Students, visas and the points system: difficulties in enforcement

12 April 2011 by Rosalind English

R(New London College) v Secretary of State for the Home Department  [2011] EWHC 856 (Admin) – read judgment

When she introduced the latest changes  to the points-based system for allowing entry into the United Kingdom the Home Secretary Theresa May said that “this package will stop the bogus students, studying meaningless courses at fake colleges…it will restore some sanity to our student visa system” (March 22 2011)
Whether these changes will alleviate any of the difficulties of applying the criteria to institutions that provide study courses for foreign nationals, only time will tell. This case illustrates some of these problems of enforcement.  

The claimant college’s sponsor licence had been suspended by the United Kingdom Border Agency for its failure to observe its immigration control duties.  The college applied for judicial review of the various decisions that led to the suspension and ultimate withdrawal of the licence. They contended that the decisions were unlawful because they were based on published guidance containing statements of practice which should have been set out in the Immigration Rules, so that they could be subject to proper Parliamentary scrutiny as prescribed by section 3(2) of the Immigration Act 1971.

They also submitted that the suspension of the licence was irrational and disproportionate, and unfair, since the claimant had not been given notice of the facts or circumstances said to justify suspension and had been given no opportunity to make representations.

After a detailed consideration of the circumstances of the various investigations, communications and ultimate suspension, Wyn Williams J concluded there had been partial unlawfulness, under traditional judicial review principles and Article 1 Protocol 1 of the ECHR:

The decision to suspend the Claimant’s sponsor licence communicated by letter dated 18 December 2009 was unlawful and a breach of the Claimant’s human rights under Article 1 of the First Protocol. However, as from 25 March 2010 the suspension of the licence was lawful; there was no breach of Article 1 from that date. The Claimant’s challenge to the decisions to withdraw its licence fails. The decisions were lawful at all times; they did not constitute unjustified interferences with the Claimant’s human rights.

Initial suspension unlawful under the immigration Act

The claimant’s licence was held under the  points based system (PBS) which had been introduced to determine whether or not certain categories of migrant should be given leave to enter the United Kingdom or given leave to remain. Initially the system applied only to highly skilled migrants who wished to work or become self-employed in the United Kingdom. In March 2009, however, it was extended to cover students. Under this system, applicants for entry or stay in the United Kingdom are required to establish that they have accumulated a set number of points in accordance with detailed provisions specified in the Immigration Rules; if the requisite number of points are achieved the applicant may be given leave to enter or remain; if they are not their application will be refused. See paras 23 – 29 of  R (English UK Ltd) v Secretary of State for the Home Department [2010] EWHC 1726   for a further explanation of the workings of PBS.

For the purposes of this judgment, it suffices to say that there is no immigration rule which identifies or defines the circumstances in which a sponsor licence will or may be granted, suspended or withdrawn. The UKBA provided the only guidance on a host of issues including the process of obtaining a licence, the duties of a sponsor who had obtained a licence and the consequences if a sponsor failed to comply with these duties.  The sponsors’ duty is, in essence,to ensure that the students pursuing a course of study at their institutions abide by the conditions of their leave to enter the UK.  The policy document states that where it is believed that a sponsor has not been complying with its duties, has been dishonest in dealing with the UKBA or poses a threat to immigration control, the agency may withdraw its licence or downgrade it from an A- to a B-rating. Examples of dishonesty are said to be the making of false statements when applying for a sponsor licence or making false statements or failing to disclose essential information when assigning a confirmation of acceptance for studies.  All of these were concerns of the UKBA at the time the claimant held the licence. The consequence of withdrawal of a licence is the immediate curtailment of permission to stay in the UK of any students who are complicit in the dishonesty, and reduction to 60 days for the permission to stay of any other student.

The basis for the claimant’s submission was the decision of the Court of Appeal in Pankina and Others v Secretary of State for the Home Department [2010] 3 WLR 1526. This case laid out a set of principles which effectively render unlawful any decision based on a discrete element of the Immigration Rules which is placed beyond Parliament’s scrutiny and left to the “unfettered judgment of the rule-maker…criteria affecting individuals’ status and entitlements which…have not themselves been tendered for parliamentary scrutiny ( see Sedley LJ at para 33 of  R v Secretary of State for Social Services ex p Camden London Borough Council [1987] 1 WLR 819).

