Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber)

Kaur (Patel fairness: respondent’s policy) [2013] UKUT 00344 (IAC)

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 2 July 2013

…………………………………
Before

THE PRESIDENT, THE HON MR JUSTICE BLAKE
DEPUTY UPPER TRIBUNAL JUDGE McWILLIAM

Between

Sandeep kaur
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr C Murphy, instructed by Kanth and Co
For the Respondent: Mr P Deller, Senior Home Office Presenting Officer

(1) The respondent has produced a policy, which is intended to give effect to the principles of common law fairness identified in Patel (relocation of sponsor licence – fairness) [2011] UKUT 00211 (IAC).

(2) In essence, the policy provides that, in cases of potential discretionary refusal under paragraph 322 of the immigration rules, caseworkers should follow the ‘Patel’ process. Where this is not done, the resulting decision will not be in accordance with the law.

DETERMINATION AND REASONS

1. The appellant is a citizen of India and was born on 4 July 1983.

2. The appellant was granted leave to enter the UK as a Tier 4 (General) Student Migrant on 10 November 2010 until 20 August 2012 to study at Oxbridge College. She entered the UK in November 2012.

3. On 22 May 2012 the appellant made an application for leave to remain in the UK as a Tier 4 (General) Student Migrant in order to study at Scott’s College in London. The respondent refused the application in a decision of 21 December 2012. The reasons for the refusal by the respondent are twofold. The appellant breached a condition of her leave (to study at Oxbridge College) because she had studied at St John’s College. Paragraph 245ZW and ZX of the Immigration Rules required an applicant to meet the conditions attached to the previous leave to enter. In addition Scott’s College was not an approved sponsor.

4. The appellant appealed against the decision of the respondent and her appeal was determined on the papers (at the appellant’s request) and dismissed by Judge of the First-tier Tribunal Sacks in a decision promulgated on 21 March 2013. Permission to appeal was granted by Judge of the First-tier Tribunal Ievins on 18 April 2013.

5. The matter came before us on 21 May 2013 when we found that there was a material error of law in the decision of the First-tier Tribunal and set it aside pursuant to section 12 (2) (a) of the Tribunals, Courts and Enforcement Act 2007. The judge was wrong to have failed to address the grounds of appeal and the issue raised by the appellant, which was that the course she had studied at St John’s was supplementary to the course of study at Oxbridge and consequently, was authorised within the meaning of paragraph 245W(c)(iv)(3). We decided that there may have been unfairness in the Patel sense (Patel (revocation of sponsor licence-fairness) India [2011] UKUT 211 (IAC)). To assist us to re-make the decision, we made directions and the hearing was adjourned until 2 July 2013.

The Background

6. The background to the appeal is that the appellant commenced studying at Oxbridge after her arrival in the UK, but the college was suspended from the register of Tier 4 in April 2011. She wished to complete her education and was admitted to St John’s to study the same course. The course at St John’s commenced in April 2011 and finished in December 2011. Oxbridge was restored to the register in June 2011, but was suspended again in November 2011. Oxbridge subsequently closed and the students who had studied there did not receive qualifications. The appellant successfully completed the course at St John’s and was awarded a qualification. She then applied to study at Scott’s, which, at the date of the application, was an approved sponsor. The appellant was not permitted to start the course because of her outstanding application. In October 2012 the appellant discovered that Scott’s had closed. She was unable to obtain a new CAS because her passport was with the Home Office. She wrote to UKBA informing them of the situation and she asked them to provide her with a letter to enable her to obtain a new CAS, but the Home Office went on to refuse her application without responding to her request.

Submissions

7. Mr Deller submitted a skeleton argument in which it was acknowledged that the Home Office had not followed its policy designed to deal fairly with applicants whose college of choice loses a sponsor licence whilst the application for leave to remain is outstanding and to give effect to the principles set out in Patel. The policy itself, Annex 2 paragraph 10 of the Tier 4 Guidance, is set out in the version both at the time of the decision and before us at:

http://webarchive.nationalarchives.gov.uk/20120507005311/http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/Tier4migrantguidance2.pdf
(version applicable at time of application)

http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/Tier4migrantguidance.pdf (version current at 2 July 2013)

We attach the material part of the policy instructions (itself an appendix to the policy) as annex 1 to this determination.

