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||Neutral Citation Number:  EWHC 1788 (Admin)
||Case No: CO/6627/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE WYN WILLIAMS
|| THE QUEEN (on the application of ENGLISH SPEAKING BOARD (INTERNATIONAL) LTD)
||- AND -
||SECRETARY OF STATE FOR THE HOME DEPARTMENT
Adam Heppinstall (instructed by Weightmans LLP) for the Claimant
Susan Chan (instructed by Treasury Solicitor) for the Defendant
Hearing date: 16 June 2011
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Wyn Williams:
- Section 3(2) of the Immigration Act 1971 provides the machinery whereby changes can be made to the Immigration Rules. It is in the following terms:
"The Secretary of State shall from time to time….lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and staying in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances….
If a statement laid before either House of Parliament under this sub-section is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying…. then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution…..."
- On 18 March 2010 the Defendant laid before Parliament a statement of changes to the Immigration Rules in accordance with the statutory procedure set out above.
- Section 41 British Nationality Act 1981 provides that the Secretary of State may by regulations make provisions for carrying into effect the purposes of the Act. On 18 March 2010 the Defendant laid before Parliament regulations which had the effect of amending the British Nationality (General) Regulations 2003 (hereinafter referred to as "the Regulations").
- The changes to the Immigration Rules (hereinafter referred to as "the Rules") and the changes to the Regulations took effect from 7 April 2010.
- In these proceedings the Claimant asserts that the decision to change the Rules and Regulations was unlawful. The Claimant submits that, as a consequence, it is appropriate for this Court to quash those parts of the amended Rules and Regulations which are affected by this illegality.
- Paragraph 33B of the Immigration Rules sets out criteria which must be satisfied before a person can obtain indefinite leave to remain in the United Kingdom. Before the changes which came into force on 7 April 2010 the relevant part of paragraph 33B was in the following terms:-
"Knowledge of language and life in the United Kingdom
33B A person has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom for the purpose of an application for indefinite leave to remain under these rules if –
(a) he has attended a course which used teaching materials derived from the document entitled "Citizenship Materials for ESOL Learners"….and he has thereby attained a relevant accredited qualification; or
(b) he has passed the test known as the "Life in the UK Test" administered by an educational institution or other person approved for this purpose by the Secretary of State;….."
Paragraph 33C defined a "relevant accredited qualification" so as to include "an ESOL "Skills for Life" qualification in speaking and listening at Entry Level approved by the Qualification and Curriculum Authority".
The acronym ESOL stands for English for Speakers of Other Languages.
- The change made to these parts of the Immigration Rules by the statement of changes laid before Parliament on 18 March 2010 related to paragraph 33B(a) and 33C. 33B(a) was amended to read:-
"(a)(i) he has attended an ESOL course at an accredited college;
(ii) the course used teaching materials derived from the document entitled "Citizenship Materials for ESOL Learners"…
(iii) he has demonstrated relevant progress in accordance with paragraph 33F; and
(iv) he has attained a relevant qualification;"
Paragraph 33C was amended so that it reads:-
"33C In these rules, "an accredited college" is:
a) a publicly funded college that is subject to inspection by the Office for Standards in Education, Children's Services and Skills (if situated in England), the Education and Training Inspector (if situated in Northern Ireland), Her Majesty's Inspectorate of Education (if situated in Scotland), ESTYN (if situated in Wales); or an inspection programme that has been approved by the Islands Government (if situated in the Channel Islands or Isle of Man); or
b) a private college that has been accredited by Accreditation UK, the British Accreditation Council (BAC), the Accreditation Body for Language Services (ABLS), the Accreditation Service for International Colleges (ASIC)."
- Prior to its amendment, Regulation 5(A) of the Regulations was in the following terms:-
"(1) A person has sufficient knowledge of the English language and sufficient knowledge of life in the United Kingdom for the purpose of an application for naturalisation as a British citizen under section 6 of the Act if –
a) he has attended a course which used teaching materials derived from the document entitled "Citizenship Materials for ESOL Learners"….and he has thereby attained the relevant accredited qualifications; or
b) he has passed the test known as the "Life in the United Kingdom Test" administered by an educational institution or other person approved for this purpose by the Secretary of State; or
c) in the case of a person who is ordinarily resident outside the United Kingdom, a person designated by the Secretary of State certified in writing that he has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom for this purpose."
