Case No: CO/5236/2010
Neutral Citation Number: [2011] EWHC 856 (Admin)
IN THE HIGH COURT OF JUSTICE                                                  Case No: CO/9023/2010
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 07/04/2011

Before:

MR JUSTICE WYN WILLIAMS
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Between:

	THE QUEEN 
(on the application of) 
NEW LONDON COLLEGE LTD	

Claimant	
	- and -		
	THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Defendant	

(Transcript of the Handed Down Judgment of
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Manjit Gill QC and Edward Nicholson (instructed by Chhokar & Co) for the Claimant 
Robert Palmer (instructed by Treasury Solicitors) for the Defendant 

Hearing dates: 17 & 19 January 2011
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Judgment
As Approved by the Court

Crown copyright©

Mr Justice Wyn Williams: 
Introduction

1.	The Claimant is a limited company which provides further educational courses in a range of subject areas from two campuses in Hounslow, London.  In July 2008 it applied to the United Kingdom Border Agency (hereinafter referred to as UKBA) for a Tier 4 General (Student) Sponsor Licence in anticipation that such a licence would be required so as to enable the Claimant to enrol non EEA but overseas students upon the introduction of the Points Based System of immigration control.  At that time the Claimant operated from one campus only the address of which was 1 Martindale Road, Hounslow.
2.	On 18 October 2008 UKBA granted the Claimant the licence which it had sought.   The Claimant was awarded an A-rating (as to which see paragraphs 25 and 26 below).  By 18 October 2008 the Claimant had or was about to acquire the second campus, namely premises at 75-81 Staines Road, Hounslow. Nonetheless the licence granted related only to 1 Martindale Road.
3.	On 18 December 2009 UKBA suspended the licence.  In a letter to the Claimant it explained the reasons why it had taken that action.  The Claimant responded immediately; it asserted that the reasons for the suspension were not sustainable and it asked for the suspension to be lifted.  Despite those representations the suspension was not lifted.  Indeed, as of 12 March 2010, the Defendant had not responded, substantively, to the Claimant’s representations.  Accordingly, on that date, the Claimant issued proceedings for judicial review; the Claimant sought an order quashing the suspension of its licence or alternatively an order requiring the Defendant to reach a decision about whether or not the suspension should continue.  
4.	On 25 March 2010, before the issue of permission could be determined, UKBA wrote to the Claimant seeking information about various points raised in the letter.  The letter ended as follows:-
“You now have 28 days to make representations including submitting evidence in response to this letter.  If you fail to make representations, or to adequately address these issues within this time, your licence will be revoked and you will no longer be able to sponsor migrants.”
5.	On 31 March 2010 Holman J refused the Claimant’s application for permission to apply for judicial review on the ground that the claim was premature and that UKBA was legitimately and justifiably pursuing the questions which it had raised in its letter of 25 March.  No renewed application for permission was made.
6.	Unbeknown to Holman J the Claimant's solicitors had sent a detailed reply to the Defendant's letter of 25 March 2010 on 26 March; in the eyes of the Claimant, at least, the reply provided answers to the points raised by UKBA.  
7.	By 30 April 2010 there had been no substantive response to the Claimant’s solicitor’s letter.  Accordingly the Claimant commenced a second judicial review.  On 14 May 2010 Ian Dove QC, sitting as a Deputy High Court Judge, considered an application by the Claimant for interim relief; he granted the Claimant an interim injunction restraining the Defendant from revoking the licence.  As it happens, UKBA had already decided to revoke the Claimant’s licence.  By letter dated 14 May 2010 it communicated that decision to the Claimant, although by virtue of the order of Mr. Ian Dove QC the decision was short lived.  Nonetheless, the Claimant’s licence remained suspended.   
8.	On 25 June 2010 Kenneth Parker J considered the issue of permission in the second set of proceedings.  He had before him summary grounds of defence which had been filed on 7 June 2010.  He refused permission.  He also discharged the interim order of Mr. Dove QC.  On 5 July 2010 the Claimant renewed his application for permission.  That same day UKBA wrote to inform the Claimant that it had decided to revoke the Claimant’s licence.  
9.	On 5 August 2010 officers of UKBA met with officers of the Claimant; it had been agreed that the decision of 5 July would be reviewed.  A fresh decision was promised within 14 days.  On 12 August 2010 officers of UKBA visited the Claimant's premises and undertook various investigations.  On 19 August UKBA wrote to the Claimant to indicate that it had decided to maintain its decision to revoke the licence.
10.	On 24 August 2010 the Claimant issued a third claim for judicial review.  The proceedings sought to challenge the decision of 5 July 2010.  On 24 August 2010 Collins J made an order which had the effect of restraining the revocation of the licence but, nonetheless, maintaining its suspension.  On 12 October 2010 King J granted permission to bring both the second and third claims for judicial review.  
11.	Before me the Claimant challenges the lawfulness of three decisions made by UKBA, namely the decision to suspend its licence made on 18 December 2009, the decision to revoke the licence made on 5 July 2010 and the decision to maintain that revocation made on 19 August 2010.  It also argues that the maintaining of the suspension from 18 December 2009 was unlawful.  
12.	All of the relevant decisions were made by Ms Roxanna Cram; she is a higher executive officer employed within the sponsor licensing unit of UKBA.  She has made two witness statements in these proceedings primarily focussed upon why she made the decisions which are under challenge.
13.	The grounds upon which the Claimant impugns each decision are detailed and are not susceptible of easy summary at this stage.   I will deal with each ground in turn and in detail later in this judgment. 
14.	In the evidence there is a significant amount of information relating to the introduction of the Points Based System (PBS) and a detailed description of how it works.  PBS is a comparatively new system (introduced initially in 2008) which determines 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, in summary, 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 (subject to other requirements also being fulfilled) be given leave to enter or remain; if they are not his application is refused.  
15.	No useful purpose would be served in this judgment by a further description of the system and the reasons for its introduction.  That is because the system has been described in a number of recent decisions of this court; see, in particular, the decision of Foskett J in R (English UK Ltd) v Secretary of State for the Home Department [2010] EWHC 1726 at paragraphs 23 to 29.  Those parts of PBS system which are relevant to my decision will be set out in a later section of this judgment.  
16.	I should record that following the oral hearing I received communications from the parties about aspects of the evidence.  I have not found it necessary to base my decision upon any of those communications.  In any event, there was no suggestion at the end of the oral hearing that I would be sent further submissions/information.
The Immigration Act 1971
17.	Section 1(4) of this Act provides:-
“The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming….for purposes of study….”
The relevant parts of section 3 of the Act provide:-
“(1) Except as otherwise provided by or under this Act, where a person is not a British citizen 
a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under this Act
b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;
c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely –
i) …..
i(a) a condition restricting his studies in the United Kingdom 
…..
(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances….
If a statement laid before either House of Parliament in this sub-section is disapproved by resolution of that House passed within the period of 40 days beginning with date of laying….then the Secretary of State shall assume as may be make such changes or further changes in the rules as appear to him to be required in the circumstances….”
The Immigration Rules
18.	Changes to the Rules occur reasonably frequently.  The extracts which follow are the rules which were in force during the relevant period i.e. from the time the suspension decision was taken in December 2009 to the date when it was decided to maintain the revocation of the Claimant’s licence in August 2010.
“245ZV requirements for entry clearance.
To qualify for entry clearance as a Tier 4 (General) Student an applicant must meet the requirements listed below.  If the applicant meets these requirements, entry clearance will be granted.  If the applicant does not meet these requirements, the application will be refused….
(b) The Applicant must have a minimum of 30 points under paragraphs 113 to 120 of Appendix A….”
Rule 245ZX specifies the requirements for leave to remain.  It also requires an applicant to have a minimum of 30 points under paragraphs 113 to 120 of Appendix A as a condition of being granted leave to remain. 
19.	As at 18 December 2009, the relevant paragraphs of the Appendix provided that an applicant who required entry clearance would be awarded 30 points if he demonstrated that he had a “visa letter”; an applicant who required leave to remain would be awarded 30 points if he demonstrated that he had a “visa letter” or “Confirmation of Acceptance for Studies”.  By 5 July 2010 30 points were awarded if an applicant established that he had “Confirmation of Acceptance for Studies.”  Paragraph 116 of the Appendix in force at on 18 December 2009 provided:-
“116. A visa letter or Confirmation of Acceptance for Studies will only be considered to be valid if:
….
d) it was issued by an institution with a Tier 4 (General) Student Sponsor Licence,
e) the institution still holds such a licence at the time the application for entry clearance or leave to remain is determined, and
f) it contains such information as is specified as mandatory in guidance published by the United Kingdom Border Agency.”
20.	Paragraph 116 of the Rules in force on 5 July 2010 contained exactly the same provisions except that they related only to a “Confirmation of Acceptance for Studies.” 
21.	Paragraph 6 of the Rules contains definitions.  The word “sponsor” means “the person......that the Certificate of Sponsorship Checking Service or Confirmation of Acceptance for Studies Checking Service records as being the Sponsor for a migrant.”  The phrase “Confirmation of Acceptance for Studies” means “an authorisation issued by a Sponsor to an applicant for entry clearance, leave to enter or remain as a Tier 4 Migrant in accordance with these Rules.”  “Sponsor Licence” is defined to mean a licence granted by the Defendant to a person “who, by virtue of such a grant, is licensed as a Sponsor under Tiers...4....of the Points Based System.”  I have not been told whether the phrase “visa letter” was defined in the rules.  Essentially, however, this was a document issued by an education provider demonstrating that an applicant had been accepted to study on a particular course.
22.	Paragraphs 323 and 323A of the Rules contain grounds upon which leave to enter or remain may be curtailed.  Paragraph 323 contains grounds which might apply in a number of different contexts.  Rule 323A contains grounds which relate, specifically, to migrants under PBS.  If a migrant’s sponsor ceases to have a sponsor licence “for whatever reason” the migrant’s leave to enter or remain may be curtailed or the duration of his leave to remain may be altered (see paragraph 323A(a)).  
23.	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 practice of the Defendant in relation to the grant, suspension or withdrawal of such a licence is set out in guidance issued by UKBA.  As of 18 December 2009 the only relevant reference in the Rules to the guidance was that which is contained within Appendix A set out in paragraph 19 above and in paragraph  245AA of the Rules.  Paragraph 245AA reads:-
“245AA Documentary Evidence
a) where Part 6A or Appendices A to C or E of these Rules state that specified documents must be provided, that means documents specified by the Secretary of State in the Points Based System Policy Guidance as being specified documents for the route under which the Applicant is applying.  If the specified documents are not provided, the Applicant will not meet the requirements for which the specified documents are required as evidence.”
By 5 July 2010 Paragraph 245AA had been changed by the inclusion of sub-paragraph c).  This sub-paragraph provides:-
“Where Part 6A or Appendices A to C or E of these Rules refer to the United Kingdom Border Agency Guidance, this means guidance published by the United Kingdom Border Agency for use by sponsors or migrants to ensure compliance with these Rules.  If the sponsor or Applicant has not satisfied the requirements set out in guidance and referred to in these Rules, the Applicant will not meet the related requirements in these Rules.”
