National Employee Development Training Centre Ltd v Minister for Justice and Equality and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 13 January 2015
• Neutral Citation: [2015] IEHC 140
• Court: High Court
• Date: 13 January 2015

National Employee Development Training Centre Ltd v Minister for Justice and Equality & Ors.

JUDICIAL REVIEW

BETWEEN

NATIONAL EMPLOYEE DEVELOPMENT TRAINING CENTRE LTD

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY AND QUALIFICATIONS AND QUALITY ASSURANCE AUTHORITY OF IRELAND

RESPONDENTS

ACADEMIC BRIDGE LTD

AND

MINISTER FOR JUSTICE AND EQUALITY AND QUALIFICATIONS AND QUALITY ASSURANCE AUTHORITY OF IRELAND

[2015] IEHC 140

[No. 665 J.R./2014]

[No. 666 J.R./2014]

THE HIGH COURT

Local Government – Immigration & Nationality – Immigration Act 2004 – Education – Whether judicial review of executive action permissible

Facts: The applicants being the education service providers had challenged the decision of the first respondent in its policy document for imposition of certain preconditions for the grant of visas to non EU/EEA student desirable of pursuing English language course. The applicants sought a declaration that the second respondent lacked authority to implement the scheme of accreditation devised by the first respondent. The First respondent contended that the Court was devoid of powers to review the executive functions due to clear demarcation of separation of power.

Ms. Justice Baker held that the first name respondent had abused its discretion by making it a precondition for the educational institutes to seek accreditation for being included on the Interim List as provided by the first respondent. The Court declared that the second respondent had no authority to manage the accreditation system as required by the first respondent. The Court observed that it had no jurisdiction to review the executive action of the Government; however, the implementation of policy could be amendable to judicial review.

Facts

1 1. Both applicants are limited liability companies incorporated in Ireland and both of them carry on the business of providers of educational services, primarily the teaching of English as a foreign language to international students. The companies have been engaged as educational providers for three years in the case of the first applicant, and four years and in the case of the second applicant.

2 2. The first respondent is sued as a Minister of Government and the second respondent as a statutory authority established pursuant to s. 8 of the Qualifications and Quality Assurance (Education and Training) Act, 2012.

3 3. Each of the applicants has enrolled a large number of foreign students in its language programmes. The numbers of students enrolled at any one time of course will differ, but in each case there are hundreds of students enrolled, and the majority, if not all of the students, are from non EU/EEA countries. The companies are not associated companies and there is no overlap in directorships or shareholdings. Each of them employs teaching and non teaching staff. The two cases before me, while they involve separate institutes of education, raise the same questions of law, and substantially the same questions of fact, and the cases were run together.

4 4. In 2014 a number of high profile closures of schools offering diploma type education to international students came to be of concern and a number of schools shut down at short notice leaving some 3,000 students unable to complete their programmes. Some of those students, having paid substantial fees for a course which was discontinued, found themselves stranded without their course and where they had no funds to take up an alternative course in another college.

5 5. Allied to these immediate and very public closures there has been growing in Government a concern regarding the proper control and management of these schools, and a view had evolved that a more robust regulatory framework was required. In particular it was perceived that some schools operating in the international education sector were thought to offer courses of an inferior quality in order to be in a position to facilitate non EU/EEA students in obtaining immigration permission as a student. The permission obtained by students attending some of these courses was seen as particularly favourable in that a student could obtain a special type of visa, a so-called "Stamp 2" visa, enabling him or her to remain in the State for twelve months, to study part-time for six months and during that period to be permitted to work also part-time for a maximum of twenty weeks, and for a further six months to work full time. Some of these students were perceived by the relevant Minister as more interested in being in the Sate for the purpose of working rather than for study, and some colleges were seen more as visa processing centres than education centres.

6 6. In practical terms non EU/EEA nationals who wish to come to study English in Ireland will often do so through the services provided by English language schools but it came to be perceived that some educational providers were offering courses which were not of a high quality in education standards, and that the high profile failure of some of these institutions had a negative effect on the sector as a whole, a sector which Government was anxious to protect.

7 7. Particular concern was expressed with regard to schools which offered English language courses and it was thought that some of these colleges offered courses at fees which were unsustainably low given sectoral norms, and which did not offer Irish accredited programmes. It was also noted with some concern that attendance records of students in certain institutions were less than satisfactory and that the majority of students in some institutions did not sit any exams and showed no move through levels of competence in their subject. It is said that the courses that are offered by many colleges, including many of those offered by the two applicants, may ideally be availed of with the benefit of a three month holiday visa, but that the programme of study is "stretched out" so that what is in essence a short course is taken over a long period in order to give students the benefit of a particularly generous immigration regime.

The ACELS Recognition Scheme

8 8. For upwards of forty years a voluntary scheme operated for the inspection and recognition of English language schools in the State, the control of standards in teacher training, and the promotion of English language courses in Ireland, Accreditation and Co-ordination of English Language Services ("ACELS"), initially from 1969 under the auspices of the Department of Education and Science whose functions were transferred to a company limited by guarantee in 1995. That company was dissolved on or about the 1 ^st June, 2012. After the dissolution of the company limited by guarantee ACELS was operated for a short period of time from the 30 ^th June, 2009 to the 6 ^th November, 2012 (the date of the establishment of the second respondent), through a statutory body, the National Qualifications Authority of Ireland ("NQAI").

9 9. ACELS accreditation was not a requirement for a college to carry on the business of English language teaching in the State, nor was it until the matters herein complained of, necessary that a student be registered with an ACELS course to obtain a Stamp 2 visa. Neither of the applicants has ACELS accreditation, and each of them was accredited by a UK provider. It is asserted that EDI/Pearson, the UK accrediting body which oversees the Irish operations of the applicants, does not in fact recognise the courses operated by them but that the registration which the applicants have with EDI/Pearsons is as accredited exam centres.

The Qualification and Quality Assurance (Education and Training) Act, 2012

10 10. The second respondent was established on the 6 ^th November, 2012 pursuant to the provisions of the Act 2012, with the principal objectives of devising the institutions and operating a system of quality assurance for educational service providers generally. The role of the second respondent is not confined to English language schools and the system of quality assurance is intended to cover all education service providers. As part of its function the Qualifications and Quality Assurance Authority of Ireland (the "QQI") has signalled an intention to establish an International Education Mark, (the "IEM"), and in time it is intended that only those service providers who can demonstrate compliance with the code of practice of, and who use, the international mark will be accredited.

11 11. The ACELS brand was closed on the dissolution of the company limited by guarantee on the 1 ^st June, 2012, but, presumably because of a perceived lacuna and as an interim measure, the ACELS accreditation system was reopened during a short window between October 2013 and January 2014, and that accreditation system was operated by the second respondent.

The Internationalisation Register

12 12. The first respondent has for many years maintained what was called the Internationalisation Register on which was entered particulars of courses which met certain criteria, and students who enrolled on one of these programmes of study were almost invariably granted permission to be in the State for 12 months and to obtain through the Garda National Immigration Bureau a Stamp 2 visa.

13 13. Certain guidelines for colleges offering courses to full time non EU/EEA students were issued by the Department of Justice and Law Reform in August 2011. These set out inter alia the conditions for colleges regarding permission to recruit international students and one of those conditions was that a college would be allowed to bring full time students into Ireland to attend only those courses listed on the Internationalisation Register. Both applicants are registered on this Register.

2014 reform; Irish accreditation a requirement

14 14. The Department of Education and Skills issued a policy statement on 2 ^nd September, 2014, entitled ...