This means that  a provision that reflects a substantive criterion for eligibility for admission or leave to remain must be the subject of a process that involves a true parliamentary scrutiny. The statutory foundation for such a conclusion is section 3(2) of the Immigration Act. In the English UK Ltd case Foskett J put it thus:

Guidance is plainly of great value in the administration of a difficult and important area of Government policy. …[but]  extrinsic guidance cannot be used in the manner in which it was sought to be used in this case to make a material or substantive change in existing immigration policy without the negative resolution procedure set out in section 3(2) of the Immigration Act being implemented.

The Pankina principles may have been applicable in English UK, but Wyn Williams J did not agree that they vitiated the suspension in this case. In his view the challenged decisions were all authorised as a consequence of the immigration rules albeit that in exercising the powers conferred by the rules UKBA was also purporting to act consistently with its published guidance.
Unfairness and lack of consultation

Next, the judge turned to the issue of whether or not UKBA acted unfairly in deciding to suspend the licence without first giving the claimant an opportunity to deal with the circumstances said to justify the suspension and make representations about whether that should happen. This was essentially an intuitive judgment on principles of fairness which may change with the passage of time, in the context of a statute which creates a discretion (Lord Mustill’s guidance in R v Home Secretary, ex p. Doody [1994] 1 AC para 531 at page 560.)

Intuitively, his view was that UKBA’s failure to afford the claimant the opportunity to make representations in advance of the decision to suspend its licence was unfair:

Suspension of the Claimant’s licence carried with it significant potential detriment to the Claimant. First, the fact of suspension is published; all potential applicants to the Claimant would become aware of its suspension. Its reputation was bound to be damaged to some extent by the fact of suspension.

The judge reached this decision despite his appreciation of  the fact that the UKBA was justifiably satisfied  that the licensee was “seriously breaching its duties” and was posing a “major threat to immigration control” . And that this was the very sort of case where the need to take urgent action must be paramount and that suspension of a sponsor licence might be justified even before the licensee has been given the opportunity to make representations about it. Nevertheless, he concluded that the complaints levelled against the claimant did not justify the conclusion that it was seriously breaching its sponsorship duties and it constituted a major threat to immigration control.

The ruling that the suspension was unlawful however was restricted to the initial suspension. The fact that the judge was prepared to accept that from the outset there were “legitimate concerns about the claimant’s practices” no doubt played a part in his ultimate determination that the further decisions to suspend did not go outside the respondent’s powers, nor were they reasonable or disproportionate.

Sponsor licence – a “possession” under the ECHR?

The human rights argument was dealt with very briefly at the end of this long judgment. The claimant contended that the sponsor licence issued by UKBA to the Claimant constituted possessions within Article 1. They further submitted that the withdrawal of the  licence was not in accordance with the law and was not proportionate.

The judge found this question “not without diffculty”  . The cases for – including Gasus Dosier v Netherlands [1995] 20 EHRR 403 and Tre Traktörer Aktiebolag v Sweden [1989) EHRR 309, indicate that the Strasbourg Court is inclined to the view that economic interests connected with the ownership of a licence could constitute “possessions”. On the other hand the cases against are equally forceful; in R (on the application of Malik) v Waltham Forest NHS Primary Care Trust [2007] 1WLR 2092 the Court of Appeal held that Article 1 of the First Protocol did not apply to a right to future earnings unless those earnings could be capitalised and a present financial value ascribed to them, and in R (Nicholds) v Security Industry Authority [2007] 1WLR 2067 Mr Kenneth Parker QC (as he then was) held that there was a distinction to be drawn between rights which had a monetary value and could be marketed for consideration and rights which could not. Only the former were “assets” for the purposes of Article 1 of the First Protocol.

Having considered the authorities the judge accepted in the end that the suspension and withdrawal of the claimant’s sponsor licence was an interference with the claimant’s rights under Article 1 First Protocol. However the justification and proportionality tests were applied according to his findings on the traditional JR grounds; insofar as he had found the initial suspension to be outwith the enabling statute, during this period alone there had been an unlawful interference with the claimant’s rights under Art 1 Prot 1. On the other hand, since the later withdrawal of the sponsor licence was neither unreasonable nor irrational, it was in the circumstances proportionate and therefore justified.

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