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Technology in Medicine

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									R (on the application of Leung) v Imperial College of Science, Technology and
Medicine

Administrative Court

SILBER J:
Introduction
1. Wing Kew Leung (“the claimant”) challenges the decision of Imperial College of
Science, Technology and Medicine (“the college”) to classify him as an overseas student,
rather than as a home student, for the purpose of the Education (Fees and Awards)
Regulations 1997 (“the Regulations”). The significance of that classification is that the
Regulations permit certain educational institutions, including the college, to charge
higher fees for those students, who have been classified as overseas students rather than
home students under the Regulations. Those who are regarded as home students for fee
charging purposes include those who are settled in the United Kingdom and who also
meet the residence conditions in Paragraph 9 of Schedule 1 of the Regulations.
2. A condition in Paragraph 9 of the Schedule of the Regulations, which is of central and
crucial significance in determining the status of the claimant in this case, provides that a
person meets the residence conditions in Paragraph 9 which, with my emphasis added,
provides that:-

        “(b) [the student's] residence in the United Kingdom.. has not during any part of
       [the three year period preceding the relevant date].. been wholly or mainly for the
       Purpose of receiving full-time education”.

3. The Regulations make it clear that “the relevant date” for determining a student's status
for classification of the fee purposes is 1 September, 1 January or 1 April, closest to the
beginning of the first term of the student's course (Regulation 4(6)). In the case of the
claimant, it is common ground between the parties that first, the relevant date for
determining his status was 1 September 2000 and second, that his fee paying
classification for the duration of his course was settled once and for all by the
determination of his status as on that date. Mr. McManus QC, who appears with Mr.
Adam Solomon for the claimant, says that if the claimant had been classified as a home
student rather than as an overseas student, he would have saved about £9,000 in each year
of his course at the college. In order to understand the rival submissions, it is necessary
now to set out in outline some of the relevant chronology leading up to the making of this
application.
The Chronology
4. The claimant was born in Hong Kong in December 1980. He, together with the rest of
his family, was granted British citizenship in May 1995, which was the year when his
parents left the United Kingdom where they had worked since 1972 in order to return to
Hong Kong. They retained their property in London at 33 College Road, Wembley,
which was occupied by the claimant's aunt. The parents of the claimant retained contact
with the United Kingdom and they visited this country every summer. The claimant's
older brother Yu Kew Leung (“Yu”) left Hong Kong to live in the United Kingdom in
August 1990 and in May 1995, he became permanently settled in this country.
5. In August 1995, when the claimant was fourteen, he left Hong Kong where he had
previously been at school to come to the United Kingdom, where he enrolled in
September 1995 at Merchant Taylor's School in Northwood as a boarder. Shortly after
the claimant arrived in this country, his parents purchased a house in Northwood ('the
Northwood house”) ' which was occupied by Yu, the claimant and his aunt, who was also
the claimant's guardian. Although he lived very close to Merchant Taylor's School, he has
explained that he was a boarder there because his parents were keen for him to
experience communal life.
6. In 1996, Yu commenced a three-year Biochemistry degree course at the college and he
was classified as a home student for fee purposes. In September 1999, the claimant
applied for places at the college and at a number of universities in the United Kingdom
and on his UCAS application form, he gave the Northwood house as his permanent
address. In November 1999, the claimant was asked by the college to complete a
supplementary questionnaire and he duly did so. On 30 November 1999, the claimant
received a conditional offer from the college of a place for a course starting in October
2000, which was dependent upon the claimant obtaining certain high grades in his
Advanced Level examinations, which he was due to sit in Summer 2000. The claimant's
conditional offer was not dependent on his fees status and he later accepted the offer. On
2 December 1999, the college wrote to the claimant (“the December 1999 letter”), and
told him that he had been classified as an overseas student for fee purposes. No complaint
was made by the claimant about this classification until more than nine months later.
7. In May 2000, the claimant received a letter from the college, which confirmed his
acceptance of the conditional offer that had been made to him, and it also informed him
again that he had been classified as an overseas student for fee purposes. The college also
asked him to sign and return a Financial Statement, which he did on 29 May 2000. The
Financial Statement simply confirmed that he had adequate funds to cover the tuition fees
of an overseas student. He satisfied the conditions for obtaining his place at the college,
which duly offered him an unconditional place in August 2001 and the college also sent
the claimant a certificate stating that he had been accepted for admission and that his
“classification for fee purposes” was “overseas”.
8. In the last week of August 2000, the claimant decided to take up his place at the
college but by a letter dated 28 September 2000, he informed the college for the first time
why he believed that the college had classified him incorrectly as an overseas student. In
October 2000, the claimant duly commenced his course at the college.
9. On 15 December 2000, the college wrote (“the December 2000 decision letter”) to the
claimant explaining that he had been correctly classified as an overseas student. This
letter, to which I will have to refer to in greater detail later, expressly relied on advice
offered by the Department for Education and Employment.
10. On 1 March 2001, the claimant wrote to the college (“the March 2001 letter”) and he
reiterated his case that he should be treated as a home student explaining that he had
come here to settle and not for the purpose of receiving full-time education and. stating
that he lived three minutes walk from the school; he urged reconsideration of the
college's decision. On 6 September 2001 the college wrote (“the September 2001
decision letter”) to the claimant explaining that it had considered the information sent by
him and stated that its decision on his status remained unchanged. The present judicial
review application was commenced in 2001. On a paper application, Sullivan J refused to
give the claimant permission to proceed on this application but subsequently, Collins J
allowed the claimant's renewed application for permission after an oral hearing.
The grounds of challenge
11. Mr. McManus QC for the claimant accepts that he cannot challenge the decision of
the college to classify the claimant as an overseas student in the December 2000 decision
letter or in the September 2001 decision letter as Wednesbury unreasonable, but the
claimant's challenge to the decision of the College is now, after re-amendment at the start
of this hearing, based on errors allegedly committed by the college in the form of
misdirections, unfairness, a failure to apply the proper burden of proof and to take
account of relevant considerations. Many of these challenges overlap with each other.
12. There are four alleged misdirections and in the words of the claimant's skeleton, they
are:-

       a. that the college is alleged to have misdirected itself by failing “to determine at
       the time whether the claimant was telling the truth when he said he came to the
       UK to settle”;

       b. applying an approach of whether it was reasonable to regard the claimant as in
       the UK wholly or mainly for the purpose of receiving full-time education.

       c. regarding paragraph 57 of the Government Guidance as determining the issue
       against the claimant because he was at boarding school.

       d. adopting an approach of “strict” construction of the regulations.