As from 7 April 2010 Regulation 5(A) reads:-
i) he has attended a course at an accredited college;
ii) the course used teaching materials derived from the document entitled "Citizenship Materials for ESOL Learners";
iii) he has demonstrated relevant progress in accordance with paragraph (ii);
iv) he has attained a relevant qualification."
There follow further provisions including a definition of an "accredited college" which is identical to that contained within the Immigration Rules.
The Claimant and its complaints
- The Claimant is a registered charity. It promotes and assesses a full range of qualifications in spoken English for native and non-native English speakers in a wide range of educational environments and centres. All its income is derived from examination fees. In 2009 the Claimant examined approximately 32,000 candidates of whom approximately 13,500 were entered for its examinations leading to its ESOL Skills for Life qualifications.
- The students who sit the Claimant's examinations are not taught by the Claimant. All the students are taught by a variety of educational establishments (referred to hereinafter as "centres"). Most of the students studying courses designed to achieve the Claimant's ESOL qualifications are students of private centres. As of March 2010 the Claimant had a good working relationship with 54 such centres and could reasonably rely upon the centres to enter their students for its examinations. The centres were "registered" with the Claimant.
- The changes to the Rules and the Regulations, set out in the preceding section of this judgment, took place without consultation between the Claimant and UKBA. The evidence adduced on behalf of the Claimant, which I accept, is that the Claimant first became aware that the changes were due to come into force on 7 April 2010 on 30 March 2010. It is accepted that various course providers - such as the private centres with which the Claimant enjoyed its working relationship - became aware of the changes at or about the same time.
- In the immediate aftermath of the changes many of the centres made enquiries about accreditation. Very few, if any, however, became accredited in the weeks or months immediately following the changes to the Rules and Regulations.
- This state of affairs had a significant impact upon the Claimant. In a statement dated 22 March 2011, Ms Lesley Cook, the Claimant's Chief Executive, says that of the 54 centres registered with the Claimant as of March 2010 approximately 50 have not been accredited. Between the date when the changes came into force and the date of Ms Cook's witness statement (a period of about 11 months) the Claimant has suffered a 14% fall in the ESOL candidate numbers from private centres when such numbers are compared with the same period in 2009/2010. Overall the Claimant has suffered a reduction in income of 34% which, obviously, impacts upon its charitable purposes.
- As it happens the Claimant does not doubt the rationale which underlies the changes to the Rules and Regulations. The complete rationale is set out clearly in the Statement of Changes which was laid before Parliament. Part of the rationale reads as follows:-
"It has come to notice that a limited number of private sector providers have been assessing applicants at a lower level of competence than they have already achieved. This means they can attend a very short (but often expensive) course in order to obtain an ESOL certificate and meet the letter of the law (but not the spirit). There are no concerns with public sector providers who undertake diagnostic assessments in language to ensure a learner is allocated to an appropriate course and are already subject to an inspection regime.
The amended rules seek to reduce the possibility of abuse and of exploitation of applicants, by specifying that evidence progress from one level to the next is required and that qualifications can only be obtained through attendance at a college that is subject to inspection by [accreditation bodies]."
- The Claimant accepts that under the rules as they existed prior to April 2010 there was the prospect of abuse involving unscrupulous private centres and candidates. It acknowledges that a system of accrediting the course providers is a step which is likely to reduce the prospect of abuse. However, the Claimant asserts that the changes to the Rules and Regulations were rushed through without proper consultation and, most importantly, without any kind of appraisal of whether or not the specified accrediting bodies were capable of carrying out the role attributed to them. The Claimant asserts that the consequence has been a year of "chaos".
