Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01098/2015

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 26 January 2017
On 20 February 2017

Before

MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE GRUBB

Between

HARPREET SINGH MAHLI

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr H Kannangara, instructed by Visa Expert Limited.
For the Respondent: Mr M Dywnycz, Senior Home Office Presenting Officer.

DETERMINATION AND REASONS

1. The appellant, a national of India, was most recently granted leave as a Tier 4 Student. The leave was due to expire on 30 May 2014. On 29 May 2014 he applied for an extension of his leave as a student. He had an English Language test certificate issued under the authority of City and Guilds; and he had a Confirmation of Acceptance for Studies (CAS) issued by Essex College Limited. On 20 December 2014 the Secretary of State refused the application for further leave. Three reasons are given in the decision letter, as follows. First, the English Language test certificate had been cancelled by City and Guilds, and from the information provided to the Secretary of State the latter was satisfied that it had been obtained by deception. Refusal of the application was therefore mandatory under paragraph 322(1A) of the Statement of Changes in Immigration Rules, HC 395 (as amended), with consequences also for any further applications by the appellant. Secondly, the CAS was invalid because the sponsor, Essex College Ltd, did not at the date of the decision appear on the list of approved sponsors. (The reason for that is that its status had been withdrawn after the appellant's application but before the decision.) Thirdly, the application was refused on maintenance grounds, but that was a necessary consequence of the second ground, as provided by the Rules. We need say no more about it.

2. The appellant appealed, and his appeal was dismissed. He sought permission to appeal to this Tribunal, but permission was refused by the First-tier Tribunal and by this Tribunal. He sought Judicial Review. Permission was granted by Andrews J on the ground that there had been at no stage any evidence of the alleged deception in relation to the English Language test, a matter on which the Secretary of State bore the burden of proof. Following the grant of permission, the refusal of permission was set aside and permission granted.

3. As we pointed out at the hearing, the point on which permission was granted is, with the greatest respect, irrelevant, as had been observed in the refusals of permission. Whether or not the doubts about the English Language test were well-founded, the application could not succeed because there was no valid CAS. Indeed Mr Kannangara, who appeared before us as he had before the First-tier Tribunal (but had no part in the High Court proceedings) made no reference to this issue in his submissions.

4. What he did do, however, was direct us (as he had directed the First-tier Tribunal) to the Secretary of State's published policy on what will happen when a sponsor is removed from the list while an in-country application for further leave, supported by a CAS, is under consideration. The guidance is unambiguous. If at that time the applicant's grant of leave has expired, the Secretary of State will delay a decision on the application for 60 days in order to enable the applicant to seek a CAS from a different sponsor, and will write to the applicant letting him know the position and the date when the 60 days will expire. We gave Mr Dywnycz the time of the short adjournment to check to see whether there was, elsewhere in the guidance, any modification of that position where there are said to be difficulties for the application arising otherwise than because of the removal of the sponsor from the list. He was not able to point to any; and indeed that is not unexpected. If the decision is to be delayed by that 60 days, then all the difficulties that there may be can be dealt with, together, at that point.

5. What that means, however, is that the decision in the present case was made at precisely the point at which under the guidance it should not have been made. Instead, there should have been a letter giving 60 days to find a new sponsor. In the circumstances Mr Dywnycz rightly did not oppose the suggestion that the decision was 'otherwise not in accordance with the law' within the meaning of s 84(1)(e) of the 2002 Act before amendment by the 2014 Act (the appellant has access to the 'old' rights of appeal because his application for further leave was made before 20 October 2014).

6. As the decision was not in accordance with the law it cannot stand. The First-tier Tribunal erred by failing to appreciate the impact of the guidance. We set aside its decision and allow the appeal. The Secretary of State's decision was an unlawful one. The appellant awaits a lawful decision on his application, taking account of the guidance.

7. In the mean time his leave continues under s 3C of the 1971 Act. If the eventual new decision is against him he will (unless there is a further change in the law) continue to have access to the 'old' rights of appeal. We record that there has as yet been no effective decision based on para 322 in his case.

C. M. G. OCKELTON
VICE PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Date: 2 February 2017