13. I will consider the complaints of the claimant in turn but it would be useful first to
describe what material was before the college when it made the decisions of which
complaint is now made. it would then be sensible to consider and determine three specific
legal issues, which will arise on a number of occasions during my analysis of the
claimant's complaints
Material before the college
14. In order to consider the challenges to the decisions of the college, it is necessary to
specify and describe the material, which was before the college when it made its
decisions under challenge to classify the claimant as an overseas student. In common
with all other applicants for a university place, the claimant had to fill in a UCAS form,
in which he gave the Northwood house as both his correspondence address and as his
home address. He stated that his country of birth was Hong Kong and that his area of
permanent residence was in Northwood, Middlesex. He had to insert two codes on the
UCAS form, which are of some relevance. The first was to describe his “residential
category”, which was obviously significant for the purpose of deciding whether he
complied with the residence requirements in order to be classified for fee purposes as a
home student. It was explained in the explanatory notes to the UCAS form that there
were a number of possible categories of which Category W was designated for
applicants, who were “UK/EU National or child of, ordinary resident for three years in
[European Economic Area], not for purpose of full-time education”. There were other
categories as well as a final and residual category, with the distinctive category letter '0'.
The claimant selected Category '0' as being his appropriate category, rather than Category
W which would have been the correct category for a student, who complied with the
residence requirements which would have enabled him to be classified for fee purposes
as a home student. The claimant has in the course of these proceedings explained why he
made that choice, but that explanation was not before the college when it made its
decisions and so it must be ignored when deciding if the college's decisions can be
impugned.
15. The second code said to be of significance on the UCAS form was the 'Fee Code'
which indicated how the claimant expected that he would pay his tuition fees. It was
explained in a note to the UCAS form that the majority of UK and EU applicants would
be in category '02' which was designated as covering students “applying for assessment
of eligibility for tuition fee contributions to Local Education Authorities. Student Awards
Agency for Scotland.. Northern Ireland Education and Library Board of DfEE”. Category
'02' was duly selected by the claimant as being appropriate for him and it was inserted by
him on his UCAS form.
16. The claimant was then asked in a letter dated 28 October 1999 to fill out a
supplementary questionnaire as the college “require[d] additional information to enable
us to determine your fees status”. The claimant was also asked to enclose “copies of any
relevant documents confirming the details you have given on this form, e.g. a Home
Office letter and/or passport entries”.
17. The claimant duly completed and returned to the college the questionnaire stating that
his permanent address was the Northwood house, that his parents had lived in the United
Kingdom for short periods in the 1970s but that their current permanent address was in
Hong Kong, that his nationality was British, that he had lived in Hong Kong until July
1995 (when he was aged 14) and that his reason for living in the United Kingdom was
“as country for residence i.e. to settle”. Section D of that form provided a space for
“Additional Information” stating:-

       “Give below any additional information about yourself, your family or your
       circumstances which you believe to be relevant, but which is not covered by your
       answers to questions elsewhere on this form”.

18. The claimant did not provide any further information or supply any documents with
his completed form. He also signed a declaration that the information supplied on the
form was “accurate and complete”. On the basis of the information received, the college
concluded that the claimant should be treated as an “overseas student” and it informed
him of this conclusion in the December 1999 letter. It explained that the college took the
view of the claimant that “if [his] parents were not resident in the EU but are presumably
supporting [him] from Hong Kong, then [he] must be here mainly for the purposes of
education”.
19, The claimant did not raise any query or make any complaint in respect of this
classification but he subsequently accepted the conditional offer of admission. He was
later informed by a letter of 4 May 2000 that he had been classified as an “overseas
student” and he was sent a copy of the guidelines used by the college for determining the
classification of the students. That letter concluded by stating that:-

       “If, after studying these guidelines, you wish to appeal against your
       classification as an overseas student, you should write to me clearly setting out the
       basis of your appeal and send appropriate documentary evidence in support of
       your claim”.

