Tribunal decisions

The decision

IAC-FH-AR-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09446/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 October 2016
On 9 November 2016

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

MD SIRAJUL ISLAM
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Hasan of Kingdom Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Bangladesh. He appealed to a Judge of the First-tier Tribunal against the respondent's decision of 25 February 2015 refusing him leave to remain in the United Kingdom. In her decision letter the respondent noted that, though the appellant had claimed 30 points under Appendix A of HC 395 for a valid Confirmation of Acceptance for Studies (CAS), when the Tier 4 Sponsor Register was checked on 25 February 2015 the college to which the CAS was said to have been assigned was not listed. He had therefore not met the requirements to be awarded 30 points under Appendix A of the Immigration Rules and as he had failed to provide a valid CAS, the respondent was unable to assess the amount of funds he was required to show in support of his application and therefore he could not be awarded 10 points for maintenance (funds) under Appendix C.
2. I have seen a copy of a letter dated 8 December 2014 sent to the appellant by the respondent, noting that the college's licence had been revoked, and as a consequence the CAS he had submitted was no longer valid. In line with the Rules and guidance consideration of his application was suspended for a period of 60 calendar days during which period it was open to him to withdraw his application and submit a fresh application in a different category, or to leave the United Kingdom. It was said that if he wished to remain in the United Kingdom as a Tier 4 Student it was open to him to obtain a new CAS for a course of study at a fully licensed Tier 4 educational sponsor and vary the grounds of his original application though he would need to find new a Tier 4 educational sponsor who would need to issue him with a new CAS.
3. The appellant appealed against the respondent's decision, and the judge dismissed his appeal.
4. I do not propose to go into any detail with regard to the content of the judge's decision, other than to note the remark by the judge who subsequently granted permission to appeal against the decision, that the appellant is entitled to know what law he has failed to meet and how he failed to meet it. He went on to say that the appellant might not qualify for further Tier 4 status but the reasoning was not apparent.
5. In his grounds of appeal the appellant referred to the decision of the Upper Tribunal in Qadir and to the TOEIC cases. He also argued, in reliance on the decision in Patel [2011] UKUT (IAC), that the decision was unfair. He relied on other authorities and also contended that the judge had failed to address an Article 8 claim.
6. In his submissions Mr Hasan relied on the grounds. He argued that it was unclear under which Rule the appeal had been dismissed and the decision of the judge contained irrelevance.
7. In his submissions Mr Tufan commented that though there were clear flaws in the judge's decision any error was not material. It was clear from the authorities such as Patel and EK (Ivory Coast) that it was proper for the respondent to grant the extra 60 days in such a case but that whereas in EK there had been a mistake by the college, the appeal was nevertheless dismissed. The Secretary of State had played no part in the mistake. The appellant had not been obtained a place within the 60 days and could not proceed at date of decision. There was therefore no material error of law.
8. By way of reply, Mr Hasan argued that at the time of the application the appellant had a CAS and while the application was pending the sponsor lost its licence. He was correctly given a 60 days letter that had run out on 4 February 2015 and he had made the point before the judge that it was in the middle of the year and he could not catch up and some correspondence with the universities had been produced and he had to wait until September and the fairness issue arose from that. He referred in particular to an e-mail which he produced from the University of East London making it clear they could not assess his application in time for the January 2015 intake but were considering it for their next intake and would send him an update. It was argued that he should have been allowed a further 60 days. Also the judge's decision was silent on the human rights issues. It was accepted that as a Tier 4 Student he might not satisfy the Rules or Article 8 but proper reasons were required to be given.
9. I stated that in light of the lack of clarity in the judge's decision it was important that the appellant be given reasons why the appeal fell to be dismissed if that were the case, and with the agreement of both parties I said that I would produce a decision setting out my full reasoning, which I now do.
10. I have set out above the relevant provisions of the Immigration Rules which led the respondent to refuse the application under the Rules. It is clear from the decision of the Court of Appeal in EK (Ivory Coast) [2014] EWCA Civ 1517, that there is no breach of the duty of fairness on the part of the respondent in circumstances where a person does not have a valid CAS letter at time of decision. It was noted at paragraph 24 of the decision in EK that the appellant there had a limited period of time in which she could make her application to continue her studies on an in-country basis granted to her by the Secretary of State to give her an opportunity to rectify the position which had arisen as a result of the first chosen college losing its authorisation from the Secretary of State to issue CAS letters. In her particular case she made the application within time but unbeknown to her as a result of an administrative error for which she had no responsibility, the second college withdrew her CAS letter and as a result, after the period for making a fresh in-country application had elapsed, the respondent dismissed her application.
11. Though the facts are slightly different, the legal effect is precisely the same in my view. As in EK there was no breach by the Secretary of State who had a public law duty to act fairly in considering the application for leave to remain. The respondent was not responsible in that case, it was said, for the general unfairness which the appellant had suffered. It was a result of actions and omissions by the college. Though there has been no actions or omissions by any of the universities in this case, but rather simply an inability to provide the appellant with a fresh CAS within the 60 day period, that cannot be laid at the door of the Secretary of State. There is no public law unfairness in her conduct in this case. She quite properly gave the appellant the further opportunity of 60 days in which to obtain a new CAS and the appellant was unable to do so and as a consequence the application had to be refused.
12. As regards Article 8, that does not appear to have been pleaded in the grounds to the judge. Insofar as it is a relevant issue, I consider that it cannot be said to be an issue of any materiality in this case. The appellant has not set out any basis upon which he contends that his Article 8 rights are breached. He is a person who has been studying in this country and is no longer able to study. Though to that extent there may be said to be an interference with his private life, that is clearly outweighed by the public interest in a fair and properly run immigration system. Accordingly, any breach of the appellant's private life rights is clearly outweighed in the proportionality evaluation by the public interest. Accordingly, though I have found that the judge's decision was legally flawed to the extent that it was not clear what the reasons for the decision were, I re-made the decision with the same outcome. The appeal is dismissed.
No anonymity direction is made.

Signed Date

Upper Tribunal Judge Allen