Administrative law – Civil procedure – Education – Admissions

R (on the application of A&S Training College Ltd) v Secretary of State for the Home Department: QBD (Admin) (Judge Birtles): 27 August 2010

The applicant secretary of state applied to amend an interim order that she reinstate to the respondent college (C) with immediate effect its allocation of confirmation of acceptance of studies (CAS).

C was a college that provided education to foreign students. It issued a CAS to foreign students accepted on its courses so that the student could apply for permission to enter the UK. In July 2010 the UK Border Agency had temporarily reduced C’s CAS allocation to zero. C pressed the agency several times for a decision on reinstatement of its allocation as it wished to issue 150 CASs to students intending to take courses starting in September 2010. C issued proceedings for judicial review and obtained the interim order on 11 August requiring the immediate reinstatement of its CAS allocation. The order was emailed to the agency after office hours on 11 August, but there was no one available to deal with it. On August 12 C’s CAS allocation was reinstated. Also on 12 August a change to the Immigration Rules took effect which required foreign students to provide an English language certificate from an approved English language provider before a CAS could be issued to them. C argued that the secretary of state had not complied with the order, because she should have reinstated its CAS allocation as at 11 August, with the effect that the new English language requirement would not apply to them. The secretary of state argued that, if she had breached the order, the balance of convenience fell in favour of not ­continuing it because she was being asked to act outside the rules and because C had delayed in its ­application.

Held: (1) The secretary of state had breached the order. The order was crystal clear: it required immediate reinstatement of the allocation on 11 August. The judge had been well aware of the critical difference between reinstatement on 11 or 12 August. It did not matter that the agency had been unaware of the order until 12 August. The facts were different from Lewis v Secretary of State for the Home Department [2010] EWHC 1749 (Admin), in which the court found that the authorities had not breached a court order staying an individual’s removal as they had been unaware of the order at the time removal was effected. Although, in the instant case, the judicial review application had been issued on the last day on which it could achieve its intended effect, C had made every attempt to resolve the matter earlier, whereas in Lewis it had been a last-minute attempt to prevent the deportation, Lewis considered.

(2) If the order was not continued there would be a cost to C of being unable to issue CASs to students who did not satisfy the new English language requirement and such students had insufficient time to obtain a certificate, there was a potential knock-on effect on C’s good reputation, and there were no great practical difficulties for the secretary of state in executing the order. The secretary of state was not being asked to act outside the rules; the judge and the instant court were freezing the position as at 11 August. There had been no deliberate delay and C had made every effort to resolve the matter. The balance of convenience fell in C’s favour. The order would be continued and the application to amend refused.

Application refused.

Matthew Barnes (instructed by Treasury Solicitor) for the applicant; D Bazini (instructed by Penningtons) for the respondent.