8. The policy provides for a 60 day period to enable an applicant to find a new college to sponsor the application; states that refusal of the application will follow in the event that it falls for mandatory refusal under paragraph 321A, but goes on to state that, should the application fall to be refused under paragraph 322(2)-(12), case workers should follow the Patel process. Here, if the applicant had breached the terms of her previous leave, it was a case of discretionary refusal under paragraph 322(3), and the policy was incorrectly applied. On this basis it was conceded by the respondent that the decision was not in accordance with the law.

8. It was a moot point whether the applicant had breached the terms of her leave by enrolling at St John’s College when Oxbridge College had its sponsor licence suspended. Mr Deller submitted that rules allow for supplementary study which, though not defined in the rules, is defined in the Tier 4 guidance which, at the date of the application, stated (at [306]) the following:

“Tier 4 (General) students and Tier 4 (Child) students are allowed to do extra courses, for example, evening courses, as well as their main studies. The course can be on any subject, and does not have to relate to the main course of study. Students do not need permission from us to do extra studies, and do not need to tell their Tier 4 sponsors. They must make sure that the extra course does not get in the way of the course that they have permission to stay for.”

9. The studies at St John’s College did not interfere with the Oxbridge studies. In one sense they were supplementary to the Oxbridge studies when they were first commenced, as the possibility of returning to study at Oxbridge was not excluded and indeed for a time the applicant was studying at both institutions. On the other hand, it could be said that at some point in the history the applicant had effectively substituted St Johns College for Oxbridge College and the respondent submits that this takes the case beyond supplementary study.

Conclusions

10. We agree that the decision to refuse the applicant an extension of stay was not in accordance with the law, because the policy in place at the time was not followed. If the policy had been followed the applicant should have been afforded a reasonable opportunity to find a new sponsor.

11. Both parties agreed that a lawful decision remains outstanding. It was not necessary for the Tribunal to determine whether the course at St John’s was supplementary to studies at Oxbridge or not. When making a fresh decision, it will be a matter for the Secretary of State to determine whether or not paragraph 322(3) is engaged; however, in our view, the definition in the Tier 4 guidance is relatively wide. At some point, the appellant was studying at both Oxbridge and St John’s. Mr Deller indicated in his skeleton argument that the appellant’s evidence contained in her witness statement of 31 May 2013 was not challenged, namely that her studies at St John’s did not interfere with her main studies at Oxbridge. Paragraph 322 is a discretionary ground of refusal and it is a fact that Oxbridge’s licence was suspended on two occasions and this was clearly not the fault of the appellant who having paid for her studies, was understandably keen to complete them.

12. In this case, no lawful decision has been made on the application which remains to be determined by the Secretary of State or the relevant officer. The appellant’s leave to remain, pursuant to section 3C of the Immigration Act 1971, continues uninterrupted. The appellant is able to vary her application and should do so within 60 days.

13. The appellant, through Mr Murphy, expressed concern that she would not be able to obtain a CAS without her passport and that this was with the Home Office. Mr Deller referred to the internal case working instruction which states that a certified copy of the student’s passport will be given to the appellant because colleges will require evidence of status. We suggested to Mr Murphy that the appellant contacts the respondent forthwith to secure her passport to enable her to vary her application. We do not know when the 60 days period commences and neither party was able to assist in this regard.

14. The decision is not in accordance with the law and therefore ceases to have effect. For this reason we remake the decision and allow the appeal.

Signed Date 9 July 2013

Deputy Upper Tribunal Judge McWilliam

Annex 1

APPENDIX A TO RESPONDENT’S SKELETON: PATEL POLICY

Step
Action
1.
As with all applications the caseworker will have followed the usual procedures for risk profile, verification checks, standard checks, eligibility checks and identity checks and should be in a position to substantively consider the application.

If, during the course of these checks, it transpires that the application will fall to be refused under 322(1A) (false representations, false documents or information submitted in relation to the application, etc) then the case should be refused outright on this basis. As 322(1A) is a mandatory ground for refusing an application, it would not be appropriate to provide the opportunity for the applicant to vary the grounds of their application.

However, if the application falls to be refused under 322(2) to 322(12), then as full consideration of the application is required then caseworkers should proceed in the way set out below.

The caseworker should first of all check whether or not the application was submitted prior to the expiry of the applicant’s leave to enter or remain.

If the application was submitted after the expiry of the applicant’s leave (out of time) then the caseworker should proceed to step 2.

If the application was submitted before the expiry of the applicant’s leave (in-time) then the caseworker should proceed to step 3.

2.
If the application was made ‘out of time’ then the caseworker can consider the application in the usual way based on all of the information available to them at that point. Such cases will normally fall to be refused under 245zx(c) and 245zx(d) on the basis that the applicant does not possess a valid CAS and we were not able to assess the maintenance requirement of the Immigration Rules. Verification of supporting documents will be considered and completed in the usual way.

3.
Although the applicant does not possess a valid CAS and so falls to have their case refused, as their application was submitted ‘in-time’ we will delay the refusal of their application for a period of 60 days to allow them to obtain a new CAS and to submit a request to vary the grounds of their original application.

In such cases, the caseworker will write to the applicant using ICD4500 and information leaflet ICD4499 explaining that their previous sponsor has surrendered their licence or had their licence revoked and that they have 60 days to either leave the UK or to find a new sponsor, obtain a new CAS and submit all of the required documents to show that they meet the requirements of the Immigration Rules.

As the applicant’s new sponsor will need details of the applicant’s passport and will need to retain a copy of it for their records, caseworkers will take a copy of the passport and endorse it with a ‘UKBA Certified Copy’ stamp. This certified copy will then be returned to the applicant along with the letter.

If the applicant decides to obtain a new CAS and vary the grounds of their initial application, then they will need to submit fresh supporting information and documentation showing that they meet the requirements of the Immigration Rules in place on the date that the request to vary is submitted - It should be noted that the application date for the purpose of determining continuity of leave and whether the applicant is covered by 3C leave must be the date on which the original application was made.

The caseworker will need to calculate the end date of the 60 day period as it will need to be included in the letter being sent to the applicant.

The letter to the applicant will also need to explain that the applicant will be required to complete a fresh Tier 4 General Migrant application form as the information provided on the previous form is no longer valid. The letter will also ask the applicant to return the variation request directly to the caseworker.

The letter should be sent either to the applicant directly or to their immigration adviser/solicitor if they have one. Caseworkers should take care to ensure that we do not send this letter to the previous educational sponsor.

Once the letter has been completed and the documents are ready to be despatched, the caseworker should print off a copy of the letter for the applicant and a further file copy which will be retained. The caseworker should enclose with the letter a green return address label to ensure the response is directed appropriately.

The envelope containing the letter and the other documents can then be despatched to the applicant and the application can be placed into the ‘BF’ hold for a period of 65 days to allow for the submission of documents at the end of the 60 day period.

PEO Caseworkers Only;

At this point, you should follow the normal arrangements for extending cases that operate in your office – Please seek the advice of your Senior Case-worker if required.

Go to next step.
4.
Once the 65 day period has elapsed, the next action will be to ascertain whether or not any response to the enquiry has been submitted.

If no response is received, the caseworker should go to step 5.

If a response is received, the caseworker should go to step 6.
5.
As no response has been received within the specified period, the caseworker will consider and decide the application based on the information and documentation available at that time - this would mean that the application should normally be refused under 245zx(c) and 245zx(d) on the basis that the applicant does not possess a valid CAS and we were not able to assess the maintenance requirement of the Immigration Rules.

The amount of leave the applicant has left at this point will determine whether or not we take any action to curtail any remaining leave:

If the applicant’s leave to enter or remain has expired whilst the application has remained outstanding then there will be no leave to curtail and the Tier 4 application can be refused with a full right of appeal;

If the applicant has leave to enter or remain of less than 6 months, then we will not curtail their leave, however, their
outstanding application will be refused and the decision will not attract a right of appeal on the basis that the applicant still has extant leave;

If the applicant has more than 6 months leave remaining at this point, then their remaining leave will be curtailed to 0 days. The caseworker should follow the Tier 4 Curtailment procedure when completing the case.