The grounds of challenge
- When these proceedings were issued there were two grounds of challenge identified. First, the Claimant asserted that there had been an unlawful failure to consult prior to laying the amended Rules and Regulations before Parliament. The Claimant asserted that the Defendant had failed to consult the accrediting bodies which were charged with the responsibility of carrying out the accreditation process. Second, the Claimant alleged that the decision to change the Rules and Regulations without prior consultation and without ascertaining whether or not the proposed accrediting bodies had the means and/or ability/expertise to undertake the accreditation was irrational.
- In her summary grounds of defence the Defendant rebutted these grounds of challenge robustly. She denied any freestanding legal obligation to consult the proposed accrediting bodies and she denied that she had said or done anything which permitted of an argument that she had assumed a duty to consult those bodies. In a much shorter section of the summary grounds of defence the Defendant maintained that her decision to make the changes to the Rules and Regulations was not irrational.
- By the time of the hearing before me, the Claimant had acknowledged that its first ground of challenge could not succeed. Before me the Claimant pursued the second ground of challenge only.
- In her Skeleton Argument, dated 6 June 2011, Ms Chan responded to the second ground of challenge as follows:-
"It is acknowledged that mistakes were made in the process before the changes were implemented. In particular, the Defendant believed that because there had been a full public consultation for Tier 4 accreditation (which included consultation with the accrediting bodies), requiring private ESOL providers to be accredited by those same accrediting bodies would require minimal adaptation….. the Defendant acknowledges that it was arguably irrational not to make greater inquiries of the accreditation bodies before implementing the changes."
- At the hearing Ms Chan, effectively, removed the word 'arguably' from her submissions. Essentially, she accepted that the Defendant's decision to implement the changes to the Rules and Regulations without first consulting the proposed accrediting bodies, at least as to their ability to undertake accreditation immediately after the coming into force of the changes, was irrational. In the light of that stance it is unnecessary for me to consider this ground of challenge any further.
- Mr Heppinstall submits that the concession now made on behalf of the Defendant is a concession which the Defendant was reluctant to make but which, in effect, she was forced to make following a detailed request for disclosure in these proceedings. He points out that the Defendant resisted the claim when summary grounds of defence were first served. Those summary grounds persuaded Rafferty J (as she then was) that permission ought not to be granted. When a renewed application for permission came on before Simon J the Defendant maintained her position that permission should not be granted. Following the grant of permission, the Claimant's solicitor wrote a long and detailed letter to the Defendant's solicitor relating to the Defendant's duty of disclosure and claiming that the Defendant had failed to discharge that duty. Thereafter, on 12 May 2011, a witness statement made by Mr Christopher Hedges, a civil servant working within the United Kingdom Border Agency and a further statement from Ms Ann Robertson were served together with a large volume of documents. It was only after this disclosure, submits Mr Heppinstall, that the Defendant acknowledged the possibility that her decision to make changes to the Rules and Regulations was unlawful.
- I can understand the Claimant's suspicions in this case. However, it is not appropriate for this Court to determine that the Defendant would have failed to comply with her duty of disclosure in the absence of the Claimant's solicitor's letter relating to disclosure without a much more detailed examination of that issue than is possible in the context of a short hearing when no oral evidence is adduced. In any event, it does not seem to me that the issue of whether or not the Defendant would have complied with her duty of disclosure (in the absence of the Claimant's solicitor's letter of 13 April 2011) has any real bearing on what is now the only issue for my determination. That issue is whether or not the Claimant is entitled to a quashing order as a consequence of the Defendant's failure to make a rational decision about whether or not to introduce the changes to the Rules and Regulations.
The claim for relief
- The stance adopted by the Claimant is that I should quash those parts of the Rules and Regulations which require that a person seeking indefinite leave to remain or citizenship has attended an ESOL course at an accredited college. Mr Heppinstall submits that the Court has power to quash parts of the Rules and Regulations; it is not obliged to quash the Rules and Regulations as a whole. Essentially, the Claimant seeks to achieve a state of affairs whereby the Rules and Regulations are restored to the form in which they stood immediately prior to the changes introduced in March 2010.
