Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/05163/2015
IA/05170/2015
IA/05172/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 21 June 2016
On 25 August 2016

Before

UPPER TRIBUNAL JUDGE DEANS

Between

SUNIL [B]
SNEHAL [B]
[M B]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Mannan of Counsel, instructed by Louis Kennedy Solicitors
For the Respondent: Mr M Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS
1) The appellants are a family of Indian nationality. They appeal against a decision by Judge of the First-tier Tribunal Hunter dismissing an appeal under the Immigration Rules.
2) The background is set out in the decision by the Judge of the First-tier Tribunal. The first appellant entered the UK as a student in 2010. He was granted further leave to remain on three occasions, the last of which was on 20 June 2013. His leave was due to expire on 12 April 2015.
3) On 25 November 2013, however, the first appellant's leave was curtailed so as to end on 24 January 2014. The first appellant applied for leave to remain in the UK as a student. This was ultimately refused on 23 January 2015. The second and third appellants were refused leave as his dependants.
4) The reason for refusal, according to the respondent's decision, was that the first appellant's Confirmation of Acceptance for Studies (CAS) had been withdrawn by the sponsoring college.
5) In his grounds of appeal to the First-tier Tribunal the first appellant stated that he had no knowledge of the withdrawal of the CAS. He submitted a letter from the college, the Finance and Technology Institute of London, confirming that his sponsorship had not been withdrawn. The college had faced technical issues with the Home Office SMS computerised system, as a result of which it appeared that the appellant's CAS number had been withdrawn but this was an error. When the error was discovered the Home Office was notified.
6) The Judge of the First-tier Tribunal observed that a number of emails were produced as evidence. These were between the director of studies at the college and the Home Office referring to unauthorised access to the computer system of the Finance and Technology Institute of London. This was said to have led to certain students having been shown to have had their CAS numbers withdrawn when this was not the case. The judge observed that none of these emails referred specifically to the first appellant. The first appellant produced a letter from the director of studies of 26 January 2015 but there was no evidence to show that this letter was ever copied to the Home Office. The judge concluded that there was no valid CAS at the time the respondent considered the application. Accordingly, the first appellant did not meet the requirements of the Immigration Rules.
7) An argument was presented to the Judge of the First-tier Tribunal based on the common law principle of fairness. The judge observed that there was a line of authorities from the Upper Tribunal referring to the situation where through no fault of the student concerned the college's licence was withdrawn by the respondent. In those circumstances, the common law duty of fairness was recognised as meaning that the respondent should give the student 60 days in which to attempt to find another college. In this particular case the first appellant was given 60 days to look for a new college following the revocation of the licence of the college he had previously proposed to attend. In relation to the decision under appeal, however, the application was refused because the first appellant did not have a valid CAS and this was not because of the revocation of the sponsor's licence. In this situation the judge was not satisfied that the respondent had acted unfairly.
8) The judge went on to say that it was possible to envisage a situation where the respondent was informed by the sponsor before making the decision that an error had been made. The judge reiterated, however, that none of the emails from the director of studies at the Finance and Technology Institute of London predating the refusal decision referred to the first appellant by name, although some other students were named. In an email dated 16 December 2014 the director of studies referred to a security breach of "my home office SMS system log". It is stated that 176 CAS numbers had been withdrawn and the list was attached of those which the director had actually withdrawn. In the same email it is said that a second list was being attached for those students whose CAS numbers had not been withdrawn. Neither of these lists was placed before the Tribunal.
9) The judge concluded that at the time the respondent refused the applications, the respondent had received no notification that any further inquiries were required in relation to the first appellant's CAS and there was no resulting unfairness.
10) No reliance was placed upon Article 8.
11) The application for permission to appeal to the Upper Tribunal submitted that the judge did not properly assess the documentary evidence and did not properly consider the issue of fairness. It is submitted that the judge confused an application made on 24 January 2014 with a subsequent application made on or around 18 November 2014. This confusion made the judge's findings unclear.
12) It was further contended that the documentary evidence itself was clear. The college had provided a letter dated 26 January 2015 confirming that the sponsorship had not been withdrawn but there was a technical error involving the respondent's SMS system. This letter and its contents were not in dispute. The judge disregarded the emails exchanged between the college and the respondent because there was no mention of the appellant's name. This was a material error of law. The assessment of the evidence should have been undertaken more carefully. The emails did not need to mention the appellant's name specifically. This information was already in the letter. The emails confirmed that the sponsoring college had brought to the respondent's attention that technical errors had occurred which led to CAS withdrawals when this was not the case.
13) It was contended that the judge further erred in finding that there was no evidence that the letter from the college of 26 January 2015 was ever copied to the respondent. What was relevant was that this letter was produced as evidence. It clarified the sole ground of refusal. The evidence was admissible and appropriate weight should have been attached to it.
14) It was further contended that the issue of fairness was central to the appeal. The authorities cited were relevant because the CAS had not actually been withdrawn. There was a technical error and the college had raised this with the respondent in advance. The appellant was not at fault.
