Friday, December 06, 2013

"Academic progress" a matter for the academy not the Home Secretary?

The Court of Appeal published an important decision on universities' border control obligations yesterday, Pokhriyal v The Secretary of State for the Home Department [2013] EWCA Civ 1568 (05 December 2013)

Academics and university administrators really should read Lord Justice Jackson's conclusions on the appeals of two foreign students whose leave to remain in the UK has expired.

The bottom line is that the Court decided that despite the Byzantine immigration rules universities are now obliged to incorporate into our operational processes, "academic progress" is a matter for the academic institution not the Home Secretary or her officials acting in her stead (see paragraph 58). The good judge firstly outlines the facts of the case.
  1. These are appeals by two foreign students whose leave to remain in this country has expired. They challenge the Secretary of State's decisions, upheld by the First-tier Tribunal and the Upper Tribunal, that their proposed further courses do not constitute academic progress from their previous studies.

  2. The first appellant is Himanshu  Pokhriyal  ("HP"). The second appellant is Amjad Hussain ("AH"). Although there is no order for anonymity, it is easier to refer to both appellants by their initials.

  3. Both appellants came to the UK as Tier 4 (general) students under the Points Based System ("PBS"). The rules governing the PBS are set out in the Immigration Rules and the appendices to those rules. These provisions have now achieved a degree of complexity which even the Byzantine Emperors would have envied."
Jackson LJ then goes on to outline some of the immigration rules before considering each student in turn. Let's focus on HP's case ("CAS", incidentally is the Confirmation of Acceptance for Studies form a college or university fills out on behalf of the student and submits electronically to the UK Border Agency):
  1. HP is an Indian national, born in 1986 and now aged 27. HP came to the UK for the purpose of studying in September 2008. He was granted leave to enter as a Tier 4 (general) student under the PBS. He was subsequently given leave to remain in that capacity until 4th January 2012.

  2. Initially HP studied for a postgraduate diploma at the London School of Business Management. HP subsequently transferred to other colleges, where he studied business administration and business management. These courses were classified as NVQ level 7.

  3. In late 2011 HP decided that he needed to obtain a qualification in IT, in order to improve his career prospects. He applied for and secured a place at St Stephen's College to study for a diploma in IT. This was a two and a half year course, classified as NVQ level 5.

  4. HP applied to the Secretary of State for an extension of his leave to remain in the UK, so that he could undertake the IT course. In support of that application St Stephen's College issued a CAS, which it sent to UKBA.

  5. In the box on the CAS marked "evidence provided" the college described the previous courses which HP had undertaken. The college then added this:
  6. "ACADEMIC PROGRESSION: Student has studied a PGD for general academic purposes but as he wants to go into the IT industry, a qualification in IT combined with the PGD would offer him better opportunities. Student wishes to follow a career in IT in India and in particular with the Tata Group. He believes that his previous studies in the UK combined with an IT qualification would provide him with additional opportunities in following his chosen career path."
  7. By a letter dated 9th February 2012 the Secretary of State refused HP's application on the ground that HP's new course did not constitute "academic progress" within the meaning of paragraph 120B of Appendix A to the Immigration Rules. Accordingly HP failed to achieve the required 30 points under paragraph 245ZX (c) of the Immigration Rules.

  8. HP appealed unsuccessfully against that decision first to the First-tier Tribunal, then to the Upper Tribunal. He now appeals to the Court of Appeal."
In paragraphs 33 to 55 Lord Justice Jackson outlines the Court's interpretation of the pertinent immigration rules and then concludes on HP:
  1. The issue in HP's case is a short one. It turns upon the words used by St Stephen's College in the CAS, which I have quoted in Part 2 above. The issue is whether those words constituted confirmation that the IT course for which HP had been accepted represented academic progress.

  2. In my view that passage did constitute such confirmation. It begins with the words in capitals "ACADEMIC PROGRESSION". In other words the college regarded the IT course as academic progress. The college uses the word "progression" as a synonym for "progress". There then follows an explanation as to why the IT course represented academic progress. The reason why the new course at NVQ level 5 was academic progress from the previous course at NVQ level 7 was, in effect, explained by the fact that the student needed skills in a different field in order to complement his original qualification and to obtain future employment.