Rule 245AA had not changed further by 19 August 2010.  
Guidance issued by UKBA
24.	On 5 October 2009 UKBA published a document entitled “Tier 4 of the Points Based System – Sponsor Guidance.”  This was the first occasion when guidance specific to Tier 4 had been published although guidance had existed for Tiers 2, 4 and 5 since the introduction of PBS.  Guidance was offered upon a host of issues including those relating to 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 his duties.  The guidance ran to 64 pages and was very detailed.  
25.	The Tier 4 guidance has been revised in a number of respects since October 2009.  In her evidence Ms Cram indicates that revisions were published in November 2009, February 2010, March 2010, April 2010, July 2010 and October 2010.  In this judgment I deal only with those aspects of the guidance which are relevant directly; the parts I refer to or quote directly come from the guidance published on 5 October 2009, 3 March 2010 and 6 April 2010. 
26.	All versions of the guidance specify that when a sponsor is licensed UKBA will award either an A-rating or B-rating.  Paragraphs 127 to 129 of the October 2009 guidance differentiates between the two as follows:-
“127. When we licence a sponsor, we award an A-rating or B-rating.  We rate each application on its own merits.  The rating will reflect any track record a sponsor has in employing or teaching migrants.  The sponsor’s rating will appear on the published register of licensed sponsors.  
128. If we decide to suspend a sponsor, we remove the sponsor's entry from the public version of the register during the suspension period.  If the suspension is lifted we will reinstate the sponsor's name on the register with the ratings awarded.
129. An A-rated sponsor is one that has all the necessary systems in place to meet its duties and with no evidence of abuse.  However, we may give a B-rating if a visiting officer finds evidence that systems are not in place or not adequate to meet the sponsor’s duties, or if there is previous evidence of abuse.” 
 In the guidance published in March 2010 the language used to describe sponsor rating is much the same although the order of the paragraphs has been changed.  By April 2010 there had been a further revision albeit one of form rather than substance.  In this version of the guidance a sponsor awarded an A-rating would be known as a “trusted sponsor.”
27.	Similarly, all versions of the guidance have provisions which permit UKBA to downgrade a sponsor licence from A-rated to B-rated.  Paragraph 323 of the October guidance provided:-
“323. Where we believe a sponsor has not been complying with its duties, has been dishonest in dealing with us or poses a threat to immigration control, we may withdraw its licence or downgrade it to a B-rating. We will give the sponsor an opportunity to explain its case to us before taking any action.”
 
Paragraph 324 went on to specify the circumstances in which a sponsor would be downgraded from A-rated to B-rated and paragraphs 325 to 327 identified the circumstances in which there might be a downgrading.  The guidance issued in March 2010 contained much the same information (although in a different part of the guidance).  The April guidance is substantially different; it contains much more detailed provisions about when a licence might be downgraded.
28.	All versions of the guidance contain provisions relating to the suspension of sponsor licences.  The parties accept that the initial decision to suspend the Claimant’s licence in December 2009 must be judged against the guidance issued in October 2009.    Paragraph 328 of that guidance was in the following terms:-
“328.  If we have reason to believe that a sponsor is seriously breaching its duties and poses a major threat to immigration control (for example, assigning confirmations of acceptance for studies or issuing visa letters to students who do not qualify to come to the United Kingdom), we may suspend its licence while we make further inquiries.  A sponsor will not be able to sign any confirmation of acceptance for studies and should not issue any visa letters while it is suspended.  All sponsors must continue to comply with all of their sponsor duties throughout the period of suspension.”
Paragraphs 329 to 335 specified further consequences of suspension.  Paragraph 332 provided that students who were being sponsored at the time of the suspension would not be affected unless UKBA decided to withdraw the sponsor’s licence.  Guidance was also given about the effect upon students of a decision to suspend a licence in paragraphs 351 to 355.  
29.	The guidance published in March 2010 contained significantly more detail upon the procedures which were to be followed if a decision was made to suspend a sponsor’s licence – see paragraphs 336 to 349.  Further, this guidance contained a different test for determining whether or not to suspend a licence.  Paragraphs 329 of this guidance reads:-
“If we have reason to believe that a sponsor is breaching its duties and/or poses a threat to immigration control (for example, assigning Confirmation of Acceptance for Studies to students who do not fully intend to undertake, and complete their course), we may suspend its licence while we make further inquiries.”  
The requirement in the October version of the guidance that a sponsor must be “seriously” breaching its duties and pose a “major” threat to immigration control has been removed.
30.	In April 2010 the guidance relevant to suspension changed again.  While in many ways it was very similar to the guidance issued in March this guidance contained the following at paragraph 16:-
“16. Where we considered that a sponsor has not been complying with its duties, has been dishonest in its dealings with us or otherwise poses a threat to immigration control, we may withdraw, suspend or downgrade it to a B (Sponsor)-rating or reduce the number of Confirmations of Acceptance for Studies it is allowed to assign.  If we decide to suspend or downgrade the licence to a B (Sponsor)-rating, we will give the sponsor an opportunity to explain its case to us before taking any such action.”
31.	The Defendant’s decisions to revoke the Claimant’s licences were made at times when the published guidance in force was the guidance issued in April 2010 and 23 July 2010.   I have not been provided with the guidance published in July and I assume, therefore, that there was no material change in that guidance compared with the guidance issued in April 2010.  In the guidance the word revoke is not used; the guidance speaks of “withdrawing” a sponsor licence.  Henceforth in this judgment the words revoke or withdraw, if used, are intended to have the same meaning.
32.	Paragraph 344 of the April guidance specifies the circumstances in which UKBA will withdraw a sponsor’s licence.  If any of the criteria in paragraph 344 are met UKBA “will withdraw the sponsor’s licence with immediate effect….	There is no right of appeal.”  It is common ground that none of the criteria contained in paragraph 344 were met in this case. 
33.	Paragraph 346 specifies the circumstances in which the licence will normally be withdrawn. A number of circumstances are set out. The only one possibly relevant to this case is if the licensee “or another relevant person” is dishonest in any dealings with UKBA.   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.
34.	Paragraph 350 specifies the circumstances in which a licence may be withdrawn.  The following circumstances, as set out in paragraph 350, are potentially relevant in this case:-
“350. We may withdraw a sponsor's licence if:
•	It fails to comply with any of its duties;
•	As a result of information available to our visiting officers, we are not satisfied the sponsor is using the processes or procedures necessary to comply fully with its duties;
•	…..
•	We find that students that it has sponsored have not complied with the conditions of their permission to stay in the United Kingdom and the sponsor has not been following good practice guidance set out by us or a sector body;
•	…………….”
35.	The guidance issued in April 2010 also specifies what will happen to sponsored students if a sponsor’s licence is withdrawn.  It is to the following effect:-
“379. When we withdraw a sponsor’s licence, we will:
•	Immediately end (curtail) the permission to stay in the United Kingdom of any students who we believe were actively involved (complicit) in any dishonesty by the form of sponsor (for example, if the student agreed that the sponsor would arrange a non-existent course for him/her so he/she could come to the United Kingdom); and
•	reduce the length of the permission to stay in the United Kingdom of any other students (those who are not actively involved) to 60 calendar days, to give them a chance to find a new sponsor. (If a student has less than 6 months of his/her leave remaining, we will not curtail his/her leave).
380. In the first case above, the student will have to leave the United Kingdom or face enforced removal.  In the second case above, he/she will also have to leave or face enforced removal if, at the end of the 60 calendar days, he/she has not found a new sponsor.  
381. We will take action against any student who remains in the United Kingdom after his/her permission to stay here has expired.  This may result in students being detained and forcibly removed from the country.  Any application he/she makes to come to the United Kingdom within the next 10 years may also be refused.  
382. When a sponsor has its licence withdrawn, any Confirmations of Acceptance for Studies it has assigned or visa letter it has issued will automatically become invalid.  This means that any application for entry clearance or leave to remain made on the basis of such a Confirmation of Acceptance for Studies or visa letter will automatically be refused.
383. Where a student has already been granted entry clearance when we withdraw his/her sponsor’s licence, the entry clearance will be cancelled under paragraph 30(A)(ii) of the Immigration Rules, if he/she has not yet travelled to the United Kingdom.  If a student has travelled to the United Kingdom, he/she will be refused entry to the country under paragraph 321(ii) of the Immigration Rules.”

The “Pankina” ground of challenge
36.	I deal with this ground discretely and in advance of the other grounds. Mr. Manjit Gill QC submits that all the challenged decisions were unlawful because the published guidance upon which all those decisions were based was itself unlawful.  Mr Gill QC submits that the guidance contained “statements of the practice to be followed ….for regulating the entry into and stay in the United Kingdom of persons required… to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances…..” (see section 3(2) of the 1971 Act).   Mr Gill further submits that these statements of practice ought not to have been contained in guidance; they 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 Act 1971.  
37.	The basis for Mr Gill’s submission is the decision of the Court of Appeal in Pankina and Others v Secretary of State for the Home Department [2010] 3 WLR 1526.  The relevant facts in that case can be stated quite shortly.  A number of graduates of approved United Kingdom tertiary educational institutions (referred to in the judgment of Sedley LJ as applicants) sought leave to remain and work in the United Kingdom.  One of the criteria which they had to satisfy in order to obtain leave to remain was that at the time of their applications they each had £800; this was a requirement of the Immigration Rules as was the further requirement that they produce documentation to prove that they had the money.  Guidance issued by UKBA specified the documents which had to be provided (there was no issue about that).  However, the guidance also specified that an applicant had to demonstrate that he had at least £800 continuously for the 3 month period immediately prior to the date of his application.  Each applicant (except one) could demonstrate that at the time of the application he had £800; none of the applicants could demonstrate that he had the sum of £800 for the 3 month period immediately prior to his application.
38.	One of the principal issues was whether the requirement that an applicant had £800 for the 3 month period immediately before his application, contained as it was only in the guidance, was lawful.  The Court sought to resolve that issue by posing and answering the following questions:-
“(1) Can the immigration rules lawfully incorporate provisions set out in another document which a) has not itself been laid before Parliament b) is not itself a rule of law but a departmental policy and c) is able to be altered after the rule has been laid before Parliament?”
At paragraph 26 of his judgment Sedley LJ answered question 1(a) as follows:-
“For my part I accept that it [a reference to the decision in R v Secretary of State for Social Services ex p Camden London Borough Council [1987] 1 WLR 819] establishes (at least in this Court) that a measure which has to be laid before Parliament is not vitiated if, rather than being self-contained, it derives part of its content from an extant and accessible outside source.  I accept too that this has a direct bearing on the statement of immigration rules which, under section 3(2) of the 1971 Act, likewise has to be laid before Parliament.  It means that the answer to question 1(a) taken alone, is that the bare fact that a measure laid before Parliament is not self-contained does not render it ineffective.”
