As has been widely reported in the press, earlier this month the High Court upheld Penningtons' client, English UK's, claim that the previous Home Secretary's decision to raise the English language course level under the points based system to B2 CEFR, implemented in March 2010, was unlawful because Parliament had not been afforded the opportunity to scrutinise the rationality for the change (click
here for more information). The court also ordered the Government to pay a substantial amount towards English UK's legal fees because, in addition to not succeeding in its defence, it had ignored English UK's offers to withdraw the case if the Government followed the correct legal process and withdrew the change until the matter had been debated by Parliament.
As a result of the judgement, the Government has now laid a statement of changes to the immigration rules before Parliament. However, in the statement the Government has raised the English language course level to B2 once again and with immediate effect, thereby again denying Parliament the ability to scrutinise the rationality for the change prior to its implementation. The information which was considered carefully by Mr Justice Foskett during the hearing of the legal case demonstrated that genuine students who come to the UK to study English language directly contribute around £1.5 billion in foreign earnings to the economy. There is widespread concern that the Government's decision to implement the change and increase the level to B2 before Parliament has had the opportunity to consider the matter will now lead to significant financial losses until the matter is resolved by Parliament. English UK has estimated that more than 3,000 jobs and over £600 million a year in foreign earnings is now at risk.
UKBA's continued efforts to implement this policy arise from its belief that it is English language courses which provide an easy route into the UK for individuals who have no intention to study and who wish to live in the UK illegally. However, during the hearing UKBA was unable to evidence its claim that genuine English language students and the education providers which teach them pose a risk to immigration control. Last year through the policy guidance the Agency transferred the responsibility of assessing a person’s credibility as a student (apart from factors such as immigration record) to education providers. Although education providers can assess educational attainment and ability to follow a course, there are acknowledged difficulties about being certain about a person’s true intentions in applying for a UK visa.
In bringing the challenge, English UK put to the court that under the current legal system matters of such significant concern to the UK economy and security must be subject to Parliamentary scrutiny and Mr Justice Foskett agreed with this position. In addition, when he considered whether or not the Home Secretary's decision to increase the level for English language courses under PBS from A2 to B2 CEFR was irrational, he concluded that: "The court is not the appropriate place for balancing the competing arguments and in many respects it is ill-equipped to do so. The place for the arguments to be deployed and evaluated is in Parliament and, if the conclusion to which I have come on the principal ground advanced by [English UK] is correct, that is where these issues can be fully and properly considered." The principal ground, upheld by the court, was that the raising of the course level by way of a change to guidance notes, rather than through Parliament, was unlawful because it had been implemented by guidance notes.
Nichola Carter, immigration partner at Penningtons, said: “Mr Justice Foskett accepted English UK's reasonable argument that Parliament must be involved in major changes to the immigration system which will affect the country's security and economy. It is highly regrettable that despite this, the Government has chosen to implement the change in the absence of a full debate on the matter. It is essential that the Government allows Parliament to consider whether or not a decision to implement sweeping measures which will prevent hundreds of thousands of genuine students from investing in the UK is rational and proportionate."