The English UK successfully challenged the decisions put in place by the last Home Secretary, to increase the level of English which students must possess prior to being able to obtain a UK visa to learn the language here. Over £600 million a year in foreign earnings have been saved for the UK economy when the High Court found in favour of the English UK on which international students can come to learn in the UK.
The Common European Framework supplies a familiar foundation for the amplification of language syllabuses, curriculum guidelines, examinations, textbooks, etc. across Europe.
Explained in detail within the European Framework of Reference Languages (CEFR) is what language students must learn and what facts and expertise they must build up in order to be able to act successfully.
The principle of the CEFR also describes the level of proficiency learners must cover to allow them to progress. It also measures their level of progress at each stage of their learning and on life-long bases.
The Level of proficiency is categorised into 3 divisions by the CEFR; A, B and C. the most proficient category being C and the Least proficient category being A. Category A mirrors the aptitude of the “Basic User” and Category B demonstrates the “Independent User” and Category C, the “Proficient User”. The categories concerned here are Categories A and Category B which in turn has been divided into sub-Categories; A1, A2 and B1, B2.
Category A2 has been roughly classified to be equivalent to GCSE grades D-F and B1 described to be more or less in the region of GCSE in a foreign language at grade A*-B.
The classification put in place in the CEFR by the UK government is for the reason to effectively provide the minimum achievement needed by a non-EEA national to meet the criteria for admission to the UK to study.
The proceedings were challenged on the following three points.
(a) That the change in the minimum level of English language tuition permitted ought to have been introduced by a change to the Immigration Rules and was not capable of being introduced by a change in the UKBA's Guidance. Reliance is placed on the decision of the Court of Appeal in Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719, in which the judgment was handed down on 23 June.
(b) That the decision is, in any event, Wednesbury unreasonable and/or irrational because the evidence did not warrant the conclusion that immigration control required that international students be prohibited (save for certain exceptions) from entry to courses below level B2.
(c) That the Immigration Rule relevant to the present claim (paragraph 120(a) of Appendix A to HC 395) is being utilised in a way that amounts to an unlawful delegation of the Secretary of State's powers and/or an unlawful ouster of the Court's jurisdiction. On that latter basis the Rule is, it is argued, to this extent and in its current form, ultra vires.
Those who do not have a true intention to study in the UK are believed to be in the position to exploit the route for entry for study in the UK. For this reason it is required of them to display the minimum entry requirement.
A variety of actions were put in place to shore up the entry arrangements to prevent the abuse of the student rout entry into the UK and at the same time steps were taken to make sure genuine students can enter and make use of the UK teaching services. In March 2008 the Points Based System ('PBS') for UK immigration was introduced. Mr Nigel Farminer, a Deputy Director of UKBA responsible for temporary migration policy, has said:
"Approximately 80 immigration routes have been consolidated into a five tier system, one of which is suspended (Tier 3 – unskilled workers). The PBS is a simplified one-stop migration process for all those from outside the European Economic Area (EEA) who wish to work, train or study in the UK. Prospective migrants are judged using clear and objective criteria to ensure consistency. These criteria are set out in guidance and an on-line self-assessment tool allows applicants to assess the likelihood of the success of an application even before it is made. The PBS provides greater control over migration as well as increased transparency for the benefit of applicants and the potential employers and education providers who act as their sponsors under the system. It has been introduced in phases, following extensive consultation with other government departments and stakeholder organisations. Tier 1 for Highly Skilled migrants were introduced in February 2008, Tiers 2 and 5 for skilled workers and temporary workers followed in November 2008 and the implementation of Tier 4 for Students began in March 2009."
The level was increased on 3rd March 2010 from the sub-category A1 to sub-category B1 on the CEFR for languages. This meant that students who did not wish to partake in studies longer then 6 months could no longer obtain a general visa unless they proved they met the requirements needed. This meant that students who wish to obtain a general visa to study in the UK must show that their level of English is equivalent to A-Level (B1).
The parliament were not directly presented with this change but was put forward through a paragraph in an appendix to the immigration rules which in turn gave the UK border Agency (UKBA) the authority to state the minimum academic level required for students to be able to enter the UK using a General Student visa (GSV).
In his written judgement, Mr Justice Foskett said anything which "changed materially" the criteria of entry for overseas students must be done through a change in the rules, and not through a change in the guidance. He went on to conclude that "extrinsic guidance cannot be used…to make a material or substantive change in existing immigration policy without the negative resolution procedure set out in section 3 (2) of the 1971 Immigration Act being implemented".
Tony Millns, Chief Executive of English UK concluded: "We brought this case as a last resort, and will now seek to discuss with UKBA ways in which we can help formulate a more sensible policy which our members can support and which will contribute to immigration control. Genuine colleges have no desire to enrol people who are not genuine students. We are pleased that Mr Justice Foskett saw the merits of our case and we believe that his decision is good for the UK economy, to which the English language sector contributes about £1.5 billion in foreign earnings each year."
A change back to the A1 level of English for students wanting to study on a General Student Visa was directed by Mr Justice Foskett to be effective immediately.