Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber)

Patel (Tier 4 – no ’60-day extension’) India [2011] UKUT 00187 (IAC)

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 16 March 2011

Before

Mr Justice Edwards-Stuart
Senior Immigration Judge Gleeson

Between

Jiginashaben nitinkumar patel

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Soloman, instructed by APP Immigration Advocates LPP
For the Respondent: Ms Ong, Home Office Presenting Officer
(1) Where a sponsor’s Tier 4 licence is withdrawn, the UKBA Policy Guidance as at November 2009 (page 52) operates to restrict the remaining leave granted to 60 days where a student has more than six months’ of the original leave remaining. It has no effect on periods of less than six months.
(2) The policy does not operate to extend leave and in particular, it does not provide a 60 day extension of leave to remain in a case where that leave to remain has already expired.
(3) The 60 day restriction, if applicable, rums from the time when the Secretary of State notifies the student of the imposition of the restriction following the withdrawal of the licence.
DETERMINATION AND REASONS

1. This is an appeal, with the permission of the Senior Immigration Judge, against a Determination of Immigration Judge Buchanan promulgated on 11 November 2010 dismissing the appellant's appeal against the refusal of leave to remain as a Tier 4 (General) Student Migrant on 9 September 2010.
2. The appellant is a citizen of India. She was born on 30 July 1973. She came to the United Kingdom in September 2008. She then undertook and completed a Diploma in Business Administration and had applied to take an Advanced Diploma in Business Management from BC College of North West London.
3. Unfortunately, after she applied the college was withdrawn from the list of Tier 4 licensed providers.
4. At the hearing before the First-tier Tribunal counsel for the appellant, who was not counsel who appeared before us, suggested that the appeal could be conducted on the basis of submissions only. However, during the course of the hearing a point arose which needed clarification and the Immigration Judge put the relevant question to the appellant. She did not understand the question and it then emerged that her command of English was apparently limited. It transpired that her counsel had throughout taken instructions from the appellant's husband and was not aware of her poor command of English.
5. Whilst, on the facts as we have just summarised them, there is no reason to believe that counsel was deliberately trying to mislead the tribunal by concealing the appellant's lack of English, we wish to make it perfectly clear that we regard it as quite unacceptable for any advocate to submit that an appeal could be dealt with by way of submissions only in order to avoid revealing to the tribunal the fact that his or her client has a very poor command of English.
The facts
6. The appellant's case was that she had completed her Diploma in Business Administration and had been issued with an appropriate certificate on 18 September 2009. Having been granted a place on the course for the Advanced Diploma in Business Management from BC College, on 18 November 2009 she submitted an application to the respondent for an extension of her leave to remain under the Tier 4 system, her existing visa being due to expire on the 30 November 2009.
7. But sadly, in December 2009, the appellant discovered that she had breast cancer, for which she had to undergo treatment. This prevented her from starting the proposed course of study at BC College. In January 2010 she contacted the college and explained why she had not been able to start the course. However, later that month she discovered that the college was no longer recognised as a Tier 4 provider. She said that she then tried to contact the respondent in order to find out about the progress of her application, but was simply told that it was pending.
8. On 9 September 2010 she was told that her application was refused because BC College was not a Tier 4 sponsor. She said that she had tried to enrol on other courses but could not do so because the respondent had retained her passport. However, she did eventually obtain a conditional place on a recognised course provided by Khalsa College and she produced a letter of confirmation of the offer dated 3 November 2010. This was for an Associate Degree in Business Management that was due to start on 27 November 2010. This letter of confirmation was written two days before the hearing before the tribunal.
The Determination of the First-tier Tribunal
9. At paragraph 19 of his determination the Immigration Judge noted that:
“Both parties accepted at the hearing that this application was not going to succeed under the Rules and although there may well be scope for the appellant to make a fresh application within 60 days after the notice of refusal, and although [counsel for the appellant] made it clear that she would be doing so immediately after the hearing, the issues raised relate only to Article 8 ECHR."
10. The grounds of appeal, prepared by counsel who appeared before the Immigration Judge, asserted that this was not the case. It was said that the submission to the Immigration Judge was that the tribunal could allow the appeal on the basis that the respondent had failed to follow her own policy.
11. In relation to Article 8, it was submitted on behalf of the appellant that she "had been robbed of her expectations to be able to study". The Immigration Judge said that he was not satisfied that the appellant had taken any real steps either to pursue the respondent for a decision on her application for the extension of her leave to remain or to investigate the availability of alternative courses during the intervening period.
12. In addition, the Immigration Judge said that there must also be a very real concern as to whether the appellant really did have the ability to take the proposed course, bearing in mind the very limited command of English that she had exhibited at the hearing.