Sedley LJ next considered the questions posed as 1(b) and 1(c):-
“27.  Indeed Michael Fordham QC, for Ms Pankina, has drawn attention to places where plainly legitimate reference is made in the rules to outside sources…. So the objection is not to rules which rely on outside sources for evidence of compliance.  It is to rules which purport to supplement themselves by further rules derived from an extraneous source, whether that source is the rule-maker him - or herself or a third party.  While it may be that a policy can unobjectionably do this, the Applicants’ case is that, save in what one can call the Camden case situation, the immigration rules cannot.
28. The reason lies in questions (1)(b) and (c).  A policy is precisely not a rule: it is required by law to be applied without rigidity, and to be used and adapted in the interests of fairness and good sense.  To take the present case, the policy guidance standing alone would not only permit but require a decision-maker to consider whether, say, a week’s dip below the £800 balance during the three-month period mattered.  This would in turn require attention to be given to the object of the policy, which is to gauge, by what is accepted on all sides to be a very imprecise rule of thumb, whether the Applicant will be able to support him or herself without recourse to public funds.  If that object was sensibly met, the law might well require the policy to be applied with sufficient flexibility to admit the Applicant, or would at least require consideration to be given to doing so.  But if the requirement is a rule – and it is the Home Secretary’s case that by incorporation it becomes a rule – then there is no discretion and no judgment to be exercised.
29. This in itself would in my opinion require the three-month criterion to form part of the rules laid before Parliament if it were to be effective.  But the objection goes deeper.  Albeit the first version of the policy guidance was brought into being within the 40 days allowed by section 3(2) for the parliamentary procedure, it has been open to change at any time.  It is this, rather than the fact that it has in the event been changed, which, in answer to question (1)(c), is in my view critical.  It means that a discrete element of the rules is placed beyond Parliament’s scrutiny and left to the unfettered judgment of the rule-maker…
…..
33. But the operation of the rules qua rules is one thing; what they contain as a matter of law is another.  In my judgment the statutory recognition of rules which are to have the character and, on appeal, the force of law requires such rules to be certain.  That does not shut out extraneous forms of evidence of compliance, so long as these are themselves specified, but it does in my judgment shut out criteria affecting individuals’ status and entitlements which – coming back now to the questions in para 23 above – (a) have not themselves been tendered for parliamentary scrutiny, and (c) even if ascertainable at that point of time, may be changed without fresh scrutiny.  As to (b), while the fact that the criterion absorbed into the rules comes from a policy document makes nonsense of the notion of policy, this is not critical: the vice would be the same if the reference in the rules were to a categorical criterion in some external but impermanent or undetermined source.”
39.	The decision in Pankina was considered with care and applied by Foskett J in the English UK Ltd case cited in paragraph 15 above.  At paragraph 59 of his judgment Foskett J identified what he considered to be the ratio of the decision in Pankina.  He said this:-
“59. The Court of Appeal held that the revised criterion could not be put in place by virtue of a process of issuing guidance.  The ratio of the decision appears to me to be 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:  see paragraphs 6, 22 and 33 of the judgment.  The statutory foundation for such a conclusion is section 3(2) of the Act.”
40.	Foskett J went to say that if a change to current practice did not involve any alteration of a substantive criterion for admission or for leave to remain there would be no objection to the change being effected in some form of extrinsic guidance (see paragraph 60).  He also specifically recognised that the use of guidance permeates the operation of the Immigration Rules identifying that a particular advantage of guidance was that it could be changed relatively quickly to accommodate urgent or unforeseen events.  Foskett J concluded his judgment as follows:-
“106. I should say, less the effect of this decision is misunderstood, that I do not see it as in any way undermining the use generally of the guidance by or on behalf of the Secretary of State.  Guidance is plainly of great value in the administration of a difficult and important area of Government policy.  The decision is confined to one particular provision within the Immigration Rules although the reasoning that leads to it, if it is correct, is simply that 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.  That is what, as I perceive it, Pankina decided in the light of section 3(2) and I am bound by that decision….”
41.	There are two decisions even more recent than that of Foskett J.  They are R (Alvi) v Secretary of State for the Home Department [2010] EWHC 2666 (Admin) and R (JCWI) & (ECCA) v Secretary of State for the Home Department  [2010] EWHC 3524 (Admin).  Both of those decisions apply the principles laid down in Pankina to the particular circumstances prevailing in the respective cases and it does not seem to me to be necessary to set out extracts from the judgments.  
42.	My task is to apply the principles in Pankina.  I consider that Foskett J identified the governing principles accurately in his judgment in English UK Ltd. 
43.	Mr Palmer submits that the published guidance relevant to this case does not effect a material change to any substantive criterion for eligibility for admission to or leave to remain within the United Kingdom.  The relevant provisions of the guidance are not provisions which have been sought to be incorporated by reference into the Immigration Rule.  An applicant for entry clearance or leave to remain as a Tier-4 (General) student need not fulfil any requirements other than those set out in the Immigration Rules themselves.  Mr Palmer submits that the basis upon which UKBA grants suspends or withdraws a sponsor licence does not amount to a requirement or criterion which a student applying for leave to enter or remain must fulfil.  
44.	Mr Manjit Gill QC argues to the contrary.  He submits that the guidance contains requirements, criteria and other conditions of entry and stay in the United Kingdom which have a direct effect upon students but which do not appear in the Immigration Rules.  He points to the fact that under the guidance sponsors are made subject to a range of obligations to UKBA, predominately to ensure that the students pursuing a course of study at their institutions abide by the conditions of their leave to enter the UK.  If sponsors fail to meet these obligations their licence is jeopardised which, in turn, has specific consequences for the immigration status of students.  In this way, submits Mr Gill QC, the practices with which the guidance is concerned fall within section 3(2) of the 1971 Act yet such practices are simply not mentioned in the Immigration Rules.  A clear example, submits Mr Gill, can be found in those paragraphs of the guidance which explain what will happen to sponsored students if an organisation’s licence is withdrawn (see paragraph 34 above).  These provisions, submits Mr Gill QC, constitute details of the practice to be followed in the administration of the 1971 Act yet there is no reference to these provisions in the Immigration Rules.  
45.	It seems to me that the following propositions are properly made out in this case.  First, the requirements for entry clearance and for leave to remain as a Tier 4 student are contained, respectively, within paragraphs 245ZV and 245ZX of the Immigration Rules.  By reference to these paragraphs and other parts of the rules to which they refer an applicant for entry clearance or leave to remain can ascertain the requirements which he/she must meet.  Second, the rules themselves specifically authorise the licensing of sponsors; so much is clear from the definition of the phrase sponsor licence contained within the rules (see paragraph 21 above).   Further, paragraphs 113 to 116 of Appendix A make it clear that an applicant for entry clearance or leave to remain must have a visa letter or Confirmation of Acceptance for Studies issued by an institution with a sponsor licence which licence is extant at the time the application for entry clearance or leave to remain is determined.  Self-evidently, these provisions proceed on the basis that UKBA must have granted such a licence to the institution in question.  Third, the rules contain provisions which permit UKBA to revoke or curtail an individual’s entry clearance or leave to enter or remain in the event of a change of circumstances since it was issued or granted (see paragraph 21 above).  Paragraph 323A(a) provides for a migrant’s leave to enter or remain to be curtailed or its duration altered if the migrant’s sponsor ceases to have a sponsor licence “for whatever reason”.  As Mr Palmer points out this rule makes it clear that a student’s continued right to remain in the United Kingdom may be contingent upon the sponsor continuing to hold a sponsor licence.  Further, the paragraph makes it clear that the duration of a person’s leave to remain may be altered in the event that the person’s sponsor ceases to have a sponsor licence. 
46.	I accept that it is the published guidance which explains the circumstances in which the power to grant a licence will be exercised; it also explains when the power to downgrade, suspend, withdraw or revoke a licence will or may be exercised.  I do not consider, however, that this guidance constitutes a material or substantive change in the immigration policy which is contained within the rules themselves.  In my judgment it constitutes no more than an explanation of how the powers conferred by relevant rules will be exercised in practice.  Further, and in particular, I am not persuaded that the part of the guidance which explains how revocation or withdrawal of a licence will impact upon a student is in a different category.  Paragraph 323A empowers UKBA to curtail a student’s entry clearance or leave to remain; it also permits UKBA to alter the duration of a student’s leave to remain.  The guidance does not impact upon the rights of the student in any way which is inconsistent with that which is contemplated by paragraph 323A itself. 
47.	Essentially, I accept the detailed arguments deployed by Mr Palmer in his skeleton argument in relation to this ground of challenge.   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.
The remaining grounds
The decision to suspend the Claimant’s sponsor licence
48.	By letter dated 18 December 2009 Ms Cram notified the Claimant that its sponsor licence was suspended with immediate effect.  Ms Cram gave as the reasons for that decision the following:-
“We have made this decision as it was established that you have yet to gain accreditation for the new premises at 75-81 Staines Road, Hounslow, Middlesex despite the fact that you are already delivering classes to students.  This is in breach of your sponsorship licence.  
Furthermore as a licence sponsor you have issued 1255 visa letters.  This is despite the fact that you have a capacity to offer places to 200 students within your accredited accommodation and you requested an allocation of 100 Confirmation of Acceptance for Studies.  
Finally, our officials viewed an attendance register for a class.  This showed that students had only attended 2 of 8 classes.  When questioned it was established that warning letters were issued to poor attending students however no further action was taken.  This is in breach of your attendance procedure and a failure to comply with your sponsorship duties.”
Ms Cram’s letter concluded by informing the Claimant that it had 28 days to make any representations, including submitting evidence, following which UKBA would “aim to decide what action, if any, to take within 14 days of receiving any representations (or, if no representations are received on time, within 14 days of the 28 day time limit expiring).”
49.	The relevant sequence of events leading to the suspension was as follows.  Following the acquisition of its second premises in or about October 2008 the Claimant embarked upon an extensive refurbishment so as to enable the premises to be used for teaching students from August or September 2009.  Such was the size of the premises that the Claimant anticipated accommodating an extra 700 students.  On 31 July 2009 Mr Vikram Kolagatla, a director of the Claimant, sent an email to UKBA in which he notified the Agency of the acquisition of the new premises and alerted it to the fact that the Claimant anticipated accommodating an extra 700 students.  His email ended by offering to send UKBA building pictures, floor plans and other property documents and Mr Kolagatla indicated that the Claimant would welcome a visit by inspectors if that was thought appropriate.  On 7 September 2009 Ms Beth Fox of the sponsor licensing unit of UKBA replied.  She asked Mr Kolagatla to send her documentation including evidence that the college was registered at the premises and that the Claimant's accrediting body was aware and supportive of the proposed expansion.  No immediate reply was sent by Mr Kolagatla.  Accordingly, on 5 October 2009 Ms Fox sent a chasing email.  That same day Mr Kolagatla responded.  He notified Ms Fox that the accrediting body, the British Accreditation Council, (hereinafter referred to as “BAC”) was due to inspect the premises on 14 October 2009.  Accordingly, he suggested that an update be provided after that date.  A number of documents were attached to his email.  
