The London Reading College Ltd, R (on the application of) v Secretary of State for the Home Department

A public authority proposing to revoke a valuable licence must give the licensee fair notice of the substance of every material complaint and a proper opportunity to answer it. The content of fairness depends on the decision, its framework and consequences, but an irreducible minimum of information must be disclosed. A further inspection does not automatically require a second opportunity to make representations where the original notice revealed the essence of the complaint.

Revocation based materially on a fresh, undisclosed concern is procedurally unlawful. Such unlawfulness also prevents a deprivation of the licence from being subject to the conditions provided for by law under article 1 of the First Protocol to the European Convention on Human Rights.

The claimant educational college held a Tier 4 sponsor licence permitting it to issue documents supporting overseas students’ immigration applications. Following inspections and correspondence about record keeping and attendance monitoring, the Secretary of State revoked the licence. The decision relied materially on concerns about students’ English language abilities or the absence of evidence of language testing.

The college sought judicial review and damages under section 8 of the Human Rights Act 1998. It alleged procedural unfairness, failure to consider lesser sanctions, irrationality or disproportionality, and breach of article 1 of the First Protocol to the European Convention on Human Rights. The central issue was whether the college had received fair notice of the matters which materially prompted revocation.

1. The claim succeeded and the revocation decision was quashed. Procedural fairness required the college to receive fair notice of the substance of the criticisms material to the proposed decision, so that it could answer them and the decision-maker could reach a rational decision on a proper understanding of the facts.

2. The requirements of fairness depend on the subject matter, the character of the decision-maker, the applicable framework and the kind of decision being made. The commercial consequences of revocation were serious, although they had to be balanced against the risks to effective immigration control. In those circumstances there remained an irreducible minimum of information which the licensee had to receive.

3. A further inspection after representations does not necessarily create a right to make further representations. No further consultation is required if the original notice disclosed the essence of the complaint. Here, however, the earlier letter concerned identity and attendance records. It did not disclose the materially different concern about students’ English language ability or records of linguistic achievement upon which the revocation decision relied.

4. The college’s proposed response concerning its language-entry requirements was not self-evidently without substance. The court could not determine that response in place of the Secretary of State. The material point was that the college had been denied the opportunity to advance it and the Secretary of State had been denied the opportunity to consider it. Any allegation of dishonesty also required sufficient particularity; it could not properly be inferred from hints concerning different incidents.

5. The court rejected the invitation to withhold relief because a later withdrawal of accreditation might lead to renewed revocation. The later difficulties were consequences of the impugned decision, which had to be treated as unlawful. The Secretary of State could not rely upon consequences of her own unlawful action as a reason to deny relief.

6. The irrationality and proportionality grounds would otherwise have failed. The Secretary of State had broad supervisory responsibility for immigration control and was entitled to revoke a licence for potentially serious failures after fair warning. The court should not finely calibrate the appropriate sanction. That conclusion was expressly conditional upon adequate notice and an inadequate response.

7. The procedurally unlawful withdrawal was not subject to the conditions provided for by law for the purposes of article 1 of the First Protocol. There was therefore a breach of that article. The court was to hear further argument concerning the appropriate order for assessment of damages.

This was a first-instance claim for judicial review of the Secretary of State’s decision of 28 October 2009 to revoke the claimant’s Tier 4 sponsor licence. Stadlen J granted permission on 8 July 2010.