 full-time equivalent [fte] jobs in the Findhorn/ Forres area and to provide about 3,000,000 in household income. Taking multiplier effects into account it was reckoned that about 400 fte jobs were supported and about 5,000,000 generated in household income throughout the region. That was in 2002. Now, because of the cancellation of the Nimrod MRA4 project, RAF Kinloss is no longer required as a main operating base and routine flying from the airfield has ceased [N 6/33].


[21] I was shown a list of non-EU bookings for Findhorn Foundation activities in the period from 21 May to
23 June 2012 [N 6/11]. There are 110 individuals, mostly from the United States of America and Japan with smaller numbers from Canada and South Africa and one or two from Colombia, South Korea, Thailand and Turkey. The courses attended included "Eco Experience Week", "Blessed Way of Passion", "Spiritual Practice - Permaculture", "Conscious Medicine", "Healing through Art", "Spiritual Practice - Active Meditation", "Cultivating trust: feeling held by grace in a world of change", "Gentle Experience Week", "Loving work - loving play", "Embracing a New Chapter of Mankind", "Transformational three-day Retreat", "Interspecies Communication", "Five Rythms - Awakening to Change", "The Seven Graces and Shadow Passions of your Soul", "Following the Mystics through the Narrow Gate", etc. Of the 29 participants in the "Esalen Massage Certification Training" course, start date 25 June 2011, one third were non-EU nationals [N 6/12]. I have been told that non-EU nationals currently account for 22% of the Findhorn Foundation's income, which counsel for the petitioners said was about 500,000 [N 6/15].


[22] Counsel for the respondent submitted that the economic impact assessment was irrelevant where the question was one about the meaning and the application of the rules. In any event the information was ten years old. The Findhorn Foundation was perfectly at liberty to provide its courses to EU-nationals without a Tier 4 sponsor licence and accreditation.

History of the dispute

[23] I was told by counsel for the petitioners that the problem emerged when the points based system was introduced. Until then visitors to the Findhorn Foundation had been given admission on visitor visas. The first would-be visitor to the Findhorn Foundation known to have experienced problems, according to counsel, was Heather Anne Nugent, a Canadian national resident in Germany. On
7 April 2011 she arrived at Edinburgh Airport on a flight from Berlin. She meant to participate in the "Eco Experience Week" followed by the one-week "Spiritual Practice - Permaculture" course. She then meant to travel in the United Kingdom for two or three months. When Ms Nugent explained her intention to participate in the Findhorn Foundation courses, she was refused leave to enter as a visitor and issued with directions for removal by the next plane to Berlin at 19.00 on 9 April. (Although counsel told me that this was the first problem, Ms Nugent's e-mail statement of 8 April 2011 reports that she was told by the immigration officer that "there had been more cases recently, worse than mine, with people being refused entry and having to get back on the plane to America" [N 6/29].) Although Ms Nugent reported sympathetic and apologetic treatment by UKBA staff, the experience involved a long wait at the airport and reduced her to tears.


[24] The notice of refusal of leave to enter gave the following reasons [N 6/1]:

"You have asked for leave to enter the United Kingdom as a visitor for 2 weeks but I am not satisfied that you do not intend to study at a maintained school.

You intend to attend workshops and seminars being run by the Findhorn Foundation. The Findhorn Foundation does not qualify as an accredited education provider as they do not meet the criteria as laid out by the UK Border Agency in that they do not hold a sponsorship licence. You therefore do not qualify to be admitted to the UK as a student visitor."

I therefore refuse you leave to enter the United Kingdom."

It is a matter of agreement that the reference in the first paragraph to the maintained school condition is a mistake. The effective part is the second paragraph.


[25] The respondent's Answers state that Ms Nugent was given temporary admission when her petition was lodged in this Court and first orders were granted; and that she left the
United Kingdom on 15 May 2011 to travel to Bulgaria. Since the raising of proceedings by Ms Nugent and Ms Kato there has been what counsel for the petitioners calls "an uneasy truce". It seems that, as a rule, non-EU visitors to the Findhorn Foundation have been refused entry and then immediately granted temporary admission for the duration of their courses. When they return to the point of entry they are formally refused leave to enter [N 6/13 and 6/14]. The first petitioner in the present proceedings, Ms Kato, had to initiate the current proceedings before she was granted temporary admission. There is a reference in the papers to "one lady from Argentina who was sent straight back": she was said to have been "understandably very annoyed and upset" [N 6/15]. From some time in about October 2011 there seem to have been desultory discussions about a "letter of comfort": but none has so far emerged from UKBA.