50.	BAC Inspectors carried out an inspection of the Claimant's new premises on 14 October 2009.  On 4 November 2009 Ms Fox emailed Mr Kolagatla to the following effect:-
“I have not received the required documents.  Please could you ensure they are sent to me by 18/11/2009.  If the documents are not received by 18/11/2009 then the request to add premises will be refused and another request will have to be made once you have all of the documentation.”
51.	On 18 November 2009 UKBA inspectors made an unannounced visit to the Claimant's premises.  The visit took place because intelligence had been received giving details of alleged breaches of the published guidance and the Immigration Rules.  
52.	On the day of the visit by the inspectors Mr Kolagatla sent an email to Ms Fox.  He notified her that the Claimant had still not received a report from BAC.  The email continued:-
“We had a UKBA spot check today morning and they have recommended suspension of our licence as our new premises is not yet updated with the UKBA.  So I would request you to accept our request on the basis of information that I have provided earlier, and register new our premises and increase our CAS allocation.”
On 23 November 2009 Ms Fox replied.  She informed Mr Kolagatla that UKBA could take no action upon the Claimant's request “to register [the] new premises without a report from BAC.  She also informed him that the suspension team had not received a report from the visiting officers so that no decision about suspension was imminent.  So far as I am aware there was no further communication between officers of UKBA and the Claimant prior to the letter of 18 December 2009.   
53.	It is common ground that UKBA gave no opportunity to the Claimant to make representations about whether or not a suspension of the Claimant's licence was justified prior to making the decision to suspend the licence.   Ms Cram did not write to the Claimant indicating that she was minded to suspend the licence and the reasons why; she did not invite any representations from the Claimant at any time before she took the decision to suspend.  
54.	Mr Gill QC submits that the decision to suspend the Claimant’s sponsor licence was plainly unlawful.  He submits that there was no lawful basis for suspending the licence under the guidance published in October 2009; alternatively the suspension of the licence was irrational and disproportionate.  Further, Mr Gill QC submits that it was unfair to suspend the Claimant's licence without first giving the Claimant notice of the facts or circumstances said to justify the suspension and an opportunity to make representations about whether or not the licence should be suspended in the light of those matters. In support of his contention that it was unfair to suspend the licence Mr Gill QC relies upon R (London Reading College) v SSHD [2010] EWHC 2561(Admin) although for my part I am not convinced that the focus of that decision was upon the fairness of the suspension of the Claimant which had undoubtedly taken place.  
55.	Mr Palmer does not accept that there was any obligation upon UKBA to give notice of its allegations against the Claimant and afford the Claimant an opportunity to make representations about whether its licence should be suspended in advance of that decision being taken.  Further he submits that UKBA acted entirely in accordance with its published guidance when reaching the decision that suspension was justified.  He submits that this decision was not unlawful.
56.	I deal, first, with 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.  The guiding principles upon which I should act are those which are to be found in the speech of Lord Mustill in R v Home Secretary, ex p. Doody [1994] 1 AC para 531 at page 560.
“What does fairness require in the present case?  My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment.  They are far too well known.  From them, I derive that (1) Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.  (2) The standards of fairness are not immutable.  They may change with the passage of time, both in the general and in their application to decisions of a particular type.  (3) The principles of fairness are not to be applied by rote identically in every situation.  What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.  (4) An essential feature of the context is that the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.  (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.  (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”
57.	Intuitively, my view is 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.  Second, during any suspension the Claimant is precluded from issuing new “Confirmation of Acceptance for Studies” to prospective new students.  Self-evidently that has the potential for causing financial detriment to the Claimant as well as its members of staff.  Third, I also accept that there is potential for detriment to its students – see paragraphs 8 and 9 of the fourth witness statement of Mr Kolagatla.
58.	I appreciate, of course, that under the guidance in force at the time the decision was taken to suspend the Claimant’s licence UKBA had to be satisfied that the licensee was “seriously breaching its duties” and was posing a “major threat to immigration control” before it could suspend a licence.   The fact that a decision to suspend could be justified only if these stringent tests are satisfied is an important factor in deciding whether fairness demands that a licensee should be given notice of the possibility of suspension, the reasons which justify it and the opportunity to make representations about it.  
59.	I can appreciate that there may be some cases 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.  In such circumstances the fact that representations against suspension can be made immediately after the imposition of the suspension may satisfy the requirements of fairness.   This, however, is not such a case.  The visit to the Claimant’s premises took place on 18 November 2009.  The decision to suspend was communicated about a month later.  No explanation for this delay has been advanced; on any view there was time to alert the Claimant to the possibility of the suspension of its licence and afford an opportunity to make representations about that possibility. The reasons provided in the letter of 18 December 2009 as justifying the suspension were reasons which were immediately apparent at or shortly after the visit on 18 November 2009.     
60.	I should also record that the guidance published in October 2009 and relevant in December appears to permit UKBA to suspend a sponsor licence without giving notice to the licensee of the allegations said to justify the suspension and affording him an opportunity to make appropriate representations about whether the licence should be suspended.  However, that of itself cannot mean that it was lawful for UKBA to act in that way.  The content of the duty to act fairly in any given case must be judged against the Doody principles; policy or guidance published by UKBA cannot by itself resolve what constitutes the duty, one way or the other.
61.	I have also reached the conclusion that the decision to suspend the Claimant's licence was not in accordance with the published guidance which was in force in December 2009.  I do not accept that there was information or evidence before Ms Cram which reasonably justified the conclusion that the Claimant was in serious breach of its sponsor duties and posed a major threat to immigration control.  I simply do not consider that those onerous criteria were met given the reasons set out in the letter of 18 December 2009 which purported to justify the suspension of the Claimant's licence. 
62.	I accept, entirely, that Mr Palmer is correct when he says that the failure to mention the test for suspension in the letter does not mean that the test was not applied rigorously.  However, to repeat, I do not think that the complaints levelled against the Claimant as of 18 December 2009 reasonably justified the conclusion that it was seriously breaching its sponsorship duties and it constituted a major threat to immigration control.  In these circumstances no useful purpose would be served by considering whether the decision to suspend was otherwise unreasonable, perverse or disproportionate.
63.	In summary, I have reached the conclusion that the decision to suspend the Claimant's sponsor licence and communicated to the Claimant on 18 December 2009 was unlawful.
Maintaining the suspension from 18 December 2009 
64.	The letter of 18 December 2009 was sent by email to the Claimant.  Mr Kolagatla replied the same day.  He set out reasons why he considered the complaints made against the Claimant were unjustified.  He asked UKBA to “reconsider this suspension as a matter of urgency”.
65.	On 22 December 2009 Mr Kolagatla wrote to UKBA enclosing the BAC accreditation report in relation to the Claimant's second campus.  He also provided information about non-attending students asserting that he had reported students with a poor attendance record to UKBA on 11 December 2009.  Mr Kolagatla again asked UKBA to reconsider the suspension and reinstate the licence.
66.	On 23 December 2009 Ms Cram replied.  She wrote:- 
“I have noted the representations made in respect of your suspension.  I am satisfied that a number of reasons for the suspension have been addressed however one particular point has not been addressed at all.
“When you applied for a Tier-4 licence you requested the capacity to issue 100 Confirmation of Acceptance for Studies.  This amount was duly agreed.  
Since then you have issued 1255 visa letters.  This is despite the fact that you have a capacity to offer places to 200 students within your accredited accommodation.  I note that your additional building and renovations currently taking place should increase your capacity to a maximum of 800.  However, I also note that you currently have 566 students attending, according to the information you supplied during your post-licence visit.  
I refer you to paragraph 194 of the Tier-4 sponsor guidance which states ‘There is no limit on the number of visa licences a sponsor can issue, however where we find the sponsor has issued so many visa letters that they exceed their capacity to enrol overseas students we will look very closely at the institution’s recruitment practices involving the relevant inspection authority or accreditation body, and where necessary we will take appropriate action.  This could mean downgrading to a B-rating, suspending the sponsor's licence or revoking their licence.’ therefore please supply the following information;
•	Total number of students attending each course
•	The number of students due to finish their studies in this academic year
•	The estimated date of completion for your renovations
•	The reason for issuing 1200 CAS and how you would be able to accommodate the additional students given your current capacity.
You have 28 days to make any representations including, if you wish to, submitting evidence, in response to this letter.  We will aim to decide what action, if any, to take within 14 days of receiving any representations….”
67.	Mr Kolagatla replied on 4 January 2010.  The reply was detailed; at the very least what it attempted to provide was a direct response to the queries raised by UKBA. 
68.	There was no early acknowledgment of this letter.  On 26 January 2010 the Claimant's solicitors wrote to UKBA asking for a decision by 2 February 2010.  The next day, 27 January 2010, UKBA replied acknowledging the Claimant's representations and indicating that UKBA would reach a decision as soon as possible.  There were chasing emails from the Claimant's solicitors on 4 February 2010 and 5 February 2010.
69.	On 5 February 2010 a further request for information was sent on behalf of UKBA.  On 11 February Mr Kolagatla provided the information sought.  
70.	On 2 March 2010 the Claimant's solicitors wrote again seeking a decision upon the continued suspension of the licence.  There being no substantive response, the first set of judicial review proceedings followed on 12 March 2010.  
71.	On 25 March 2010 Ms Cram wrote to Mr Kolagatla making a number of complaints about the Claimant.  First, she asserted that 26% of the Claimant's student body had failed to meet the standards of attendance required from the Claimant's accrediting body (BAC).  Second, she suggested that 14 attending students had been refused leave to remain, several without the right of appeal.  Third, she complained that 2308 visa letters had been issued in the period examined by UKBA yet 826 of the persons to whom they were issued were refused leave to remain/entry clearance.  Ms Cram alleged that this was a high rate of refusal and indicative that the system in place for recruiting students had not been adequately assessed.  Fourth, Ms Cram identified as the “biggest area of concern” the fact that 299 visa letters had been issued by the Claimant which had not been declared on the attendance spreadsheet(s) supplied by the Claimant to UKBA in response to its request for information made in February 2010.  These complaints led Ms Cram to conclude:-
“The inaccuracy of your records, the high level of undeclared visa letters and the number of individuals who have entered the UK and failed to study indicates that the college poses a threat to immigration control.  The above indicates a failure to meet your sponsor obligations and would normally lead to withdrawal of your licence under paragraph 324 of the Tier-4 sponsor guidance.  I would now like to give you the opportunity to explain the above before we make a final decision.”
28 days was afforded for the Claimant to make appropriate representations. 
72.	The reference in Ms Cram’s letter to paragraph 324 of the Tier-4 sponsor guidance must be a reference to the guidance published in March 2010.  Paragraph 324 of that guidance provides that if any of the circumstances in paragraph 322 arise and UKBA believe that the evidence shows that a sponsor is breaching its duties “and/or poses a threat to immigration control” UKBA will suspend the sponsor’s licence.