Discussion
13. Mr Solomon, who represented the appellant before us, made it clear that he did rely on the "so-called “60 day extension". He submitted that the policy of the respondent was to grant a minimum of 60 days from the date of notification of refusal in a case where the course provider’s licence had been withdrawn in order to enable the student to find an alternative course. He said that in this case that policy had not been followed.
14. Mr Solomon referred us to the Policy Guidance document for the Tier 4 of the Points Based System, in the version that was in force from 5 October 2009 onwards. The relevant guidance is at page 52 of the document.
15. This deals with the situation where a sponsor’s Tier 4 licence is withdrawn. In this situation the document says that "all confirmations of acceptance for studies and visa letters will become invalid". There is a table which sets out what will happen if the licence is withdrawn at various stages of the application process. The first two situations set out in the table cover the position before a student has travelled to the United Kingdom. The third situation arises where the student is "already in the United Kingdom studying". In this situation "What will happen" is described as follows:
“We will limit the student’s permission to stay to:
60 days if the student was not involved in the reason why the Tier 4 sponsor had their licence withdrawn (we will not limit the student’s permission to stay if he/she has less than six months left. The student may want to apply for permission to stay with another Tier 4 sponsor during this time).
Immediately if we think the student was involved in the reasons why the Tier 4 sponsor's licence was withdrawn."
16. We consider that the language of this is perfectly clear: it is imposing a restriction on the innocent student’s permission to stay (or, more accurately, leave to remain) in cases where the student has more than 6 months left of his/her leave to remain. In that case the student’s leave to remain is limited or restricted to 60 days.
17. What it does not mean is that where a student’s leave to remain has only a few days remaining, or has actually expired, a further 60 days leave to remain will be granted. That would amount to an extension, not a limitation.
18. In reaching this conclusion we derive support from two decided cases. The first case is SSHD v JA [2011] UKUT 52 (IAC), a decision of Irwin J and SIJ Gill. In relation to the part of the table that we have quoted above, they said this, at paragraph 12:
“As a matter of language, if there is no question of any contribution to the circumstances leading to the withdrawal of the sponsor's licence, the policy is clear. If the existing leave to remain is longer than six months it could be limited to 60 days. If the existing leave to remain is less than six months, it will not be further limited. In neither case on the face of the language does the policy contemplate a direct extension to the student’s leave to remain."
19. The second case is SSHD v MM & SA [2010] UKUT 481 (IAC), a decision of Lord Bannatyne and SIJ Peter Lane. They said, at paragraph 18:
“It is clear from the guidance that the limitation to 60 days is not to be treated as an indication that the Secretary of State will, in the case of licence withdrawal, grant of the student a further 60 days’ leave. On the contrary, the guidance makes it plain that the 60 day period is a restriction and that where a student has less than six months’ leave, the remaining period will be left unaffected."
20. Since the appellant's leave to remain had expired on 30 November 2009, at the time when the college's licence was withdrawn she had no remaining leave to remain that could be restricted. Accordingly the so-called "60 day extension" had no application to her case. That is sufficient to dispose of the appeal on this ground.
21. But even if we are wrong in this conclusion, the appellant would not have been a student who could have benefited from any anticipated extension of her leave to remain because she was not "studying" at the relevant time. Although Mr Solomon submitted that this included someone who was in the United Kingdom as a student awaiting permission to take a course, we consider that the application of the policy is confined to those students who are actually in a course of study at the Tier 4 sponsor's establishment for which leave to remain has been requested or given when the sponsor's licence is withdrawn. In the present case the appellant had never started the course in question because of her ill-health. By the time that she might have been in a position to start a course, she discovered that the college was no longer recognised as a Tier 4 institution.
22. However, there is one point on which the table is not clear. That is the point in time from which the 60 day restriction, if applicable, would take effect. Like Irwin J and SIJ Gill in JA, we consider that this cannot be at the time when the sponsor's license is withdrawn, because otherwise a student could find herself the subject of a restriction on her leave to remain without even being aware of it. It seems to us that the 60 day restriction, if applicable, can only run from the time when the Secretary of State notifies the student of the imposition of the restriction following the withdrawal of the licence.
23. However, we note that this could have rather capricious effects. For example, if the Secretary of State took the decision in the case of a particular student when she had, say, 6½ months left, that student’s leave to remain would then be limited to 60 days. But if the Secretary of State delayed a further three weeks before notifying the student of the withdrawal of the licence, it would make no difference at all: the student would then have less than 6 months left of her leave to remain, and so no restriction would fall to be imposed.