The claimant did not appeal or object to this classification but he signed a letter on 29
May 2000 in which he accepted responsibility for payment of the college's fees. It has
correctly not been suggested that this constituted an acceptance by him of his overseas
status.
20. After the claimant achieved in his Advanced Level examinations the grades required
by the college to satisfy his condition of admission, he received a letter of 17 August
2000 from the college confirming his place and as well as a certificate from the college
stating that the claimant had been accepted for admission as an undergraduate at the
college with his “classification for fee purposes” being “overseas”.
21. The first occasion on which the claimant contested his classification as an overseas
student was in his letter to the college dated 28 September 2000, which was apparently
two days before the beginning of his first session as a student at the college and nine
months after he had been told in the December 1999 letter of this classification. In this
letter, the claimant explained that he was' and that he had been resident for over three
years in his own right in this country and that during that time he had received full-time
education. He disputed that he was, in the words of the Regulations, resident “for the
purpose of receiving full-time education”. He also said that the status of his parents as
Hong Kong residents was irrelevant to his status.
22. The claimant also explained that he had acquired British citizenship through the
British Nationality (Hong Kong) Act 1990 and that he was a British citizen in his own
right. He stated that since 1995, he had left Hong Kong to be settled in the United
Kingdom and that he had lived in his parents' house in London with his aunt and with his
elder brother since he had arrived in England. He added that his parents were subject to
United Kingdom taxes. He also stated that his elder brother, Yu, had been an
undergraduate at the college between 1996 and 2000 where he had been classified for fee
purposes as a home student by the college “under circumstances identical to my own”.
23. The college treated this letter as an internal appeal against the December 1999 letter.
In the December 2000 decision letter, Mr. David Atkins, the Senior Assistant Registrar at
the college, wrote to the claimant to state that his appeal had been unsuccessful as the
claimant had been in the United Kingdom “wholly or mainly for the purpose of receiving
full-time education” and that therefore he did not come within the categories of students
in the Schedule to the Regulations, who could not be charged higher rates. The letter also
referred to the advice issued by the Department of Education and Employment entitled
The Education (Fees and Awards) Regulations 1997 as amended Guidance on Fees ('the
Government Guidance”), to which I will have to refer in greater detail later.
24. The claimant duly appealed and in the March 2001 letter, he explained to the college
why he was dissatisfied with its decision. He pointed out that his parents had sent him to
Merchant Taylor's School as a boarder mainly because they wanted him to “experience
community life” and that the Northwood house owned by his parents was “a three minute
walk away from the school”. In essence, he was contending that he had come to this
country to settle and not to obtain full-time education. He asked the college to reconsider
its decision to classify him as an overseas student. In the September 2001 decision letter,
Mr. Atkins wrote to the claimant explaining that he had considered the information
supplied by the claimant but that the college's decision that he was an overseas student
remained unchanged.
25. It is appropriate at this stage before I analyse the challenges of the claimant to the
decision letters to comment on three general legal points, which will arise on a number of
occasions when I consider the rival submissions of counsel in this case.
Three general legal points
(i)Subsequent reasons given after judicial review application is brought
26. It is appropriate at this stage to consider the contention of Mr. McManus that the
college cannot rely in these proceedings on assertions in the witness statements of two
officers of the college, who after the present application had been instituted gave reasons
for the college's decision to classify the claimant as an overseas student in their witness
statements but which were not contained in the decision letters. “. McManus' starting
point is R v. Westminster City Council, ex parte Ermakov [1996] 2 All ER 302, which
concerned a decision by a local housing authority that the applicant was homeless, where
the local authority had a statutory duty to give reasons for its decision (Housing Act 1985
s.64 (4)). It did so, but later it-

        “... put forward entirely new reasons, completely at odds with those given in the
       letter. Moreover, they put forward those new reasons five or six months after the
       decision letter had been sent and of course, only after judicial review proceedings
       had been launched” (page 309a).

27. Hutchison W had to consider whether the new reasons were admissible and he
summarised (with my emphasis added) his approach, with which Nourse and Thorpe LJJ
also agreed, as follows:

       “(1) It is unrealistic to seek to draw any significant distinction, in the context of
       s.64, between the decision and the communication of the decision with reasons, or
       to treat the giving of reasons as purely procedural. In reaching this conclusion I
       am influenced by the fact that the section in terms requires reasons to be given at
       the same lime as the decision is communicated; by Schiemann Js observations in
       Ex p Shield, and by the many cases in which such decisions have been quashed
       for inadequacy of reasons.

       (2) The court can and, in appropriate cases, should admit evidence to elucidate
       or, exceptionally, correct or add to the reasons; but should, consistently with
       Steyn LJ's observations in Ex p Graham, be very cautious about doing so. I have
       in mind cases where, for example, an error has been made in transcription or
       expression, or a word or words inadvertently omitted, or where the language used
       may be in some way lacking in clarity. These examples are not intended to be
       exhaustive, but rather to reflect my view that the function of such evidence should
       generally be elucidation not fundamental alteration, confirmation not
       contradiction. Certainly there seems to me to be no warrant for receiving and
       relying on as validating the decision evidence - as in this case - which indicates
       that the real reasons were wholly different from the stated reasons. It is not in my
       view permissible to say, merely because the applicant does not feel able to
       challenge the bona fides of the decision-maker's explanation as to the real reasons
       that the applicant is therefore not prejudiced and the evidence as to the real
       reasons can be relied upon. This is because, first, I do not accept that it is
       necessarily the case that in that situation he is not prejudiced; and secondly,
       because in this class of case, I do not consider that it is necessary for the applicant
       to show prejudice before he can obtain relief. Section 64 requires a decision and
       at the same time reasons; and if no reasons (which is the reality of a case such as
       the present) or wholly deficient reasons are given, he is prima facie entitled to
       have the decision quashed as unlawful.

       (3) There are, I consider, good policy reasons why this should be so The cases
       emphasise that the purpose of reasons is to inform the parties why they have won
       or lost and enable them to assess whether they have any ground for challenging an
       adverse decision. To permit wholesale amendment or reversal of the stated
       reasons is inimical to this purpose. Moreover, not only does it encourage a sloppy
       approach by the decision-maker, but it gives rise to potential practical difficulties.
       In the present case it was not, but in many cases it might be, suggested that the
       alleged true reasons were in fact second thoughts designed to remedy an
       otherwise fatal error exposed by the judicial review proceedings that would lead
       to applications to cross-examine and possibly for further discovery, both of which
       are, while permissible in judicial review proceedings, generally regarded as
       inappropriate. Hearings would be made longer and more expensive” (page 325).

28. More recently, in R (Nash) v. Chelsea College of Art [2001] EWHC Admin 538,
Stanley Burnton J considered these comments and the circumstances in which late
reasons for earlier decisions can be accepted by the court and he said [34] that the
approach to such reasons should be that: -

       (i) Where there is a statutory duty to give reasons as part of the notification of
       the decision, so that (as Laws J put it in Northamptonshire County Council ex p
       D) “the adequacy of the reasons is itself made a condition of the legality of the
       decision “, only in exceptional circumstances if at all will the court accept
       subsequent evidence of the reasons.

       (ii) In other cases, the court will be cautious about accepting late reasons. The
       relevant considerations include the following, which to a significant degree
       overlap:

       (a) Whether the new reasons are consistent with the original reasons.
        (b) Whether it is clear that the new reasons are indeed the original reasons of the
        whole committee.

        (c) Whether there is a real risk that the later reasons have been composed
        subsequently in order to support the tribunal's decision, or are a retrospective
        justification of the original decision. This consideration is really an aspect of (b).

        (d) The delay before the later reasons were put forward

        (e) The circumstances in which the later reasons were put forward In particular,
        reasons put forward after the commencement of proceedings must be treated
        especially carefully. Conversely, reasons put forward during correspondence in
        which the parties are seeking to elucidate the decision should be approached more
        tolerantly.

