San Michael College Ltd v Secretary of State for the Home Department

Factual and Procedural Background

This appeal concerns a judgment of His Honour Judge Behrens dated 18 March 2011, which refused an application by Company A ("the College") to quash decisions by the Secretary of State for the Home Department ("the Secretary of State") to suspend and subsequently revoke the College’s sponsor licence. The licence was revoked with immediate effect. The College, a registered charity and company limited by guarantee, provides educational services to foreign students at an address in The City. To operate legally, the College must be on the UK Border Agency ("UKBA") Sponsors' Register and was granted a Tier 4 Sponsor Licence on 25 November 2008.

The licence enabled the College to issue visa letters or Confirmation of Acceptance for Studies ("CAS") to prospective overseas students, necessary for Tier 4 visa applications. The College was accredited by an independent body, the Accreditation Service for International Colleges ("ASIC") via the British Accreditation Council ("BAC"). UKBA issues guidance to sponsors outlining duties including record keeping, reporting, and assessing student intentions and capabilities.

After being downgraded to a B rating in September 2009, the College was placed under a time-limited Action Plan following a premises visit. The licence was suspended on 18 February 2010 but reinstated on 14 June 2010 with a B rating and a requirement to demonstrate effective implementation of the Action Plan within one month or face revocation.

The College’s vacation period from 14 June to 6 September 2010 coincided with the Action Plan period. The College engaged Attorney Taylor from Company B for advice and assistance with UKBA. UKBA conducted visits and investigations, including a visit on 27 August 2010, and requested detailed information on visa letters and CAS issued between 31 March 2009 and 31 July 2010.

By letter dated 24 September 2010, UKBA suspended the College’s licence citing defects in record keeping and monitoring, including examples of expired visas not reported timely, inconsistent student records, and a high non-attendance rate. The letter warned of revocation if representations were not made within 28 days. The College made detailed submissions accepting earlier failures but asserting improvements and new procedures had been implemented.

Following an inspection, BAC confirmed continuing accreditation of the College on 29 September 2010. However, by letter dated 15 October 2010, UKBA revoked the College’s licence citing failure to meet the Action Plan conditions, inadequate tracking, inconsistent record keeping, and continued concerns about attendance and undeclared visa letters. The College challenged these decisions.

Judge Behrens upheld UKBA’s decisions, finding reliance on historic failures justified and that the decisions were neither irrational nor Wednesbury unreasonable. Interim orders restored the College to the Sponsors' Register pending final judgment, with restrictions on issuing CAS to new students.

Legal Issues Presented

1. Whether UKBA was entitled to rely on historic failures, predating the Action Plan period, as grounds for suspension and revocation of the College’s sponsor licence.
2. Whether UKBA sufficiently substantiated the allegation of undeclared visa letters issued by the College.
3. Whether reliance on attendance rates, which were not explicitly part of the Action Plan, was appropriate in justifying suspension and revocation.
4. Whether the College was afforded a fair opportunity to demonstrate compliance with the Action Plan before licence revocation.

Arguments of the Parties

Appellant's Arguments

• The College contended that UKBA suspended and revoked the licence without adequately considering improvements made under the Action Plan.
• The College argued that the period for demonstrating compliance coincided with the summer vacation, making full compliance demonstration impossible within that timeframe.
• Two or three of the reasons for revocation were based on historic data predating the Action Plan, which should not have been the basis for the decision.
• Reliance on an 80% attendance standard was inappropriate as it was not part of UKBA’s Guidance and was inconsistent with the BAC’s accreditation standards.
• UKBA’s approach to attendance data was flawed, confusing class attendance with contact points.

Respondent's Arguments

• The Secretary of State submitted that serious failings in record keeping and student monitoring justified suspension and revocation.
• It was proper to consider earlier failings when they came to light, even if prior to the Action Plan.
• The decision to revoke was a discretionary one, supported by substantial evidence of ongoing deficiencies.
• Ground three of the revocation letter related to failure to improve during the Action Plan period and was independently sufficient to justify revocation.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court acknowledged substantial deficiencies in the College’s record keeping prior to suspension, recognizing these as serious and posing a threat to immigration control. However, the court focused on whether the suspension and revocation decisions fairly considered the College’s efforts to comply with the Action Plan following reinstatement in June 2010.

The court found that the Action Plan was forward looking, requiring the College to demonstrate effective new processes. The College was given an opportunity to remedy deficiencies, but the suspension and revocation decisions heavily relied on historic failings predating the Action Plan period. This reliance was inconsistent with the purpose of the Action Plan and unfair to the College.

The court noted that some reasons for revocation related to events during the Action Plan period but were limited in scope and did not independently justify revocation. Furthermore, positive developments, including improved record keeping and re-accreditation by BAC, were not adequately considered by UKBA.

The court criticized the lack of clarity and fairness in UKBA’s decision-making process, including confusing or insufficiently particularised reasons for suspension and revocation, and the inadequate evidential basis for some allegations, such as the undeclared visa letters.

Ultimately, the court concluded that the procedure followed was unfair and the decision-making process obscure, warranting quashing of the suspension and revocation decisions.

Holding and Implications

The appeal was allowed. The court quashed the decisions to suspend and revoke the College’s sponsor licence on grounds of procedural unfairness and failure to properly consider the College’s compliance efforts under the Action Plan.

The direct effect is that the College’s licence suspension and revocation were set aside, restoring its position pending further proceedings. No new legal precedent was established; the decision emphasized the necessity of fair and transparent decision-making processes by regulatory bodies when imposing sanctions on sponsors, particularly where remedial action has been undertaken.