- Ms Chan accepts that the Court has jurisdiction to quash parts of the Rules and Regulations. She submits, however, that the Court should not grant a quashing order. She submits that the circumstances now prevailing militate against the grant of what is, on any view, a discretionary remedy.
- In order to determine whether or not it is appropriate to grant a quashing order as Mr Heppinstall submits, it is necessary to pay close attention to the circumstances which have prevailed since March/April 2010. First, however, it is necessary to set out the legal principles which are necessarily to be applied.
- It seems to me that my search for the appropriate legal principles must begin with R (C(a minor)) v the Secretary of State for Justice  QB 657. In that case the relevant facts were these. Secure training centres were established by the Criminal Justice and Public Order Act 1994 for the purpose of detaining young persons between the ages of 12 and 17 who had been sentenced to or remanded in custody. Rule 38(1) of the Secure Training Centre Rules 1998 provided that no one detained in a secure training centre should be physically restrained save where necessary for the purpose of preventing him from escaping from custody, injuring himself or others, or damaging property. In June 2007 the Secretary of State for the Home Department laid before Parliament the Secure Training Centre (Amendment) Rules 2007, rule 2 of which amended rule 38(1) of the 1998 Rules by providing that a trainee could also be physically restrained for the purposes of ensuring good order and discipline. The 2007 Rules were debated in the House of Lords which did not resolve to annul them and they took effect by virtue of the applicable negative resolution procedure. The Claimant, a trainee at a secure training centre, sought judicial review by way of an order to quash the 2007 Rules on the grounds that the Secretary of State had unreasonably failed to consult with the Children's Commissioner for England and had failed to carry out a race equality impact assessment, as required by section 71(1) of the Race Relations Act 1976 before laying them before Parliament. It was also argued on his behalf that the Rules infringed Articles 3 and 8 ECHR.
- The Divisional Court held that the 2007 Rules were unlawful on the procedural grounds identified; the Court rejected the argument that the Rules were in breach of Convention rights. Notwithstanding that the Court found that the Rules were unlawful, it determined that it would not be appropriate to quash the Rules.
- On appeal, the Court of Appeal determined that the Rules were unlawful not just on account of the procedural grounds advanced by the Claimant but also because the Rules were in breach of Articles 3 and 8 of ECHR. The Court of Appeal also concluded that the Rules should be quashed.
- The issue of whether or not it was appropriate to grant a quashing order was dealt with at length in the judgment of Buxton LJ. The following paragraphs in his judgment are of particular note:-
"The relevant law on relief
40. At its para 48 the Divisional Court cited, and apparently were much influenced by, some observations of Webster J in R v Secretary of State for Social Services, ex p Association of Metropolitan Authorities  1WLR 1, 15. This passage was strongly relied on by the Secretary of State before us. It reads:
"it is not necessarily to be regarded as the normal practice, where delegated legislation is held to be ultra vires, to revoke the instrument, that …..the inclination would be the other way, in the absence of special circumstances making it desirable to revoke that instrument….in principle I treat the matter as one of pure discretion…."
41. It has proved difficult to find other authority on the specific point. Webster J's dictum does not seem to be discussed, much less adopted, in any of the standard works on administrative law, and for my part I would not wish to endorse it. As with any administrative decision, the Court has discretion to withhold relief if there are pressing reasons for not disturbing the status quo. It is, however, wrong to think that delegated legislation has some specifically protected position in that respect. If anything, the imperative that public life should be conducted lawfully suggests that it is more important to correct unlawful legislation, that until quashed is universally binding and used by the public as a guide to conduct, than it is to correct a single decision, that affects only a limited range of people."
The Learned Judge then proceeded to identify the reasons why the Divisional Court had felt it inappropriate to make a quashing order and why he considered that such a conclusion had been wrong.
- Having explained his view of the decision by the Divisional Court, Buxton LJ considered whether it was appropriate for the Court of Appeal to quash the Amendment Rules. The test he applied in order to determine whether to grant a quashing order was in the following terms:-
"The only issue is, therefore, whether quashing remained an appropriate remedy in view of events that have occurred in the 5 months since the hearing before the Divisional Court."