To these I add two further considerations. The first is based on general principles of
administrative law. The degree of scrutiny and caution to be applied by the court to
subsequent reasons should depend on the subject matter of the administrative decision in
question. Where important human rights are concerned, as in asylum cases, anxious
scrutiny is required; where the subject matter is less important, the court may be less
demanding and readier to accept subsequent reasons.
Secondly, the court should bear in mind the qualifications and experience of the persons
involved. It is one thing to require comprehensiveness and clarity from lawyers and those
who regularly sit on administrative tribunals; it is another to require those qualities of
occasional non-lawyer tribunal chairmen and members”.
29. I respectfully agree but I would also add to Stanley Burnton Ps list of relevant factors
two additional ones. The first is whether the decision-maker would have been expected to
state in the decision document the reason that he or she is seeking to adduce later. The
reason for considering that factor is that the court will not accept a reason stated after the
initial decision was given if, for example, it considers that it is unlikely to be true and that
exercise entails considering whether the omission of that reason from the original reasons
was excusable. If it is, then the court should be less reluctant to exclude it than if there is
no excuse for the decision-maker failing to mention the new factor in the original
reasons. In addition, the policy reasons for not permitting later reasons to be adduced as
described by Hutchison LJ include the need for parties to know at the time of a decision
why they have won or lost and to discourage sloppy decision making, but those
arguments are less potent when there was no need for reasons to be given when the
original decision was made.
30. The second additional and perhaps over-arching factor is whether it would be just in
an the circumstances to refuse to admit the subsequent reasons of the decision-maker. So
if there was no need for a decision to contain reasons, it might be strange if on the facts of
a particular case, later reasons could not, be adduced to meet a challenge on grounds, of,
say, a misdirection, unfairness or inconsistency. If this were not so, there might in some
cases be unfairness between the parties as the decision-maker could not defend himself.
Obviously the application of principles of fairness would also enable the court to reach a
decision on the cogency of and weight to be given to the new reasons.
31. In applying Stanley-Burnton Fs principles to the attempt by the college to explain
long after the event their decision in this case to classify the claimant as an overseas
student, Mr. McManus places weight on three main factors, as justifying a conclusion
that the reasons now given by the college's decision-makers should not be admitted. First,
he says that I have to be cautious about accepting the reasons for the college's decision
specified in the witness statements of the college's officers because of the substantial
delay between, on the one hand, the making of the witness statements in March 2002 and,
on the other hand, the December 2000 and the September 2001 decision letters. He
contends that this delay militates against the court admitting and attaching weight to the
reasons in the subsequent witness statements of the officers.
32. Second, Mr. McManus points out that these explanations in the witness statements
were only given after the present proceedings had started and so they should be treated
with caution. Third, the college's decision-makers had no notes of how the decisions in
the two decision letters were arrived at and this, Mr. McManus says, is important as they
probably dealt with very many applications between the time of the decision letters and
the making of the witness statement. Thus Mr. Atkins might not be giving the true
reasons for the decisions in his witness statement.
33. I accept these submissions as being factors to which I have to give substantial weight
as I do the contrary submission of Mr. Ward that comprehensive reasons are not to be
expected in decision letters of this kind, especially as they are written by non-lawyers
who are not performing judicial functions.
34. I also agree with Mr. Ward's two further submissions that first, this case is not
concerned with human rights and so I should be less reluctant to accept reasons than if it
was and second, that the reasons in the witness statement are consistent with the original
decision letters and certainly are not as in the Westminster case “wholly different from
the stated reasons”. I also consider it significant that I would not have expected the
college's officials in their decision letters to set out their full reasoning process in which it
had engaged as if answering a pleading or writing a judgment and that it is
understandably excusable that they did not do so until the present litigation required them
to do. This factor is particularly significant as the purpose of the reasons in the witness
statements was to elucidate reasons, which seem cogent and consistent with what was in
the decision letters. There was nothing illogical or intrinsically unlikely about the
explanations contained in the witness statements of the college's officers. I will consider
each statement sought to be relied on by the college in the light of these factors. I ought
to say that my decision in this case is not ultimately affected by the contents of the
witness statements of the college's officers as the college would have succeeded without
this material.
(ii) The significance of the reasons actually given by the college in the decision letters
35. This raises the issue of what reasons should be given by a decision-maker. Mr.
McManus accepts that there was no need for the college to give reasons for its decision to
classify the claimant as an overseas student for fee purposes. Nevertheless, a substantial
part of the claimant's criticism of the decision letters has been aimed at the reasoning of
the college in those letters. I have been asked to draw inferences adverse to the college
from what is or what is not said in those letters in support of the claimant's contentions
that the college misdirected itself, failed to take account of relevant considerations and
was unfair.
36. it is important to recall that even where a party has a duty to give reasons, there is no
need to deal with every point that has been raised. After I had reached that conclusion, I
noted that Lord Clyde had explained recently in R (on the application of Alconbury
Developments Limited) v. Secretary of State for the Environment, Transport and the
Regions [2001] 2 WLR 1389 at [170] that:-

        “What is required is there should be a decision with reasons. Providing that those
        set out clearly the grounds on which the decision has been reached, it does not
        seem to me necessary that all the thinking which lies behind it should also be
        made available”.

