Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/05009/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 February 2017
On 14 March 2017
Prepared 23 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

Mr Said Rahim
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms L Turnbull of Counsel, instructed by Pioneer Solicitors
For the Respondent: Mr P Armstrong, Senior Presenting Officer

DECISION AND REASONS
1. The Appellant, a national of Pakistan, date of birth 1 January 1988, appealed against the Respondent’s decision, dated 20 January 2015, to refuse his Tier 4 application. The appeal came before First-tier Tribunal Judge Hussain, who on 22 September 2015 dismissed his appeal. Permission to appeal was given by Upper Tribunal Judge Freeman on 2 September 2016
2. Having heard the case on the issues then raised by Mr Coleman of Counsel for the Appellant in October 2016, I found the Original Tribunal’s decision did not stand. Directions were given at the hearing on 23 February 2017 to try resolve the essential factual issue of whether or not the Respondent’s direction to testing centres had unfairly led to unfairness to the Appellant which it was open to a Judge to resolve. The issue essentially resolved around how it can come to pass that a person who has made an application and was therefore submitting original documents, including passport to the Home Office, could then take an English language test when he did not have, as the Respondent’s unequivocally make plain, the original passport. The Respondent’s instructions to test centres is that they should not embark on testing unless the original documentation (passport or biometric permit) has been produced by the test taker/candidate.
3. In addition material provided, for example from the Trinity College London test centre, made plain that the testers equally have the clearest understanding and instructions that they have no discretion to exercise to conduct tests unless a person produces either a current valid passport, a current valid national identity document, a current valid full photocard of a UK driving licence, a valid biometric permit which is current or a valid residence permit. Other original documents referred to will not be accepted. The guidance that was provided, which is shown to be dated August 2016, repeats the guidance in being in 2014. In addition I have a copy of Section A of the Instruction to Test Centres which is unequivocal as to the original documents required and to be checked before tests are undertaken by candidates.
4. The position on the facts is essentially not now in dispute but certainly clearer than it was. First the Appellant made an application in time, but only just, for leave to remain as a Tier 4 Student on 30 September 2014. Prior to making that application he must have known that a valid CAS (Confirmation of Acceptance for Studies) letter should be obtained and in order to do so he would need a current up-to-date English language test certificate.
5. As a fact the Appellant did not submit a valid English language certificate with the application nor a CAS letter. The Appellant did not provide his passport with the application but notwithstanding the same held it up to 4 November 2014. There is no justified reason provided in the evidence nor was it before the judge as to why the language certificate had not been obtained in advance of making the application on 30 September 2014.The absence of the CAS letter was a simple consequence. The Respondent did not hold out any extension of time to complete the application or delay it to enable the Appellant to take the English language test or provide a CAS letter: If the Appellant requested it, as he claims in his statement.
6. Correspondence sent to the Appellant confirmed that he needed to have a valid test certificate. He arranged for a English language test on 27 November 2014 but, by then, did not have his passport. On 2 December 2014, realising he needed a passport, requested a certified copy of his passport from the Home Office. The Home Office replied on 12 December 2014 providing the relevant document.
7. The crux of the argument Mr Coleman originally raised was addressed at a position whereby someone was without the opportunity, for one reason or another, to provide their passport to the test centre and therefore unfairness was evidently in place because the Respondent’s own instructions effectively impeded a test being taken whilst at the same time requiring the original passport to be sent to the Respondent.
8. I agree with him that the documentation provided, which Ms Turnbull has spoken to, shows that once the Appellant had delivered his passport he would be unable to take the test. Mr Coleman’s argument, and in fairness to her, Ms Turnbull, is in no better position, cannot address the issue of why a valid application with the necessary documents was not made in September of 2014. It seems to me that as a fact having made that application, the Appellant had divested himself of his passport in about November 2014, he could never then meet the stringent requirements imposed by the Secretary of State on testers.
9. However, that does not seem to me to be the problem which the Appellant faced. Rather it was the absence of the CAS letter and the appropriate English language certificate at the relevant time of application. I accept that his actions thereafter did seem to address the shortage of those documents but I do not see that unfairness over the passport’s availability was an issue which was factually established when the matter was before the judge. Nor indeed now because the appropriate course would have been to send the correct application papers at the outset to the Secretary of State.
10. In these circumstances the Appellant has been engaged in the UK in other activities and to a degree his life has been on hold or unable to be progressed. He would have been far better to have returned to his home country and made an out of country application having taken the relevant language test there: This is hindsight but the truth of the matter.
11. In these circumstances I am satisfied that the position was that the Appellant could not meet the requirements of the Rules and there was no common law unfairness or hardship because those circumstances arose of his own making and do not fall, as Mr Coleman had originally argued, by reference to a semi-irrational approach to the need for original documents by testers at the direction of the Home Office. Accordingly I see no complaint that can be made of the Home Office of that matter in the context that occurred. The Original Tribunal decision did not stand. The following decision is substituted.

NOTICE OF DECISION
The appeal is dismissed.
No anonymity direction is made.

Signed Date 10 March 2017
Deputy Upper Tribunal Judge Davey

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed Date 10 March 2017
Deputy Upper Tribunal Judge Davey