  3. The Secretary of State in her refusal letter, the First-tier Tribunal and the Upper Tribunal all fell into the same error. They all considered the evidence and formed their own view as to whether the IT course constituted academic progress. The question whether the IT course was academic progress was a question for St Stephen's College, not the Secretary of State. On appeal the First-tier Tribunal and the Upper Tribunal should not have interfered with the college's decision, when the college had plainly addressed its mind to the question of academic progress and formed a reasonable view on the subject.

  4. In these circumstances, I see no basis to invalidate the college's confirmation of academic progress. As the Secretary of State acknowledges in paragraph 375 of her guidance statement to colleges, a course at a lower level can on occasions constitute academic progress. This, in the college's view, is such a case. The IT course would enhance the business skills which HP had gained in his earlier studies.

  5. In the result, therefore, HP satisfied the requirements of paragraph 120B of Appendix A. Accordingly he scored 30 points under paragraph 245ZX (c) of the Immigration Rules. If my Lords agree, HP's appeal will be allowed."
Shorthand - the college not the Home Office gets to decide what constitutes "academic progress". That's important for the higher education sector to be aware of in times of widespread fear mongering around immigration.

Longmore LJ and Vos LJ agreed with Lord Justice Jackson's opinion but for different reasons.

Lord Justice Vos says in the cases of the two students considered the conclusions could be clear. However he felt it is allowable for the Secretary of State to -
"challenge the validity of the confirmation of academic progress... but that it would be better to leave a consideration of what those circumstances might be to a case in which such a challenge is made...
Suffice it to say for the purposes of these cases that I entirely agree that any argument as to whether or not a particular course does or does not represent academic progress is intended, under the Appendix A of the Rules and the guidance documents, to take place only between the college and the Secretary of State. The student is not intended to be involved"
Lord Justice Longmore's concurrence focuses on procedural errors on the part of the UK Border Agency in turning down the other student (AH's) application to stay. He also raises an interesting concern that since the student has no part in the CAS process how can they appeal if there are errors on the part of the college or the UKBA?

Expect more of these cases given the government's obsession with being seen to crack down on immigration and Vos LJ's concurrence which may be interpreted as an invitation to the Home Secretary.

Just one final general point in relation universities getting dragged into the immigration vetting business - when I signed up to the Open University nearly two decades ago it was for education duty not border control duty. 

Tuesday, December 03, 2013

I hit a Twitter limit...

I believe I have just been slighted (if not censored) by Twitter.  While tweeting on Guardian editor, Alan Rusbridger's, evidence before the Home Affairs select committee I hit a limit:
"You are over the daily limit for sending Tweets. Please wait a few hours and try again"
The daily limit is 1000 tweets a day and I've reached nothing like that number. So presumably I've run into the "daily update limit is further broken down into smaller limits for semi-hourly intervals" condition. So what is the smaller limit for semi hourly intervals? A quick count suggests I've posted about 125 tweets today, around 150 in the past 24 hours, a personal daily record, no doubt, but not really within the proverbial ass's roar of the 1000.

Neither could I continue tweeting the evidence of Sir Bernard Hogan-Howe QPM, Metropolitan Police Commissioner, and Cressida Dick QPM, Assistant Commissioner, Metropolitan Police.

They have confirmed, as far as I can tell but there was a lot of confused back and forth in the questioning, that they are engaging in a continuing enquiry into evidence seized from David Miranda. Ms Dick said they would go where the evidence takes them and will be careful and proportionate. They are working closely with the CPS on the investigation. "It appears possible that some people may have committed offences". The law surrounding all this is complicated and the CPS will decide whether to prosecute once the Met has pursued their scoping exercise and investigation of the Miranda materials. 

Mr Hogan-Howe eventually intervened to remind us that the Miranda material was currently the subject of a judicial review. The courts have reserved their judgement on whether the Met got the material lawfully under schedule 7 of the Terrorism Act and they will have to wait to see how that progresses.

Alan Rusbridger earlier said he didn't know if the Guardian or its staff were under police investigation.

Debate on oversight of intelligence & security services Part 3

On the day that The Guardian's editor is due to appear before the Home Affairs committee I thought it was time to round off my reporting on the parliamentary debate on the of oversight intelligence & security services. The debate is over a month old now and with the exception of the Guardian has, sadly, largely been ignored by the mainstream media.