37. I will bear this in mind when I come to consider Mr. McManus' very detailed and
sustained criticisms of the decision letters and of some of the wording used in them
because it is significant that the failure by the college to refer to a particular factor in its
decision letter does not necessarily mean that that reason had not been considered by the
college. In addition, this was a case in which the decision-maker had no obligation to
give reasons.
(iii) Judicial review-an appeal on questions of fact?
38. It is important to stress that my task is to see whether the decision of the college to
classify the claimant as an overseas student should be quashed on public law grounds. It
is not my function to determine whether I would have reached the same decision as the
college, or whether I would have used the same reasoning process as that which was
adopted by the college. By the same token, I must consider with care the submissions of
counsel to ascertain if their complaints reveal public law errors or whether they are in fact
attempts to persuade me to substitute my decision on the facts for that taken by the
college. I now turn to consider the complaints of the claimant starting with the alleged
misdirections of the college.
The misdirections
First alleged misdirection: whether the claimant was telling the truth
39. The thrust of this complaint of the claimant is that the college failed to determine
whether the claimant was telling the truth when he said that he had come to England in
1995 in order to settle here. The claimant contends correctly that the September 2001
decision letter should be regarded as incorporating the December 2000 decision letter to
which it expressly refers as the latter letter states that “the reasons for you being
classified as an overseas student were clearly set out in my letter of 15 December 2000”.
It was pointed out by Mr. McManus that there is no trace in either the December 2000
decision letter or in the September 2001 decision letter of the college addressing the
question of whether the claimant was telling the truth and that this according to Mr.
McManus indicates a misdirection on the college's part.
40. I am unable to accept that submission for three reasons. First, as I have already
explained in paragraph 36 above, there was no need for the college to give detailed
reasons for their decision and, in particular, to state specifically that it had rejected the
claimant's contention that he had .come to this country to settle. So it cannot be inferred
from any omission in the decision letters that the college had not addressed the question
of whether the claimant was telling the truth.
41. Second, in any event, it is an inevitable inference from the December 2000 decision
letter that the college did not accept the truth of the assertion of the claimant that I am and
have been a resident for over three years in his own right in this country” as stated by his
letter of 28 September 2000 containing his grounds of appeal. The December 2000 letter
responded to that appeal by rejecting it by explaining that it was “the college's assertion
that you were in the UK wholly or mainly for the purpose of receiving full-time
education”. By the same token, it must have been apparent that the September 2001
decision letter rejected the contention of the claimant in his March 2001 letter that he
“came to this country to settle and not to obtain full-time education”. In the September
2001 decision letter, Mr. Atkins explained that “it is still the college's contention that you
are in the United Kingdom wholly or mainly for the purpose of full-time education”. I am
satisfied from these comments that the college demonstrated that it had considered, but
rejected, the claimant's contention that he had settled here and that means that I cannot
accept this unrealistic complaint of the claimant.
42. In any event, the college cannot be criticised for the way it treated the claimant's
assertion because in Kent v. University College London (Court of Appeal - 18 February
1992) Dillon LJ (with whom Stocker and Butler-Sloss LJJ agreed) said that:-

       “The college or the court, as the case may be, is entitled to evaluate [the
       claimant's own statements or declarations as the purpose of his residence and to
       his intention at any particular time] in the light of the conduct of the person
       making them and the purpose for which and the circumstances in which they are
       made. It is entitled to scrutinise with care and to investigate evidence of purpose
       in order to prevent an abuse of the system under which higher fees may lawfully
       be charged to overseas students than to home students”.

43. Third, if I had been in any doubt on whether there had been a misdirection by the
college, I would have taken note of the evidence contained in the witness statement of
Mr. David Atkins, who took the December 2000 and the September 2001 decisions
explaining why for three reasons he had taken those particular decisions. He stated first
that he could not take the assertions of the claimant in the supplementary questionnaire
referred to in paragraph 17 above at “face value” because first, his self-assessed
residential category marked on his UCAS form, was '0' and for the reason set out in
paragraph 14 above, he considered that the claimant was not a home student. I know from
the claimant's latest witness statement why he filled the form in this way but that
information, even if probative, was not before the college when it made its decisions. The
second reason for his reason was that according to his UCAS form, the claimant arrived
in the United Kingdom in the same month as he began as a boarder and 11r. Atkins
considered this was of importance in identifying his purpose of residence here. Third, he
noted that the claimant was 14 years old when he arrived in the United Kingdom without
his parents, who remained residents in Hong Kong.
44. Mr. Atkins proceeded to conclude “that there was no evidence in the supplemental
questionnaire to support [the claimant's] bare assertion that he had come to the UK as his
country of residence”. Bearing in mind the principles that I have already set out for
appraising reasons for decisions that are supplied late and the need to approach these
reasons with caution, this evidence is clearly in Hutchison W's words an “elucidation not
fundamental alteration” or a “confirmation not contradiction” of the original reasons. I
would not have expected this detailed reasoning to be set out in the decision letter and it
would be unfair not to admit this evidence of Mr. Atkins. I consider that Mr. Atkins'
reasoning on this matter is admissible within the tests to which I have already referred.
Mr. Atkins' evidence also convincingly refutes the claim that the college did not consider
and determine whether the claimant was telling the truth.
Second alleged misdirection: “reasonable “
45. The claimant contends that the September 2001 decision letter contains an error of
law by the use of the word “reasonable” where it is stated that:-

       “Again I must repeat that the advice offered by the Department for Education
       and Employment which clearly states that in cases where a student is in full-time
       education at a boarding school in the UK, it is reasonable as to ascribe residence
       as being wholly or mainly for the purpose of receiving full-time education”
       (emphasis added by me).

46. Similar wording had been used in the December 2000 decision letter. Mr. McManus
complains that this shows an error in approach as the college had to determine whether
the claimant was here wholly or mainly for the purpose of receiving education. He points
out that it is a court and not a college, which decides whether a decision was reasonable. I
am unable to accept that submission because it seems clear to me that in the context of
the letter, the word “reasonable” might not have been particularly well-chosen, but it was
being used in these decision letters in the layman's sense of meaning “correct” or “fair”.
47. It must not be forgotten that this letter was not a legal document that had been written
by or vetted by lawyers but a statement written by a layman and it should be so regarded.
I cannot conceive that Mr. Atkins thought that he was applying a Wednesbury test even if
he knew of it when he wrote that passage as is clear from its context, in which he is
stating what facts he found. In any event, as Schiemann J (as he then was) said in R v.
Secretary of State ex parte C [1996] ELR 93,96 “the occasional infelicity of expression in
the decision letter is understandable”.
Third alleged misdirection: the Government Guidance
48. It is contended by the claimant that both decision letters refer to the Government
Guidance but the college appeared to have considered that “once a child was in a
boarding school, that was an end of the matte?' (Claimant's Skeleton, paragraph 34) while
the existence of property belonging to the parents of the child in the United Kingdom was
regarded as being irrelevant. Mr. McManus criticises this approach as the Government
Guidance does not state that the presence of a child in a boarding school means that the
child is automatically to be regarded as an overseas student, who is here “wholly or
mainly for the purpose of receiving full-time education” but that a student from abroad
attending a UK boarding school was “probably” resident in the UK wholly or mainly for
the purposes of education.
49. That is correct as the advice contained in paragraph 57 of-the Government Guidance
is that

