Court of Appeal quashes UKBA’s “unfair” and “obscure” decisions  

San Michael College Ltd v Secretary of State for the Home Department [2011] EWCA Civ 1336 (18 November 2011) judgment

1. In this case the College sought to challenge the UKBA’s suspension and revocation of its sponsor licence (whereby it provides education-courses to non-EEA students). The UKBA had visited the College and had set out in an action plan what the College needed to do to ensure that it kept its licence.

2. The College spent a considerable amount of money in seeking to comply with the action plan; inter alia, employing an outside immigration consultant. As a consequence, various new systems were put in place by the College, including a biometric system for the monitoring of students’ attendance. It was thus recognised by one senior official from the UKBA that “the record keeping in respect of the student and staff files was significantly better” (§12 of the judgment).

3. Despite these extensive efforts, the UKBA suspended and eventually revoked the College’s licence. This was manifestly unfair. The UKBA claimed in its decisions that the College had not complied with the action plan imposed in June 2010; e.g. with regards to record keeping – examples being given by the UKBA. However, those examples related to a period before the action plan; i.e. before all the hard work of the College in seeking to comply with the plan. In other words, the UKBA’s decision that the College currently was not compliant was based on historic information. As was pointed out in argument, this could be compared to a situation where a student submits a draft of a dissertation, is given the opportunity to make the necessary amendments, but still given the mark for the original draft after submitting the amended version. This would plainly be unfair.

4. The Court of Appeal agreed, Pill LJ indicating that (§42(d)): “Notwithstanding the opportunity given to the College to remedy matters for the future, which must be assumed to have been a genuine offer, the suspension and revocation decisions relied very substantially on defaults which had occurred prior to the period of the Action Plan...” Further, as had been pointed out on behalf of the College, the College had unfairly been criticised for taking the very action mandated by the action plan (§42(g)). The consequence was that (§42(j)): The progress made under the Action Plan, supported by the re-accreditation by BAC, was not taken into account” – the College having secured re-accreditation from the British Accreditation Council.

5. It was also significant that the College had been on vacation for the UKBA’s later inspection, such that the College’s new systems could not be truly tested until students returned (§42(c) and §12). Moreover, the UKBA may well have misunderstood the guidance behind one of its assertions (42(k)).

Commentary

6. This was a decision firmly based on fairness. The College had been given an opportunity to make itself better; the College seized that opportunity and expended considerable resources and funds on doing so. It was even recognised that its systems were much better, at least by one senior UKBA official. Yet the UKBA effectively disregarded those efforts in its decisions.

7. It should also be noted that it was recognised both at the time of the action plan and the subsequent decisions from the UKBA that none of the alleged failings by the College were so serious as to fall into the category that mandated suspension/revocation (see §6 of the judgment). Further, the action plan had been put into place in light of the efforts the College had already made to ensure compliance with the UKBA’s requests.

8. Useful comments were made by Pill LJ as to the UKBA’s failure to disclose the visa letters which they claimed the College had issued but not declared to the UKBA; e.g. see §§34 & 36: “A serious challenge is made by UKBA to the College records and that is at the heart of the case. I find it disturbing that the Agency, when challenged to produce the evidence relied on to substantiate the charge, has made such a poor fist of doing so” and “the absence of evidence, which should be routinely available in proceedings such as these, is disappointing in a public body. Such records are necessary if the activities of sponsors are to be monitored effectively, in the interests of immigration control.”

The College was represented by Vijay Jagadesham of Garden Court North in the High Court and Court of Appeal; instructed by Keith Lomax of Davies Gore Lomax LLP .