Tribunal decisions

The decision

IAC-FH-CK-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01427/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 November 2016
On 8 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

Obinna Chiddzie Ndukwu
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: In Person
For the Respondent: Mr S Staunton, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal (Judge S J Clarke) dismissing his appeal against the respondent's decision of 25 February 2016 refuse him further leave to remain as a Tier 4 (General) Student and to remove him from the UK.

Background

2. The appellant is a citizen of Nigeria born on 7 December 1980. He came to the UK in 2013 as a Tier 4 student to study at Oxford College of London. He studied there from 25 February 2013 to 24 February 2014 when he was issued with an internal certificate of course completion by the college but he never received his final certification from the awarding body. On 2 June 2014 he applied for further leave to remain as a student and submitted a CAS and other documents in support of this application including an English language test certificate.

3. When the Tier 4 Sponsor Register was checked the college was not listed as a sponsor and on 3 November 2015 the appellant was informed that there had been a decision to revoke his college's licence, which meant that the CAS he had submitted was no longer valid and that at present the application would fall to be refused. However, the appellant was notified that, before the final decision and in line with the respondent's rules and guidance, the consideration of his application would be suspended for a period of 60 calendar days, during which period it was open to him to withdraw his application and submit a fresh application in a different category or to leave the UK or, if he wished to remain in the UK as a Tier 4 Student, he could obtain a new CAS for a course of study at a fully licensed Tier 4 educational sponsor and then submit an application to vary the grounds of his original application.

4. It is common ground that the appellant failed to obtain a CAS by the date of the respondent's decision on 25 February 2016 when his application was refused because he was unable to meet the requirements of para 245ZX(c) and (d) of the Rules. He was not in possession of a valid CAS. Further, the application was refused under the provisions of para 322(9) because on 4 February 2016 the respondent had requested the return of the appellant's passport, which had been sent to him on 17 December 2015 so he could sit an English language test on 30 January 2016. He had been told that the passport would need to be returned by 17 February 2016. He had had sufficient time to return it but he had failed to do so.

5. The appellant appealed against this decision arguing in his grounds that discretion under the Rules should have been exercised differently as he could not be held responsible for the revocation of his sponsor's licence, he had made efforts to obtain a new and valid CAS but the respondent had delayed releasing his passport. On 1 December 2015 he had requested the return of his passport so he could sit an IELTS test booked for 19 December 2015 at 9.30 a.m. but the passport was delivered later that day and he was unable to take the test. The rescheduled date was booked for 30 January 2016 and he had taken the test and had passed. The grounds further argue that the decision was incompatible with his rights under the ECHR and if he was removed without completing his studies, this would affect his prospects of obtaining employment in his home country.

The Decision of First-tier Tribunal

6. The appeal was determined on the papers at the request of the appellant. The judge noted the evidence the appellant had submitted in support of his appeal. He had made an application for leave to remain and it was only over a year later that he was served with the 60-day notice. He needed to sit an English language test and had notified the respondent that he would need his passport to do so. The judge considered the correspondence between the appellant and the Home Office. On 4 February 2016 the appellant was asked to return the passport and it was noted that he had booked an IELTS test on 30 January 2016. The appellant replied on 12 February 2016 to the effect that that he was looking to return his passport with other documents on a forward date for due consideration of his application. The judge commented that the reply was vague and there was no mention of whether he had passed the test, on what date he would return the documents and why there was a delay in sending them.

7. The judge said that when he looked at the bundle of evidence he could not find the English language test or evidence of a successful pass. The appellant had been unable to sit the test in December 2015 but had asked about the test booked on 30 January 2016. The judge concluded that the respondent had done all that could be done. The appellant had not produced evidence of a successful pass in the IELTS and in consequence the appellant could not meet the requirements of the Rules. He concluded that the respondent was correct to refuse the application both under paras 245 and 322(9). He found that the appellant had been given good time to return the necessary documents.

8. The judge commented that the appellant sought to blame the respondent for her delay in releasing the passport but the respondent did not reach her decision until after the second test date in January 2016 and had given the appellant ample time to provide the passport and missing documents. She had followed her policy of granting 60 days to enable him to find another college and a further extension of time to sit his English language test. The judge considered the issue of human rights, finding that there was no evidence of any family life in the UK or of any exceptional circumstances or compelling reasons for a grant of leave to remain. Accordingly, the appeal was dismissed.

The Grounds and Submissions

9. In his grounds of appeal the appellant argues that the IELTS test result was included in the appeal papers amongst other documents and that there should have been a proper forensic procedure in respect of the evidence, a document had not been considered which could have led to have a fair conclusion.

