Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/02434/2015

THE IMMIGRATION ACTS

Heard at Taylor House
Decision & Reasons Promulgated
On 3 August 2016
On 12 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

MR SAKESH SARKER
(anonymity direction not made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Biggs, SEB Solicitors
For the Respondent: Mr Avery, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal from the decision of First-tier Tribunal Judge Meah promulgated on 4 January of 2016. The appellant is a citizen of Bangladesh born on 4 October 1982. On 11 June of 2014, he applied for further leave to remain in the United Kingdom as a Tier 2 General Student Migrant. The application was refused by letter dated 31 December of 2014, and removal directions were made giving rise to this appeal.

2. The factual determination by the Judge is not in dispute and there is a concession that the appellant failed to qualify under the Rules. The reason for such failure was that his educational institution namely the University of Sunderland withdrew his CAS. The Judge was of the view that the conduct of the University of Sunderland was wrongful. The tenor of the decision shows considerable sympathy for the appellant and the situation in which he found himself. The Judge notes that the appellant has an exemplary track record, no adverse immigration history and that he has been diligently pursuing his studies in the United Kingdom since his arrival.

3. The narrow issue argued before me on this appeal relates to the public law obligation upon the Secretary of State to determine matters with procedural fairness. A particular point that is made is that by letter dated 11 July 2014 those then acting for the appellant contacted the UK Visa and Immigration Department in the following terms:

Our client applied for further leave to remain on 11 June 2014 as a Tier 4 Migrant under PBS. However he has received an email on 10 July 2014 sent by the University of Sunderland that his assigned CAS has been withdrawn due to the invalidity of English language qualifications.

Indeed our client provided IELTS certificates with his application. Therefore his CAS should not be withdrawn for this reason at all. This is totally unfair and unreasonable decision made by the university. In these circumstances our client is seeking your permission to provide you a new CAS from new sponsor in support of his pending application. Would you please send him a letter so that he can provide a new CAS from a new sponsor?

4. Although there was argument regarding this letter before the First-tier Tribunal, the letter was not in fact produced until some hours afterwards. The Secretary of State's position is that she has no record of receiving this letter, but Mr Avery, on her behalf, does challenge that it was sent, and in the circumstances I proceed on the basis that it was received.

5. When considering the letter, the Judge quoted extensively from EK Ivory Coast v The Secretary of State for the Home Department [2014] EWCA Civ 1517. For present purposes, I need only rehearse two paragraphs.
[33] I do not consider that an approach by the Secretary of State which involves a simple check whether an applicant has in place a valid CAS letter at the time the decision is made on their application, rather than seeking to inquire further into the background if it appears that a CAS letter has been withdrawn, involves any unfairness to an applicant for which the Secretary of State bears responsibility. The PBS places the onus of ensuring that an application is supported by evidence to meet the relevant test for grant of leave to enter or remain upon the applicant, and the Immigration Rules give applicants fair notice of this. The essence of the CAS element within the PBS is that the Secretary of State relies on a check on certification by approved colleges, and does not have to investigate further. It is inherent in the scheme that an applicant takes the risk of administrative error on the part of a college.
[34] Standing back to make a general observation about the context, it can be said that an applicant deals directly with their college in relation to sorting out acceptance onto a course and the certification of that fact, and so has an opportunity to check the contract made with the college so far as concerns the risk of withdrawal of a CAS letter. If a college withdraws a CAS letter, the applicant may have a contractual right of recourse against the college. The fact that there is scope for applicants to seek protection against administrative errors by choosing a college with a good reputation and checking the contractual position before enrolling is of some relevance to the fair balance to be struck between the public interest in the due operation of the PBS regime and the interest of an individual who is detrimentally affected by it.
6. The Judge also quoted Kaur [2015] EWCA Civ at paragraph 13. Mr Biggs who appears before me today also acted in the First-tier Tribunal. He made the contention before the Judge that the factual circumstances of the appellant's case could be distinguished from those of the individuals in both EK Ivory Coast and Kaur. That submission was rejected by the Judge who at paragraph 17 said this:

I do not accept this line of contention. EK Ivory Coast makes it clear that there is no duty on the respondent to follow up an application and the circumstances surrounding when a CAS is either valid or has not been issued. The appellant's case involved a similar circumstance whereby it was his university who withdrew his CAS. It did not follow that the respondent was therefore somehow required to either grant leave or follow up why the CAS had been withdrawn. The appellant clearly could not meet the requirements of the Immigration Rules by not having a valid CAS therefore it followed that his application fell to be refused."