Dominic Raab made the most telling contribution to the session, as I mentioned in Part 1. Part 2 of my report concluded with Malcolm Rifkind's endeavours to defend the Intelligence and Security Committee (ISC) which he chairs and the intelligence services his committee is tasked with overseeing. The committee has 9 members (7 MPs and two members of the House of Lords) and a part time investigator. The intelligence services have a staff of over 13000 and a 2013/14 budget of £2.1 billion, according to the Guardian.

Picking up again from Mr Rifkind's evidence, he believed -
  • there is no interception if it is only done by computers and the data is not seen by a human being
  • the Justice & Security Act 2013 has brought a "cultural revolution" to the ISC
  • hinted that critics claiming that the ISC didn't know about the Tempora undersea cable interception programme did "not have the faintest idea whether the Committee was aware of programmes of any kind."
  • computers are clever
  • 99.99% of the data they gather and process is never looked at so describing the activities of the intelligence services as mass surveillance was unconscionable
He then responded to a question from Tom Watson about the dangers of automated mass data analyses:
"the intelligence agencies have far more important things to do than to look at patterns of behaviour, unless they are directly relevant to a terrorist threat or serious crime. That is their function and legal duty, and if they go beyond it, they are committing a crime—even if they had the time, which they do not have, or the inclination to do so...
no other country in the world, including democratic ones, has both substantial intelligence agencies and such a degree of oversight."
He concluded by noting the Justice & Security Act 2013 has given the ISC all the oversight powers that critics have been asking for and the committee should be judged on their use of those powers and
"Right hon. and hon. Members should by all means scrutinise whether we use the powers properly, but they should please do so on the basis of knowledge about the Act"
He's right that Right hon. and hon. Members should understand the Act but an at least rudimentary but preferably deep understanding of the technology and the mathematics is also crucial. Such understanding was not evident in the contributions of the members of the ISC to the debate.

Rodney Buckland (Conservative) was next in line and he raised the need for reform of the Regulation of Investigatory Powers Act (RIPA) and the question of Schedule 7 of the Terrorism Act, widely believed to have been abused in the detention of David Miranda at Heathrow airport. David Anderson QC, the independent reviewer of terrorism legislation, has recently indeed called for an end to detention at borders without suspicion. His note to the Home Affairs select committee on the matter is available at the Parliament website.

Mr Buckland felt "the threshold of reasonable suspicion should come into play at the point when a person is formally detained" under schedule 7. He concluded by criticising the Guardian and saying privacy was important but in a balanced way, so we could catch terrorists too.

At this point Graham Brady who had taken over chairing the session part way through said he was restricting the remaining 3 speakers to 6 minutes each.

Richard Graham paraded his colours as a former diplomat and an anecdote about his first professional stint abroad - his first phone call, he says, got interrupted by a 3rd party asking him to repeat his last sentence. Mr Graham's purpose seemed to be to-
  • ridicule Julian Huppert, David Winnick and the anti mass surveillance side of the debate as being motivated by hysteria and naivete
  • note the hilarity of the shock at the news that spies actually spy
  • defend the honour and impeccable integrity, in addition to the law abiding citizenship and valour, of the chaps and chapesses in the intelligence services
  • allow these good folks, without undue interference, the capacity to get on with battling the multitude of "more complicated and more sophisticated" threats we face - including include nuclear proliferation, cyber-attacks, attacks on our intellectual property, organised crime and new weapons - that could destroy us. (Interesting to see intellectual property getting a mention in this context).
Dr Julian Lewis followed Mr Graham. He had three points to make in addition to praising Julian Huppert (anti) and Martin Horwood (pro) -
  • It is unacceptable for huge numbers of junior staff to have access to classified material
  • It's harder to track people today than it was in the past (seriously!); therefore data on everyone needs to be gathered for post hoc mining; and so what if there are lots of irrelevant data haystacks
  • Edward Snowden is no more a whistleblower than Julian Assange. What Snowden did was "irresponsible—" Unfortunately he didn't get to use his prepared label for Mr Snowden since the chairman cut him off, his 6 minutes were up.
Tobias Elwood was next and immediately undermined his contribution by stating
"The debate is about the balance of individual privacy versus the collective right to security."
No it really is not about balancing privacy and security. It is a completely false assumption to consider privacy and security to be opposites. Reinforcing cockpit doors has not undermined privacy in any way but is probably the single most important security measure brought into aviation since the 9/11 attacks.

