IA/09706/2014
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The decision
IAC-AH-LR-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09706/2014
THE IMMIGRATION ACTS
Heard at Field House
Determination Promulgated
On 16th December 2014
On 29th December 2014
Before
DEPUTY UPPER TRIBUNAL JUDGE JUSS
Between
Mr ishan pankajbhai patel
(anonymity direction not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr G Franco (Counsel)
For the Respondent: Mr L Tarlow (HOPO)
DETERMINATION AND REASONS
1. This was an appeal against the determination of First-tier Tribunal Judge T R P Hollingworth promulgated on 18th September 2014, following a hearing at Nottingham Magistrates' Court on 3rd September 2014. In the determination, the judge dismissed the appeal of Ishan Pankajbhai Patel. The Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a citizen of India, born on 28th July 1989, and is a male. He appealed against the decision of the Respondent dated 5th February 2014 to curtail his leave to remain in the UK pursuant to paragraph 323A(a)(ii)(1) of HC 395. The reason was that the Appellant had failed to commence studying with his Tier 4 educational supplier. The purpose of the Appellant's residence in the UK as a student therefore failed (paragraph 4).
The Judge's Findings
3. At the hearing before Judge T R P Hollingworth on 3rd September 2014, "It was ultimately conceded that there was no need to call the Appellant to give evidence and I could simply adopt his witness statement" (paragraph 7). For the Respondent Home Office, Mr Brammal asked the judge to find that "because the Appellant simply did not attend his course this justified the Respondent's decision pursuant to paragraph 323" so that "there was no question of him being given a 60 day warning to obtain a new educational supplier" (paragraph 9). For the Appellant himself, Mr Halligan, of Counsel, "helpfully conceded the Appellant could not comply with the appropriate Tier 4 Rules" but that "he also conceded that the Appellant could have done more," although "he was anxious to continue as a student in the United Kingdom ?" (paragraph 10). In the circumstances, the judge dismissed the appeal.
Grounds of Application
4. The grounds of application state that inadequate reasons were given by the judge for the dismissal of the appeal and the judge did not assess the Appellant's evidence.
5. On 7th November 2014 permission to appeal was granted on the basis that the judge made an arguable error of law in that there was a discretion for the judge to exercise even if the Appellant did not meet with the Immigration Rules.
Submissions
6. At the hearing before me on 16th December 2014, Mr Franco, appearing on behalf of the Appellant as his Counsel, submitted that it was the Appellant's case that he did actually start his course with his educational supplier. This was clear from his witness statement. In this he states that,
"I started attending classes and was regularly attending until I requested the college orally and by letters to confirm to me the status of the college as there were rumours among the students that the college's Tier 4 Sponsor Licence was either revoked or was going to be revoked" (paragraph 3).
He states that the college did not answer his enquiries. He also states that,
"I also contacted the UK Border Agency on the enquiry line to confirm the status of the college but unfortunately I could not speak to the person on the general enquiry line. I started searching a place on highly trusted institution in order to continue my studies for which I visited various colleges ?" (paragraph 4).
7. This statement, however, is unsigned and it is undated. Mr Franco then referred me to the letters that the Appellant had written.
8. There is a letter dated 25th February 2013 written to the West City College in Essex. Here he writes,
"I am hereby writing you to tell me the exact position of our college regarding UKBA Tier 4 sponsorship. I would like to know the status of Tier 4 sponsorship till I finish my course. I would not want to disturb my studies if halfway and look for another college" (see page 10 of the bundle).
9. This letter too is unsigned.
10. There is another letter dated 22nd April 2013 to the West City College from the Appellant where he states,
"I am writing regarding the letter I wrote you on 25th February 2013. Till today I haven't received any reply. I am eagerly waiting for your reply to resume my studies, could you please send me reply of my queries from the letter date mentioned above" (see page 11 of the bundle).
11. This letter also is unsigned.
12. There is no evidence, as I indicated to Mr Franco, that these letters were actually sent to the West City College.
13. Equally, there is no evidence that an enquiry was made on the telephone line with the Respondent Home Office as claimed. Mr Franco, however, submitted that it was not clear how the Appellant's Counsel at the hearing had at the time conceded that the Appellant could not meet the requirements of the Rules. The curtailment here was on the basis that the Appellant did not start the course. The evidence from the witness statement appeared to show that he had begun the course but was concerned about the institution he was attending.
14. Mr Franco submitted that, "he was not attending because he was coming off, he thought, the highly trusted list". Mr Franco submitted, "here there are cogent reasons why he did not attend".
15. Hearing this, Mr Franco's submission was that the judge should have looked at the question of whether the Appellant was credible as a witness, as invited to do so by Counsel below at the hearing before the judge (see paragraph 14). The failure of the judge to do so led to an error of law.
