English UK takes Government to court
2 July 2010

The Government's decision to raise the required level of English for visa students applying to study the language in the UK was challenged in the High Court this week.

English UK's judicial review centres on the way in which the minimum language requirement for the General Student visa was raised earlier this year from "elementary" (A1 on the Common European Framework of Reference) to "intermediate" (B1).

The major strand of the legal argument focused on whether it was legitimate for the Home Secretary to have introduced the B1 language requirement through the UK Border Agency's Guidance to Sponsors, rather than explicitly introducing it in Parliament.

"The change to the minimum level of English tuition ought as a matter of law to have been introduced by a change to the immigration rules and was incapable of being introduced by changes to the sponsor guidance," argued Judith Farbey, counsel for English UK.

Miss Farbey said that under the 1971 Immigration Act, any changes to the rules must be brought before Parliament. MPs then have 40 days in which they can "disapprove" the changes.

She said this procedure was not followed with the changes to the language requirement. The relevant paragraph had stated that: "Points will only be awarded for a Confirmation of Acceptance of Studies … if the course in respect of which it is issued meets each one of the following requirements: a) the course must meet the UKBA's minimum academic requirements as set out in sponsor guidance published by the UKBA..." 

Miss Farbey argued this enabled "substantive change to the administration of immigration control by policy rather than rule changes which was plainly outside the contemplation of the enabling 1971 Act."

Substantive issues must be put through Parliament for negative resolution, she said, with fresh scrutiny every time there was a change to these terms. She said: "The 1971 Act makes plain that the Secretary of State must be constrained by the law. We say he must be accountable."

But Neil Sheldon, appearing for the Home Office, disagreed with this interpretation. He argued that MPs clearly understood from the relevant paragraph that there would be minimum academic requirements and that this change could have been disapproved by MPs if they had wanted to. "By laying that rule before Parliament the Secretary of State was in my submission making it perfectly clear how he intended to operate this facet of border control. He made it perfectly clear that discretion was reserved for himself in setting a minimum academic requirement and the right to exercise that discretion," he said.

Both sides also disagreed about the significance of a new Appeal Court ruling on the legality of immigration guidance applying to former students seeking leave to remain. In this case, the immigration rules said applicants needed to have £800 and "specified documents". The policy guidance added the instruction that the applicant must have had the £800 for the previous three months.

The judgment in the Appeal Court case, delivered the week before the English UK case was heard, considered the legality of the policy guidance's three-month stipulation.

It considered whether the rules could lawfully include provisions from another document which had not been laid before Parliament, was not itself a rule of law but department policy, and whether it was able to be altered after the rule was laid before Parliament. The overall answer, found the judge, was no. Miss Farbey argues that this applies to the B1 guidance.

The English UK hearing, which lasted for a day and a half before Mr Justice Foskett, also considered many of the other issues surrounding the Tier 4 Review and the way in which the B1 language level was introduced. Many members of English UK were present for the hearing.

In further legal arguments, Miss Farbey said that the decision to raise the language requirement was "unreasonable or irrational" because there was no evidence to warrant the conclusion that immigration control required the barring of students below this level. She said the B1 requirement had led to a situation in which sponsors determined whether or not a student could enter this country. This removed High Court scrutiny from matters bearing on immigration control.

Miss Farbey took the court through events from the introduction of Tier 4, the rise in applications from the Fujian area of China, the announcement of the Tier 4 review, the way in which the Secretary of State announced the new rules on the Andrew Marr show and the subsequent dissatisfaction of a House of Lords committee which examined the process.

The Home Secretary had, she said, failed to establish the link between unlawful immigration and raising the minimum level of English language tuition. "The change to B1 to deal with this is simply unevidenced," said Miss Farbey.

She also disagreed with the Government's assertion that genuine students who wanted to study elementary English in the UK would not be prevented from doing so.

"The review report confirms there will inevitably be some students who opt instead for another English-speaking country and who will be lost as potential Further or Higher Education students in the UK," she said, adding that the Review contradicted the Impact Assessment of the changes, which stated that changes to Tier 4 would yield "nil" loss of revenue to colleges recruiting genuine students.

She was dismissive of Home Office suggestions that genuine students would have a "commitment" to studying in the UK. "There are two inferences buried in this somehow: that commitment to the UK is a relevant factor in immigration law or policy and that those with no commitment to the UK are somehow bad students."

However, Mr Sheldon disagreed with this interpretation of events. "China is simply a stark illustration. Plainly there is nothing preventing applicants from other areas cottoning on to this issue, should they wish to do that," he said. "Plainly it would be inappropriate in the event of the Secretary of State to attempt to apply sticking plaster solutions from country to country as the problem arises."

Mr Sheldon said there was evidence that the language requirement would deter economic migrants. He said that the only students excluded by the B1 requirement were those who did not intend to pursue a further course of higher education, or were not sponsored by their government. He argued that such students had no genuine intention of studying English in the UK and therefore lost revenue would be from bogus students.

English UK is seeking a declaration that the decision was unlawful and for an order to quash it.

Mr Justice Foskett is now considering the evidence. He told the court that he appreciated the urgency.


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