       “... Students must be able to demonstrate that no part of their residence during
       the specified three-year period was wholly or mainly for the purpose of receiving
       full-time education. So, for example, a normal UK school leaver can be
       considered as meeting this criterion because they were not residing in the UK and
       Islands for the purpose of receiving full-time education; they were receiving full-
       time education in the UK because their home and family were in the UK. On the
       other hand, a student from abroad who attended a UK boarding school probably
       was resident in the UK wholly or mainly for the purpose of receiving full-time
       education”. (Italicised emphasis has been added).

50. In answer to this complaint of misdirection, Mr. Ward explains correctly that neither
decision letter asserts that the claimant's boarding status at school in itself conclusively
determines the issue of fees status. The effect of the decision letters is that in the light of
the guidance, the college considered that it would be “reasonable” to so conclude. That is
plainly a legitimate inference from the guidance, which was open to the college on the
facts of this particular case. It is noteworthy that of the other universities to which the
claimant applied, Nottingham University classified him as a home student for fee
purposes but in the light of the information supplied to it, Bristol University stated that
they would classify the claimant as an overseas student unless he or his parents had
ordinary residence here.
51. Although that conclusion disposes of the claimant's complaint on the ground of this
misdirection, the college contends that this conclusion would have to be reached in any
event in the light of Mr. Atkins' evidence in paragraph 22 of his witness statement, that
he did not “regard this guidance as declaring that all boarders without exception were to
be classified as being overseas students” but that “it serve[d] to reinforce my view that
this [was] a factor of considerable weight, albeit one which could be outweighed in an
appropriate case”. He explained that he did not consider that the matters relied on by the
claimant were sufficient to outweigh it in this case. Mr. McManus says that this statement
is inadmissible as it was made so long after the decision and was incorrect.
52. In the light of my earlier findings, this matter is academic but I have carefully studied
the reasons given in the two decision letters in the light of the need to be cautious about
accepting late reasons, but I have concluded that these comments are admissible within
the guidelines to which I have referred. This statement of Mr. Atkins is, in Hutchison W's
words, a legitimate “further exposition” of the decision challenged and it is not a case of
seeking to cure “faulty reasons”. I would not have expected Mr. Atkins' reasoning to
which I have referred in the last paragraph to have been set out in the decision letters and
in all the circumstances it would be unfair not to admit it.
Fourth alleged misdirection: strictness
53. The claimant complains that the college's letter of 2 December 1999 states with my
emphasis added “the policy of the college is to interpret these regulations very strictly so
as to be fair to everyone”. The claimant said in his letter of reply of 28 September 2000
that he was “happy to note” that the college interpreted the Regulations “strictly but
fairly”. The subsequent decision letters of December 2000 and September 2001 do not
refer to similar wording but Mr. McManus says that there is no suggestion that the
policy's “very strict” interpretation of the Regulations has been abandoned. These later
letters, unlike the December 1999 letter, were written by Mr. Atkins and do not suggest a
similar approach. There is no reason to believe that Mr. Atkins adopted a similar
approach and I do not accept the logic of Mr. McManus' contention that as “there is no
suggestion that the policy of very strict interpretation has not been applied”, it can be
inferred that it has. There was no obligation on the college to expressly state that it did
not adopt that policy.
54. In any event, I had difficulty in understanding what the word “strictly” means in this
context and Mr. McManus was unable to put forward any clear meaning to it but he
mentioned that it seemed to be reminiscent of the contra proferentem rule, but that does
not have any realistic or sensible application to this case. Thus, it is difficult to see why it
could amount to a misdirection even in the letter of December 2000 and I would therefore
reject this complaint of the claimant. In any event, it is possible to accept the clarifying
evidence of M-r. Atkins in his witness statement, which explains how, the decision, was
arrived at in his witness statement and this establishes that there was no error of law in
applying the Regulations to the claimant “strictly but fairly”.
55. It is convenient at this point while considering the claimant's allegations of
misdirections to consider a further contention of Mr. McManus, which was that the
college's rejection of the claimant's evidence that he came to the United Kingdom to
settle was “manifestly flawed”. Mr. McManus argues that his evidence was treated by the
college as a mere assertion while there was evidence to support the claimant's assertions.
I agree with Mr. Ward for the college that this approach does not adequately deal with the
nature of the college's decision, which was to balance and to weigh all the material before
it and to assess the claimant's assertions in the light of the purposes for which they were
made and the circumstances in which they were made: per Mummery J in Kent v.
University College (10 September 1991 p. 381).
56. Insofar as it is suggested that there were matters that ought to have been, but were
not, taken into account in determining the claimant's fee status, it is clear that they were
as I will explain when considering the alleged failure by the college to consider relevant
considerations listed under Ground 4. Thus, the September 2001 decision letter
specifically refers to the facts that the claimant's parents had a property in an area local to
the school and that he entered this country on 1 September 1995 becoming a boarder in
September 1995. The other points which it is said that the college did not consider, were
that the claimant had a family here, but this point had already been made by the claimant
and Mr. Atkins has explained that it was taken into consideration in making the decision.
I regard that evidence as being admissible to explain his decision. As I have explained,
the factors suggesting that the claimant was a home student were found to be outweighed.
That does not disclose any misdirection, nor does the failure to consider the political
situation in Hong Kong, which was only raised by the claimant's solicitor after the
decision was taken. In any event, this allegation is totally unparticularised and the
situation in Hong Kong did not prevent the claimant's parents remaining there; thus I
have difficulty in concluding that this point has any potency or significance to the
classification of the claimant for fee purposes.
Ground 2 - Fairness
57. The thrust of the complaint which was introduced by re-amendment at the hearing is
first that “at no stage prior to service of the [college's] evidence did [it] put in issue the
Claimant's claim that he had come to England to settle here”. Mr. McManus contends
secondly that if the college was minded to disbelieve the claimant they should have asked
him for corroboration. The first contention fails for the same reasons as the similar first
allegation of misdirection, on which I have already commented in paragraphs 39-44
above. As I have explained, the claimant clearly knew that this was an issue and he took
every opportunity to challenge the conclusion of the college. For example, in his letter of
September 2000, the claimant set out with his full reasons why he disagreed with the
college's December 1999 letter.
58. This evidence established clearly to my satisfaction that the claimant. knew full well
what the issue was in this case, as otherwise he would not have made points in the
correspondence such as that he had left Hong Kong to settle in the United Kingdom and
that he had lived there in his parents' house with his aunt and with his elder brother. Any
reasonable reading of the college's decision letters of December 2000 and September
2001 makes this clear. I therefore cannot accept the suggestion that the claimant did not
know the position. In any event, the evidence of the claimant does not establish that if the
claimant had known that his claim was not accepted, he would have adduced any further
evidence of any significant probative value. The witness statements of the claimant's
parents and his brother as well as both statements of the claimant adduced for this
application do not take the matter any further and certainly do not add anything
substantial to what the claimant had said. So they individually or cumulatively would not
have had any effect on the claimant's efforts to be classified as a “home” student and not
as an “overseas” student.
Ground 3 - Burden of proof
59. By this ground which was also introduced by re-amendment at the hearing, the
claimant contends that “the college regarded the burden as being on the claimant to
establish that he was not here wholly for the purpose of receiving full-time education”
(paragraph 47 of his skeleton). There was a dispute between the parties as to whether a
concession had been made by the college's counsel that the burden of proof was on them
to show that the claimant was to be classified as an overseas student during the oral
hearing when Collins J was considering the claimant's renewed permission application. I
do not need to resolve this dispute because even if the college had made such a
concession, it could be, and was, withdrawn because the claimant does not and cannot
contend that he had altered his position in reliance on the alleged concession.
60. Mr. McManus contends that the college considered the issue of the claimant's status
by asking whether the claimant had proved that he was entitled to be treated as a home
student whereas they should have asked on an objective basis if that was the true position.
I could not find anything wrong with the college's approach. This judicial review
application is not concerned with determining what the true facts were but whether the
college's decision can be challenged on public law grounds.
61. I agree with Mr. Ward that the approach that I should adopt is that which was
advocated by Lord Diplock in Secretary of State of Education and Science v. Thameside
Metropolitan Borough Council [1977] AC 1014 at 1056B where he said that:-

