Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/06995/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 July 2016
On 26 September 2016

Before

THE HONOURABLE MRS JUSTICE MAY DBE
UPPER TRIBUNAL JUDGE ALLEN

Between

mr selva kumar boominathan
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No representative
For the Respondent: Mr Avery, Home Office Presenting Officer

DECISION AND REASONS

1. This is the appeal of Mr Boominathan against the decision of the First-tier Tribunal Judge Mrs Morris who dismissed his appeal against the Secretary of State's decision of 4 February 2015 refusing him leave to remain in the United Kingdom as a Tier 4 (General) Student Migrant.

2. We do not think it is necessary to go into his immigration history as the point that is made in the end is a fairly short one. The judge concluded that on the evidence the appeal had to fail because although he had been given an opportunity to find an alternative sponsor and submit a valid CAS, none has been forthcoming therefore the appeal required to be dismissed and there were no matters arising under the Human Rights Convention which the judge thought gave rise to any concern and therefore the appeal was dismissed on all bases.

3. Grounds of appeal put in on Mr Boominathan's behalf said amongst other things that he did not receive a 60 day letter from the Secretary of State and therefore had no knowledge of the scheduled 60 days time period and therefore it was wrong to refuse under paragraph 245ZX of the Immigration Rules.

4. Thankfully the matter came into the hands of an industrious judge, Judge Landes, who commendably looked into the file in some detail and found that in fact it was the case that an application had been made with a new CAS. She found this at Appendix A1 of the respondent's bundle and we find the application was made on 4 February 2014 date stamped as received by, we take it, the respondent on 6 February 2014 and this has a different CAS number and a different sponsor and she considered the consequence that it was arguable that the judge had erred in failing to take into account that the appellant Mr Boominathan had varied his application and overlooked the new CAS details which he had provided.

5. We found at E1 the letter of 5 December 2013 which is what was referred in short and termed as the 60 day letter sent to Mr Boominathan, likewise as to when it was received is unclear since after the fresh application was made a variation application was made but we can pass by that. It is clear from the second page of this that the specific period was given: the letter says "if you decide to continue studying in the United Kingdom then you have 60 days in which to find a new sponsor, obtain a CAS and submit an application to vary this 60 days will end on 4 February 2014".

6. This says nothing about the date of receipt and it seems to us that the only sensible interpretation that can be made of this is that if an application was made before close of play on 4 February 2014 then the requirements of the letter of 5 December 2013 would have been met and that is exactly what Mr Boominathan did or was done on his behalf. The application was made on 4 February 2014, not received until 6 February 2014, but as we say that is by the way but the respondent in the meantime had sent out her decision letter of 4 February 2015 on the basis that the old CAS was ineffective because the college was no longer a Tier 4 Sponsor. He had been given 60 days to obtain a sponsor and had not provided a new CAS within the period. In fact as seems clear to us that had been done within the terms of the respondent's letter of 5 December 2013.

7. Accordingly there was a mistake by the respondent and a mistake by the judge and exactly these problems were identified by the judge who granted permission. As a consequence we agree with Mr Avery when we asked him about the disposal of this appeal, that the appeal must be allowed on the basis that the decision was unlawful and the matter will have to go back to the Secretary of State to make a decision on the CAS that was put in by Mr Boominathan on 4 February 2014 and if that decision is against him that that would potentially generate a further appeal right..

8. The appeal is allowed. The matter is to go back to the Secretary of State for a decision on the fresh application.

Notice of Decision

9. The appeal is allowed.

10. No anonymity direction is made.

Signed Date

The Hon. Mrs Justice May