24. We are not the first to point out these apparent anomalies in this part of the scheme, but it may well be that there was a perfectly good reason for setting up the system in this way and that we have not been told what it is. However, the point that we wish to make clear, once and for all, is that the 60 days can only operate as a restriction of the permission to remain: it applies in the case of an innocent student who has more than six months left of his or her leave to remain when notified by the Secretary of State of the withdrawal of the sponsor institution’s licence. What the policy does not provide is a 60 day extension of leave to remain in a case where that leave to remain has already expired.
25. In relation to Article 8, Mr Solomon referred us to the general policy considerations relating to the admission of foreign nationals as students, which were summarised by Sedley LJ, sitting with Longmore and Moses LJJ, when giving the judgment of the Court of Appeal in Goo v SSHD [2008] EWCA Civ 747, at paragraph 4:
“Before we turn in detail to our reasons, it is relevant to recall that the admission of foreign nationals to study here is not an act of grace. Not only does it help to maintain English as the world's principal language of commerce, law and science; it furnishes a source of revenue (at rates which, by virtue of an exemption from the Race Relations Act 1976, substantially exceed those paid by home students) of frequently critical budgetary importance to the United Kingdom's universities and colleges as well as to many independent schools. We therefore find it unsurprising that the legislation and rules, correctly construed, do not place arbitrary or unnecessary restrictions on what foreign students can study here. It does not require evidence to remind us that it is not uncommon for a student to realise that he or she has made an unwise choice, or perhaps is being poorly taught, and to change courses or institutions with beneficial results. A rule preventing students from making such a change might well be arbitrary or unnecessary in the absence of case-specific reasons."
26. Mr Solomon then went on to make a number of general points in relation to this particular appeal:
(a) The appellant was not at fault in relation to the withdrawal of the licence.
(b) At the date of the appellant's application the college was on the register.
(c) The policy of the Secretary of State is not to tell a student in the event that a college is suspended (as opposed to having had its licence withdrawn).
(d) Students are likely to be unclear as to whether or not a college has been withdrawn from the register.
(e) A student will not be able to make a fresh application once he or she has become an unwitting overstayer as a result of the withdrawal of the sponsor institution's license.
(f) Any refusal of leave to remain following the withdrawal of the sponsor institution’s licence will not be an appealable decision.
(g) The student’s future applications may be prejudiced by having had leave to remain refused without a proper opportunity to find another course.
(h) The withdrawal of the sponsor institution's license shall not have the consequence that the student has to go to the lengths of travelling abroad in order to reapply for leave to enter.
27. In addition, Mr Solomon submitted that his construction of the "60 day extension" would accord with the view of the ordinary man, and that students would have a legitimate expectation that any decision would be based on a reasonable policy and that this would involve giving students a period of grace within which to find another institution on being notified by the Secretary of State that the sponsor institution's licence had been withdrawn.
28. Finally, Mr Solomon repeated the submission made to the Immigration Judge that the appellant was a genuine student who was being deprived of the opportunity to continue her studies in the United Kingdom and that to interfere with this by depriving her of further leave to remain would constitute a disproportionate response and therefore a breach of her Article 8 rights.
Conclusions
29. Attractively and eloquently as Mr Solomon presented his submissions, we reject them. We reject the submissions in relation to the "60 day extension" point for the reasons that we have already given.
30. Where a sponsor’s Tier 4 licence is withdrawn, the UKBA Policy Guidance as at November 2009 (page 52) operates to restrict the remaining leave granted to 60 days where a student has more than six months’ of the original leave remaining. It has no effect on periods of less than six months.
31. The policy does not operate to extend leave and in particular, it does not provide a 60 day extension of leave to remain in a case where that leave to remain has already expired.
32. In relation to the claim under Article 8, we share the concern of the Immigration Judge that it is highly questionable that the appellant has a sufficient command of English to make her a serious candidate for an Advanced Diploma in Business Management. In addition, like the Immigration Judge, we are not satisfied that the appellant made any serious attempt to find another course once she discovered in late January 2010 that BC College was no longer a licensed Tier 4 institution.
33. In these circumstances we do not consider that the refusal of leave to remain is a disproportionate interference with the appellant's Article 8 rights.
34. We should add that we appreciate and understand that the appellant has genuine problems with her health, but this does not make her claim any stronger. On the contrary, it may be another reason why she may not be in a position to undertake a further course of study. However, this is not a factor to which we have had any regard when reaching the conclusion set out above.
Disposal
35. Accordingly, we find no error of law in this Determination and so this appeal must be dismissed.

Signed


Mr Justice Edwards-Stuart
            Sitting as a Judge of the Upper Tribunal