       “The question for the court is, did the Secretary of State ask himself the right
       question and take reasonable steps to acquaint himself with the relevant
       information to enable him to answer it correctly?”

62. What amounts to “reasonable steps” in any particular situation depends on the
context. In this case, I consider that the college asked itself the right question and in
addition, that the steps taken by the college in putting forward the supplementary
questionnaire together with their continued and continuing willingness to consider further
representation made by the claimant were sufficient. I am fortified in coming to this
conclusion by the fact that all the matters concerning the purpose of the claimant's stay in
the United Kingdom obviously constituted material which was solely within his own
knowledge and not within that of the college. Thus, it was entirely reasonable for the
college to expect him to put forward material on which it could reach a decision when
given an opportunity to do so. Indeed, consistently with this approach, the Government
Guidance makes it clear that “students must be able to demonstrate” the purpose of the
residence. The claimant knew full well what he had to prove and it seems clear that the
college did not misapply the burden of proof. There is nothing in the decision letters or in
the witness statements of the college's officers to show that they so erred.
63. In any event, the claimant is, as his impressive academic record shows, highly
intelligent and very well educated so that he would have had no difficulty in putting
forward any argument that would or could support his case to be classified as a home
student. Not surprisingly his letters show that he can also express himself clearly,
cogently and without difficulty. I reject this criticism.
Ground Four - Relevant considerations
64. The claimant alleges that five “relevant considerations” were not taken into account
by the college in reaching its decision. Mr. McManus' submissions appeared to be based
on the proposition that unless a decision-maker refers to a specific point, when giving his
decision, it must be assumed or it must be arguable that he had not considered it. As I
have explained, this is a misunderstanding of the decision-maker's function because when
giving a decision of the kind under review; he is not then obliged, as Lord Clyde has
explained in the passage that I have quoted in paragraph 36 above, to give all his reasons
or to deal with and respond to every point in the decision document, especially if, as in
this case, the decision-maker is not a lawyer.
65. Two consequences flow from this. First, no inferences can be drawn adverse to the
college from its failure to set out its full reasoning process in its decision letters. Second,
the college should in appropriate circumstances be permitted to adduce evidence of what
it considered in reaching its decision in order to answer the allegations of Mr. McManus
that it did not consider a specific point; of course, I will consider the college's reasons
adduced in those witness statements in accordance with the caution and with the
principles in the passages that I have already quoted in paragraphs 27 and 28, as well as
the factors that I also mentioned.
66. The first matter allegedly not taken into account by the college was that the claimant
came here to settle but this is a repeat of, or very similar to, points, that I have already
rejected under both the misdirection and the fairness issues. I will not repeat my reasons
for rejecting these points but it clearly was considered, but rejected, by the college in the
decision letters. It is difficult to see what the college was considering if it was not
deciding on this point, and the college was not obliged to state this expressly. In any
event, I would accept what was said on this matter in the witness statement of Mr. Atkins
to which I have already referred in paragraphs 43 and 44 above.
67. The second contention is that the college did not take into account the fact that the
claimant's brother had left Hong Kong in 1990 and that the claimant had joined him here
in 1995. This point was referred to in the claimant's letter of 28 September 2000, but it
was not expressly referred to in the decision documents. I have explained there was no
need for the decision documents to refer to every point. In any event, I am unable to see
the probative value of the movements of the claimant's brother in the light of all the
evidence before the college especially as the claimant's parents continued to reside in
Hong Kong while the claimant had arrived in this country just before he had started at
boarding school here. The college was after all concerned with the claimant's residence
and not that of this brother.
68. The third point is that the college failed to take into account the fact that the
claimant's brother had been classified as a home student. I do not understand why the
college was obliged to do anything other than consider and focus on the position of the
claimant on his own merits, as the Regulations envisage. The respective positions of the
claimant and his brother were different as presented to the college and therefore I do not
regard this as being a relevant point. Although the college judged the claimant in
isolation on his own merits and not in comparison with his brother, Mr. Atkins explains
in his witness statement that “[his brother's] circumstances as they appeared to the college
at the time it made its decision as to his fee status were significantly different to the facts
before the college in respect of [the claimant]”.
69. It is noteworthy that for completing the important question on his residential category
on his UCAS form Yu, unlike his brother the claimant, had put the letter “K' to indicate
“UK/EU National or child of, ordinary resident for three years in [European Economic
Area], not for purpose of full-time education”, while the claimant had not selected this
but he chose instead the residual “0” classification which indicated that he did not see
himself as “UK/EU National or child of, ordinary resident for three years in [European
Economic Area], not for purpose of full-time education”. I consider that this and the other
factors explained by Mr Atkins in his witness statement as being clarification evidence,
which demonstrated a sufficient difference between the position of the two brothers as it
would have appeared to the college. I know that the claimant has now sought to explain
why he used the '0' classification but what is relevant is how matters looked to the
college. So even if the college had considered the position of the claimant's brother, it
would have appreciated that there was a noticeable difference between him and the
claimant.
70. The fourth matter which it was contended was not taken into account by the college
was that the claimant lived in the Northwood house with his aunt and that his parents
owned it. This point had been advanced by the claimant in his letter of 28 September
2000 and it was expressly mentioned and appraised in a reasonable manner by the college
in the September 2001 decision letter. It did not have any decisive or substantial
relevance because, as the college explained, the claimant's parents lived abroad; a
reasonable inference from that is the claimant's parents had a home there. Insofar as it is
contended that Mr. Atkins relied on an immaterial consideration, namely that the
claimant was supported by his parents from Hong Kong, Mr. Atkins explains that this did
not effect the uncontradicted presumption that the claimant was supported by his parents
from Hong Kong and that therefore his residency in the United Kingdom was wholly or
mainly in order for him to be educated here.
71. Fifth, it is said that the college failed to take account of the fact that the claimant
chose to be a boarder at Merchant Taylor's School to experience communal life. Mr.
Atkins explains in his witness statement that he took that factor into account and that this
added weight to his conclusion that the claimant was in the United Kingdom wholly or
mainly for the purpose of education. Thus, I cannot accept Mr. McManus' complaints
about this or any of the other arguments that the college ignored relevant factors.
Ground Five - Consistency
72. The claimant contends that “he has not been treated in the same way as his brother
and no explanation has been put forward for the different treatment”. In support, Mr.
McManus relies on the statement of Lord Donaldson MR that it is “cardinal principle and
good public administration that all persons who are in a similar position should be treated
similarly” (R v. Hertfordshire CC Ex p. Cheung, Times, April 4, 1986).
73. That contention can only be accepted if the claimant and his brother were in a similar
or identical position on the information available to the college because if there were
similarities between two candidates not disclosed to the college, then the college could
not be criticised for reaching its decision without taking those unrevealed similarities into
account. As I have already explained in paragraphs 68 and 69 above, the position of the
claimant and of his brother on the information available to the college would have
appeared to be different because of the way in which they indicated their residential
category on the UCAS form, namely an “X' for the claimant's brother and an “0” for the
claimant. Those differences were sufficiently significant to show that the claim based on
inconsistency between similar candidates is not made out. So it cannot constitute any
basis for undermining or quashing the decision.
Defence of prejudice and damage to good administration
74. The college originally claimed that the delay of the claimant in bringing this
application for judicial review had caused the college considerable prejudice and was
detrimental to good administration so that the claim should fail for that reason. It was said
that the college had made budget decisions based on the claimant accepting that he had to
pay as an overseas student but that this status was not disputed by the claimant until two
days before his course began and even then, he did not commence proceedings until 14
months later. The argument of the college continued that if the claimant were now to be
classified as a home student, then the college would be deprived of the opportunities that
it would otherwise have had to secure additional funding from the Higher Education
Funding Council for England. On reflection, the college did not pursue this point. I
regard that as a sensible decision because the college has more than 10,000 students and
the loss of £9,000 a year from one student can hardly be regarded as a matter, which
would cause them any serious prejudice.
Relief
75. As I have already explained, I consider that all the challenges to the decision of the
college fail. I ought to say that even if I had upheld the claimant's contention that the
college's decision was flawed, it is quite probable that I would have considered the matter
in the light of the witness statements of Mr. McClure and Mr. Atkins so that I might well
have adopted the approach of the Court of Appeal in R v. London Borough of Brent ex
parte Baruwa unreported - 12 February 1997 in which Schiemann U said about an
affidavit which had been filed amplifying reasons given by a decision-maker that looking
at such an affidavit is often a sensible course and saves the bother and expense of going
back to the decision-maker to make a new decision which will incorporate the material
which appears in the affidavit”.
76. Mr. McManus said that the parties in Baruwa's case had accepted that the court
should look at the affidavits, but to my mind that is not a decisive or really relevant factor
where the court is not considering the admissibility of the reasons to justify the position
but what relief should be granted. It is important that there is unlikely to be any important
material that could be put before the college if the matter was to be remitted that had not
been adduced on this application and commented on by Mr. Atkins; so it is difficult to
see why the college might thereafter have reached a different conclusion from that set out
in Mr. Atkins' witness statement but I need not decide that point in the fight of my
decision that the claim fails.
Conclusion
77. Thus, notwithstanding the sustained and wide-ranging grounds of challenge of Mr.
McManus to the college's decision, this claim must fail as the claimant has failed to
establish any public law grounds for impugning the college's decision. The complaints of
the claimant are in reality genuinely held disagreements on issues of fact with the
college's decision, but neither individually nor cumulatively do they justify any
interference with its decision on a judicial review application. So this claim fails and
must be dismissed.

								
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