15) Permission to appeal was granted on the basis that it was arguable that (a) the judge misdirected himself over whether the refusal letter of 23 January 2015 referred to the application made on 24 January 2014 or the later application of 18 November 2014: (b) the sponsoring college in the letter dated 26 January 2015 confirmed that the sponsorship was not being withdrawn but there had been a technical error in the respondent's SMS system and the judge erred in relation to this; and (c) the judge erred in assessing the emails between the college and the respondent which could make a material difference to the outcome.
16) There was a rule 24 notice dated 8 June 2016 from the respondent. This states that the Judge of the First-tier Tribunal directed himself appropriately. While in the refusal letter the incorrect date of the application was referred to, the letter had considered the college specified in the 18 November 2014 application. The judge considered the November 2014 application and made reference to this throughout the decision. The judge had the correct application and the relevant issues in mind.
17) It was further submitted that the judge adequately engaged with the letters and emails submitted by the appellant and gave adequate reasons for not accepting that the evidence demonstrated unfairness. As noted by the judge, there was no evidence to indicate that the CAS had been erroneously withdrawn as opposed to intentionally withdrawn. There was no evidence before the judge that the application was refused on the basis that the new sponsoring college had had its licence revoked.
Submissions
18) At the hearing before me, Mr Mannan, for the appellants, relied upon the grounds of the application for permission to appeal and referred in detail to the relevant documents. He submitted that the college's position was clear. The college had provided an explanation by email to the respondent. The respondent should have given the benefit of the doubt to the first appellant. Even though the judge found that neither list of CAS numbers was attached to the email, this did not make a difference as the email itself was clear.
19) The question was raised as to the power of the First-tier Tribunal to grant a remedy, on the basis that it had been found that the respondent had made a mistake over the withdrawal of the CAS. Mr Mannan submitted that the Home Office should not have made a decision in the terms in which it was made.
20) For the respondent, Mr Bramble relied on the rule 24 notice. The judge was clearly aware that it was the application of November 2014 which was under consideration. The judge was entitled to come to the conclusion which he did. The judge found there was no evidence that the letter of 26 January 2015 was ever copied to the Home Office. In any event this letter post-dated the date of decision. There was a chain of emails but the judge examined these in the decision. The first appellant could not satisfy the relevant requirement of the Immigration Rules. At the date of the decision the CAS showed as withdrawn. There was no CAS in existence. The judge could not have made any other finding. The circumstances were unfortunate but there was no unfairness on the part of the Home Office. The appellant could not be identified from the emails.
21) Mr Mannan submitted that the CAS was withdrawn owing to a computer malfunction and was not in reality withdrawn. The college had asked for all withdrawn CAS letters to be placed on hold and could not have been clearer. The judge did not take this into account. The emails from the college referred to a "screen shot" being attached in relation to identifying the CAS numbers affected. There should be a further hearing for the evidential issues to be resolved.
Discussion
22) In his submission on behalf of the respondent, Mr Bramble referred to paragraph 33 of the decision of the Judge of the First-tier Tribunal, at which the judge said that a valid CAS was not in existence at the time the application was considered by the respondent. This statement is, however, qualified by the preceding sub-clause, which states: "Whether or not confusion has arisen in the case of the first appellant regarding the withdrawal of his CAS ?". In my view this qualification is of some importance. It raises the question of whether the CAS was intentionally withdrawn by the sponsoring college or whether it was mistakenly shown as withdrawn owing to a computer malfunction, perhaps caused by some malicious interference, as suggested by the evidence from the director of studies. I do not consider that it is sufficient simply to find that there was no valid CAS in existence at the date of decision. It is necessary to consider whether the record of whether a valid CAS existed was accurate or not. If the record was not accurate, then it was possible that there was a valid CAS although the record did not show this.
23) It follows from this that if there was a valid CAS but the record did not show this, the decision of the Secretary of State to refuse the application may have been made subject to a misapprehension of a material fact. This material fact was that the CAS had not been intentionally withdrawn but was, so far as the sponsoring college was concerned, still in existence. It was shown as withdrawn only because of an error in the college's computer system.
24) Of course it may be argued that the Secretary of State had no way of knowing this at the time the decision was made. Certainly the letter from the college of 26 January 2015 post-dates by three days the Secretary of State's decision. Nevertheless there were earlier emails from the college to the Home Office. Although the judge found that these emails did not list the sponsor's CAS number specifically, this appeared to be because certain attachments to the emails had not been lodged as evidence. It is worth observing that attachments seem quite readily to become separated from emails when these are forwarded, copied or printed and it may be that attachments were sent to the Home Office although they were not produced in the evidence before the judge.