73.	Ms Cram’s reference to paragraph 324 is not easy to follow.  Paragraph 324 relates back to paragraph 322.  Paragraph 322 is almost identical in its terms to paragraph 346 of the April guidance.  As set out at paragraph 33 above the only relevant circumstance set out in the guidance is dishonesty on the part of the sponsor.  Was it being suggested that the Claimant was dishonest in its dealings with UKBA?  If so, that is hardly clear made clear in the letter.  It may just be that the letter mistakenly referred to paragraph 324 of the guidance when what was intended was a reference to paragraph 326.  
74.	The Claimant's solicitors replied, substantively, on 26 March 2010.  Each of the points identified by Ms Cram in her letter of 25 March 2010 was refuted with detailed arguments.  On 1 April 2010 the Claimant's solicitors wrote a letter in substantially the same terms to the Treasury Solicitor who had, by this stage, become involved on behalf of the Defendant. 
75.	On 8 April 2010 the Claimant's solicitors sent a chasing letter.  By 30 April 2010 no substantive response had been received and, accordingly, the second judicial review was commenced.  As I indicated earlier, interim relief was sought and obtained on 14 May 2010; and thereafter the suspension continued by virtue of an order of the court.
76.	 Although, as I have found, the initial decision to suspend was unlawful it does not follow that the maintenance of the suspension was necessarily unlawful.  The Claimant sent written representations to UKBA on 22 December 2009 and 4 January 2010 explaining why suspension was unjustified.   UKBA sought information from the Claimant on 23 December 2010 and 5 February 2010.  The Claimant responded promptly to each request.   In my judgment, by 5 February 2010, at the latest, the procedural unfairness which had vitiated the decision to suspend taken on 18 December 2009 had been cured.  That does not mean, of course, that the maintaining of the suspension was not unlawful because it was in breach of published policy, irrational or disproportionate.   It seems to me, however, that it is difficult to argue that maintaining the suspension was unlawful once the guidance in relation to suspending a licence had changed (as it did on 3 March 2010) so as to relax the test to be applied for suspension.   Be that as it may it becomes impossible to argue that it was unlawful in the light of the letter of 25 March 2010.  On any view, in my judgment, that letter provided cogent reasons which justified the suspension.  That was the view of Holman J who refused permission to apply for judicial review in the first proceedings on the basis that UKBA were justifiably pursuing legitimate inquiries.  It is also worth recalling that there was no attempt to renew an application for permission to proceed with the first judicial review and it was those proceedings which were primarily concerned with the events which followed the decision to suspend on 18 December 2009.  In my judgment, as from 26 March 2010, at the latest, the suspension of the Claimant's sponsor licence became lawful and has remained lawful since that date.  
The decisions to withdraw the Claimant’s sponsor licence
The relevant factual background 
77.	On the date that that Mr. Ian Dove QC granted interim relief to the Claimant to restrain UKBA from withdrawing its sponsor licence so it was that Ms Cram first communicated a decision to the Claimant to the effect that its licence was withdrawn.  While the consequence was that the decision of 14 May 2010 was not acted upon (save possibly for a day or two) it is worth recording the reasons relied upon as justifying the withdrawal of the licence.  First, it was suggested that there was widespread poor attendance at the college which was clear evidence that the Claimant's systems for monitoring attendance and issuing warnings about non-attendance were not effective.  Second, there was evidence that the Claimant was failing to monitor the immigration status of its students.  Third, 35% of all visa letters issued by the college were to persons who had subsequently been refused leave to enter or remain.  This was said to be “a real concern because it demonstrated that [the Claimant's] recruitment processes were not identifying genuine students who met the requirements of PBS”.  The fourth criticism is difficult to summarise.  Accordingly, I quote:-
“Visa letters
Finally, our checks with both posts abroad and other UKBA sources identified an additional 299 visa letters were issued by the college and not declared to us on your attendance lists.  These letters had resulted in a number of individuals obtaining entry clearance and since they were not on your lists as attending students we were obviously concerned that these migrants were not meeting the conditions of their entry/leave to remain and therefore may be in the UK illegally.  In response to the allegation that you omitted 299 visa letters from the spreadsheet provided in February you state that if there is any inconsistency in the lists supplied it is unintentional.  You state that if at all there are any omissions it may be a very small number, your estimate that of this may be 10-12 approximately and cannot be 299.  The figures we obtained from posts abroad and other UKBA sources (leave to remain applications etc) show that in addition to the students declared to us, a further 49 were refused leave to remain in the UK.  A further 113 students are currently awaiting entry clearance, 58 have been refused entry clearance and 68 were issued entry clearance.  It is therefore very clear that the figure is 299 and not 10/12 as you indicate.
Again you have failed to provide an adequate explanation for the inaccuracy of your attendance data.  This indicates that your recordkeeping is poor and does not reflect the true number of visa letters issued, it also indicates that by issuing so many additional letters and not keeping track of the outcome, you have posed a threat to immigration control, since 68 of those individuals entered the UK and did not enrol.”
78.	In reaching her conclusion that the Claimant’s licence should be withdrawn Ms Cram relied specifically on paragraph 350 of the guidance.  The relevant parts of that paragraph are set out in paragraph 34 above.  On the basis that the criticisms of the Claimant identified by Ms Cram were justified there can be no doubt that certain of the criteria set out in paragraph 350 which might justify withdrawal of the licence were met.
79.	By letter dated 8 June 2010 the Claimant's solicitor responded to the decision of 14 May.  The letter acknowledged the inaccuracy of some of the Claimant's records although it also sought to explain how difficult it was to keep records which were completely accurate.  Read as a whole the letter constituted a robust rebuttal of the reasons said to justify the withdrawal of the Claimant's licence.
80.	Shortly after Kenneth Parker J refused permission in the second judicial review and discharged the order of Mr. Ian Dove QC, Ms Cram considered, again, whether the Claimant's sponsor licence should be withdrawn.  In a letter dated 5 July 2010 she communicated her decision to the effect that it should.  In this letter Ms Cram considered, again, those complaints which had led to the decision to withdraw the Claimant’s licence as explained in the letter of 14 May 2010.  In summary, her view was that the representations made on 8 June 2010 did not answer UKBA’s previous complaints.  She also considered, discretely, the issue of inaccuracy of records – a feature of the Claimant's practices which had, to some extent, been admitted in the solicitor’s letter of 8 June 2010.  I will consider the contents of this letter in detail later in this judgment. 
81.	On 5 August 2010 a meeting took place between employees of the sponsor licensing unit of UKBA (Roxanna Cram, Sally Keoghan and John Windle) and representatives of the Claimant (Mr Kolagatla and Mr Davis).  As I understand it, the meeting was convened to seek to resolve the differences which existed between the Claimant and UKBA although that understanding may not be accurate, entirely, since the meeting came about in consequence of discussions and/or written communications which were “without prejudice”.
82.	I have been provided with minutes of the meeting.  The minutes were compiled by Ms Cram.  The minutes demonstrate that each of the complaints levelled against the Claimant by UKBA were discussed in some detail.  Mr Kolagatla, in particular, and Mr Davis to some extent, sought to demonstrate to UKBA that whatever may have been the position, historically, none of the complaints made by UKBA had any current validity. I will deal with the minutes in more detail shortly.
83.	In the aftermath of the meeting, Mr Ewen McKenzie, a Higher Executive Officer employed by UKBA, made an unannounced visit to the Claimant's campus at 75-81 Staines Road.  Mr McKenzie made a report of his visit which, in due course, he exhibited to a witness statement.  
84.	On 12 August 2010 Mr McKenzie and Mr Derek Knight made a further visit to the Claimant.  On this occasion, their visit was expected and they were accompanied throughout by Mr Kolagatla.  Mr McKenzie made a report of this visit which is also an exhibit in this case.  Both Mr Knight and Mr McKenzie have made witness statements to describe the investigations undertaken by them during the course of their visit on 12 August 2010.  Following the visit, Ms Cram was sent a copy of a document which was compiled by Messrs Knight and McKenzie to record the salient conclusions consequent upon the visit.  The document in question is exhibit EM/7 to the witness statement of Mr. McKenzie and it is necessary to deal with it in some detail.
85.	This document is split into a number of sections.  One section is headed “HR SYSTEMS”.  This section, in turn, is sub-divided.  One sub-division is entitled “Monitoring immigration status and preventing illegal employment”.  In this section Messrs McKenzie and Knight wrote:-
“The college has installed an updated data base system that captures the visa expiry date.  It is accepted the system produces reports and can identify student visas expiring/expired over any given range of dates.  The issue is not the identification of the visa expiry date but the numerous students shown as active students that have expired visas or joined the college since October 2009 without valid Tier-4 visas.”
It may be that part of this section of the document is not before me.  I say that since the page which follows the extract quoted above begins with an unrelated phrase and then appears to continue with a different aspect of the investigation.  In any event save for the unrelated phrase this was what followed:-
“The sponsor uses a web-based portal which the agents update with all new applications.  The sponsor will check student’s eligibility by viewing the uploaded documents.  Once the agent submits the required documentation the student is either accepted or rejected.  If accepted, a conditional offer letter is sent to the agent (electronically).  The sponsor will ask for the fees to be paid directly to them.  A visa letter/CAS is issued with a receipt of payment to the agent to issue to the student.  
Questioned the process with the agents from China.  It was noted that students paid the agent up front fees.  The college principal denied this happened with the Chinese agents used by the college.  
The refusal rate and the drop out rate suggests that recruitment practices are not robust.”
86.	In respect of each completed section of the report the authors are required to provide a rating intended to show the extent of compliance with sponsor duties.  The Claimant was given a rating of 3 under the section just described; that meant that in the view of Messrs Knight and McKenzie the Claimant was not complying with its sponsorship duties.  
87.	The next section of the document relates to migrant tracking and monitoring.  The evaluation in relation to this aspect was in the following terms:-
“The sponsor monitors attendance through electronic registers for each lesson.  The register is completed by teachers/lecturers via a laptop.  The teacher/lecturer has only three options present, late or absent.  The system does not allow any other type of entry by the teacher/lecturer and is updated in real time.
Any post initial registration updating can only be through the student support officers.  They will only consider documentary evidence submitted by the students, either GP letters or evidence of exceptional circumstances – death of a family member etc.  Once it is accepted the reason for absence is valid the register will be amended.  Evidence of this process was requested but was not available at the time of the visit.  
Absence warning letters are issued when the student misses 5, 7 and 10 consecutive classes.  The sponsor will also issue an attendance warning letter if the student attendance falls below 85%.  It is accepted the absence warning letter process has improved and now meets the PBS requirements.  
The electronic registers show the overall (adjusted) attendance rate for all students.  However students on work placements do not have their placement activity registered.  
The VO requested to see the attendance register for three students.  Two were already identified as having warning letters and one was an individual selected at random.  The records were satisfactory.  
Sickness or authorised absence is not monitored and can be a route used by students to gerrymander their absence.  No reports are produced from the system to identify what percentage of time was being missed by the student.”
In respect of migrant tracking and monitoring the Claimant was also rated 3. 
Messrs Knight and McKenzie were also required to provide an overall rating. They rated the Claimant as 3; they recommended that its licence should be revoked.  
