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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> New London College Ltd, R (On the Application Of) v Secretary of State for the Home Department [2010] EWHC 2701 (Admin) (19 October 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/2701.html Cite as: [2010] EWHC 2701 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		19th October 2010

1. MR JUSTICE CRANSTON: This is an application for interim relief in relation to the claimant's Tier 4 Sponsor Licence (A rating). The Secretary of State through the UK Border Agency ("UKBA") took a decision in December of last year which has resulted in the suspension of that licence. In effect, this puts in jeopardy the business of the claimant, which involves the provision of education to students from abroad, those who come from countries other than the European Community.
2. The matter has had a checkered procedural history. It suffices to say that, in relation to the judicial review, King J last week gave permission to the claimant to pursue its claim, which challenges the lawfulness of the suspension decision.
3. The issue before me is therefore simplified. For interim relief to be granted in this context the claimant must demonstrate both reasonable prospects of success and that the balance of convenience is in its favour. The first pre-requisite is effectively met, given that King J has granted permission. That means that the focus of my attention must be on the balance of convenience in the issue of an interim injunction.
4. In his cogent submissions on behalf of the claimant, Mr Nicholson contends that the balance of convenience is obviously in favour of the claimant. In particular, there is the consequences for the college as long as the suspension is in effect. There is a fourth witness statement from Mr Kolagatla, the director of the claimant, which sets out the impact of the suspension in terms of the financial consequences, the fact that some staff have had to be made redundant and in other cases have had their salary reduced. Moreover, the witness statement sets out the adverse consequences for suppliers of printing, cleaning services, electronic equipment and so on.
5. There is also the effect on students, in that students who are coming to the end of their period of leave to remain cannot extend that leave because they are not studying at a college which is licensed. There are other consequences for students, such as the extent to which they can sit their exams, since some examining bodies refuse to register students from a suspended college.
6. In broad terms, Mr Nicholson argues that the consequences are in effect such that, unless interim relief is granted, the college may have to close for business.
7. Mr Nicholson also points to the steps which the college has taken since December to address in relation to the concerns raised by UKBA as regards immigration control. The issues which were identified as areas of concern, such as the attendance records, maintaining contact with students, the recruitment of students by sub-agents, the monitoring of the immigration status of students while they are here, all of these have been addressed by the college. There are a number of witness statements by Mr Kolagatla, including a fifth witness statement for this hearing, which set out in detail the nature of the remedial action taken.
8. For the Secretary of State, Mr Palmer points to the defects which still operate in relation to the operation of the college's systems. He refers to the UKBA report from mid August 2010 based on a further visit of the inspection team. The upshot of that visit was that the college was still found to be non-compliant overall and in relation to particular matters. The only area where there was partial compliance was in maintaining migrant contact details. In relation to attendance, student recruitment and monitoring immigration status - those were all non-compliant.
9. Mr Nicholson in response first of all challenges some of the findings. He points to the response on 20th August from the claimant which contends that the inspectors were inaccurate in aspects of their assessment. The points raised have not been addressed by UKBA in the witness statement of Rozanna Cram for this hearing. He also points to the report of the British Accreditation Council, a body recognised by the Secretary of State for these purposes, which has agreed to accredit the claimant, albeit that there are still concerns identified in their report of the 26th August 2010 in relation to the written attendance policy. (Paragraph 5.2 of that report suggests that the written attendance policy must be revised to address ambiguities and inconsistencies so as to maintain compliance with both the requirements of that accrediting body but also the requirements of UKBA.) Mr Nicholson points to witness statements from two inspectors of the British Accreditation Council which describe the steps which the college has taken to remedy that flaw identified in the written attendance policy.
10. In determining where the balance of convenience lies in considering interim relief in public law matters, heavy weight is accorded by the court to the public interest. That is a legitimate factor to be considered in assessing where the balance of convenience lies in a situation where the ordinary American Cyanamid guidelines cannot have direct application.
11. The Secretary of State submits simply that immigration control must be accorded a very heavy weight in the balance. I agree. The Secretary of State also contends that its faith in the way this claimant has exercised what could be described as delegated functions of immigration control has dissipated and has not been restored as a result of the various actions taken. Again I agree, give that on the August visit the college was still non-compliant as it had been last December.
12. There is no doubt that, as set out in the fourth witness statement of Mr Kolagatla, there are very serious implications for the college of the continuation of the suspension. In my view the public interest in immigration control through colleges which are compliant with the licences outweighs that in the balance and I refuse interim relief.
13. Yes?
14. MR NICHOLSON: My Lord, I would like to seek your permission to apply for permission to appeal against your decision to refuse interim relief to the Court of Appeal, really on the basis, my Lord, of the -- taking your point about the public interest outweighing the concerns of the college, in my submission I would respectfully submit that in your judgment inadequate weight has been placed upon the measures available to the Secretary of State to ensure the protection of the border contained in the immigration rules and furthermore the Secretary of State has failed to produce evidence of having taken account of the measures taken by my client to address the factors which have led to the Secretary of State's expression of concern.
15. MR JUSTICE CRANSTON: Well, my initial reaction to that is that this is a matter of discretion and that the Court of Appeal will be very reluctant to interfere.
16. MR PALMER: Yes, my Lord.
17. MR JUSTICE CRANSTON: I think, Mr Nicholson, you will have to go elsewhere for this.
18. Would you like an expedited transcript?
19. MR NICHOLSON: Yes, I would be most grateful, my Lord.
20. MR JUSTICE CRANSTON: Yes. Anything more?
21. MR PALMER: My Lord, may I ask for the costs of today to be the defendants in any event, to be assessed in due course?
22. MR JUSTICE CRANSTON: Yes?
23. MR NICHOLSON: My Lord, I understand in these circumstances it may sometimes be regarded as being appropriate for the issue of costs to be resolved at the end of the hearing in the substantive proceedings. If you are not minded to do that, I would ask, my Lord, that, in the light of the limited response to the evidence provided by the claimant, it would not be appropriate for all of the costs of the defendant's opposition to this application be met by the claimant.
24. MR JUSTICE CRANSTON: So what does that mean in practice?
25. MR NICHOLSON: Well, I would ask that, in respect of these proceedings, there should be no order as to costs.
26. MR JUSTICE CRANSTON: Yes.
27. MR PALMER: My Lord, I have not asked for them to be quantified today, so there would be no effective type of order today. I simply ask that the principle of costs of today be ordered so that, if at the end of the day the defendant succeeds, they be included, if at the end of the day the claimant succeeds and recovers his costs, today's costs can be discounted from the overall sum.
28. MR JUSTICE CRANSTON: So you are not asking for the costs to be decided immediately but to be decided at the time of the substantive application?
29. MR PALMER: I am asking you to decide the principle that costs of today should be the defendant's in any event and not to go further than that, to make an award which can actually be executed against the claimant as of today, to await the final conclusion of these proceedings.
30. MR JUSTICE CRANSTON: Is there anything more?
31. MR NICHOLSON: I do not think there is much more I can add, my Lord.
32. MR JUSTICE CRANSTON: No. Then I am afraid, Mr Nicholson, I am going to decide in favour of the Secretary of State.
33. Right, thank you very much.