This post has been contributed by, Vijay Jagadesham, who represented the College in Global Vision College Ltd v SSHD[2014] EWCA Civ 659.

Readers would be forgiven for thinking that this question was clearly answered by the Supreme Court in the case of Alvi v SSHD [2012] 1 WLR 2208, and the subsequent case of New London College Ltd v SSHD [2013] 1 WLR 2358. As Lord Dyson explained in Alvi (at [94]):

“…any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule…”

Thus any requirement leading to a refusal of leave had to be contained in the Immigration Rules, and a refusal of leave on the basis of something not contained within the Rules was unlawful.

However, in the recent case of Global Vision College Ltd v SSHD [2014] EWCA Civ 659, Beatson LJ held that ‘veracity checks’ carried out by entry clearance officers in relation to students wishing to come the UK, where the student’s failure to satisfy those checks led to leave being refused, did not amount to a rule that needed to be in the Immigration Rules.

The case concerned a challenge by the College to a refusal by the Home Office to grant it ‘Highly Trusted Status’ (which the College needed in order to be able to sponsor non-EEA students). One of the criteria the College had to satisfy in order to achieve HTS status was to show that out of all the students it had sponsored in the past 12 months, less than 20% of those students had been refused leave to enter or remain. The College failed to meet that criterion.

In its claim for judicial review the College argued that a significant number of those refusals of leave to enter were unlawful, because the entry clearance officer had refused leave on the basis of a requirement not contained within the Rules. The refusals had come about from students being asked in interview, ‘how did the College assess your English’, and the student purportedly ‘failing to correctly confirm’ how the College had done so. The students were consequently given no points for the ‘Confirmation of Acceptance of Studies’ (a ‘CAS’) assigned to them by the College, which specified how English had been assessed: because of an alleged “CAS discrepancy” (see [40]-[41]). This was even though the CAS met all the express requirements within the Immigration Rules.

Held

Beatson LJ held that the checks did not amount to a ‘rule’ (at [66-67]):

66. I do not consider that responses of applicants to questions about how the educational provider assessed their English language ability are criteria for the determination of an application for leave to enter or remain which the applicants must satisfy…The questions and action taken as a result of responses are simply the application of a common sense check to test the veracity, that is the truthfulness, of the contents of the CAS, one of the documents required by the Rules…

67. A discrepancy between its contents and what is said by an applicant significantly reduces its evidential weight. Since a valid CAS is not conclusive evidence of the matters in it, it must be open to an entry clearance officer to regard a discrepancy in an appropriate case as disentitling the applicant to the points attributable to the CAS.

Accordingly, the refusals had been lawfully taken, and the Home Office had been entitled to rely upon them ([73]-[74]).

Comment

Beatson LJ’s judgment marks a departure from the clear and straightforward principle enunciated in Alvi. Thus, in this author’s humble view, it should not be followed.

In Alvi Lord Dyson was clear that even checks to be carried out by a sponsor (in relation to the ‘resident labour market test’) should be contained in the Rules (see his judgment at [104]-[106], Lord Clarke at [124] and Lord Wilson at [131]). It is plain that their view was that where ‘the failure’ led to the applicant being refused leave to enter or remain, the requirement giving rise to the failure should be contained within the Rules. It is difficult to see how Beatson’s LJ’s reliance on ‘common sense checks’ and ‘evidential weight’, outside of the Immigration Rules, can be squared with those views or the general principle in Alvi.

Indeed, although expressing concern as to the need to protect against exploitation of the system’s rigidity, Beatson LJ did not appear to pay any regard to the interests of migrants, who, as Lord Dyson explained in Alvi (at [82]):

“are entitled to know under what rules they are expected to act”.

The reality is that Beatson LJ’s judgment conflicts with Alvi and the numerous cases that have followed it. Given that Alvi is a decision of the Supreme Court, that is the decision that must be followed, over and above Global Vision College.

Finally, it is worth bearing in mind that although Beatson LJ sought to distinguish the case of Pokhriyal v SSHD [2013] EWCA Civ 1568, he did not address the point that where there was a failure with the CAS, the Court of Appeal had been clear that this was to be taken up with the College; e.g. see the judgment of Longmore LJ (at [80]):

“…But these arguments are…intended to take place as between the UKBA and the colleges not between the UKBA and the student.”