88.	I turn to the letter of 19 August 2010.  The letter began by identifying previous areas of concern.  It continued by identifying and summarising the Claimant's representations up to and including 8 June 2010.  There then followed a summary of “recent verbal and written representations made by the Claimant”, which dealt with the representations made on 5 August 2010. It recorded that the Claimant had provided “additional verbal and written evidence relating to the following areas:” attendance of students; monitoring of students; refusals of entry clearance of students; student recruitment and agent use; IT systems and manual files.  The next section of the letter focussed upon the visit of 12 August 2010.  It recorded that the visit had established that the Claimant was not complying with its duties in relation to student attendance, maintaining migrant contact details, student recruitment and monitoring immigration status of students and preventing illegal employment by students.  Ms Cram then summarised her findings as follows:
“Summary of findings
You claimed to have addressed our concerns in our meeting on 5 August 2010 and provided evidence to support this.  However, having visited your premises it is clear that whilst processes exist at the college they are not robust and you continue to pose a serious threat to immigration control.
By failing to verify the current immigration status of your students you have contributed to students remaining in the UK beyond their permission to do so.  By allowing agents to sub-contract work you have reduced the effectiveness of any agreements in place and you cannot be confident that these sub-contracted agents are undertaking the checks needed on student qualifications, English or intention to study.
An additional area of concern identified during your visit is that you are not monitoring students on work placement.  You therefore cannot be confident students are adhering to the conditions of their leave, nor can you accurately calculate their attendance levels.  I note the current list of attending students as provided to us on 5 August 2010 puts attendance between 80.7% and 100% - since you do not know whether students attend their placements and do not monitor their attendance during this work experience, the figures quoted are not an accurate reflection of overall course attendance.  This has added an additional concern about your ability to operate as an effective sponsor and identified another area where you currently pose a threat to immigration control.
Your verbal and written representations did not address all previous reasons for revocation.  In particular you failed to provide an adequate explanation for the high rate of visa refusals.  Whilst it is accepted, from the evidence provided, that 400 entry clearance refusals appear to have been subject to administrative review, you have not accounted for the large number of refusals in total.  Your explanation of students re-applying for visas rather than seeking administrative review is not supported by any evidence.  You stated that agents and students preferred to re-apply because it was quicker.  There is no evidence to suggest this is the case and it seems unlikely that a student who was, as you claim, wrongly refused would pay a large fee for a new visa when this avenue was open to them.  Given the visiting officers’ findings about your agent use, coupled with the high refusal rate it seems more likely that many of the refusals were a direct result of the student not meeting the requirements for entry clearance.  This supports our previously mentioned concern that you were not correctly identifying students with a genuine ability and intention to study.”
89.	The letter concluded by indicating that the decision to withdraw the Claimant’s licence was to be maintained.  Ms Cram declared herself satisfied that “you continue to pose a risk to immigration control and that your actions have directly resulted in the UK beyond their period of leave.” 
90.	Following receipt of this letter yet further representations were made on behalf of the Claimant.  No substantive response was received to those representations and, in effect, the stance taken by the Defendant is that no response was necessary since UKBA had taken a final view of the matter in its decision letter of 19 August 2010.
Discussion
91.	Mr Manjit Gill QC submits that I should reach the conclusion that UKBA acted unlawfully when the decisions were made, respectively on 5 July 2010 and 19 August 2010, to withdraw the sponsor licence of the Claimant.  In support of that position he submits that the decisions taken were unreasonable; they were based upon an inadequate and unreasonable investigation of the facts and a failure to take account of relevant facts and information which led to decisions made on a fundamentally and materially erroneous factual basis.  He further submits that the facts relied upon by Ms Cram in support of her two decisions are simply not made out.  As an alternative submission Mr. Gill QC suggests that even if the decisions had a sound basis on the facts then known to UKBA, nonetheless they were disproportionate.
92.	Mr. Palmer does not dispute that the decisions of the Claimant can be impugned if they are unreasonable or disproportionate; he submits strongly, however, that they are neither.  He claims that all the Claimant’s complaints relate to the merits of the decisions rather than their legality.   
93.	I accept that I am concerned with the legality of the decisions.  The primary decision maker is UKBA.  If I conclude that the decisions of UKBA were lawful I cannot intervene on the basis that I would not have considered it appropriate to withdraw the Claimant’s licence.
94.	In the instant case the decisions would be unlawful if they were unreasonable in the Wednesbury sense.  I also accept that they would be unlawful if the decision maker failed to have regard to a material consideration when making the decision.  So, too the decisions would be unlawful if the decision maker made an important error in her consideration of the relevant facts or the information provided to her.   Finally, the decisions would be unlawful if they were disproportionate.  As it seems to me, however, these are the parameters within which I must work.  It is not open to me, for example, to reach contrary conclusions of fact to those reached by Ms Cram, Mr Knight and Mr McKenzie – unless their findings were irrational or unreasonable or mistaken in a clearly identified way.  Further, it is not for me to substitute my own view as to an appropriate “sanction”; if I conclude that the decision to withdraw the Claimant's sponsor licence was proportionate and reasonable I cannot declare the decision to be unlawful simply because I would have reached a different conclusion from that reached by Ms Cram. 
95.	I turn to the decision letter of 5 July 2010.  In the comprehensive skeleton arguments prepared on behalf of the parties this letter is analysed in minute detail. The skeletons isolate each reason said to justify the withdrawal of the licence and deal with each individually.  It is right to record from the outset that the letter of 5 July 2010 must be read as a whole and that the reasons said to justify withdrawal of the licence must be considered together and in the round. That said it is convenient to follow the pattern set by the parties and deal with each reason individually.
(a)  Attendance Levels  
96.	In her letter of 18 December 2009 Ms Cram identified student attendance levels at college as a reason justifying the suspension of the Claimant's licence.  In the letter of 25 March 2009 Ms Cram asserted that 847 students were enrolled in the college but there had been a failure by 224 of the 847 students to attend for “the required 80%” of classes.  The Claimant responded to that criticism in its representations of 26 March 2010.  It suggested that this was a complaint about a situation that had occurred in the past and that by 26 March 2010 most students had improved their attendance to 80% or above.
97.	Despite those representations, the historical attendance levels featured as a reason justifying the withdrawal of the Claimant’s licence in the letter of 14 May.  In the representations of 8 June 2010 the Claimant took a different point.  It suggested that its accrediting body, BAC, had released a statement which suggested that 80% attendance was not a requirement of the accrediting body; rather the accrediting body required that the accredited college should have a policy requiring students to attend at least 80% of their classes.  The representations made on 8 June 2010 suggested that BAC had ‘softened’ the stance hitherto adopted.
98.	In the letter of 5 July 2010 Ms Cram made it clear that UKBA did not accept that BAC’s position in relation to 80% attendance had altered.  She quoted from a statement made by BAC on 8 March 2010.  Further, she made the point that poor attendance was logically linked to student recruitment; when a college correctly identified students who were genuinely intending to follow the course it was reasonable to assume that they were more likely to attend; the converse was also true.
99.	Ms Cram also referred to paragraph 282 of the guidance.  That paragraph appears in the guidance under the heading “Duties specific to sponsors under Tier-4” and suggests that a Confirmation of Acceptance for Studies should only be assigned under Tier-4 if a sponsor is satisfied that the student both intends and is able to follow the course of study concerned.  In the view of Ms Cram the poor levels of attendance at the Claimant’s college were contrary to best practice as outlined in the Tier-4 sponsor guidance and clearly demonstrated failings in the recruitment process to identify suitable students with an intention to study.
100.	Mr Gill QC submits that Ms Cram's assertion that the students’ attendance levels failed to meet the 80% minimum required by BAC is a fundamental error of fact which has led to an error of law.  Mr Gill QC makes that submission because he says that BAC has never required those colleges which it accredits to demonstrate that their students have an attendance record at or in excess of 80%.
101.	Mr Palmer submits that over many years BAC has set a minimum requirement that overseas students be required by the institution to attend at least 80% of classes.  By reason of an administrative oversight on the part of BAC that requirement was omitted from its 2009-2010 handbook (unlike previous years).  However, the oversight was corrected with effect from 8 March 2010.  That, submits Mr Palmer, is clear from a document published by BAC on 20 May 2010.  The document appears in the evidence at bundle 4/G/476.  To understand it properly it is necessary to quote it in full:-
“Clarification of requirement for student attendance policy
On 8 March 2010 the following addendum to the Accreditation Handbook UK 2009-10 was published on the BAC website:
To replace the first bullet of section 5.2.3 Academic Management (Areas Assessed) with the following:
Student attendance and punctuality (minimum of 80% attendance is expected).
BAC regrets this addendum has been subject to some misinterpretation and would like to provide further clarification regarding this long-standing requirement for accredited colleges.  Accordingly, a further amendment has been made to the accreditation handbook, retracting the previous addendum and instead including the following expanded bullet 6 in the ‘minimum requirements’ of section 5.2 (Management and Staffing): 
Attendance and punctuality are recorded and monitored, with a clear policy of requiring students to attend at least 80% of scheduled classes, systems in place to monitor student attendance and evidence of prompt and effective action taken where attendance falls below this level.
Please note that in the 2008-2009 accreditation handbook, and for several years previously, it was a minimum requirement that visa students be required by the institution to attend at least 80% of classes.  The omission of this requirement in the published version of the 2009-2010 accreditation handbook was purely an administrative oversight.  While UKBA does not include this requirement in its current Tier-4 sponsored guidance, BAC considers it to be good pedagogical practice to ensure high levels of student attendance, and there being a close and positive relationship between attendance and achievement.”
102.	It is open to some debate whether BAC had a strict requirement as of March 2010 that the visa students of colleges accredited by it should attend at least 80% of their classes.  What is abundantly clear is that BAC expected the college to have a policy requiring students to attend at least 80% of scheduled classes.  It also required a college to have systems in place to monitor student attendance and be in a position to provide evidence of prompt and effective action if attendance fell below this level.
103.	It is common ground that at all material times the Claimant had a policy which required its students to attend at least 80% of their classes.  In my judgment, reduced to its essentials, the thrust of the criticism made against the Claimant was that it did not effectively enforce its own policy as the historical data made plain.
104.	In the letter of 5 July 2010 Ms Cram wrote:-
“…when we brought the poor attendance levels to your attention in March we gave you 28 days to provide representations “including submitting evidence” to address our concerns.  At no point in either of your subsequent responses have you provided any evidence to support the claims made within them.  You state that attendance at the college has improved but you have provided no evidence in the form of updated spreadsheets or attendance records to support this claim.”
In my judgment this paragraph constitutes an important part of Ms Cram's reasoning in relation to the attendance levels issue.  As of March 2010 the available evidence demonstrated that a large proportion of students were not attending 80% of their classes.  In the absence of cogent evidence from the Claimant Ms Cram was entitled to be sceptical about the Claimant’s assertion that there had been a significant change for the better.  