6.
The letter referred to in steps 2 and 3 may elicit a number of responses from the applicant:

1. The applicant may respond and say they would like to withdraw their application and leave the United Kingdom. If this is the case, the caseworker should go to step 7;

2. If the applicant still has leave remaining at this point, they may decide to withdraw their application and submit a fresh one under Tier 4 or any other category. If this is the case, the caseworker should go to step 7;

3. The applicant may respond to request more time to obtain a new sponsor and a CAS. If this is the case, the caseworker should go to step 8;

4. The applicant may respond to say that they have obtained a new CAS for a licensed Tier 4 educational sponsor and would like to vary the grounds of their original application. If this is the case, the caseworker should go to step 9.

7.
If a request is made to withdraw an application following revocation of a sponsor, the process to be followed will be dependent on the reason for withdrawal and the applicant’s immigration status as set out below:

1. If the applicant states in writing that they wish to withdraw their application and leave the United Kingdom, then the caseworker should follow the usual procedures for withdrawing an application.

2. Where the applicant states they would like to withdraw their application in order to submit a fresh application on a different basis and that applicant has extant leave remaining at the point of withdrawal, the usual procedure for withdrawing an application should be followed and the passport and all other documents can be returned to the applicant.

8.
If the applicant responds requesting more time to obtain a CAS then:

If the initial 60-day period has not elapsed the migrant should be notified that no additional time will be provided, and that they have until the date specified in their original letter to obtain a new sponsor, CAS and supporting documents;

If the 60-day period has or will have elapsed by the date the response is received and considered, then the application should be refused as adequate opportunity was given to obtain a new sponsor.

Additionally, the caseworker must acknowledge the applicant’s request for additional time in the refusal, and provide the reason why additional time was not allowed (i.e. that a reasonable amount of time had already been given).

The refusal will be in line with the process set out in step 5.
9.
If the applicant submits a request to vary the grounds of their application, then they should submit a new Tier 4 General application form, a new CAS and all relevant supporting documents including the documents used to obtain the offer, proof that they meet the English Language requirement and documents showing that they have access to the required level of maintenance.

Caseworkers should consider all of the new documents and information as they would when assessing any Tier 4 application. They will need to ensure that CID is updated to reflect the new Tier 4 Educational Sponsor and that the Sponsor Licence number and CAS number are input correctly.

Once the above has been done, the application will be assessed and the caseworker will decide whether or not it meets the requirements of the immigration rules.

If the varied application meets the requirements of the immigration rules, the caseworker should go to step 10.

If the varied application does not meet the requirements of the immigration rules, the caseworker should go to step 11.

10.
As the varied application meets the requirements of the immigration rules, then the appropriate period of leave should be granted and the case can be completed and despatched in the usual way. Any leave remaining at this point would be superseded by the new Biometric Residence Permit.

11.
If the varied application does not meet the requirements of rules, then the caseworker should decide whether or not it would be appropriate to request missing information or documents or whether the case should be decided based on the information available at that time.

If the caseworker is in doubt, they should refer to the evidential flexibility instructions and if necessary, discuss the case with the EO caseworker on team.
If it is decided that the case should be decided on the basis of the information available at that time and that further enquiries are not appropriate, then the application would fall to be refused. The refusal will be in line with the process set out in step 5.

If it decided that it is appropriate to make an enquiry or to request further information prior to deciding the application, then the caseworker should make the enquiry in the usual way and BF the case for the appropriate amount of time.

Go to next step.

12.
If the applicant fails to respond to the evidential flexibility request, then the application may be refused. The refusal will be in line with the process set out in step 5.

If the applicant responds to the evidential flexibility request, but the information provided does not demonstrate that the applicant meets the requirements of the immigration rules, then the application me be refused. The refusal will be in line with the process set out in step 5.

If the response to the evidential flexibility request means that the applicant is now able to meet the requirements of the immigration rules, then the application can be granted in the usual way. Any leave remaining at this point would be superseded by the new Biometric Residence Permit.