The Queen (on the application of New London College Limited) and SSHD  EWCA Civ 51
This was an appeal to the Court of Appeal by a private limited company which provides further education courses.
The College had its licence suspended by UKBA in December 2009. The license was subsequently withdrawn by UKBA in July 2010. Proceedings were issued by the Appellant in the High Court.
The presiding judge in the High Court held that the decision to suspend was unlawful, but that the subsequent decisions to maintain the suspension, and withdraw the licence were lawful. In relation to the former suspension decision, it was found to breach Article 1, Protocol 1 ECHR (A1P1).
In dismissing the Appellants appeal and upholding SSHD’s cross appeal the Court of Appeal (Mummery, Richards and Rimmer LJJ) held:
1. The decisions challenged (and therefore the sponsorship system as a whole) were Pankina compliant. The power to operate the sponsorship system derives from general powers under the Immigration Act 1971. The Rules simply assume the existence of sponsor licensing, and the guidance has a function falling outside of the Rules. It does not impact on the substantive criteria of the Rules governing entitlement to enter or remain as a student.
2. Sponsor licenses do no more than confer a right to issue a CAS which will be recognised by UKBA for immigration purposes. The administrative decision making process provided for in the guidance, coupled with the availability of judicial review on conventional grounds is therefore adequate to ensure a fair determination within the meaning of Article 6 ECHR.
3. The decision letter of March 2010 maintaining suspension from that date was reasonable for the reasons outlined in the judgment of Wyn Williams J in the High Court save that a proportionality analysis was not necessary given that A1P1 ECHR was not engaged (see below). Furthermore, there was no unfairness in the judge taking into account the changed guidance, the college’s position fell to be assessed on the basis of that guidance, there were further exchanges between the parties with a further opportunity for the appellant to make representations before the final withdrawal decision was taken, and the original procedural fairness had been remedied.
4. Suspension and withdrawal of New London College’s license did not amount to interference with the right to peaceful enjoyment of possessions within A1P1 ECHR, so as to require any justification under that Article. A sponsor license is not itself a possession within A1P1 ECHR as such. Withdrawal or suspension of a license would engage A1P1 ECHR if there were adverse effects on goodwill (i.e. capitalised value of the business as a going concern). The Appellants had failed to provide concrete evidence on which to found a conclusion that the goodwill of the business has been or would be adversely affected by suspension or withdrawal of the licence. This is not a conclusion that can be inferred.
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