The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal no: IA 00395-13


Decision signed: 31.05.2013
on 31.05.2013
sent out: 04.06.2013

Upper Tribunal Judge

Ariya JOSE


For the appellant: Harshaka Kannangara (counsel instructed by Legend)
For the respondent: Miss Alexandra Everett

This is an appeal, by the , against the decision of the First-tier Tribunal (Judge Rosalind Fletcher-Hill), sitting at Hatton Cross on 15 February, to  a tier 4 (general) student migrant appeal by a citizen of India, born 6 February 1988. On 8 October 2012 the appellant was refused leave to remain because her college had withdrawn her Confirmation of Acceptance for Studies [CAS] on 26 September. Permission to appeal was given on ‘common-law fairness’ grounds, because no reason for withdrawal of the CAS had been given, and by the date of the decision under appeal, when the appellant first heard of it, it was too late for her to find out why.

2. However, as the judge found at paragraph 40, there was no evidence before her as to why the sponsor withdrew the CAS, and no evidence that the appellant had sought to discover the reason. While it is a little disturbing to find a licensed sponsor withdrawing a CAS without giving reasons (even, as Mr Kannangara pointed out, in the place allowed for that on the form, and especially when the appellant had paid the fees for the course, also recorded on it), there may have been some good reason for it in the present case. The burden of proof, as in most cases of this kind, was on the appellant to show either that there was no good reason for the CAS being withdrawn; or that she could get none out of her college.
3. The appellant’s counsel before the judge, not Mr Kannangara, had suggested that, since the CAS had been withdrawn so soon before the decision under appeal, it was for the Home Office to give the appellant 60 days to get onto another course. This could only be argued by analogy with the well known cases where it was the Home Office who withdrew the college’s sponsorship licence, a process by its nature out of the appellant’s control, and one for which she would have been most unlikely to bear any responsibility.
4. However, that is not this case, and the analogy is a false one. The withdrawal of an individual CAS must have had something to do with the dealings between the appellant and her college. If there was no good reason for it, or no reason could be got, then that would certainly have raised a ‘common-law fairness’ argument for the appellant; but she needed to show that this was the case.
5. Though permission seems to have been granted under a misapprehension about this, evidence obtained after the date of the decision to show unfairness would not have been made inadmissible by the prohibition on fresh evidence on appeal contained in s. 85 (5) of the Nationality, Immigration and Asylum Act 2002, because if the decision under appeal were shown to be unfair, then it would have been no valid decision at all: see Naved (Student - fairness - notice of points) Pakistan [2012] UKUT 14 (IAC).
6. It follows that the appellant and her solicitors were not entitled to rest her case on the lack of reasons given for the withdrawal of her CAS, but needed to take active steps to show, either that there was no good reason for it, or they could get none. As the judge found, there is no evidence at all of any such steps being taken. It is a pity for this appellant that those representing her should have chosen to advise her that her case should be conducted in this way; but they must bear the responsibility for that. Practitioners should note that establishing a ‘common-law fairness’ case is not a matter of appellants’ simply taking a stand on what the Home Office have done, but actively co-operating to make sure that their applications are properly considered on their merits.

(a judge of the Upper Tribunal)