7. The Judge continued:

18. It is of course unfortunate that the appellant has ended up in this difficult situation due to no fault of his own however it is clear to me that his grievance lies firmly with the University of Sunderland and not the respondent given that there is no duty upon the respondent to follow up a lack of a valid CAS by the applicant.

19. However that said the appellant did attempt to do all he could to inform the respondent of the development regarding withdrawal of his CAS through his letter from his representatives dated 11 July 2014. He could not obtain another CAS by registering with another educational institution owing to not being in possession of his relevant identity documents which were in the respondent's possession in connection with his further leave application."

8. The decision in EK Ivory Coast enunciates a readily-understandable principle that a points-based system is designed for simplicity of application and ease of disposal of a substantial number of applications. I also note an observation more recently of Beatson LJ in SH (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 426. Adding a few paragraphs of his own in agreement with a substantive judgment of Elias LJ. Beatson LJ makes the obiter comment that EK Ivory Coast should be read with care. He says at paragraph 30

Given that a Secretary of State may act unfairly notwithstanding her compliance with the Rules and the terms of the majority judgment in EK Ivory Coast that case should not be taken as excluding the common law duty of fairness in such cases or confining it to cases in which the problem is caused by the Secretary of State's conduct.

9. Mr Biggs' argument was perhaps advanced before me with more nuance than before the Judge. He contends that there was a failure by the Secretary of State to take into account a relevant and material feature. I am of the view that, without derogating from the principle of EK Ivory Coast, there is some force in this public law argument. The letter of 11 July of 2014 was not well-drafted. In substance it evinced an intention on the part of the applicant to seek to vary his application (as he was entitled to do) by substituting a different institution for the University of Sunderland. That replacement institution could then provide the qualifying CAS. This would allow the application to proceed, and in all likelihood it would have succeeded as all other requirements would have been met.

10. Whilst the letter did not spell out with particularity that absent the return of identity documents (which remained in the custody of the Secretary of State) any attempts to provide a new CAS would be fruitless, it was implicit. It is regrettable that this was not spelt out and that all the appellant asked for was "a letter so that he can provide a new ES from a new sponsor".

11. The law is clear that the Secretary of State does not have a duty of enquiry in relation to the withdrawal of a CAS. Ivory Coast is clear in suggesting that the complaints of individuals caught in such circumstances lie with the educational institution and not with the Secretary of State. However in this particular case I have been narrowly persuaded that there was a public law error in the Secretary of State's approach in that the appellant could have obtained a new CAS from another institution had he had access to his identity documents.

12. The Secretary of State's public law failure was in not acceding to a putative request to vary the application founded in the expectation that a different educational institution would provide a fresh CAS would be supplied. I make no comment as to how that request could or should have been determined. The refusal letter makes no reference to it so plainly the Secretary of State did not turn her mind to the fact that the appellant was proposing to vary his application and was prevented from doing so without the cooperation of the Secretary of State. The Judge should have accepted the appellant's submission and remitted the matter to the Secretary of State.

13. Being satisfied on this narrow ground that there was an error of law, I set aside the decision of the First-tier Tribunal. With the concurrence of Mr Avery and Mr Biggs, I now re-make the decision. It is self-evident from my error of law finding that the proper course is to allow the appeal and require the Secretary of State to reconsider the matter having regard to the unlawfulness I have identified.

14. The appellant needs to be fully aware that my decision does not amount to any indication as to the outcome of the Secretary of State's redetermination. She has a discretion which is hers to exercise: she did not consider the contents of the letter of 11 July 2014 and, in revisiting her decision, she must do so.

Notice of Decision

This appeal is allowed, the determination of the First-tier Tribunal set aside and the decision is re-made as follows:

The Secretary of State's decision not being in accordance with law, the matter is remitted for her to consider afresh having regard to the contents of the appellant's solicitor's letter dated 11 July 2014.

Signed Mark Hill Date 10 August 2016

Deputy Upper Tribunal Judge Hill QC