105.	I have reached the conclusion that Ms Cram was entitled to conclude as she did upon the issue of student attendance. I appreciate that it was no part of the guidance published by UKBA that in the event that a college failed to ensure that its students attended 80% of their classes there would be a breach of sponsorship duties on that account.  However, that is not the point.  It was the Claimant’s failure to follow the guidance (if guidance it was) of its accrediting body and, just as importantly, enforce its own policy which was of legitimate concern and placed it in breach of its duty as a sponsor.
(b) In-UK Refusals    
106.	In her letter of 25 March 2010 Ms Cram asserted that 14 students were then attending the Claimant’s college who had been refused leave to remain, several without a right of appeal.  She went on to identify 4 students who were attending the college and who had been refused leave to remain without a right of appeal.  In her letter of 5 July Ms Cram suggested that the onus was on the Claimant to ensure that students had the right to study in the UK and that the Claimant had not explained why the college failed to do this adequately in the case of the 4 named students.  Ms Cram further asserted that the Claimant had provided no evidence to show that it had rectified the situation or submitted evidence that the 4 students had either regularised their stay or left the UK.  On this basis Ms Cram concluded that the Claimant was still failing in its sponsor duty to monitor immigration status or prevent illegal study.  
107.	The Claimant's response, as summarised in the skeleton argument, was that it kept full records of the expiry dates of students’ leave to remain in the UK as well as copies of their passports and acknowledgment letters issued by UKBA when applications for further leave to remain were made.  The Claimant was simply unaware that the 4 named students had been refused leave to remain with no right of appeal; however, it had done all that it reasonably could to ensure that its students had the right to study within the UK.  Some reliance was also placed on the fact that this “complaint” related to 4 students only.
108.	In his skeleton argument Mr Palmer sets out examples of the steps that the Claimant could take so as to identify the progress of a student’s application for further leave to remain (once a previous period has expired) or of an appeal against the refusal of leave.  An obvious step would be to require students to produce documentary evidence (other than that generated by themselves) that an application for leave or an appeal remains pending.  He points to the fact that the Claimant's system relied upon the oral or written assurance of the student himself that he/she had an extant application or appeal and he submits that such a system was manifestly inadequate for fulfilling a sponsor's duties.
109.	On the basis of Mr Palmer’s submissions, I am persuaded that Ms Cram was entitled to conclude, as she did, that the Claimant had failed to do all that it reasonably could to ensure that evidence was obtained or retained to demonstrate a student’s entitlement to study.  I appreciate that as of 5 July 2010 the numbers of students concerned with this issue was very small.  However, on any view, ensuring that a student is entitled to remain in the UK must be a very important aspect of a sponsor's duty.  In my judgment, it cannot be said that Ms Cram was unreasonable in taking into account the fact that it had been demonstrated that 4 students were studying at the Claimant's college when they had no leave to remain in the UK.
(c) Overseas refusals
110.	In her letter of 25 March 2010 Ms Cram recorded that the Claimant had issued 2308 visa letters to prospective students; however, 826 students were refused leave to remain/entry clearance during the period 31 March 2009 and 5 February 2010.  According to Ms Cram such a high rate of refusal indicated that the systems in place for recruiting students had not adequately assessed their ability and intention to follow their chosen courses.
111.	The Claimant’s response to this criticism was to suggest that a large volume of the refusals were because the visa letters issued could not be verified.  Further, it relied upon the fact that a large number of the refusals had been made at one specific British High Commission in India.  The essential thrust of the Claimant's representations was to the effect that the refusals were not related to its own practices or procedures for recruiting students.
112.	The nub of this issue is encapsulated in the following paragraph of the letter of 5 July:
“As explained previously, UKBA’s position is that a 35% refusal rate for students is not acceptable for any college.  Entry clearance is based on a student’s ability to meet the requirements of the Immigration Rules based on their ability to obtain a minimum number of points under the PBS scheme.  If students have been refused entry clearance it is because they have failed to achieve the points necessary and it is therefore reasonable to link this to the college failing to recruit students who are able and intend to follow a course of study, a requirement under paragraph 282 of the sponsor guidance.”
113.	Mr Manjit Gill QC suggests that this approach is irrational.  He submits that the most likely explanation for the high level of refusals was that the “visa letter cannot be verified” and submits that this has nothing whatever to do with the correctness or otherwise of the Claimant's assessment of its students’ intentions.
114.	In her witness statement dated 6 December 2010 Ms Cram accepts that ultimately the Claimant provided evidence in the form of emails from the British High Commission in New Delhi to the effect that 400 students (of the 826) who had been refused entry clearance were likely to have their cases reviewed, administratively, because a large proportion of those students had been refused entry for the reasons that ‘visa letter not verified’.
115.	When every allowance is made for the possibility that up to 400 hundred students might have been refused entry wrongly, however, there remained a significant number of students who were refused for other reasons.  In her witness statement Ms Cram says that she inferred that it was likely that those reasons related to the student’s suitability.  On that basis such refusals would directly reflect on the college since they had identified the students as suitable to study and were prepared to sponsor them to enter the UK.
116.	It is not entirely clear whether by 5 July 2010 the Claimant had provided substantial evidence that a significant proportion of the 826 students who had been refused entry clearance were refused on the basis of “visa letter not verified”.  For present purposes, however, I assume that to be the case.   That still meant that a similar and significant number of students were refused for different reasons.  In those circumstances I do not regard it as irrational on the part of Ms Cram to conclude that a number of students had been recruited who were not suitable for their chosen course of study. As of 5 July 2010 it might have been as many as about 50% of the persons refused entry.
117.	It is apparent from Ms Cram's witness statement that some time after her decision of 5 July 2010 she undertook further research which she maintains justified the inference which she had drawn.  It is not clear to me when this research was undertaken.  There is no doubt that it was undertaken after 5 July 2010 and the probability is that the research was undertaken after 19 August.  In these circumstances I am not prepared to take this evidence into account when assessing the lawfulness of the decisions mad on 5 July and 19 August.
(d) Visa letters
118.	The “biggest area of concern” identified by Ms Cram in her letter of 25 March 2010 related to the issue of visa letters.  Her investigations had revealed that 299 visa letters had been issued by the Claimant yet the persons to whom they were issued did not appear on attendance lists provided by the Claimant to UKBA.  These lists had been sought by UKBA in February 2010 and provided shortly thereafter.  As Ms Cram pointed out in her letter of 25 March the visa letters might have resulted in a number of individuals obtaining entry clearance yet they did not appear to be attending the Claimant's college; on that basis those persons were not meeting the conditions of their leave to enter and were within the UK illegally.
119.	The Claimant's first response to this criticism was that any inconsistency between the visa letters issued and the attendance lists supplied was unintentional and, in any event, the true inconsistency was likely to be very small, perhaps 10 to12 in number.  By 8 June 2009 the Claimant's stance had changed significantly.  In the representations of that date made by the Claimant’s solicitors it was acknowledged that no less than 345 students to whom visa letters had been issued were not included in the lists which had been provided to UKBA although that omission was explained as an administrative error which was unintentional.  
120.	In her letter of 5 July Ms Cram wrote:-
“Record keeping is an important part of sponsorship.  It requires a sponsor to keep accurate records of a student’s whereabouts (current address etc) and attendance in order to minimise the risk to immigration control.  This is because any student that enters the UK and does not study is not complying with the conditions of their leave.  The college only identified a significant error in their attendance data when it was pointed out by UKBA.  This is unacceptable, and such irregularities in data recording have resulted in the college failing in both its record keeping and reporting duties (paragraph 281 of the sponsor guidance).  These duties are important for minimising the risk to immigration control.”
121.	Mr Gill QC submits that the Claimant's “failure” is addressed comprehensively in the evidence of Mr Kolagatla.  Essentially, he submits that the Claimant always had records relating to all its students and all those persons to whom visa letters had been issued.  The Claimant's failure was a failure to transpose this information accurately onto a spreadsheet as requested by UKBA in February 2010.  
122.	Mr Palmer submits that this administrative failure in itself highlighted a failure of record keeping.  The administrative failure was noticed by UKBA staff, (not the Claimant’s staff) despite the large discrepancy to which it gave rise, and when noticed it was initially denied by the Claimant.  The error relating to 345 visa letters was only acknowledged late on in the Claimant's representations.  
123.	In my judgment this is, classically, an issue which cannot be looked at in isolation.  If the only complaint made by UKBA against the Claimant was that its staff had failed to transpose information properly and accurately from a data base to a spread sheet that would be one thing; the reality is that this failure has to be considered in the context that it was first denied that there was any material discrepancy between the information held by the Claimant and the information supplied to UKBA and also in the light of the other criticisms made against the Claimant.  On that basis I accept that it was reasonable for Ms Cram to take this issue into account in reaching her decision.
124.	This last issue is part of a recurring complaint about the Claimant’s record keeping.  In her letter of 5 July Ms Cram dedicated a complete section to that topic.  It was obviously an important consideration as of 5 July 2010.  Ms Cram explains why when she says in her letter that there is a clear and direct correlation between poor record keeping and immigration abuse.
125.	In my judgment, Ms Cram was entitled to reach the conclusions which she did upon each of the discrete issues analysed in her letter of 5 July.  She did not misunderstand the information supplied by the Claimant; she did not fail to consider its representations or misunderstand their content.
126.	In the light of her conclusions was she entitled to conclude that withdrawal of the Claimant’s sponsor licence was reasonable and proportionate?  It is clear, in my judgment, that Ms Cram did not address those concepts discretely.  Rather, she concluded that the Claimant had failed to meets its obligations as a sponsor in the manner she had identified and that this justified the withdrawal of the licence.  In so concluding she was, in my view, applying and following the guidance published by UKBA.  As is obvious from the terms of the letter of 5 July 2010 Ms Cram was very careful to consider whether or not the Claimant was in breach of sponsor duties as outlined in the guidance and having concluded that it was she took the view that withdrawal of the licence was justified.
127.	It also seems to me to be clear that in reaching her decision Ms Cram took full account of the opportunity which had been afforded to the Claimant to answer the criticisms raised against it.  On more than one occasion in her letter she points to the fact that no evidence was provided by the Claimant to support its assertions notwithstanding that such evidence had been invited by UKBA.
128.	As of July 2010 the Claimant’s licence had been suspended for about 6 months.  While I have concluded that the initial suspension was unlawful I accept that from the outset there were legitimate concerns about the Claimant’s practices.  There came a point in time when the suspension became lawful.  Thereafter, Ms Cram reached the legitimate conclusion that the Claimant was not fulfilling its sponsor duties and still posed a threat to immigration control.  In these circumstances it is difficult to envisage what step she could have taken other than to withdraw the Claimant’s licence.   I am not persuaded that to take that course was either unreasonable or disproportionate.  In my judgment the decision to withdraw the Claimant’s licence communicated by the letter of 5 July 2010 was lawful.
129.	There remains the decision letter of 19 August 2010.  This decision was taken in the light of all the information accumulated prior to 5 July 2010, the information provided by the Claimant at the meeting of 5 August 2010 and the report which was sent to Ms Cram by Messrs Knight and McKenzie following their visit on 12 August 2010.  
