Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01058/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 24 May 2013
On 4 June 2013

Before

UPPER TRIBUNAL JUDGE ESHUN

Between

mr md. anisur rahman

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr M Hossain, instructed by Hossain Law Associates
For the Respondent: Mr S Ouseley, Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a citizen of Bangladesh, born on 20 October 1989. His appeal against the respondent’s refusal on 10 December 2012 to grant him an extension of leave as a Tier 4 (General) Student Migrant was dismissed by First-tier Tribunal Judge Raymond.

2. The respondent refused the appellant’s application because Section 50 of the 2009 Act, applicable since 5 October 2009, prohibits a student from changing institution of study without making a fresh application, whereas the appellant having been granted Tier 4 leave on 15 October 2009 to study at St. Peter’s College of London, had relied upon certificates from West London School of Management and Technology which did not hold highly trusted status.

3. The judge held as follows:

“2. Mr Hossain relied upon a UKBA email confirming that the appellant actually submitted his application on 29.09.09. He relied in addition upon UKBA Tier 4 Policy Guidance advising that students who applied before 05.10.09 should obtain permission if they wished to continue with a new Tier 4 Sponsor. He interpreted this to mean that Section 50 only applied to students who applied for leave after 05.10.09. I am not certain of the line of this argument. In any case the present application needed to be made in relation to studies that had taken place with a highly trusted Sponsor given the change of institution, as is set out in paragraph 245ZW(c)(iv) by reference to paragraph 322(3). Mr Hossain also relied upon the evidential flexibility policy line of argument, but this does not help the appellant as he could not have replaced his certificates with ones from a highly trusted sponsor. The CDS line of argument also does not help the appellant as he cannot be seen to have made an investment in his private life of studies by obtaining qualifications from a highly trusted Sponsor, as could enable him to build upon such qualifications to progress his studies and any possible career.”

4. Permission to appeal was granted to the appellant on the basis that the judge failed to deal with the respondent’s decision to remove the appellant pursuant to Section 47 of the Immigration, Asylum and Nationality Act 2006. Whatever view the judge took of the variation aspect, he was, on the face of it, obliged to allow the appeal against removal to a limited extent. His failure to deal with that aspect amounts to an arguable error of law. Permission was also granted on the other grounds.

5. Mr Hossain relied on the other grounds to argue that the judge’s decision in respect of the refusal of the appellant’s application under Section 50 was fundamentally flawed on two bases; firstly, the appellant’s application for entry clearance as a Tier 4 (General) Student Migrant was made on 29 September 2009. Therefore the restriction under Section 50, which requires the appellant to seek permission from the Secretary of State to switch colleges, did not apply to him and therefore he could switch to any college whether or not it was a highly trusted sponsor. Secondly, the judge’s assertion that he was not certain that Mr Hossain’s argument meant that the judge did not understand the arguments in this case. Mr Hossain further argued that the judge failed to deal with his argument on the CDS point in respect of the appellant’s private life.

6. Mr Ouseley submitted that the judge was aware of the date the appellant made his application. He said that West London School of Management and Technology was no longer on the Register of Sponsors even if the judge got the date wrong. In any event the appellant went to a college which did not hold highly trusted status. He is here on a temporary basis and can return to Bangladesh to study there.

7. Mr Hossain replied by saying that when the appellant made his application West London School of Management and Technology was on the Register of Sponsors and was rated “A” although he acknowledged that it did not hold a Highly Trusted status. He argued that this did not matter because of the fact that the appellant had made his application before 5 October 2009 and therefore he could switch to any college whether or not it held a highly trusted status.

Findings

8. In respect of the removal decision under Section 47, I find that in line with Adamally the respondent’s decision was wrong in law. To that extent the appellant’s appeal is allowed and remitted to the Secretary of State to reconsider the decision to remove the appellant.

9. With regard to the argument in relation to Section 50 of the Borders, Citizenship and Immigration Act 2009, I find that the respondent erred in law in stating that the appellant was last granted leave based on a successful application made on 15 October 2009 for entry clearance as a Tier 4 (General) Student Migrant to study with St. Peter’s College of London. The appellant submitted an e-mail from the British High Commission in Dhaka which confirmed that he submitted his application form at the Visa Application Centre on 29 September 2009. I find that the respondent’s error tainted its decision.

10. Under paragraph 322(3) an applicant’s application should normally be refused for failure to comply with any conditions attached to the grant of leave to enter or remain.

11. Paragraph 245ZW(c)(iv) -

(1) requires the appellant to study at the institution that the Confirmation of Acceptance for Studies Checking Service records as the migrant’s sponsor, or where the migrant was awarded points for a visa letter [unless the migrant is studying at an institution which is a partner institution of the migrant’s sponsor], study at the institution which issues that visa letter,

(2) until such time as a decision is received from the UK Border Agency on an application which is sponsored by a Confirmation of Acceptance for Studies assigned by a Highly Trusted Sponsor and which is made while the applicant has extant leave, and any appeal against that decision has been determined, to study at the Highly Trusted Sponsor institution which the Confirmation of Acceptance for Studies Checking Service records as having assigned a Confirmation of Acceptance for Studies to the Tier 4 Migrant; and …”

12. I note that paragraph 245ZW was inserted from 31 March 2009 and subparagraph (c)(iv) was inserted from 1 October 2009.

13. In light of this information and the fact that the appellant made his application before 5 October 2009, I find that section 50 of the 2009 Act does not apply to the appellant. Consequently, the appellant has not breach the condition attached to his leave. The judge’s decision was flawed and that error was as a result of the respondent’s own error. In the circumstances I allow the appellant’s appeal to the extent that it is remitted to the respondent to reconsider the appellant’s application.

Signed Date

Upper Tribunal Judge Eshun