Penningtons client wins High Court judicial review case on English language courses under the points based visa system

An immigration and litigation team effort, led by Penningtons partner Nichola Carter, has represented English UK in its High Court win.

English UK, which represents 440 fully-accredited English language centres, estimates that more than 3,000 jobs and over £600 million a year in foreign earnings have been saved for the UK economy by the judgement that the Home Secretary’s decision earlier this year to raise the minimum level of English course which foreign students may study in the UK was unlawful.

As a result of the ruling, education providers with a tier 4 sponsor licence may once again, and with immediate effect, offer English language courses at A2 level on the Common European Framework of Reference for Languages.

The decision to increase the level to B2, implemented on 3 March 2010, was not put before Parliament, but was made through a change in guidance notes.

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, 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.”