Mr Elwood has suffered a personal loss due to a failure of the intelligence services to share information in timely fashion. His brother was killed in the Bali bombing as a result.

Diana Johnson stepped up to have a dig at Nick Clegg -
"Even the Deputy Prime Minister, given his recent comments to the media, appears to have missed the reforms that strengthened the Intelligence and Security Committee. That is surprising, considering he has 19 special advisers."
 - offer her interpretation of RIPA, express her confidence in the ISC and her hopes the committee will show its ability to conduct public hearings and restore public confidence.

At 4.18pm the Parliamentary Under-Secretary of State for the Home Department, James Brokenshire, got to his feet.and delivered a largely monotonal reading from his brief.
  • the intelligence services do essential work "confronting the diverse terrorist threat that this country continues to face"
  • the importance of scrutiny of the intelligence services is underlined by the loss of Mr Elwood's brother in the Bali bombing
  • intelligence work should happen within a strict legal and policy framework and it does and it has strict oversight but the intelligence services need "to maintain an edge in tackling terrorism and stopping criminals"
  • much oversight must happen behind closed doors to keep secret information secret
  • secrecy is essential  
  • intelligence services are overseen by more mechanisms than many other areas of government 
  • the ISC is good and got more power this year from the Justice and Security Act
  • in response to a question from Tom Watson on why Tempora did not receive parliamentary scrutiny Mr Brokenshire said it "not appropriate" for him to comment on such things in public
  • when Mr Brokenshire prevaricated following a question from Dr Huppert on on whether the ISC can investigate on long running operations, Mr Rifkind jumped in to his rescue - the ISC "have completed discussions with the Government, the results of which will appear in a memorandum of understanding that will be published and include details of how these matters will be dealt with. That will ensure that that consideration cannot be used as an improper way of preventing the ISC from obtaining access to operations that—by any normal, common-sense approach—could be considered as completed."
  • David Anderson QC, the independent reviewer of terrorism legislation is deserving of praise (mind you this was before Mr Anderson suggested restrictions on the use of Schedule 7 of the Terrorism Act)
  • GCHQ doesn't look inside the UK - this is misleading since GCHQ does look inside the UK under section 16 of RIPA
Mr Brokenshire concluded:
"It is this multi-faceted oversight that complements rigorous internal controls within the agencies themselves. The agencies’ recruitment and training procedures are all designed to ensure that those operating within the ring of secrecy can be trusted to do so lawfully and ethically. A culture of compliance with both the letter and the spirit of the law pervades everything that they do...
 This has been an important debate, highlighting the strength of the scrutiny that we have and the different layers of scrutiny that operate in this country. I believe that we have every reason to be proud of those oversight arrangements and of the work of our agencies."
We've no reason to doubt that many of the intelligence agencies' 13,000 plus employees do some terrific work. Mr Brokenshire's claim that we should be proud of the scrutiny of the intelligence services doesn't pass the laugh test in the light of the reports all round the world based on the Snowden documents, however. We have every reason to be concerned that
  1. 850,000 people have access to classified UK and US government material
  2. the UK and US governments through the NSA and GCHQ have been complicit in the clandestine construction of an electronic infrastructure of mass surveillance
  3. government intelligence & security services with the aid of large commercial organisations engage in mass surveillance - indiscriminately collecting, processing and storing the personal data - of that large proportion of the population using and/or visible to communications networks
  4. the NSA and GCHQ have been systematically undermining encryption technology that underpins privacy and the security of commerce on the internet by encouraging vendors and standards bodies to build back doors into their systems
  5. the notion that only the good guys will exploit such security holes is naive; they have through this process effectively destroyed trust in these systems
  6. large technology companies have been quietly cooperating with all this, though once it became public they changed their PR approach to claim victimhood along with the masses
  7. the laws to facilitate this mass surveillance are already in place and where they do interfere the NSA and GCHQ have operational methods for circumventing such inconveniences ('what not to say' rules when dealing with overseers)
  8. those engaged in the formal oversight mechanisms of the intelligence services work have little or no understanding of the technologies involved, what exactly they are being used for and what the consequences might be
  9. the UK government - with echoes of the Spanish Inquisition's, Nazi Germany's and Mao Zedong's book burning - is prepared to be responsible for the physical destruction of mainstream press equipment 
  10. the UK government is prepared to threaten the press with D notices and prior restraint through the courts 
  11. UK government ministers including the Prime Minister David Cameron are prepared to threaten the press (e.g in the debate on the European Council, Hansard Official Report, 28 October 2013; Vol. 569, c. 667.)
  12. the NSA’s own internal auditors found its agents broke privacy rules thousands of times each year
  13. the US government via the NSA reportedly route significant funds ($100 million) to the UK government intelligence service GCHQ 
  14. GCHQ appreciate their "light oversight regime compared to the US" 
  15. the secret US FISA Court's ability to oversee US spy agencies is very limited
  16. US intelligence chief James Clapper lied (responded in the "least untruthful manner") to Congress about the extent of NSA surveillance
  17. we have expanded secret courts in the UK
  18. some of the regulations and laws governing the operations of the intelligence and security services are themselves secret
  19. politicians are all too willing to demonise the messengers and trot out poisonous soundbites - the innocent have nothing to fear; our critics comfort/support our enemies/terrorists; government's first duty is to protect the public; be afraid but give us the power and we'll protect you; move on there's nothing to see; ...national security...; trust us we're acting within the law - to defend the indefensible and sate their ambitions
  20. the fourth estate - mainstream broadcasters and press - in the UK has largely been content to ignore or marginalise Guardian revelations, allowing that publication to plow an isolated furrow on the Snowden affair; worse still the Murdoch press and the Daily Mail, in particular, have actively attacked and sought to undermine the Guardian reporting on the Snowden affair; fueling the government's political attack dogs' outrageous accusations that the Guardian is aiding terrorism by publishing Snowden's revelations
  21. the UK is prepared to detain people (e.g. Glenn Greenwald's partner, David Miranda) at borders without suspicion to the limits of Schedule 7 of the Terrorism Act
  22. the Secretary General of the Council of Europe, Thorbjørn Jagland, was sufficiently concerned to write to the UK Home Secretary about Mr Miranda's detention and the destruction of the Guardian's computers
  23. the information consuming public take an essentially soporific attitude to all this
  24. the US has been tapping the phones of world leaders including Angela Merkel, the German Chancellor
  25. the surveillance infrastructure has been used for industrial espionage
  26. the strong incentives now pushing towards the balkanisation of the internet
I would repeat, therefore, that the reporting of the Snowden documents, the behaviour of the US and UK governments and our respective intelligence & security services and the subsequent reaction to this have raised fundamental questions of public interest (even if, in our world of short attention spans, the public is only superficially and transitionally interested, if at all) about -