10. At the hearing before me the appellant explained that he had put in his application for further leave and then had had to wait for over a year until he had received the 60-day letter. He had obtained a test date for 19 December 2015 but could not take it as his passport had not been returned until later that day. He obtained a further test date on 30 January 2016. He accepted that he had been given a deadline for returning his passport on 11 February 2016 but at that time he did not know whether he had passed the test. He thought he had probably got the test result on 13 or 14 February and he had later received the decision letter of 25 February 2016.

11. He accepted that he had not sent a CAS letter in support of the application and still did not have such a letter. He had sent the passport back to the respondent after 25 February 2016. He also accepted that he had not sent a copy of the test certificate to the respondent but it had been included with the appeal papers. He had come to the UK to study and get a degree and was not to be blamed for his sponsor losing its licence. His studies had been frustrated by the college losing its licence and by the delay by the respondent.

12. Mr Staunton submitted that, even taking account of the delay in returning the passport to the appellant, the respondent had only taken the decision some three and a half months after the 60-day letter. When the decision was made, the respondent had not received the IELTS certificate nor had the passport been returned. He accepted that the judge had obviously missed the IELTS certificate when he looked at the papers but that was immaterial to the outcome of the appeal. The appellant could not succeed because he had not submitted a CAS and other necessary evidence in support of his application.

Assessment of the Issues

13. The issue I must consider is whether the First-tier Tribunal erred in law such that the decision should be set aside. It is common ground that the appellant came to the UK as a Tier 4 student to study at the Oxford College of London. He applied for further leave to remain in June 2014 but it was not until 3 November 2015 that the respondent wrote informing him that his college licence had been revoked and the CAS he had submitted was no longer valid. The letter followed the respondent's normal policy of giving a student in the appellant's position 60 calendar days to withdraw his application, make a fresh application or obtain a new CAS for a course of study at a fully licensed college. The letter makes it clear that if the appellant decides to take this course, he needs to find a new sponsor who will issue him with a new CAS.

14. In the present case the appellant also had to retake his IELTS test. He booked a test for 19 December 2014 but was unable to take it as he did not receive his passport back from the respondent until later that same day. He then arranged to take a further test on 30 January 2016. He passed that test but he says that he did not receive the certificate until mid February 2016. In his email to the respondent of 12 February 2016, the appellant said he was looking to return his passport with the other documents on a forward date for due consideration of his application. The judge described the reply as vague. The appellant's explanation is that at that stage he had not obtained the results of the test. However, on his own account, he did obtain the results a few days later but he did not then send a copy of the test result to the respondent, neither did he return his passport prior to the respondent's decision of 25 February 2016.

15. I am satisfied that the judge was entitled to find that the respondent correctly refused the application. For the relevant points to be awarded, a CAS had to be obtained and submitted in support. The appellant accepts that he did not have a CAS and still does not have one. The respondent also refused the application under the provisions of para 322(9). The appellant had failed to return his passport following the request on 4 February 2016 even after he had received confirmation that he had passed his IELTS test. It was open to the judge to find that, in all the circumstances the appellant had been given ample time to return that document.

16. Permission to appeal was granted because the judge had said that when he looked at the bundle of evidence he could not find the IELTS test or the evidence of a successful pass. On that basis, given that there was an IELTS pass certificate dated 12 February 2016 with an array of consistently good results, it was arguable that an error of fact amounting to an error of law had arisen. However, I am not satisfied that the judge's failure to locate or consider the copy test certificate has any material bearing on the outcome of the appeal.

17. Even if the judge had been aware of it, the fact remains that as at the date of decision the appellant was unable to meet the requirements of the Rules, having failed to submit an amended application with the required documents. Having had no response to the request for the return of the passport on 4 February 2016 and not having received a copy of the IELTS test certificate, the respondent, who had allowed substantially longer than 60 days before considering the application, was entitled to proceed to decide it.

18. The appellant has raised human rights grounds but I am satisfied that the judge dealt properly with that aspect of the appeal and was entitled to find that there was no evidence of family life, no evidence of any interference to private life within the requirements of the Rules and no exceptional circumstances or compelling reasons for looking at the application outside the Rules.

19. I am therefore not satisfied that the judge erred in law in any way capable of affecting the outcome of the appeal. It is of course open to the appellant to make a further application or further representations to the respondent but they will be entirely a matter for her to consider.

Decision

20. The First-tier Tribunal did not err in law such that the decision should be set aside and its decision stands.

Signed H J E Latter Date: 04 December 2016

Deputy Upper Tribunal Judge Latter