Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/11690/2015

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

prahina pradhan
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Nepal, born on 27 May 1989. She has been given permission to appeal against the decision of First-tier Tribunal Judge Pullig, dismissing her appeal against the respondent's decision to refuse her application for leave to remain in the UK on human rights grounds.
2. The appellant entered the United Kingdom on 13 February 2010 with leave to enter as a Tier 4 (General) Student Migrant until 29 February 2012 and was granted further leave to remain on the same basis until 31 December 2013 and again until 18 December 2014. On 17 December 2014 she applied for further leave to remain on the basis of her private life in the UK. Her application was refused by the respondent on 5 March 2015, on the basis that she could not meet the criteria in paragraph 276ADE(1) and that there were no exceptional circumstances justifying a grant of leave outside the immigration rules.
3. The appellant appealed against that decision and her appeal was heard on 21 March 2016 in the First-tier Tribunal by Judge Pullig. The judge had regard to a letter from the appellant's previous representatives setting out the circumstances in which she had been badly let down by three colleges with the result that she had spent a significant amount of money on college fees but had ended up with no qualifications. The judge noted that it was not argued by or on behalf of the appellant that she could meet the requirements of the immigration rules and that the application was therefore in effect under Article 8 outside the rules. He found that there were compelling circumstances which needed to be considered outside the immigration rules, since the appellant had been the victim of the defaults of colleges, but he concluded that ultimately the respondent's decision was not disproportionate and that there was no breach of Article 8.
4. The appellant then sought permission to appeal to the Upper Tribunal on the grounds that the judge had failed properly to consider the issue of fairness and had failed to consider that discretion should have been exercised in her favour for the purposes of section 86(3)(b) of the Nationality, Immigration and Asylum Act 2002.
5. Permission to appeal was granted on 29 September 2016 on the grounds that the judge's conclusions, that there were compelling circumstances and that the grant of further leave would not damage immigration control, were arguably inconsistent with his finding that the respondent's decision was proportionate.
6. There was no appearance by or on behalf of the appellant at the hearing before me. Mr Clarke made submissions, relying on the cases of AG and others (Policies; executive discretions; Tribunal's powers) Kosovo [2007] UKAIT 00082, Patel & Ors v Secretary of State for the Home Department [2013] UKSC 72, Nasim and others (Article 8) Pakistan [2014] UKUT 25 and EK (Ivory Coast) v The Secretary of State for the Home Department [2014] EWCA Civ 1517. He submitted that the Tribunal had no jurisdiction to consider the exercise of discretion by the respondent in the circumstances and that the judge properly found there to be no breach of Article 8.
Consideration and Findings
7. The grounds assert at [15] that the judge erred by failing to consider that discretion should have been exercised in the appellant's failure and rely on a statutory provision which in fact no longer exists, having been repealed by the Immigration Act 2014. As Mr Clarke submitted, the grounds do not, in any event, identify any particular policy under which discretion should have been exercised differently but merely refer to a vague notion of discretion and completely misunderstand the judge's observation at [43]. The judge's observation at [43] was merely an expression of sympathy for the appellant and a hope that the respondent would also acknowledge the situation in which the appellant found herself, but goes no further than that. The judge properly recognised that such circumstances did not give rise to any basis for granting leave, either within or outside the immigration rules.
8. Contrary to the suggestion in the grant of permission, the reference by the judge at [29] to compelling circumstances was in no way consistent with a finding that the respondent's decision was disproportionate or that there were compelling or exceptional circumstances justifying a grant of leave outside the rules. Rather, his reference at [29] to compelling circumstances was an acknowledgment of the unfortunate circumstances in which the appellant found herself, such circumstances not being covered in any way by the immigration rules, and it was on that basis that he then went on to consider her claim outside the rules. In so doing he properly considered the public interest factors in section 117B of the Nationality, Immigration and Asylum Act 2002 and accorded them the appropriate weight. At [36] he specifically considered the appellant's unfortunate situation as a result of the suspension of the licences and problems faced by the various colleges she had attended, but properly found that that could not benefit her in the proportionality consideration given in particular that that was not through any fault of the respondent. The grounds assert at [9] that the judge erred in law in finding that the respondent was not at fault, but such an assertion is plainly misconceived, particularly considering the circumstances under which the appellant's studies were disrupted by the various colleges, including a failed merger and financial crisis, as set out in the Appendix to the judge's decision at [4] to [9]. There was clearly no unfairness on the part of the respondent and that is consistent with the decision in EK (Ivory Coast) in which the question of fairness was considered, albeit in different circumstances to the appellant's, but nevertheless where the respondent was not at fault.
9. In so far as the grounds rely on the cases of Nasim and Patel, they are also misconceived since both cases made it clear that Article 8 was not a general dispensing power and the opportunity for a student to complete a course of study in the UK was not in itself a right protected under Article 8. Despite the fact that, as the judge accepted, this was a case which invoked sympathy, given the appellant's financial outlay and inability to continue and conclude her studies and achieve a qualification, there was clearly nothing particularly compelling or exceptional in the appellant's circumstances to justify a grant of leave outside the immigration rules. The judge properly found that to be the case and, contrary to the suggestion in the grant of permission, gave clear and adequate reasons for so concluding. As the judge properly observed at [41], this was a case with minimal chance of success. The conclusion that he reached was entirely open to him on the evidence before him and his decision to dismiss the appeal was lawfully and properly made.

DECISION
10. The making of the decision of the First-tier Tribunal did not involve an error on a point of law requiring it to be set aside. I do not set aside the decision. The decision to dismiss the appeal stands.

Signed

Upper Tribunal Judge Kebede Dated: