Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/04021/2015

THE IMMIGRATION ACTS

Heard at Field House
Decisions and Reasons Promulgated
On 12 July 2016
On 06 September 2016

Before

UPPER TRIBUNAL JUDGE DEANS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MS ALFIYA VEJLANI
Respondent

Representation:
For the Appellant: Mr C Avery, Senior Home Office Presenting Officer
For the Respondent: Mr S Muquit of Counsel, instructed by Farani Javid Taylor Solicitor

DECISION AND REASONS
1) This is an appeal by the Secretary of State against a decision by Judge of the First-tier Tribunal Wyman allowing an appeal by Ms Alfiya Vejlani (hereinafter referred to as "the applicant").
2) The applicant was born on 22 September 1980 and is a national of Pakistan. She appeals against a decision of 12 January 2015 by the Secretary of State refusing her leave to remain. The refusal was under paragraph 322(1) of the Immigration Rules on the basis that the applicant was seeking a variation of leave to enter or remain for a purpose not covered by the Rules.
3) The applicant's immigration history is set out in the decision of the Judge of the First-tier Tribunal. The applicant entered the UK as a student in April 2011 with leave until 30 October 2014. On 29 October 2014 she made an application for leave outside the Immigration Rules, which has led to the present appeal. She made her application outside the Rules because although she wanted to continue her studies she did not have a Certificate of Acceptance of Studies (CAS).
4) In response to the application the Secretary of State noted that the applicant's leave to enter had previously been curtailed and expired on 15 June 2013. The applicant stated that she never received a letter of curtailment, which would have given her 60 days to obtain another CAS. At the time she made her application on 29 October 2014 she thought that her leave was still valid.
5) Following the issuing of a pre-action protocol letter the Secretary of State acknowledged that service of the curtailment letter was not effective as there was no proof of delivery. The application of 29 October 2014 was therefore in time and attracted a right of appeal. This right of appeal was, according to the Secretary of State, restricted by section 88 of the Nationality, Immigration and Asylum Act 2002 because the refusal decision was taken on the grounds that the applicant was seeking to remain in the UK for a purpose other than one for which entry or remaining was permitted in accordance with the Immigration Rules. The grounds of appeal were limited to either racial discrimination, human rights or asylum.
6) The Judge of the First-tier Tribunal accepted that the applicant never knew that her leave to enter had been curtailed. She had continued to study and obtained further qualifications on 7 August 2014. Had the applicant received the letter of curtailment, she would have been allowed 60 days to obtain a new CAS. Because she did not receive the curtailment letter, she did not have the opportunity of trying to obtain a new CAS. She had applied for leave to remain for a purpose other than one permitted under the Immigration Rules because this was the only step open to her. She had no opportunity to apply for a Tier 4 visa because she did not have a valid CAS.
7) In the view of the judge the correct procedure would be for the Home Office to issue the applicant with a 60 day letter to enable the applicant to apply for a new CAS, which would then enable her to make a Tier 4 application. If during the 60 day period she did not take any steps to apply for a CAS then she would have no option but to return to Pakistan. The judge did not allow the appeal outright but gave as the decision that the Secretary of State should issue to the applicant "a 60 day letter" to enable her to obtain a new CAS.
8) The Secretary of State applied for permission to appeal to the Upper Tribunal. The first ground of the application was that the Judge of the First-tier Tribunal had given no legal basis or reasoning for allowing the appeal but had instead given a direction to the Secretary of State that leave should be granted. It was not for the First-tier Tribunal to direct the Secretary of State as to what type of leave ought to be granted. The First-tier Tribunal had only the powers given to it by statue.
9) In any event, the applicant was not entitled to 60 days leave on the common law basis of fairness, as discussed in the case of Patel [2011] UKUT 211. The original leave was due to expire in October 2014. When the application was made on 29 October 2014 the applicant had no CAS. As the applicant claimed she never received the curtailment letter of April 2013 giving her only 60 days leave, how was she prejudiced? Her leave continued to run until its original expiry date of 30 October 2014. At the end of this time she still had not obtained a valid CAS but as her leave had continued to run she was at liberty to obtain one if she had wished to do so.
10) The Secretary of State further observed that the leave was curtailed not because the college's licence had been revoked but because the applicant agreed with the college to leave and stop the sponsorship. As the applicant left the college, the Secretary of State was not obliged to give the applicant 60 days to seek a new CAS. The responsibility for the cessation of studies was not on the Secretary of State. Reference was made to the case of EK (Ivory Coast) [2014] EWCA Civ 1517.
11) Permission to appeal was granted on the basis that it was arguable that the judge had erred in law by allowing the appeal on a ground not contained within section 84 of the 2002 Act, either in its unamended form or following amendment by the Immigration Act 2015. It was also arguable that the applicant was not entitled to 60 days' leave as her original leave was curtailed not because the college's licence had been revoked but because the applicant had agreed to stop studying at that college.
12) No rule 24 notice was lodged on behalf of the applicant but a skeleton argument was lodged by Mr Muquit prior to the hearing.
Submissions
13) At the hearing, Mr Avery, on behalf of the Secretary of State, began by acknowledging that the curtailment was not effective because the notice of curtailment was not effectively served. It was, however, difficult to say what the Judge of the First-tier Tribunal decided. The judge had no power to make the direction which was purportedly made. The judge had not effectively resolved the appeal. As the applicant's leave was not curtailed, she did not fall within the policy of being granted 60 days to find a new CAS. The common law duty of fairness on which this was based did not apply. There was no basis in law for the judge's decision.
