English UK, a national association of accredited English language centres with over 400 members, is to proceed with its judicial review of Home Secretary Alan Johnson's decision to change the rules for overseas students wishing to enter the UK to study English. The Government has this week confirmed that it will not challenge the order granting permission to pursue this judicial review.
On 7 February 2010, the Secretary of State used an interview on the Andrew Marr Show to announce that he was substantially increasing the minimum level of English language courses which can be taken by students seeking leave under Tier 4 of the PBS. That decision was implemented on 3 March 2010 by way of amendments to the Tier 4 Sponsor Guidance. As a result, Tier 4 students can only take courses at or above level B2 of the Common European Framework Reference scale, an increase of two levels from A2. B2 is equivalent to Grade B in a foreign language AS-level. Before they start the course, students must be at level B1, which is equivalent to a grade A* in a foreign language GCSE. Thus people wanting to study English in the UK under Tier 4 can only do so if they are already proficient speakers.
About 600,000 students come to the UK each year to study English, making a direct contribution of around £1.5 billion in foreign earnings. The new minimum course requirements are likely to have a huge financial impact not only on the English UK’s members but also on the broader economy. The changes were justified by claims that they would deter abuse of the immigration system, but no evidence was put forward to justify those claims.
The application for judicial review was issued on 22 March 2010. Just two days later, Collins J took the unusual step of granting permission before the Secretary of State had filed an acknowledgement of service or summary grounds of defence. The order granting permission was made in unusually forthright terms, with the judge stating: “It is difficult to see how the extension of the level of English to those who come to study English can reasonably be justified.” Although permission was stayed to allow the respondent to argue why it should not have been granted, the Secretary of State has now confirmed that permission is not opposed.
The claim is brought on a number of grounds. English UK are arguing that the provision in the Immigration Rules (para. 120(a) of Appendix A) which allows the UKBA to set minimum academic standards for Tier 4 students in sponsor guidance, as opposed to in the Rules themselves, is unlawful. On this point, Collins J noted, when granting permission: “The use of guidance in circumstances where its effect is to render entry for students more difficult is arguably a misuse of the powers contained in the 1971 Act.”
English UK is represented by Nichola Carter, a partner in Penningtons Solicitors LLP's immigration team and by Judith Farbey and Joe Middleton at Doughty St Chambers. Commenting on the case, Nichola Carter said: "English UK believe that the changes are irrational given the adverse effect they will have on English language centres and other stakeholders and the absence of any evidence to suggest that they will prevent abuse of the immigration system."
A timetable for the full hearing has yet to be fixed but it is hoped that the case will be heard before the summer recess.