  • security (no top secret can be secure if nearly a million people have access to it as a routine part of their jobs)
  • privacy (you have none on the internet)
  • anonymity (again you have none on the internet)
  • free speech (when does a whistleblower become a traitor?; why and how is is ok to smash up a computer in the offices of the Guardian in the UK in 2013?)
  • management and oversight of the police, intelligence and security services (what are the political, legal, environmental, societal, economic, technical and architectural checks and balances, if any and are they fit for purpose?)
  • the size, power and reach of the security/intelligence/surveillance/anti-terror industrial complex
  • secret courts (FISA, FISAAA 2008; the UK now has its own secret courts courtesy of the Justice and Security Act 2013 which came into force in June)
  • circumvention of human rights laws and constitutional protections (Prism, Tempora, XKeyscore, GCHQ-NSA data sharing?)
  • dangerous normalisation of activities that would have horrified earlier generations and been condemned as the actions & infrastructure of a despotic police state if connected with the Soviet Union, East Germany, China et al
  • the surveillance activities implicated by the Snowden documents are a breach of international law not matter how carefully or effectively GCHQ or the NSA has circumvented their own domestic laws
  • activities excused as efforts to secure the safety of citizens of one country should not violate fundamental human rights of citizens of another country
  • Finally for now, as Brazilian president, H.E. Dilma Rousseff, said at the UN General Assembly recently
""The arguments that the illegal interception of information and data aims at protecting nations against terrorism cannot be sustained...
In the absence of the right to privacy, there can be no true freedom of expression and opinion, and therefore no effective democracy. In the absence of the respect for sovereignty, there is no basis for the relationship among Nations.
We face, Mr. President, a situation of grave violation of human rights and of civil liberties; of invasion and capture of confidential information concerning corporate activities, and especially of disrespect to national sovereignty...
Friendly governments and societies that seek to build a true strategic partnership, as in our case, cannot allow recurring illegal actions to take place as if they were normal. They are unacceptable."