25) At the hearing before me the question of jurisdiction was raised but was not considered in detail. Nevertheless, I consider it to be important to the outcome of this appeal. Under section 84 of the Nationality, Immigration and Asylum Act 2002, as it stood up until 20 October 2014, it was possible to argue as a ground of appeal that a decision taken by the Secretary of State was not in accordance with the law. Under this provision it might have been argued before the Tribunal that, if the Secretary of State had made a misapprehension of a material fact, namely as to the existence of a valid CAS, then the refusal decision was not in accordance with the law. If this argument was accepted, the application would then have been pending before the Secretary of State for a further decision to be made, having regard to the crucial issue of whether the CAS had been withdrawn by the college or not. This was a question of fact which the Secretary of State and the college together ought to have been in a position to resolve.
26) Nevertheless no reference was made to this issue before the First-tier Tribunal. In this context it is important to have regard to the amendment of section 84 with effect from 20 October 2014, which removed the possibility of arguing as a ground of appeal that the Secretary of State had made a decision not in accordance with the law. The amendment was made by section 15 of the Immigration Act 2014. The amendment came into force on 20 October 2014 with savings set out in the Immigration Act 2014 (Commencement No 3 Transitional and Saving Provisions) Order 2014, SI 2014/2771, articles 9-11). In terms of article 9, the previous provisions continued to have effect except in respect of certain persons. These persons include, at article 11(1), a person who makes an application on or after 20 October 2014 for leave to remain as a Tier 4 Migrant or as the partner or a child of such person. Thus it appears from article 11(1) that, as the first appellant applied as a Tier 4 Migrant he would not benefit from the saving provision in article 9 if his application was made on or after 20 October 2014. There are certain further provisions in articles 11(2) and (3) but these do not appear to have any relevance to the current appeals.
27) Now there is some uncertainty in this appeal over when the application giving rise to the decision under appeal was made. There was an application made on 24 January 2014. It is this application which is referred to in the Secretary of State's refusal letter of 23 January 2015. Before me, however, all parties appeared to be of the view that this was a mistake. The application of 24 January 2014 was in fact refused by the respondent in a letter dated 19 September 2014 because the licence of the sponsoring college in that application had been revoked. The first appellant was given 60 days to make a further application, which he did, in November 2014 in respect of the Finance and Technology Institute of London. It was in fact the application of November 2014 which was refused on 23 January 2015. This question of dates is important. If the application giving rise to the present appeal was made on 18 November 2014, this was after the amendment to section 84 of the 2002 Act came into force. It would appear that the appellant would be caught by the restriction on the grounds of appeal made by the amendment and could no longer argue that the respondent's decision was not in accordance with the law. If on the other hand the application was the application of 24 January 2014, this would pre-date the coming into force of the amendment to the 2002 Act and the first appellant would be able to argue that the respondent's decision was not in accordance with the law.
28) It appears from the foregoing that there are a number of issues which were not adequately considered by the Judge of the First-tier Tribunal. The first of these was whether the sponsoring college's CAS was withdrawn at the date of the decision on 23 January 2015 or whether it merely appeared to have been withdrawn because of a computer error when it was not in fact withdrawn. The judge should have considered this point but did not do so. For the reasons set out above the point may be material and by not considering it the judge erred in law.
29) The second issue which the judge did not properly clarify was whether the decision under appeal was made in respect of the application of 24 January 2014 or the application of 18 November 2014. If the application was dated 24 January 2014, then the appellant had all the grounds of appeal available under section 84 of the 2002 Act as originally enacted, including that the respondent's decision was not in accordance with the law. This might have been argued on the basis that the respondent misapprehended a material fact, namely whether the CAS had been withdrawn or not.
30) If, however, the application was made on 18 November 2014, after the coming into force in respect of an application by a Tier 4 Migrant of the amendment to section 84 made by the Immigration Act 2014, then this ground of appeal would not have been available to the first appellant and there would therefore seem to have been no remedy which the Tribunal might grant. This is on the basis, of course, that the application in November 2014 was a fresh application, which it appears to have been, rather than a variation of one previously made.
31) If the Tribunal did have jurisdiction to decide that the Secretary of State's decision was not in accordance with the law, then the Secretary of State's knowledge would become crucial. I am inclined to agree that the judge further erred by not fully considering the emails sent by the sponsoring college to the Secretary of State indicating that there were difficulties with CAS numbers which had been withdrawn in error. It is possible that the respondent was provided with a list of those numbers.
32) By not adequately considering this evidence, the judge further erred in law. This is a matter which it ought to be possible for the appellant and the respondent to resolve before any further hearing.
33) At the hearing before me Mr Mannan said that if there was an error of law there should be a further hearing. At that point it was undecided whether the further hearing should be before the Upper Tribunal or before the First-tier Tribunal. In view of the inadequacies in the way the Judge of the First-tier Tribunal approached the evidence, I consider that the appropriate course is for the appeal to be remitted to the First-tier Tribunal for findings to be made on the matters set out above. It does appear to me, however, that many of these matters might be resolved by discussion between the first appellant, the sponsoring college and the respondent without the need for further proceedings.
Conclusions
34) The making of a decision of the First-tier Tribunal did involve the making of an error of law.
35) I set aside the decision.
36) The appeal is remitted to the First-tier Tribunal for a further hearing before a different judge with no findings preserved.
Anonymity
37) The Judge of 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 24th August 2016

Upper Tribunal Judge Deans