COVID-19: Distinguishing crime
The London Metropolitan University was informed at 8pm last Wednesday evening, just weeks before the new university year starts, that the UK Border Agency (UKBA) had revoked its licence to sponsor students from outside the European Economic Area.
The UKBA maintains that there had been serious systemic failings at the university. Issues had been raised six months ago and the university’s sponsorship licence had been suspended in July 2012. The UKBA states that of cases sampled, one quarter of students did not have permission to stay in the country, a significant proportion did not have sufficient English and there was no proof that half of those were turning up to lectures.
With 2,700 students affected and the real threat of proceedings to re-coup the fees already paid by these students, the university will be examining all possible means to challenge the UKBA’s decision. Indeed, given its substantial reliance upon fees from foreign students, the university’s very survival may hang in the balance and it may have little choice but to seek a judicial review in the High Court.
The High Court has heard a number applications made by private education bodies in the recent years which had lost their licence to sponsor foreign students. As would be expected, the courts have emphasised that it is not open for the court to conclude that the decision was unlawful simply because it would have reached a different decision on the facts but the usual public law grounds of challenge must be established – that the findings were irrational, unreasonable or mistaken. Further, the Court of Appeal held earlier this year in the case of New London College that revocation of the college’s sponsorship licence did not engage its right to “peaceful enjoyment of its possessions” under Article 1 Protocol 1 of the European Convention on Human Rights and therefore, the court was not obliged to consider whether or not the decision was proportionate.
However, there have been examples of successful judicial review applications where there is unfairness in the decision making process. The UKBA own guidance states that if it decides to take action, it will give the organisation an opportunity to “explain its case.” In the case of London Reading College, the High Court found that the college had not been informed of the UKBA’s reasons for the prospective revocation to enable it to make representations. More recently, the High Court found in favour of Burney Training College where the college had not been given a proper opportunity to respond to allegations of dishonesty and commented that the college had a right to expect that considerations in connection with its application would be dealt with “seriously, carefully, responsibly, properly and above all, fairly.”
In relation to the Metropolitan University, there has been reference in the press to the “botched process” leading up to the decision but nothing further is known about potential flaws in the process leading to the UKBA’s suspension and recent revocation of the licence. We can be certain that all options are being urgently explored by the university and any chance to engage the courts to force the UKBA to reconsider its decision, however slim, will be seriously considered.
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