Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/05544/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 25 January 2017
On: 15 February 2017

Before

Deputy Upper Tribunal Judge Mailer

Between

secretary of state for the home department
Appellant
and

Mr Golam Mustafa
no anonymity direction made
Respondent

Representation
For the Appellant: Mr L Tarlow, Senior Home Office Presenting Officer
For the Respondent: Mr H Shamsuzzoha, Londonium Solicitors

DECISION AND REASONS
1. I shall refer to the appellant as "the secretary of state" and to the respondent as "the claimant."
2. The secretary of state appeals against the decision of First-tier Tribunal Judge Mill, promulgated on 25 May 2016, in which the claimant's appeal was "...granted as the decision made by the Respondent being inherently unfair and was not made in accordance with the law" - [19].
3. The Judge had also stated at paragraph [16] that in order to rectify the issue, his decision "?..is to grant the appeal and that on the basis of a discretionary grant of leave for a period limited to 120 days being granted to the appellant of new. It will be important for the respondent to ensure that the appellant receives return of his now expired passport at the commencement of that period to enable him to renew it, to enable him to carry out an IELTS test to satisfy the English language test requirement and to obtain a CAS".
4. At paragraph [18] it was stated that the period of 120 days is the minimum period of time required for the claimant to carry out these tasks, given the length of time which it will take to renew the passport. It may also not be possible to immediately sit the English test.
5. The background to the appeal was that the claimant is a national of Bangladesh, born on 2 January 1988. On 1 July 2014 he made an application for leave to remain as a Tier 4 (General) Student Migrant. That application was refused on 19 January 2015. There was no appearance on behalf of the secretary of state at the appeal. The claimant was represented by Mr Shamsuzzoha. The claimant gave evidence in English. There were submissions made.
6. The Judge set out the appellant's immigration history at [10]. He came to the UK on a Tier 4 (General) Student visa with leave from 10 September 2009 until 7 April 2013.
7. Prior to the expiry of his leave, he applied on 6 April 2013 to remain in the same category. His application was returned as it was not accompanied by the requisite application fee, even though adequate payment details and information had been provided for the fee to be deducted from his relevant bank account.
8. He then re-submitted his application twice in the same category with updated mandatory and supplementary evidence. The application was then refused with a right of appeal.
9. He exercised his right against the former determination dated 3 September 2013. His appeal was allowed.
10. The secretary of state delayed implementation of the First-tier Tribunal's determination. By letter dated 2 May 2014 the claimant was issued with a two month period of leave to remain until 1 July 2013. That period was afforded to him to enable him to supply the secretary of state with all the relevant information in connection with a fresh application, including a valid CAS.
11. The claimant received the relevant biometric residence permit card informing him of the aforementioned period of leave on 7 May 2014. His passport and a separate item of mail was delivered on 12 May 2014. At the time of receipt of his passport, he had less than two months of leave to remain left.
12. In order for the appellant to be in a position to continue his academic progress, he had to apply for leave to remain under the student category by 1 July 2014.
13. Prior to making such an application by 1 July 2014 he had to obtain a CAS and was also required to satisfy the English language test requirements.
14. His passport was returned to him on 12 May 2014. It was due to expire on 21 June 2014. He obtained a renewal of his passport in early June 2014 with an extension of a year, with validity until 21 June 2015.
15. In order to update his passport, he was required to make a pre-booked appointment on notice. Additionally, a period of some 40-45 days would be the amount of time for the High Commission for Bangladesh in London to process his application after that.
16. The earliest English test which the claimant was capable of booking was 12 July 2014. There was thus no possibility of his making a valid further application for leave to remain by virtue of the earlier determination between 12 May and 1 July 2014 - [11].
17. Judge Mill found that the appellant was not afforded sufficient time by the secretary of state following his earlier successful appeal to carry out the necessary steps to extend his leave to remain. The secretary of state's grant of leave was restricted to two months, representing the standard 60 day period afforded to individuals whose leave has been curtailed and the college licence has been revoked. That was plainly insufficient. [12]
18. The Judge was referred to various authorities. When looking at the circumstances as a whole, Judge Mill did not consider that there has been procedural fairness afforded to the claimant. When the decision is looked at against the chronological background, the secretary of state's "?...determination is inherently unfair and not in accordance with the law - [15]."
19. In order to rectify that issue, Judge Mill's decision was "?...to grant the appeal and that on the basis of a discretionary grant of leave for a period limited to 120 days being granted to the claimant of new" [16]. It will be important for the secretary of state to ensure that the claimant receives return of his now expired passport to enable him to renew it.
20. On 12 December 2016, Upper Tribunal Judge Plimmer found it to be arguable that the First-tier Tribunal had not adequately reasoned why the claimant could not obtain a CAS and undertake the English language test either before the passport expiry or once he obtained his new passport. It was also arguable that the Tribunal's power was limited to allowing or dismissing the appeal and not to granting a period of leave.
The appeal
21. On behalf of the secretary of state Mr Tarlow submitted that the claimant made his application on 1 July 2014. However, no CAS had been assigned to him and the register was checked. It was also unclear as to how the First-tier Judge had reached the finding that the matter should be remitted to the respondent and that the claimant would be given a discretionary period of 120 days to regularise his stay in the UK.
22. Moreover he submitted that in any event, the Judge's power was limited to either allowing or dismissing the appeal and not to grant him a period of leave.