Monday, December 02, 2013

Response from MP on parliamentary surveillance debate

My MP, Nicola Blackwood, has written to explain she could not make it to the recent parliamentary debate last week on oversight of intelligence & security services. She has also written to William Hague to raise the concerns I expressed in my note to her prior to the debate.
"Dear Mr Corrigan,

Thank you for contacting me about the debate on oversight of the intelligence services. I do apologise for the delay in my response.

Unfortunately, I was unable to attend this debate due to a long-standing diary commitment. I have, however, read the transcript of the debate and have engaged with Ministers about the issues raised. If you would like to read the transcript of the debate yourself, it can be found at the following address:

I appreciate your desire to ensure that powers to intercept communication are confined to what is necessary and proportionate to protect our national security, and also to be accountable. It is important to remember here the important work our security services do in tackling terrorism and international crime. However, I firmly believe, as does the Government, that it is absolutely right for this intelligence work to be carried out in accordance with a strict legal and policy framework that ensure that activities are authorised and entirely necessary.

Ministers have assured me that to intercept the content of any individual's communications in the UK requires a warrant signed personally by the Foreign Secretary, the Home Secretary, or by another Secretary of State. Every individual decision is taken based on legal and policy advice and warrants are required to be absolutely necessary and carefully targeted. Furthermore, the Interception of Communications Commissioner also has oversight powers in relation to decisions about whether to authorise the use of intrusive powers, for example in authorising the interception of communication.

At a parliamentary level, the Intelligence and Security Committee (ISC) examines the policy, administration, past operations and expenditure of the intelligence agencies and parts of the wider Government intelligence community. I am pleased that the powers of the ISC have recently been extended by the Government through the Justice and Security Act 2013, which makes it a committee of Parliament; provides greater powers; and increases its remit, including oversight of operational activity.

Ultimately there remains a need for secrecy within the intelligence community to allow agencies to function effectively, but I have received assurances from Ministers that the activities of the intelligence agencies do not, and will not, go unchecked.

I have written to the Foreign Secretary, William Hague, to raise your concerns and shall of course be pleased to pass on any response I receive in due course.

Thank you again for taking the time to contact me about this important issue, and I hope this response is helpful.

Kind regards
Ms Blackwood is a member of the Home Affairs select committee which Guardian editor, Alan Rusbridger, will be appearing in front of at 3pm tomorrow, followed at 4pm by Metropolitan Police Commissioner, Bernard Hogan-Howe and Assistant Commissioner, Cressida Dick. I've sent her a short response.
"Dear Nicola,

Thanks for your response and apologies for the delay in getting back to you.

Though I haven't had the time yet to cover the entire debate, you might find it useful to scan my analyses prior to Guardian editor Alan Rusbridger's appearance before the Home Affairs select committee's counter-terrorism evidence session tomorrow afternoon -

Debate on oversight of intelligence & security services Part 1 at

Debate on oversight of intelligence & security services Part 2 at

Your time is short but I would particularly recommend you pay careful attention to your colleague Dominic Raab's contribution to the debate, available at

I look forward to the Home Affairs committee proceedings tomorrow with interest.


The other members of the committee joining Ms Blackwood are Keith Vaz (Chair), Ian Austin (Labour), James Clappison (Conservative), Michael Ellis (Conservative), Paul Flynn (Labour), Lorraine Fullbrook (Conservative), Julian Huppert (Liberal Democrat), Yasmin Qureshi (Labour), Mark Reckless (Conservative), David Winnick (Labour). On past evidence we might expect Mr Austin to be critical of the Guardian and Messrs Huppert & Winnick to be supportive.