English UK wins judicial review case
10 July 2010

English UK wins High Court Judicial Review on English language courses under the points based visa system

More than 3,000 jobs and over £600 million a year in foreign earnings have been saved for the UK economy by a High Court judgement on which international students can come to the UK.

English UK has today won its case in the High Court against the last Home Secretary’s decision to raise the level of English which students must have before they can get a UK visa to learn the language here. 

On March 3 2010, the level was raised from elementary to intermediate (from A1 to B1 on the Common European Framework of Reference for Languages) for students who wanted to take courses of longer than six months and so needed a General Student Visa. They could no longer study on a course at a lower level than B2, roughly equivalent to A Level.  In effect, this meant that they had to have a good standard of English before they could come to the UK to learn it. 

The change was not directly put before Parliament, but was made through a paragraph in an appendix to the immigration rules which gave the UK Border Agency (UKBA) the blanket power to specify the minimum academic level of course which students can come to the UK to study on the General Student visa (GSV). 

In his written judgement, Mr Justice Foskett said anything which "changed materially" the criteria of entry for overseas students must be done through a change in the rules, and not through a change in the guidance. 

He agreed with counsel for English UK that a recent ruling from the Court of Appeal, on another immigration case, also applied to the way the language requirement was changed. 

The rationale for the judgment in the Pankina case, Mr Justice Foskett said, was that "a provision that reflects a substantive criterion for eligibility for admission or leave to remain must be the subject of a process that involves a true Parliamentary scrutiny" (his emphasis).  The increase in the level of English was not in fact subject to Parliamentary process, but done through a change in administrative guidance. 

On this, Mr Justice Foskett said: "I do not doubt that the changed approach in the new guidance does operate to change materially the substantive criteria for entry for foreign students who wish to study English in the UK, and…that cannot be achieved by a change in guidance – it must be achieved through the medium of a rule change." 

He went on to conclude that "extrinsic guidance cannot be used…to make a material or substantive change in existing immigration policy without the negative resolution procedure set out in section 3 (2) of the 1971 Immigration Act being implemented".

Tony Millns, Chief Executive of English UK, which represents 440 fully-accredited English language centres, said: "This judgement upholds our basic case that the Home Secretary was wrong to introduce a substantive change in the entry criteria for GSV students without laying that change before Parliament. 

"We have asked the court to rule that the English language requirement must now revert to what it was before 3 March, in other words students must be at level A1 to take an English language course at A2.  This will give our 440 member centres some immediate help since many of them faced losing a damaging number of students this summer and autumn."

He added: "We brought this case as a last resort, and will now seek to discuss with UKBA ways in which we can help formulate a more sensible policy which our members can support and which will contribute to immigration control.  Genuine colleges have no desire to enrol people who are not genuine students.  We are pleased that Mr Justice Foskett saw the merits of our case and we believe that his decision is good for the UK economy, to which the English language sector contributes about £1.5 billion in foreign earnings each year."

English UK’s case was led by Nichola Carter of Penningtons Solicitors LLP and Judith Farbey of Doughty Street Chambers.  Commenting on the case, Nichola Carter, immigration partner at Penningtons, said: "Creating an immigration system which both denies entry to those with unlawful intentions and allows the UK to retain its reputation for world-class English language teaching is a complex process involving decisions of cultural and economic importance.  This ruling confirms that parliament must be included in decisions which will significantly change the immigration system.  In the months between the implementation of this unlawful policy and the hearing of this case, English UK continuously offered its assistance in creating a policy which was effective, sensible and lawful, and maintains that offer now."

Mr Justice Foskett instructed that a change back to the A1 level of English for students wanting to study on a General Student Visa would be effective immediately. Members can read the judgement in full by clicking here.


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