In a recent case, R (Global Vision College Ltd) v SSHD [2014] EWCA Civ 659, the Court of Appeal has once again considered a number of legal issues arising from the Tier 4 sponsor regime.
The issues highlighted in the case will be of interest to all Tier 4 sponsors, including higher and further education providers. They include a detailed review of the powers of Entry Clearance and Immigration Officers to:
- question an education provider’s judgement in issuing a CAS; and
- examine Tier 4 applicants as to the methods used by their sponsor when assessing their eligibility for sponsorship.
We are currently helping a number of universities and other sponsors to strengthen their recruitment processes and the assistance they can provide to Tier 4 applicants, without breaching their duties as sponsors, to assist them in preparing for credibility interviews. Sponsors that are considering how best to tackle the latest challenges presented to them will benefit from reading this case in full, the transcript of which can be found here.
Global Vision College Ltd had originally lost its challenge in the High Court against the Secretary of State’s decision to refuse its application for HTS status, which resulted in an automatic revocation of its sponsor licence. The College appealed the High Court’s decision.
The grounds of challenge included, inter alia, that the Secretary of State had acted unlawfully when including visa refusals that had occurred during the relevant twelve month period prior to the HTS application and which were based solely on the applicants inability to explain, when interviewed, how the sponsor had assessed his or her English language ability.
The veracity of the CAS
In dealing with this point, the Court of Appeal considered the extent to which an Entry Clearance Officer/Immigration Officer is entitled to check what it called the ‘veracity’ of the CAS that a sponsor has issued.
The Court concluded that;
‘…despite the status of a CAS as a document that creates a presumption that an educational provider has addressed its mind to the relevant questions and concluded that the requirements of the Rules have been met, in principle its “veracity” can also be checked.’
The Court recognised that this conclusion appears to contradict the conclusion reached by the same court in the case of Pokhriyal [2013] EWCA Civ 1568, which we reviewed here in December 2013.
In that case, the Court of Appeal stated that:
‘Whether a particular course constitutes academic progress…involves a value judgment. Paragraph 120B of Appendix A makes it clear that it is for the college, not to Secretary of State, to carry out the assessment. It is unsurprising that colleges are trusted to make this particular decision. The colleges have the requisite expertise’.
It went on to clarify that ‘the Secretary of State cannot go behind the college’s assessment of academic progression’.
The Court therefore provided an explanation as to why it considered that Pokhriyal had not been undermined in this case and stated that, in the case of Pokhriyal;
‘…there was no discrepancy between what the educational providers stated in the CAS and what the applicants in that case had said. Secondly, that case concerned the Secretary of State second guessing an educational provider on a question (“academic progress”) of academic judgment which she accepted…was primarily a matter for the provider. Jackson LJ also described it …as “not a hard-edged question” but involving a value judgment on which the provider had “the requisite expertise”. Here what is involved is a discrepancy about factual matters that gives rise to what could be described as, in Jackson LJ’s words, a “hard-edged” question.’
Unfortunately the situation for sponsors is far from clear and, in light of this latest judgment, sponsors would be wise to proceed on the basis that their reasons for issuing a CAS to a student may be examined in detail and the student may be questioned about the methods the sponsor used in assessing their eligibility for a CAS.
If a student is unable to provide a suitable explanation as to the methods used by the sponsor in making that assessment, the application for leave to enter or remain may be refused and this will, of course, have an adverse impact on the sponsor’s refusal rate for HTS purposes.
We provide a tailored service to Tier 4 sponsors and if you would like to speak to us about compliance or any other immigration law issues, please do contact us.
