London Met granted permission to apply for JR over Border Agency

The London Metropolitan University (LMU) has been granted permission to apply for judicial review of the Border Agency’s decision to revoke its licence to sponsor international students.

However, in a court hearing today (21 September), Mr Justice Irwin refused to grant interim relief to suspend the revocation of LMU’s licence.

He did grant interim relief to protect the position of international students in the UK, who have the proper immigration status and were currently studying or starting study at LMU this term and those seeking transfer to other institutions. Those students will be able to continue their studies pending the outcome of the judicial review.

LMU had turned to Penningtons, which instructed Brick Court Chambers’ Richard Gordon QC, assisted by Maya Lester of the same chambers, to fight its case (5 September 2012).

The National Union of Students (NUS) was granted leave to intervene in the case and it was agreed that the NUS would not have to pay costs. The union has instructed Bindmans and Doughty Street Chambers’ Judith Farbey QC on the intervention.

Meanwhile the Treasury Solicitor’s Department has instructed 39 Essex Street’s Lisa Giovanetti QC and Susan Chan of 13 KBW for the secretary of state for the Home Department.

At the beginning of the hearing Irwin J said to Giovanetti: “It seems to me that when considering injunctive relief the balance of convenience in this case requires me to the look at the impact on students.

“(The evidence) makes it clear that there have been concessions to certain students in a limited group. This makes clear that those instructing you are able to make concessions and have done in respect of some students and could make further concessions in respect of other current students currently studying. It occurs to me that if a student is already here and can demonstrate to the secretary of state that has immigration status that is in order then I would be interested to hear why in the case of such students why a concession can not be made in similar terms to that other group.

“Given the factual situation here, attendance at courses would no doubt be checked very vigorously by LMU from this point on – as it will have a big impact on its future. From what I can glean it seems that the huge inconvenience to students might be avoided. I don’t myself see why it would create difficulties for the secretary of state in other cases.”

Gordon argued that the UKBA’s decision was taken pursuant to guidance that was not laid before Parliament and therefore “had no status”.

“It is essential that the criteria are prescribed by law, in accordance with the principles of legal certainty and fairness, so as to avoid arbitrariness,” Gordon told the court.

He said the UKBA’s decision was taken in an “unfair and unreasonable manner” as it had failed to identify clearly enough to LMU what it should do, and furthermore it was “unlawful” for the UKBA to fail to return to the university in September to see how new procedures adopted by LMU were taking effect.

“Instead, the UKBA revoked the university’s licence at the most disruptive time, just before the new term is to begin, having encouraged the university to spend signifiant resources on new procedures.”

In oral submissions Gordon said: “This point goes to the fairness of the decision. If the new systems did not have a snowballs chance in hell of working then (the UKBA) should have said so.”

As a third point Gordon argued that the decision was unjustified given the guidance and evidence before the UKBA.

“Just as the UKBA cannot find a single student studying at the university without leave to remain, it has no example of a student studying at the university who does not genuinely wish to study, or who has used tier 4 deceptively, has forged a document, or has abused the immigration system,” he said.

Responding, Giovannetti said “fairness does not require LMU to be given a formal notice setting out what needs to be put right” and that LMU just needed to be given “an opportunity to show us why the conclusions reached (by the UKBA) are wrong, rather than an opportunity to do something about it. That is not to say that the secretary of state does not have to consider the possibility of new systems to put things right. The secretary of state plainly did consider that very carefully.”

She said LMU was aware of the concerns “for months and months” through LMU’s own internal audits and there had been “repeated identification of the same issues requiring ‘urgent and immediate attention’”.