Having considered the relevant events the Learned Judge decided that quashing was still appropriate.
- Tuckey LJ simply agreed with the judgment of Buxton LJ. Keene LJ also agreed with the judgment of Buxton LJ but, in a short judgment, explained why he was also in favour of a quashing order being made. He said this:-
"85. I also agree, and I add only a few comments of my own. First, I firmly endorse the views expressed by Buxton LJ at para 41 about the appropriate course to be taken by a Court when delegated legislation is found to be ultra vires. Such a finding should normally lead to the delegated legislation being quashed, and only in unusual circumstances would one expect to find a Court exercising its discretion in such a way as to allow such legislation to remain in force. Such legislation normally changes the law for the public generally or for a class of persons. It should not generally be allowed to stand if it does not come into being in accordance with the law, and certainly not merely because certain checks which should have been carried out beforehand are to be made subsequently. Such a course may well prejudge the outcome of those checks, and yet the public is expected to conduct its life in accordance with such delegate legislation in the meantime. That cannot normally be appropriate.
86. ….I too agree, therefore, that the Divisional Court was wrong not to quash the Amendment Rules in the light of its conclusions on consultation and the carrying out of an REI.
87. I would have been more hesitant about the exercise of this Court's powers to quash the Amendment Rules given what has happened since the Divisional Court decision, had it not been for the conclusions which I, like Buxton and Tuckey LJJ, have reached about Article 3 and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms……"
- Stripped to its essentials all three judges of the Court of Appeal agreed that the Divisional Court should have quashed the Amendment Rules by reason of procedural defects which preceded the laying of the Rules before Parliament. There had been an unreasonable failure to consult the Children's Commissioner and there had been a failure to undertake an assessment required by primary legislation. There was no rule or legal principle to the effect that subordinate legislation should be quashed only if special circumstances justifying the quashing existed. Whether or not a quashing order should be made depended upon a proper evaluation of the circumstances pertaining between the date when the delegated legislation came into force and the hearing at which a quashing order is sought. However, the starting point is that a finding that delegated legislation is ultra vires should normally lead to the delegated legislation being quashed.
- I should say that I do not understand the use of the phrase ultra vires in the judgments of Buxton and Keene LJJ to be confined to a reference to legislation which is unlawful only upon the narrow ground that the making of the legislation is outwith the jurisdiction of the law maker. It seems to me that both Learned Judges use the phrase ultra vires simply to mean unlawful however that illegality has come about. If that is right the reasoning of the Court in C as to when it is appropriate to quash subordinate legislation is equally apposite when it is proved or admitted that the decision to lay subordinate legislation before Parliament was irrational.
- I appreciate, of course, that the Immigration Rules, strictly, do not constitute subordinate legislation. However, they are afforded a status which is akin to that of subordinate legislation – see Pankina v Secretary of State for the Home Department  3 WLR 1526. It seems to me, therefore, that in deciding whether or not it is appropriate to make a quashing order in relation to parts of the Rules I should proceed on the basis of the principles set out in C.
- During the course of her oral submissions Ms Chan placed considerable reliance upon certain observations contained within the judgment of the Court of Appeal in R (MD)(China) & others v Secretary of State for the Home Department  EWCA Civ 453. In that case a number of Claimants had successfully claimed asylum but suffered unacceptable delay through maladministration in the provision on behalf of the Secretary of State of the status papers to which their successful asylum application entitled them. They began judicial review proceedings with the main purpose of obtaining the papers. During the course of the proceedings the papers were provided to them. Nonetheless they continued with their claims seeking damages under the Human Rights Act 1998.