14) For the applicant, Mr Muquit, relied on his written submissions. The judge had jurisdiction under the statutory provisions in force prior to the Immigration Act 2014 on the basis that the Secretary of State's decision was not in accordance with the law. The facts were as accepted by the judge. The judge may have made a mistake by not specifying that the decision was not in accordance with the law.
15) Mr Muquit further submitted that it had been accepted that the applicant did not receive the curtailment decision. Her application for leave was therefore made in time. Mr Muquit acknowledged that the applicant was unable to satisfy the terms of the Rules for making a Tier 4 application as she did not have a CAS but she nevertheless made her application for a purpose which was recognised by the Rules, which was to continue her studies. The application had been refused because it was not for a purpose covered by the Rules but this was a mistake made by the Secretary of State and rendered the Secretary of State's decision not in accordance with the law. The application remained before the Secretary of State to make a correct decision. The applicant had applied for further leave to remain in order to seek time to obtain a CAS. The applicant had made efforts to obtain a CAS. The Secretary of State refused further leave and exercised no discretion in favour of the applicant because she had no CAS, but the applicant wanted a period in which to obtain a CAS. She was a bona fide student. Her original college had closed and without leave for 60 days she could not obtain a further college place. The Secretary of State's decision was based on incorrect facts, having assumed that curtailment was effective and the application was made for a purpose outside the Rules. A decision had still to be made in accordance with the Rules. The Secretary of State had still to make a proper decision.
16) In response Mr Avery pointed out that the judge did not say that the Secretary of State's decision was not in accordance with the law. To this extent the judge did not deal with the appeal properly. The application had been doomed to fail because there was no provision in the Immigration Rules to extend a person's stay in order to obtain a CAS. There was therefore no basis to remain under the Rules and no basis on which the judge could have allowed the appeal. If the applicant had a case exceptionally outside the Rules then she could re-apply. On the present application, however, the judge could not find in her favour.
Discussion
17) In his written submissions Mr Muquit sought to argue that the application of 29 October 2014 was made for the purpose of continuing the applicant's studies, which was a purpose recognised by the Immigration Rules, and that the applicant had a right of appeal under the provisions in force prior to the Immigration Act 2014. Mr Muquit pointed out that the Immigration Act 2014 (Commencement No.3, Transitional and Saving Provisions) Order 2014 (SI 2014/2771) took away the right of appeal in respect of applications for leave as a Tier 4 Migrant made on or after 20 October 2014. Mr Muquit nevertheless submitted that the applicant was not caught by this commencement provision.
18) I am unable to accept Mr Muquit's argument on this point. Either the applicant was making an application on 29 October 2014 to continue her studies under the Rules, which would have been as a Tier 4 Migrant and therefore she would have had no right of appeal in terms of Commencement Order No.3, or she was not applying to continue her studies and therefore she was applying for a purpose not covered by the Rules. This would mean that her right of appeal was not taken away by the Commencement Order. According to the Secretary of State it would also mean that her right of appeal was restricted by section 88 of the 2002 Act but this provision was itself repealed with effect from 20 October 2014 and therefore no longer had any application (2014 Act, Sch 9, Pt 4, para 37 and Commencement Order No. 3, article 2(e)).
19) The judge did not state explicitly that the appeal was allowed on human rights grounds; neither did the judge did allow the appeal under the Immigration Rules. The judge merely sought to make a direction requiring the Secretary of State to give the applicant leave for 60 days to obtain a new CAS. The basis in law for the judge's decision is obscure to say the least.
20) At the hearing before me Mr Muquit sought to argue that the judge's decision was effectively that the decision of the Secretary of State was not in accordance with the law but this is not expressly stated by the judge and there is no reasoning sufficient to support such a decision.
21) As Mr Avery submitted, the Secretary of State's policy, in accordance with the principle of common law fairness, as discussed in the decision in Patel, requires the Secretary of State only to give a period of 60 days to seek a new CAS only when the licence of the sponsoring college has been revoked. This policy did not apply in the present case, where the applicant left the sponsoring college voluntarily and where, although her leave might have been curtailed, it was not in fact curtailed because her service was not effective. The applicant therefore had the full period of her original leave in which to obtain a new CAS and notify the Secretary of State of the change of college. For some reason when the applicant's leave was due to expire she did not have a CAS and therefore she was unable to make a Tier 4 application as a student and she could not make an application for any other purpose recognised by the Immigration Rules. Her appeal was therefore bound to fail.
22) The Judge of the First-tier Tribunal erred in law by not setting out adequate reasons for allowing or dismissing the appeal and by not giving a decision as to whether the appeal was allowed or dismissed. The judge further erred by seeking to make a direction which the judge had no jurisdiction to make without some proper justification, which was entirely lacking from the decision.
23) On the facts of this appeal, there is only one decision which the judge could have made, which was to dismiss the appeal. As Mr Avery pointed out, if the applicant had some compelling reason to remain outside the Rules, then she could make a further application on that basis. There is nothing in the grounds of appeal either to the First-tier Tribunal or in the submissions before the Upper Tribunal to show that there are such compelling circumstances.
Conclusions
24) The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
25) The decision is set aside.
26) The decision in the appeal is re-made by dismissing the appeal.

Anonymity
27) The First-tier Tribunal did not make an order for anonymity. I have not been asked to make such an order and I see no reason of substance for doing so.

Signed Date

Upper Tribunal Judge Deans