23. On behalf of the claimant, Mr Shamsuzzoha submitted that the claimant did not have sufficient time to take the relevant test after his earlier appeal was allowed. His passport was to expire on 21 June 2014.
24. The claimant wrote to the Home Office on 23 April 2015 (page 11). His solicitors referred to the refusal letter dated January 2015. It was noted that his passport was in the custody of the Home Office and it was requested to be released to sit the IELTS test. That request was refused.
25. In a further letter dated 28 April 2016, the solicitors set out the attempts that had been made by the claimant to sit one of the approved tests. However, the absence of his passport was an impediment to his sitting any of these tests. The passport was with the respondent at the time.
26. It was contended that had he had the opportunity to sit the test, he would have been offered a valid CAS. It was thus requested that the decision dated 19 January 2015 be withdrawn in order for him to obtain the test certificate, enabling him to provide a valid CAS.
27. The claimant stated that the passport was received on 5 June 2014. After being placed into possession, he booked a test on 6 June 2014. The only booking he was able to arrange to take the test, was for 12 July 2014.
28. He stated that he had been in touch with the secretary of state's official, requesting an opportunity for him to undertake the test.
29. The claimant sent a covering letter which accompanied his application, dated 1 July 2014. In that letter, which he has produced, he confirmed that he was submitting his application for consideration. He informed the secretary of state that at the moment he could not provide his CAS letter as his English language test date was 12 July 2014. He attached his offer letter which he received from the Sanjari International College. The conditional offer letter for a diploma in Management was made. He stated that once he obtained his IELTS score, he would send his CAS letter as well as the IELTS certificate. He asked that that be considered.
30. Mr Shamsuzzoha noted that the earlier appeal was allowed which resulted in the secretary of state affording the claimant a two month period to remain until 1 July 2014. He only received his passport on 12 May 2014. In order to continue his academic pursuits, he had to apply for leave to remain under the Tier 4 category by 1 July 2014. However, having booked an IELTS test straight away he was informed by the centre that his passport had expired and that they would not accept him unless it was properly updated. He enclosed a letter to that effect from the IELTS. He noticed that there were no other available dates in the whole of the UK.
31. He did his best to have the passport updated. However, that required between 40 and 45 days which meant he would be outside his leave if he were to sit the test with the passport. In making the application to renew the passport, a pre-booked appointment was required, which itself can take 2-3 weeks in addition to the 40-45 days that it would take.
32. He nevertheless booked another test date on 12 July 2014. He realised that his leave would expire on 1 July 2014 which was the date that his updated passport would arrive.
33. He tried to contact the relevant case worker through the UKVI contact centre several times to request further leave in order to enable him to obtain a full CAS. However, he resorted to obtaining a conditional offer, which has subsequently been revoked, the conditions being that he had to submit a valid passport and the required English language certificate. He was not able to provide this on account of the impediments he has referred to.
34. When the secretary of state took the refusal decision in January 2015, the Tier 4 sponsor had already lost its Tier 4 licence once his application was pending. He attempted to enrol at another institution to no avail. He produced evidence of his efforts. The institutions pulled back when they looked at his immigration status and lack of English test.
35. He referred to the fact that both his previous and current legal representatives wrote to the secretary of state requesting the release of his passport to facilitate the taking of the English test. That was why the letters from his solicitors dated 23 April 2015 and 28 April 2015. Those requests however were refused. Despite inviting the secretary of state to reconsider the decision this was simply ignored.
36. Mr Tarlow stated in reply that although he was not in a position to concede the matter, he accepted that "it was unfair". He submitted that the claimant has made out his case of unfairness.
Assessment
37. The First-tier Judge had full regard to the facts as set out. The secretary of state delayed implementation of the Tribunal's earlier determination which was allowed and served on 31 January 2014. On 2 May 2014 the claimant was issued a two month period of leave until 1 July 2014. His passport was due to expire on 21 June 2014. He obtained a renewal of his passport in early June 2014. However, he would be required to make a pre-booked appointment for the test. The earliest test he was capable of booking was for 12 July 2014.
38. The Judge has set out in clear terms the relevant immigration history in this case.
39. The Judge found that the period of leave granted to him of two months was in the circumstances plainly insufficient [12]. In the circumstances, the Judge did not consider that there had been procedural fairness afforded to him.
40. The Judge went on to state that 120 days was the minimum period of time required for him to carry out the tasks required. It may not be possible to immediately sit the test. There would be a period of time which would elapse relating to his obtaining of a renewal to his passport.
41. I find that Judge Mills has given sufficient reasons resulting in the finding that the claimant should be granted a further period of leave in order to regularise his stay in the UK.
42. In the circumstances, the Judge held that the delays by the secretary of state prevented the claimant from having a proper opportunity of submitting a further application as envisaged by the previous successful appeal. The Judge found that on the basis of the disclosed evidence, the claimant is someone who would be in a position to pass the English language test. The Judge has given sufficient reasons justifying that conclusion.
43. However, I also accept Mr Tarlow's submission that the First-tier Tribunal's power was limited to either allowing or dismissing the appeal but not to the granting of a period of leave. To that extent the decision involved the making of an error on a point of law.

Notice of Decision
I substitute a decision for the First-tier Tribunal's decision and replace it by a decision allowing the claimant's appeal. The granting of a period of leave, if any, is for the secretary of state to decide.
No anonymity direction is made.

Signed Date 12 February 2017
Deputy Upper Tribunal Judge C R Mailer