- The proceedings were heard at first instance before Treacy J. The learned judge held that it had been entirely legitimate to start the proceedings with the main practical aim of obtaining the requisite status papers. However, by the time the matter came before the judge the Secretary of State had provided the requisite status papers, openly admitted that the delays which had occurred were unacceptable and apologised and set in train an internal complaints procedure with a view to assessing and paying compensation. She had also taken administrative steps to see that delays of an unacceptable kind were avoided for the future. In light of those events Treacy J decided that the proceedings had become pointless and that they should be stayed. It was against the imposition of that stay that the Claimants decided to appeal to the Court of Appeal.
- The Court dismissed the appeal in trenchant terms. It stressed the importance of avoiding litigation wherever possible even in disputes between public authorities and members of the public. It stressed the benefits to be obtained, in appropriate cases, from alternative dispute resolution and it stated:-
"In any event, the Court should not countenance expensive proceedings which have no real purpose and where the supposedly vindicatory benefit to the Claimant is on the facts illusory."
- Ms Chan submits that this case falls into that category. With respect, I do not agree. Obviously, as in MD (China), the Claimant was justified in commencing these proceedings. Until Ms Chan served her Skeleton Argument (which was no more than a few weeks, at most, before the hearing) the Defendant was resisting, strongly, the contention that her decision to lay the amended Rules and Regulations before Parliament was unlawful. The Skeleton Argument does not acknowledge, unequivocally, that the decision was unlawful. It was only at the hearing that the Defendant, through Ms Chan, effectively acknowledged that her decision had been unlawful.
- On any view, there is plainly a legitimate purpose in the Claimant pursuing a quashing order. If the offending parts of the Rules and Regulations are quashed there will be at least a period of time during which those private centres which provide ESOL courses will need no accreditation. That is likely to be of significant benefit to the Claimant. I simply cannot accept that this case falls into the category of case with which Treacy J was dealing in MD (China) namely that category of case where the proceedings have outlived their usefulness. The reality is that I have to adjudicate upon a live and properly arguable debate about whether to grant the Claimant relief. There can be no doubt that if I do so the Claimant will derive a significant benefit. Further, even if no quashing order is granted it cannot be said that the Claimant was not pursuing a legitimate objective in seeking to persuade this Court to grant such an order.
- I turn, therefore, to an examination of the circumstances which have subsisted since the changes were made to the Rules and Regulations. There can be no doubt that the changes to the Rules and Regulations came as a surprise to the accrediting bodies which were designated to undertake accreditation. Those bodies were, Accreditation UK, The British Accreditation Council (BAC), The Accreditation Body for Language Services (ABLS) and The Accreditation Service for International Colleges (ASIC).
- The Claimant has served witness statements from senior officials within three of the accreditation bodies; the witness statements are from Gina Hobson, the Chief Executive of BAC, Diana Lowe, the Executive Director of ABLS and Lawrence Watson a Qualifications Adviser with ASIC.
- Ms Hobson says that BAC first became aware of the changes to the Rules and Regulations from about 6 April 2010 onwards when staff began to receive telephone calls from providers enquiring whether BAC could provide accreditation. On 12 April 2010 BAC issued a release to relevant providers; its release confirmed that BAC would engage in accreditation only in certain defined and limited circumstances.
- On 21 May 2010 BAC made a further release. In certain circumstances, defined in the release, BAC announced that it was prepared to accept new applications for accreditation from providers running ESOL courses.
- In the six weeks, or thereabouts, after the changes to the Rules and Regulations were made BAC received over 25 enquiries relating to BAC accreditation but no providers were accredited in or about this period and the process of accreditation did not begin until after that time. BAC first issued an accreditation on 28 October 2010. Ms Hobson says that by the end of January 2011 three further accreditations had been awarded to private centres which provided ESOL courses.
- Ms Hobson's evidence demonstrates that BAC has been ready, willing and able to provide accreditation since some months following the Rule change. Accreditation is comparatively expensive and the process of accreditation can take between three and six months.
- Ms Lowe, on behalf of ABLS, explains that prior to the changes ABLS had no involvement in dealing with requests for inspection or accreditation from centres which were concerned solely with providing the ESOL course. Ms Lowe first became aware of the changes and the proposed role of ABLS on 30 March 2010; it was on that day that she first received telephone calls from private centres which were offering courses with which ABLS was not, until then, concerned. Initially, ABLS took the view that it did not wish to involve itself in accreditation of centres providing ESOL. However, a meeting took place between Ms Lowe and Ann Robertson of UKBA on 25 June 2010 and, thereafter, ABLS began the process of devising the necessary procedures and accumulating the relevant expertise to assess ESOL providers. It was not until November 2010, as I understand it, that ABLS made it known, publically, that it was prepared to offer accreditation services to ESOL centres.
- By 17 March 2011, the date of Ms Lowe's witness statement, ABLS had received a few applications for accreditation but only one centre had been through the whole process of accreditation.
- Dr Watson, on behalf of ASIC, asserts that there was no consultation between officers of UKBA and officers of ASIC prior to the changes being laid before Parliament. It was not until after 7 April 2010, when ASIC began to receive telephone calls from ESOL providers, that it became aware, formally, of the changes to the Rules and Regulations.
- As I understand his evidence Dr Watson explains that ASIC received approximately 24 enquiries about accreditation in the weeks following the changes to the Rules and Regulations. Apparently, quite early on, ASIC resolved that it should provide accreditation services to those centres which sought its assistance.
- By 18 March 2011 ASIC had provided accreditation to 10 ESOL centres; it had also accredited 12 satellite branches of larger providers. In his witness statement, Dr Watson comments that this is a very small number compared to the number of colleges which existed and which were providing courses leading to qualifications as at March/April 2010.
- The Claimant also relies upon a witness statement from Ms Jill Lanning who is the Chief Executive of the Federation of Awarding Bodies. This federation is a trade association representing organisations that award vocational qualifications in the United Kingdom.
- Ms Lanning chaired an important meeting on 21 May 2011. She says that the meeting was attended by representatives of awarding bodies (such as the Claimant) accreditation bodies, trade unions and teacher associations. Her statement continues:-
"All those who attended the meeting were aware of certain abuses in the ESOL qualification award system and therefore supported in principle the rationale for the changes. However, the main concern of all those who attended was that the changes were introduced without consultation and without notification. The speed of introduction of the changes had a similar effect as if it had been introduced retrospectively. All those present noted that the changes were unfair to those individuals who had studied for but had not submitted a settlement application or who at that point studying for the ESO Skills for Life qualification, and paid the appropriate fee, now found that they were in a position where the qualification was effectively worthless unless accreditation could be achieved. The accreditation bodies at the meeting expressed concerns about their capacity to accredit organisations swiftly given the need to maintain their usual quality requirements and processes……"
- The thrust of Mr Heppinstall's submission in support of a quashing order is encapsulated in his assertion that the changes made by the Defendant to the Rules and Regulations have caused and continue to cause damage to private colleges, their students, their communities and to the Claimant's charitable business. He submits that the amendments should be quashed so that the Defendant is forced to formulate a policy which will remove the damage now being caused to bona fide course providers, their students and institutions such as the Claimant.
- I turn therefore to examine the available evidence as to whether the changes to the Rules and Regulations are still having a deleterious effect. There is nothing in the evidence from Ms Hobson, Ms Lowe or Dr Watson which suggests that there is now any difficulty with the accreditation process. It is true, of course, that it is comparatively expensive and time-consuming and that, comparatively, a small number of centres have been accredited but there is no suggestion from them that the accrediting bodies are incapable of providing accreditation to private centres which seek such accreditation. I appreciate, of course, that there were very significant difficulties in the months immediately after the changes to the Rules and Regulations were made. However, to repeat, the evidence from the accrediting bodies does not suggest that the difficulties in providing accreditation are subsisting.
- Ms Lanning's statement is dated 17 March 2011. However her witness statement deals only with events between March/April 2010 and August 2010. It cannot be used as a basis to support Mr Heppinstall's argument that there are continuing difficulties.
