Update on London Metropolitan

I wasn’t in the Royal Courts of Justice on Friday for the preliminary hearing into London Metropolitan’s request for a judicial review into UK Border Agency’s decision to revoke London Met’s licence to act as visa sponsors for non-EU students.  I have read the reports in The Guardian, Times Higher Education and the Laywer. I did however participate in Radio 4’s The Report and have now seen some senior level minutes from London Metropolitan.

I will try to summarise what I have gleaned from those sources, covering the court case first and the minutes second.

The Preliminary Hearing

First, Judge Irwin granted a judicial review but did not reinstate LMU’s highly trusted sponsor status.  That decision will depend on the outcome of the full review: for the meantime, LMU cannot recruit non-EU students. 

Second, Irwin did grant ‘interim relief’ to the affected international students pending the outcome of the review. He told Lisa Giovannetti QC for the Home Office:

“It occurs to me that if a student is already here and can demonstrate to the secretary of state that has immigration status that is in order then I would be interested to hear why in the case of such students why a concession can not be made in similar terms to that other group. Given the factual situation here, attendance at courses would no doubt be checked very vigorously by LMU from this point on – as it will have a big impact on its future. From what I can glean it seems that the huge inconvenience to students might be avoided. I don’t myself see why it would create difficulties for the secretary of state in other cases.”

The UKBA appeared to go further and have now agreed to allow ‘genuine students’ the opportunity to complete their course or continue until the end of this new academic year (2012/13), ‘whichever is shorter’ regardless of the outcome of the review.

Third, the review will focus on whether UKBA’s decision was:

• ‘unlawful’ insofar as it was based on guidelines which had not been ‘laid before Parliament which is referred to nowhere in the immigration rules’ and that there is no emergency to justify this absence;
• ‘unreasonable’ insofar as the university had not been given time to respond to concerns before the licence was suspended.

The first point will be the focus of the review. The burden of proof will lie with LMU.

Fourth, NUS was given permission to participate in the review as an interested third party. Lawyers for the Home Office did not oppose this request.

Fifth, there is agreement that UKBA has not identified any ‘illegitimate’ students’, this is a matter of record-keeping (relating to former students or students suspended for failing to provide appropriate documentation).  Richard Gordon QC, for LMU:

 “Just as the UKBA cannot find a single student studying at the university without leave to remain, it has no example of a student studying at the university who does not genuinely wish to study, or who has used tier 4 deceptively, has forged a document, or has abused the immigration system.”

There had been a ‘long-running conversation’, lasting roughly six months, between LMU and UKBA and LMU had adopted new procedures in response to the original concerns. LMU thinks it is unreasonable that UKBA did not return to assess its reforms, while UKBA had concluded that LMU ‘had been unable to put things right’.

All this is consistent with the accounts I have given before on this site.

A further point I have argued on here has been confirmed. In court, Giovannetti QC stated that the decision to revoke the licence was taken by the Home Secretary, Theresa May. This was therefore not an ‘operational decision’, despite what David Willetts has recently claimed; it was an ‘executive’ decision. That there was a disagreement at Cabinet level between the Home Office and the Department of Business, Innovation and Skills was also confirmed by a letter leaked to the Daily Mail in which:

‘David Willetts told Nick Clegg he wanted more students coming to the UK, not fewer, despite admitting that the number who stay here illegally after their courses end is not known. He is siding with the Lib Dems to insist the 250,000 students who come to Britain each year should be removed from the net migration figure – the difference between the number of people who arrive in Britain and those leaving.”

The Report & the minutes

Things get murkier. Radio 4’s The Report devoted 30minutes to the LMU case.

It has established a timeline for the ‘conversation’ between LMU and UKBA, which puts a new spin on things.

Sometime earlier this year, LMU approached UKBA to review an agreement it was preparing to sign with the private college, London School of Business and Finance (LSBF). LSBF was looking for a university to validate its courses after the collapse of its arrangement with the University of Wales.

A UKBA audit team with an ‘aggressive stance’ turned up at LMU in March. The same team had previously been looking at LSBF. However, the deal received the blessing of the UKBA and was signed off over Easter. UKBA then gave LMU approval to sponsor 5,000 LSBF students in addition to the 4,000 it wished to sponsor for itself.

This might seem unusual given that LSBF has its own ‘highly trusted sponsor’ status. But owing to one of the nuances of the Tier 4 scheme for students, private colleges bring non-EU students into the country on different terms to those sponsored by higher education institutions. Chiefly, students sponsored by LMU would have been able to work during term time.

So this was not just a validation arrangement: LMU began to issue the ‘CAS’ sponsor forms for LSBF students sometime in May.

At this point something happened.

The UKBA changed its mind about the contract between LMU and LSBF and used it as the opportunity to launch a second audit into LMU.  This is the audit that led to the suspension of LMU’s highly trusted sponsor status in July and its revocation at the end of August.

This final decision surprised LMU, who had been expecting the audit team to return in October to review the changes it had implemented (including awarding the partner contract for the shared services initiative).

In the Radio 4 programme, which I recommend to all readers, Margaret Hodge, Chair of the Public Accounts Committee, describes her frustrations with the UKBA’s propensity to act retrospectively rather than planning ahead. Here in this ‘strange process’ we have a new, clear example.

A number of questions remain and may not be cleared up by the judicial review.

• What is the nature of the ‘joint venture’ with LSBF that led LMU to take such risks? Times Higher Education reports that it is on the basis of said ‘joint venture’ that LSBF was nominated to take part in the ‘clearing house’ despite it not having its own degree awarding powers.
• There was clearly political intervention from the highest level. The decision was taken by Theresa May in August. But what happened in the month of May when a contract cleared by the UKBA suddenly requires urgent review?
• London Met’s administration has its flaws and these have been documented, but in April it was good enough for UKBA to allow it to sponsor 5,000 students at a private college. What changed and why?

Update 25 September According to a letter from Lynne Featherstone MP for Hornsey & Wood Green to a constituent, the decision to revoke relates to record-keeping ‘between December 2011 and May 2012’.