130.	As is clear from the letter of 19 August Ms Cram was heavily influenced by the report she had received from Messrs Knight and McKenzie.  They found that the Claimant was in breach of sponsor duties; they recommended that its licence should be withdrawn.  Given the fact that Ms Cram, herself, had concluded that the licence should be withdrawn on 5 July 2010 at first blush it is hardly surprising that she concluded that the withdrawal should be maintained in the light of the express recommendation made to her.
131.	However, it is incumbent upon me to guard against the possibility that the decision was, in reality, flawed.  That involves investigating two aspects of the decision making process, in particular.  First, I must assess whether or not Messrs Knight and McKenzie were entitled to report as they did in the light of the information provided to them and their own investigation.  Secondly, I must assess whether Ms Cram was entitled to accept their recommendation – particularly, as it seems to me, I need to scrutinise whether or not the decision to maintain the withdrawal was proportionate. 
132.	The appropriate starting point is the meeting of 5 August 2010.  I proceed on the basis that the minutes of that meeting are accurate – no suggestion to the contrary was made in the evidence before me.  The meeting began with a discussion about student attendances.  Mr Kolagatla explained that having taken advice from BAC the Claimant required students to attend at least 85% of classes.  In the event that a student dropped below 85% a letter would be sent to him; if a student dropped below 80% a further letter would be sent and a letter would also be sent after 5 absences.  If no improvement in attendance occurred yet one more letter would be sent and in the face of no improvement at this point the student would be reported to UKBA.  In answer to a direct question Mr Kolagatla affirmed that this was the system operating as of August 2010.  The minutes record that Mr Kolagatla produced a number of documents in support.  They are identified at page 2 of the minutes (Trial Bundle 4 G528).
133.	The next issue discussed was recruitment of students overseas.  During the course of that discussion it became clear that the Claimant relied upon overseas agents in their recruitment process.  The suggestion was made during the course of discussion that agents had a lot of responsibility – a suggestion which Mr Kolagatla strongly denied.
134.	There followed next the issue relating to the number of refusals of entry clearance/leave to remain.  Mr Kolagatla produced evidence to show that a substantial number of those refused entry clearance had sought an administrative review.  He also produced a document which suggested that a rate of refusal of 34% was quite usual; 34% was not a high rate of refusal as had been concluded by UKBA.
135.	In-country refusals were also discussed.  In essence, Mr Kolagatla sought advice from the UKBA representatives about how the Claimant could successfully track the immigration status of students.  Various means were suggested.
136.	The minutes of the meeting clearly show that Mr. Kolagatla and his colleague Mr. Davis were seeking to demonstrate that the procedures adopted by the Claimant were entirely in keeping with its obligations as a sponsor as outlined in the published guidance.  The representatives of UKBA listened and probed.  They did not offer any view of the information provided to them one way or the other during the course of the meeting. 
137.	However, they must have considered what was said with care.  Following the meeting of 5 August it seems clear that a decision was taken that a further visit to the college premises was necessary.  In his witness statement Mr Knight says that he was asked by Sally Keoghan to organise a visit and prepare a report.  The minutes of the meeting of 5 August were provided to him along with a copy of student attendance rolls provided by the Claimant.  It seems clear that Ms Cram and her colleagues wanted a check made of what they had been told.
138.	It is also clear that Messrs Knight and McKenzie had a clear plan of action as to how they would conduct their visit.  In paragraph 8 of his witness statement Mr Knight says that they decided to “test the evidence from the minutes of the meeting on 5 August 2010 in relation to the information held on student files and the student attendance monitoring system against the requirements in the PBS guidance.”  In his witness statement, Mr McKenzie says that at the commencement of the visit Mr Kolagatla was told that the main objective of the visit was to examine the college’s attendance and monitoring systems and verify the student attendance information supplied to UKBA on 5 August 2010.  This was the focus of what then occurred.
139.	I do not propose to summarise the detail of the investigation undertaken as described within the witness statements of Messrs Knight and McKenzie.  There is no need; a careful reading of their statements shows that the report which they sent to Ms Cram was a reasonable and fair summary of the result of their investigation.  I have set out the salient parts of the report at paragraphs 86 to 88 above.  No useful purpose would be served by repeating those paragraphs or attempting a paraphrase.  The reality is that notwithstanding all the Claimant’s attempts to answer the criticisms made of its practices, the report concluded that there were aspects of the Claimant’s systems which placed it in breach of sponsor duties.
140.	I have considered with care whether it is proper to draw the inference that officers of UKBA were intent upon finding fault come what may.  In effect, that is what Mr Gill QC urges me to say.   However, I have concluded that such a view is simply not justified.  In fact, the contrary is probably true.  Immediately following the decision of 5 July 2010 UKBA showed a willingness to re-consider its decision quickly; three officers met with officers of the Claimant and had a detailed discussion; a focussed visit followed and a decision was issued within days of the visit.  In my judgment that was entirely consistent with a willingness to look at the decision of 5 July with a critical eye lest it had been unjustified.  I am forced to accept that the report of the visit on 12 August was justified by the investigations undertaken on that day.
141.	Can it be said that Ms Cram’s decision taken in light of the report was unreasonable or disproportionate?  She knew from her own dealings with the Claimant and from the report itself that the Claimant had spent time money and effort in improving its procedures so as to meet the criticisms of those procedures which had subsisted over a period of many months. She knew, too, that the withdrawal of the Claimant’s licence would be likely to have a very significant effect upon both the Claimant and its remaining students.  However, she had concluded in July 2010 that the Claimant’s licence should be withdrawn.  Experienced officers had advised that the Claimant’s licence should be withdrawn.  Her judgment was that the Claimant’s practices constituted a serious threat to immigration control.  Finding, as I do, that Ms Cram was entitled to reach that conclusion I cannot say that her decision was either unreasonable or disproportionate.  Accordingly, I conclude that she acted lawfully when she decided that the decision to withdraw the Claimant’s licence should be maintained.
Human Rights
142.	 Article 1 of the First Protocol of ECHR provides:-
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions.  No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law…..
The proceeding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest….”
143.	Mr Gill QC submits that the sponsor licence issued by UKBA to the Claimant constitutes possessions within Article 1.  He further submits that the withdrawal of the Claimant's licence was not in accordance with the law and was not proportionate.
144.	The meaning to be attributed to the word possessions has been considered by the Court of Appeal in Murungaru v Secretary of State for the Home Department & Others [2008] EWCA Civ 1015.  The following extracts from the judgment of Lewison J are apposite:-
“46. ….it is common ground that the concept of “possessions” or “property” for the purposes of A1 P1 is independent of classifications in domestic law.  It is an autonomous concept of the Convention itself.  In Gasus Dosier v Netherlands [1995] 20 EHRR 403 the European Court of Human Rights said at para 53:
“The court recalls that the notion of “possessions” (in French: biens) in Article 1 of Protocol No. 1 has an autonomous meaning which is certainly not limited to ownership of physical goods: certain other rights and interests constituting assets can be regarded as “property rights” and thus as “possessions” for the purposes of the Convention.”
47. The touchstone here is whether the rights and assets can be regarded as constituting “assets”.
48. The Strasbourg Jurisprudence establishes that the mere fact that rights are contractual does not disqualify them from counting as property or possessions…..but the converse: is that all contractual rights are property or possessions, does not follow.”
Following these passages Lewison J went on to consider the decision of the European Court of Human Rights in Tre Traktörer Aktiebolag v Sweden [1989) EHRR 309.  TTA managed a restaurant called Le Cardinal.  It had the benefit of a liquor licence which was not transferable.  The authorities withdrew the licence after complaints about the management of the restaurant. One of the questions raised was whether there had been a breach of Article 1 of the First Protocol by withdrawing the licence.  At paragraph 53 of it judgment the ECHR said:-
“The Government argue that a licence to serve alcoholic beverages could not be considered to be a “possession” within the meaning of Article 1 of the Protocol….This provision was therefore, in their opinion, not applicable to the case.  
Like the Commission, however, the court takes the view that economic interests connected with the running of Le Cardinal were “possessions” for the purposes of Article 1….indeed, the court has already found that the maintenance of the licence was one of the principal conditions for the carrying on of the applicant company’s business, and that its withdrawal has adverse effects on the good will and value of the restaurant….
Such withdrawal thus constitutes, in the circumstances of the case, an interference with [the licensee’s] right to the “peaceful enjoyment of [its] possessions”.”
145.	I see force in Mr Gill’s submission that there is no real distinction to be drawn between a licensee whose liquor licence is withdrawn with the consequence its business interests are adversely affected and the licensee whose sponsor licence is withdrawn.  In both cases the licence is an integral feature which enables the licensee to carry on its business.
146.	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.  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.   It is difficult to see how this analysis fits squarely with that in the TTA case since, of course, the licence in TTA was non-transferable. 
147.	It seems clear that a sponsor licence, looked at in isolation, cannot constitute possessions or an asset for the purposes of Article 1.  Further, such a licence is non-transferable and it is not suggested that it has monetary or market value.  However, a sponsor can engage in the business of providing educational services to non EEU migrants if it has a sponsor licence; if its licence is withdrawn it is bound to have a very significant effect upon its business.  I find it difficult to see what relevant distinction there may be between withdrawing a non-transferable liquor licence and withdrawing a sponsor licence for the purposes of Article 1 First Protocol.
148.	As Mr. Gill QC points out the approach in the TTA case was followed without question in Bimber S.A. v Moldova [2007] ECHR 576.  Further, in the London Reading College case Mr. Neil Garnham QC proceeded on the basis that the withdrawal of a sponsor licence may be a breach of Article 1 of the First Protocol and the Defendant appeared to concede that point.  I do not find the point without some difficulty but I have concluded that the suspension and withdrawal of the Claimant’s sponsor licence was an interference with the Claimant’s rights under Article 1 First Protocol.  
149.	Was the interference justified?  Since I have concluded that the withdrawal of the Claimant's sponsor licence not unreasonable or irrational and was, in all the circumstances, proportionate I am forced to conclude that interference with the Claimant’s rights was justified.
150.	For a period, however, the Claimant was the victim of an unlawful suspension.  During this period there must have been an unlawful interference with the Claimant’s rights under Article 1 First Protocol.  
151.	Finally, I deal very shortly with the suggestion that there has been a breach of Article 6 ECHR.  In summary and assuming that Article 6 is engaged (which may not be a safe assumption) I am in no doubt that the availability of judicial review provides an adequate remedy for the determination of any issue relating to the Claimant's civil rights.  Before reaching a decision the officers of UKBA were engaged in much more than a purely fact finding inquiry.  Certainly, the officers had to grapple with factual issues; however, they were also and importantly drawing upon their own expertise (and that of UKBA as a whole) in respect of the operation of the sponsor scheme.   They were also exercising broader judgments relating to both policy and expediency.  In any event, had either party considered that the legality of the decisions made by Ms Cram in this case could not be tested on the basis of the documents and the written witness statements provided to this court an application could have been made for oral evidence to be adduced.  Although such applications are unusual in judicial review, in an appropriate case such an application can be granted.
Summary
152.	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.