In the High Court last month, Mrs Justice Moulder found that the Home Office had gathered partly unreliable intelligence in the course of an investigation into a college, breaching its right to peaceful enjoyment of its Tier 4 sponsor licence under Article 1 Protocol 1 of the European Convention on Human Rights. Unfortunately for the college, the actual damages claim was time barred. The case is London College of Business Limited v Secretary of State for the Home Department  EWHC 3144 (QB).
The decision came just before Christmas and is worth returning to now to restore faith in the system: the Home Office must abide by its own policy, as set out in its epic sponsor guidance, when wielding sanctions against sponsor licence holders.
Media circus put pressure on the Home Office to act
Home Office investigations into the London College of Business began in 2012, when Crimestoppers alleged that it was issuing fake degrees. The row escalated after the business was hit by a Sky News investigation. The broadcaster alleged that the college was issuing diplomas and English language certificates to bogus students without visas and sending counterfeit essays to the affiliated University of Wales for marking. The college was also the subject of a BBC Panorama report, which raised concerns that English language tests had been falsified.
The claimant’s sponsor licence was picked up by this media whirlwind. It was suspended and reinstated in 2012 and again in 2013. In 2014 the licence was again suspended and subsequently revoked in 2015.
High Court confirms unlawful conduct, but no damages available
In April 2016, the court agreed to look at the case as a whole from 2012 to 2016. This was important, not only in relation to the quantum of damages but also for limitation purposes.
The guidance as in force from 5 September 2011 for sponsoring students under Tier 4 of the Points Based System provided that:
we will immediately suspend your licence while we make further enquiries if we have reason to believe that you are breaching your sponsorship duties and/or are a threat to immigration control (for example, assigning CASs to students who do not enrol or fail to complete their course) to the extent that we may have to revoke your licence.
The court concluded that the first suspension in 2012 was lawful. But much of the Home Office’s conduct after that was found to be unlawful. This included the decision to suspend in 2013, which was based “on matters other than noncompliance with the duties [placed on sponsors per the sponsor guidance]”, as well as delays in reinstating the licence of five months in 2012, three months in 2013 and almost a year in 2014.
Despite the unlawfulness of this conduct there was no relief for the college. The court decided the claim was statute-barred under s7(5)(a) of the Human Rights Act 1998, which provides that proceedings must be brought within one year beginning with the date the act took place.
The court considered O’Connor v Bar Standards Board  EWCA Civ 775 and Somerville v Scottish Ministers  UKHL 44 and widened the meaning of an “act” to include a continuing course of conduct, but concluded that in this case each suspension was a discrete act with continuing consequences:
the claimant [had not] established a single continuing act on the part of the defendant such that it can be regarded as a single process during which the defendant takes many steps in the form of the decisions to suspend and then to lift the suspension.
The significance of the victory, although short-lived, confirms that the Home Office must abide by its own policies when issuing sanctions against Highly Trusted Sponsors. The burden of playing an active role in immigration control and the entitlement to review compliance and sanctions with “a cynical level of supervision” – see London St Andrew’s College v Secretary of State for the Home Department  EWHC 4328 (Admin) – is now shared.
The case also demonstrates to reluctant stakeholders of Theresa May’s hostile environment that as well as being a rulebook containing devastating penalties for non-compliance, the sponsor guidance can shield sponsors from erroneous sanctions imposed by the Home Office.