In a judgment published on 11 November 2014, the High Court has considered whether or not a Tier 4 sponsor that has had its licence revoked as a result of the Home Office investigation into TOEIC fraud should be granted permission to apply for judicial review.
The full case, R (City of London Academy) v SSHD  EWHC 3755 (Admin), can be found here and is recommended reading for all Tier 4 sponsors.
As part of the investigation announced by the Minister for Immigration and Security on 24 June 2014, the Home Secretary (“SSHD”) revoked the sponsor licence of City of London Academy (“CLA”) and cited four grounds for doing so:
i) CLA had assigned 116 Conditional Acceptances of Studies (“CAS”) to students who had false TOEIC certificates. This represents one in twenty of all CAS assigned by CLA since 2009;
ii) CLA’s procedures for attendance monitoring were deficient;
iii) CLA’s procedures for demonstrating academic progression were deficient; and
iv) CLA was in breach of certain of its Tier 2 obligations for some of its staff.
Of particular interest, Mr Justice Mostyn stated in relation to those grounds:
“I say immediately that grounds (ii) – (iv), whether taken individually or collectively, do not justify the draconian step of revocation…. If ground (i) is valid then grounds (ii) – (iv) are unnecessary surplusage. If ground (i) is not valid then grounds (ii) to (iv) would not justify, on any view of the evidence, the sanction of revocation. That would be a grossly disproportionate response.”
We are aware that a number of Tier 4 sponsors caught up in the TOEIC fraud investigation have also been accused of breaching their Tier 2 obligations and/or having weak processes in place concerning the rules on academic progression and/or having deficient attendance monitoring processes in place. Whilst it is extremely unlikely that SSHD would agree with Mr Justice Mostyn’s comments that it would be ‘a grossly disproportionate response’ to revoke a licence solely due to grounds (ii) to (iv), these comments may very well instil confidence in any sponsor that has its licence revoked on these grounds and seeks to challenge that decision in the future.
Turning to ground (i) concerning the allegation as to false TOEIC certificates, SSHD had contended that:
“…it must have been “absolutely obvious” to CLA that for the 67 students for whom CAS was assigned by reference to fake TOEIC certificates the certificates were bogus. The SSHD was entitled to infer that the cheats could barely speak English and that this would have been blindingly obvious to the College. As such the College represented a serious threat to immigration control and this justified it having its licence being revoked and being, in effect, shut down.”
Referring to CLA’s position, Mr Justice Mostyn said that:
“…it has advanced evidence which shows, at least prima facie, that it is not a “dodgy” institution. It says that for the 67 CAS issued in reliance on false TOEIC certificates there is no evidence that the students were anything other than genuine. It was not “absolutely obvious” that they could not speak English and were therefore fraudsters. On the contrary there was either evidence of an adequate command of English or, where further examination revealed doubts, the sponsorship of the students was withdrawn. All this was set out in great detail in a letter dated 26 August 2014; but this was effectively ignored by the SSHD when she came to make her decision…what the SSHD characterises as inference is no more than mere suspicion, and that mere suspicion is not a fair or rational basis on which to mete out a draconian sanction which will have such a calamitous economic consequence for an incorporated UK business”
Mr Justice Mostyn concluded that, in his judgment, CLA had an arguable case and he therefore granted permission.
However, adopting a more ominous position he went on to say that:
“There is a lot to be said for the argument that when faced with the exceptional circumstance of fraud of this scope and scale the SSHD was and is entitled to adopt a line of adamantine strict liability whatever her previously published policy may have said.”
The full hearing will be heard alongside another similar case concerning London St Andrew’s College, on 25 and 26 November 2014.
Tier 4 sponsors, regardless of whether or not they have been directly caught up in the TOEIC fraud investigation and/or have been asked by UKVI to withdraw sponsorship from students, must take their obligations in assessing English language seriously. Sponsors that fail to carry out thorough assessments risk being unable to mount a defence against an accusation that they present a serious threat to immigration control.
If you work for a Tier 4 sponsor and need legal advice on this or any other issue, please contact us.
Nichola Carter, Carter Thomas founder, and Judith Farbey QC of Doughty Street Chambers will be exploring this area and others in detail at the ILPA training session ‘Immigration law for universities and other education providers’ due to be held on 27 November 2014.