- The Claimant also relies upon the statement of Mohammed Earul Islam who is a training manager with the company known as Training 4 U Services Ltd. The company provides a variety of training courses. Its many areas of training focus on citizenship, ESOL and Skills for Life; in other words, it is one of the private centres which was affected by the changes to the Rules and Regulations. In paragraph 6 of his witness statement Mr Islam says this:-
"The changes had a detrimental effect on us as a centre delivering ESOL Skills for Life courses. As a result of the changes we came very close to having to close down our centre. That is because our core business had been affected by UKBA's decision to enact the changes without any consultation whatsoever. "
At paragraph 12 he says:-
"The effect of the above that small centres, such as ours, have struggled to manage the anger and indeed the barrage of insults and vilifications which we have suffered. Our reputation has been damaged in the business community and that has also affected our personal lives. Students believe that we intentionally misled them and took their fees. The students were upset when their certificates were refused and said that we were a "bogus centre" and that we had not informed them of the changes when we booked their examination. Of course we did not know of the changes."
In this paragraph Mr Islam was referring to events which occurred immediately following the changes.
- In my judgment it is of some significance that Mr Islam's statement, essentially, deals with the position as it was immediately following the changes. If, as Mr Heppinstall submits, the changes are continuing to have a very significant damaging effect I would have expected a witness statement from someone such as Mr Islam to say that and explain why.
- The Defendant relies upon a number of witness statements from Ms Ann Robertson, who is an assistant Director in the UK Border Agency. Essentially, Ms Robertson accepts that difficulties arose in the months immediately following the changes. However, the substance of her evidence is that the Rules and Regulations have now been in existence for more than a year and that there are no ongoing difficulties in the way of those centres which wish to apply for accreditation.
- I am not persuaded that the Claimant has demonstrated that the effect of the Rule change has been to cause damage on a widespread scale as it alleges for more than a comparatively short period immediately following the coming into force of the Rules and Regulations. I appreciate that there may be fewer centres which are accredited to provide the relevant courses than was the case before the changes were made and that this impacts upon the Claimant's business. The reality is, however, that there is a paucity of evidence to demonstrate that the Rules and Regulations, now, impact adversely upon those people who genuinely wish to undertake courses to support application for leave to remain or citizenship or those centres which genuinely wish to provide appropriate courses leading to the award of the relevant qualifications.
- That is not determinative of whether a quashing order should be made but, clearly, it is a relevant consideration.
- It is also relevant, in my judgment, that all of the persons who have provided witness statements acknowledge that the changes to the Rules and Regulations had a proper rationale and were aimed at achieving a purpose, which on any view, was legitimate and desirable. It is to be borne in mind that the Rules and Regulations themselves are not irrational; far from it. The complaint is that the process leading to their making was flawed. It is also to be borne in mind that a quashing order, now, may bring further confusion and disruption in its wake, as Ms Chan submits.
- In my judgment all these factors militate against the grant of a quashing order. I acknowledge, of course, the force of the point made by the Court of Appeal in C that the imperative that public life should be conducted lawfully suggests that it is important to correct unlawful legislation that until quashed is universally binding and used by the public as a guide to conduct. I take full account of that important consideration.
- Ultimately, it becomes a question of balancing a number of competing features in determining whether or not to grant the Claimant the relief which it seeks. Not without some hesitation I have reached the conclusion that it is not appropriate to grant a quashing order.
- At the hearing there was some debate about whether or not a formal declaration should be granted to mark the fact that the Defendant has acknowledged illegality in her decision-making process. Upon reflection it does not seem to me that declaratory relief is necessary. I say that for the simple reason that the Defendant has acknowledged that she acted unlawfully and the terms of this judgment make that crystal clear.
- I propose to hand down this judgment at 10am on Tuesday 12 July 2011. If the parties are able to agree an order consequent upon the judgment then there need be no attendance at the handing down. If the parties would prefer to make written representations about the appropriate terms of an order (with the aim of saving costs) as opposed to attending the handing down that is also acceptable to me. In the event that course is adopted written submissions on the form of the order and any other consequential matters should be sent by email to my clerk by 3.00pm 11 July 2011.
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