Discussion, decision and disposal

[26] The petitioners think that non-EU national, would-be attenders at Findhorn Foundation courses should be given leave to enter as "general visitors". Counsel for the petitioners submits, quoting the case of Forrester, that to apply the "student visitor" rules is to act without "a modicum of intelligence, common sense and humanity" [R v Secretary of State for the Home Department ex parte Forrester [2008] EWHC 2307]. The submission continued to the effect that the Secretary of State has a discretion which she ought to exercise by disapplying the "student visitor" rules in the case of Findhorn Foundation students. At the same time counsel argued for a restricted meaning for the phrase "course of study": a "course of study" should be understood as being a course of study in an area where accreditation is available, an "accreditable course". "Course of study" does not include "non-accreditable holiday courses". If the rules were intended impact on the residential leisure and recreational industry and on individuals who wish to participate, the rules ought to have been written more clearly.


[27] Counsel for the respondent submitted that the matter turns on the meaning of the phrase "course of study": and he argued that the approach taken by UKBA cannot on any view be described as "irrational" giving the words their ordinary meaning and accepting the Findhorn Foundation's descriptions of its own mission and activities. An education for a certain period in the principles and values espoused by the Findhorn Community could perfectly reasonably be described and understood as "a course of study". If the Findhorn Foundation wishes to obtain the benefit of participation by non-EU national study visitors, the Findhorn Foundation must comply with the Immigration Rules. There is no obligation on the Findhorn Foundation to obtain a sponsor licence and accreditation and if it does not do so it can still properly offer its courses to EU nationals who account for almost 80% of course income.


[28] I accept the submission by counsel for the respondent that the fate of this petition turns on what is to be understood by the expression "course of study." As he says, the expression "course of study" is employed in the Immigration Rules but is not defined. There are gradations which can make it difficult, as counsel submits, to differentiate between "courses of study" and "recreational courses". The problem for the Findhorn Foundation is that the Foundation's courses, as marketed, can be described, not unreasonably, as "courses of study" at least when the phrase is divorced from its context in the Immigration Rules.


[29] My view is that the "student visitor" rules do not need to be disapplied for the simple reason that, on a proper understanding, they do not apply in the first place; and they do not apply because of the meaning that should be attached to the phrase "course of study" in Immigration Rule 41(v), having regard to the context. Part 2 of the Immigration Rules is concerned with persons seeking to enter or remain in the
United Kingdom for visits. The purpose of Part 2 is to create mutually exclusive categories of visitor visas. It follows that "general visitors", that is, tourists, cannot be "student visitors" and vice versa. I perfectly well understand that - as counsel for the petitioners acknowledges - there is an issue about bogus students and bogus colleges: but I start from the proposition that the current dispute is about persons who would have no difficulty in being accepted as "general visitors" for up to six months.


[30] Does UKBA really maintain that a would-be general visitor who wishes to enter the United Kingdom on a three-month holiday with the intention of continuing a distance learning course of study at a foreign college on the internet, let's say two evenings a week, must be refused entry? I think not and, if not, then clearly the rules must be open to interpretation. The Secretary of State has no interest, or no interest that was explained to me, in preventing "general visitors" from studying other than as "student visitors". It is also my understanding that the primary intention of the "student visitor" route is not so much to stop tourists from studying as to provide an easier, short-course route for persons who would otherwise have to apply under Tier 4 of Part 6A, using the points based system.


[31] It follows that the requirement imposed by Immigration Rule 41(v) should be read restrictively and as meaning that general visitors must not intend to undertake an approved course of study which complies or, could if accredited comply, with the requirements of Immigration Rule 56K and that otherwise general visitors are free to study where they wish and what they wish. In other words, "course of study" in Rule 41(v) should be read as meaning an accredited or "accreditable" course as argued for by Mr Caskie; and if I am wrong about that, then in my view this is a case that cries out for the exercise by the Secretary of State of her discretion not to apply the "course of study" condition to general visitors attending non-accreditable, holistic education courses at the Findhorn Foundation. To do otherwise was and is perverse.


[32] In the result I take the view that the decision of
28 April 2011 not to permit the first petitioner to enter as a general visitor, assuming that is what the decision effectively amounted to, was unlawful, as was the consequential decision to remove her which, for present purposes, was part of the same decision. It might have been more sensible for the petitioners to content themselves with a declaratory order to that effect: but they do not seek a declarator, they seek to have the decision set aside by reduction. I have weighed the merits of having another hearing, as very properly suggested by Mr McIlvride, counsel for the respondent and I have decided that there is not point incurring further expense for what I understand to be a mere technicality.


[34] Accordingly I have decided that the respondent's pleas-in-law numbers 2 and 5 fall to be repelled on the basis that they address the question of reduction of the respondent's alleged policy, a remedy which has not been pursued; that the respondent's pleas number 1, 3 and 4 also fall to be repelled; and that the petitioners' plea for reduction of the decision must be sustained. I shall grant decree of reduction as sought.


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