16. For his part, Mr Tarlow submitted that whilst it was considered that the Appellant could not meet the Rules, it was difficult to see how discretion could be exercised in the Appellant's favour. There actually was a concession by the Appellant's Counsel, rightly or wrongly, and it was unnecessary for the judge to go any further.
17. In reply, Mr Franco submitted that there was a residual discretion to make a decision outside the Rules and not to enforce the Rules, which the judge could have exercised, and would have done so arguably, had he proceeded to consider whether the Appellant was credible or not. The failure to do so, was an error of law.
No Error of Law
18. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law such that I should set aside the decision and remake the decision (see Section 12(1) of TCEA 2007). The starting point is what was the position before the judge. In this case, the judge gave ample time for matters to be ironed out before the hearing began. He is clear about this. He states that, "at the hearing of the appeal after a number of stand downs to absorb appeal issues it was ultimately conceded that there was no need to call the Appellant ?" (paragraph 7). Whether or not it was wise to do so is not a matter that the judge was in a position to entertain. The Appellant was represented by his Counsel. It is argued now before me that there was evidence in the Appellant's bundle showing that he had commenced his course, and was having cold feet for fear that the trusted status of his college would be revoked by the Respondent Home Office. Even if this is the case, this was not good a reason for him to stop attending the college for which he was given the Tier 4 status. The statements, such as they are, together with the letters, which are also unsigned and undated, could only be considered by this Tribunal, if there was a finding of error of law in the first place. This Tribunal can not make that finding for the following reasons.
19. First, the judge records that, "it is formally conceded by Counsel on behalf of the Appellant that he can not meet the requirements of the Tier 4 student based Rules on this occasion" (paragraph 12). It also appears to be conceded by the same Counsel that "the Respondent's decision to curtail leave on the basis the Appellant had not commenced his course or attended his educational supplier, is sustainable" (paragraph 13). This is how the Appellant's representative chose to put his case. The judge can not be faulted for taking the case as it was put before him. Second, and in any event, the argument that there should be a finding that the Appellant was "nevertheless ? a credible witness" (paragraph 14) is to no avail because as the judge also recorded at the end of his determination, "no human rights issues were raised by either side", so that a discretion in the Appellant's favour, assuming that it existed at all, could not have been grafted on any particular right of the Appellant, which was not raised, and in fact conceded before the judge. All in all, therefore, the decision of the judge in this case is careful, comprehensive, and entirely proper in the circumstances of the case.
Decision
20. There is no error of law in the original judge's decision. The determination shall stand.
21. No anonymity order is made.
Signed Date
Deputy Upper Tribunal Judge Juss 27th December 2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09706/2014
THE IMMIGRATION ACTS
Heard at Field House
Determination Promulgated
On 16th December 2014
On 29th December 2014
Before
DEPUTY UPPER TRIBUNAL JUDGE JUSS
Between
Mr ishan pankajbhai patel
(anonymity direction not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr G Franco (Counsel)
For the Respondent: Mr L Tarlow (HOPO)
DETERMINATION AND REASONS
1. This was an appeal against the determination of First-tier Tribunal Judge T R P Hollingworth promulgated on 18th September 2014, following a hearing at Nottingham Magistrates' Court on 3rd September 2014. In the determination, the judge dismissed the appeal of Ishan Pankajbhai Patel. The Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a citizen of India, born on 28th July 1989, and is a male. He appealed against the decision of the Respondent dated 5th February 2014 to curtail his leave to remain in the UK pursuant to paragraph 323A(a)(ii)(1) of HC 395. The reason was that the Appellant had failed to commence studying with his Tier 4 educational supplier. The purpose of the Appellant's residence in the UK as a student therefore failed (paragraph 4).
The Judge's Findings
3. At the hearing before Judge T R P Hollingworth on 3rd September 2014, "It was ultimately conceded that there was no need to call the Appellant to give evidence and I could simply adopt his witness statement" (paragraph 7). For the Respondent Home Office, Mr Brammal asked the judge to find that "because the Appellant simply did not attend his course this justified the Respondent's decision pursuant to paragraph 323" so that "there was no question of him being given a 60 day warning to obtain a new educational supplier" (paragraph 9). For the Appellant himself, Mr Halligan, of Counsel, "helpfully conceded the Appellant could not comply with the appropriate Tier 4 Rules" but that "he also conceded that the Appellant could have done more," although "he was anxious to continue as a student in the United Kingdom ?" (paragraph 10). In the circumstances, the judge dismissed the appeal.
Grounds of Application
4. The grounds of application state that inadequate reasons were given by the judge for the dismissal of the appeal and the judge did not assess the Appellant's evidence.
5. On 7th November 2014 permission to appeal was granted on the basis that the judge made an arguable error of law in that there was a discretion for the judge to exercise even if the Appellant did not meet with the Immigration Rules.
Submissions
6. At the hearing before me on 16th December 2014, Mr Franco, appearing on behalf of the Appellant as his Counsel, submitted that it was the Appellant's case that he did actually start his course with his educational supplier. This was clear from his witness statement. In this he states that,
"I started attending classes and was regularly attending until I requested the college orally and by letters to confirm to me the status of the college as there were rumours among the students that the college's Tier 4 Sponsor Licence was either revoked or was going to be revoked" (paragraph 3).
He states that the college did not answer his enquiries. He also states that,
"I also contacted the UK Border Agency on the enquiry line to confirm the status of the college but unfortunately I could not speak to the person on the general enquiry line. I started searching a place on highly trusted institution in order to continue my studies for which I visited various colleges ?" (paragraph 4).
7. This statement, however, is unsigned and it is undated. Mr Franco then referred me to the letters that the Appellant had written.
8. There is a letter dated 25th February 2013 written to the West City College in Essex. Here he writes,
"I am hereby writing you to tell me the exact position of our college regarding UKBA Tier 4 sponsorship. I would like to know the status of Tier 4 sponsorship till I finish my course. I would not want to disturb my studies if halfway and look for another college" (see page 10 of the bundle).
9. This letter too is unsigned.
10. There is another letter dated 22nd April 2013 to the West City College from the Appellant where he states,
"I am writing regarding the letter I wrote you on 25th February 2013. Till today I haven't received any reply. I am eagerly waiting for your reply to resume my studies, could you please send me reply of my queries from the letter date mentioned above" (see page 11 of the bundle).
11. This letter also is unsigned.
12. There is no evidence, as I indicated to Mr Franco, that these letters were actually sent to the West City College.
13. Equally, there is no evidence that an enquiry was made on the telephone line with the Respondent Home Office as claimed. Mr Franco, however, submitted that it was not clear how the Appellant's Counsel at the hearing had at the time conceded that the Appellant could not meet the requirements of the Rules. The curtailment here was on the basis that the Appellant did not start the course. The evidence from the witness statement appeared to show that he had begun the course but was concerned about the institution he was attending.
14. Mr Franco submitted that, "he was not attending because he was coming off, he thought, the highly trusted list". Mr Franco submitted, "here there are cogent reasons why he did not attend".
15. Hearing this, Mr Franco's submission was that the judge should have looked at the question of whether the Appellant was credible as a witness, as invited to do so by Counsel below at the hearing before the judge (see paragraph 14). The failure of the judge to do so led to an error of law.
16. For his part, Mr Tarlow submitted that whilst it was considered that the Appellant could not meet the Rules, it was difficult to see how discretion could be exercised in the Appellant's favour. There actually was a concession by the Appellant's Counsel, rightly or wrongly, and it was unnecessary for the judge to go any further.
17. In reply, Mr Franco submitted that there was a residual discretion to make a decision outside the Rules and not to enforce the Rules, which the judge could have exercised, and would have done so arguably, had he proceeded to consider whether the Appellant was credible or not. The failure to do so, was an error of law.
No Error of Law
18. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law such that I should set aside the decision and remake the decision (see Section 12(1) of TCEA 2007). The starting point is what was the position before the judge. In this case, the judge gave ample time for matters to be ironed out before the hearing began. He is clear about this. He states that, "at the hearing of the appeal after a number of stand downs to absorb appeal issues it was ultimately conceded that there was no need to call the Appellant ?" (paragraph 7). Whether or not it was wise to do so is not a matter that the judge was in a position to entertain. The Appellant was represented by his Counsel. It is argued now before me that there was evidence in the Appellant's bundle showing that he had commenced his course, and was having cold feet for fear that the trusted status of his college would be revoked by the Respondent Home Office. Even if this is the case, this was not good a reason for him to stop attending the college for which he was given the Tier 4 status. The statements, such as they are, together with the letters, which are also unsigned and undated, could only be considered by this Tribunal, if there was a finding of error of law in the first place. This Tribunal can not make that finding for the following reasons.
19. First, the judge records that, "it is formally conceded by Counsel on behalf of the Appellant that he can not meet the requirements of the Tier 4 student based Rules on this occasion" (paragraph 12). It also appears to be conceded by the same Counsel that "the Respondent's decision to curtail leave on the basis the Appellant had not commenced his course or attended his educational supplier, is sustainable" (paragraph 13). This is how the Appellant's representative chose to put his case. The judge can not be faulted for taking the case as it was put before him. Second, and in any event, the argument that there should be a finding that the Appellant was "nevertheless ? a credible witness" (paragraph 14) is to no avail because as the judge also recorded at the end of his determination, "no human rights issues were raised by either side", so that a discretion in the Appellant's favour, assuming that it existed at all, could not have been grafted on any particular right of the Appellant, which was not raised, and in fact conceded before the judge. All in all, therefore, the decision of the judge in this case is careful, comprehensive, and entirely proper in the circumstances of the case.
Decision
20. There is no error of law in the original judge's decision. The determination shall stand.
21. No anonymity order is made.
Signed Date
Deputy Upper Tribunal Judge Juss 27th December 2014