Revocation of tier 4 licences

It seems as good a time as any to spend a few minutes thinking about revocation of Tier 4 sponsor licences. Clearly this is something no education institution wants to contemplate, given the financial and reputational risks involved, but we have seen a small flurry of suspensions and revocations in both the FE and HE sectors, and a tranche of compliance visits are currently underway. It’s worth knowing what can happen and on what grounds.

The UKBA’s right to suspend and/or revoke arises if they have reason to believe that sponsorship duties are being breached and/or the sponsor is a threat to immigration control. No CASs can be assigned during a period of suspension, but sponsorship duties are otherwise unaffected. Existing students who need to apply for an extension of stay during the period of suspension will find that their applications are not processed until it is lifted.

The Sponsor Guidance suggests that suspension in one Tier (e.g 4, General Student) will automatically mean suspension in all other tiers for which the sponsor is licensed. However, enforcement of this appears patchy. A suspended sponsor’s listing on the UKBA’s register of sponsors is removed until the suspension is lifted.

If a license is suspended, the UKBA will notify the sponsor of the reasons for the suspension, and the sponsor will have the opportunity to respond within 28 days. The UKBA will then decide whether to reinstate the license or revoke it, again within 28 days.

There are two sets of grounds for revocation, mandatory and discretionary. These are set out at paragraphs 570 and 574 of the Sponsor Guidance respectively. It’s worth studying these, particularly if a compliance visit is in the offing. Some of the mandatory grounds cross refer to acts and/or omissions in other Tiers or indeed in completely different areas of law (e.g. planning).

The discretionary grounds include a failure to comply with any of the sponsorship duties. The Guidance makes clear that although the licence will not be revoked automatically if such a failure occurs, there will need to be exceptional circumstances to prevent revocation. In particular, the UKBA will want to be satisfied that the sponsor was either not responsible for the breach or, if it was, it took prompt and effective action to remedy the failure.

If a licence is revoked, then any student found to have been complicit in the circumstances giving rise to revocation will be required to leave the UK immediately or face enforced removal. All other students will have 60 days to leave the UK or find a new sponsor. Clearly, there will be issues for some around financing a transfer to a new sponsor, and there may be claims against the original sponsor for breach of contract and/or negligence. Similarly, prospective students holding CASs who have not yet secured a visa and travelled to the UK will find that the CAS is invalid. Though less likely, they too may suffer loss as a result of the revocation.

There is no right of appeal against revocation. The sponsor is however free to apply to rejoin the sponsor licence after 6 months. Clearly the loss of income over 6 months and the reputational damage arising out of the revocation may mean that for some sponsors there is real difficulty in resuming overseas recruitment after such a hiatus.

The alternative is to apply for judicial review of the decision to revoke, if there is reason to believe that the UKBA has failed to follow due process and/or acted irrationally or (possibly) disproportionately. Judicial review will not however intervene in the merits of the decision to revoke (i.e it will not consider whether the Court thinks the decision to revoke is right or wrong) but rather consider whether it was arrived at lawfully and properly. The remedies available include orders quashing the decision to revoke and requiring it to be taken again. These are discretionary remedies though and the Court can decide not to intervene even where there are otherwise grounds to do so if, for example, intervention is prejudicial to good administration. It is also the case that applications for judicial review need to be issued promptly and in any event within three months of the decision to revoke, so there is a need for speed.

So revocation can be a catastrophic event, with no obvious or swift avenue of redress for the affected sponsor and its students.  It’s worth being proactive in keeping an eye on those grounds for revocation, in the hope that doing so will head off any breaches, or at least permit a swift assessment of the strength of any claim for judicial review if the worst does happen and a licence is revoked.

Smita Jamdar
Partner and Head of Education
For and on behalf of SGH Martineau LLP
DD: 0800 763 1332
M:  07909 925946
F: 0800 763 1732
International DD: +44 870 763 1332
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