Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/11839/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 4 June 2013
5 June 2013

…………………………………
Before

UPPER TRIBUNAL JUDGE KEKIĆ

Between

MUHAMMAD ASGHAR
Appellant
and

SECRETARY OF STATE FOR
THE HOME DEPARTMENT

Respondent

DETERMINATION AND REASONS

Representation:
For the appellant: Ms E Daykin, Counsel
For the respondent: Mrs S Vidyadharan, Home Office Presenting Officer

Background

1. This appeal comes before me following the grant of permission to appeal by First Tribunal Judge Landes on 15 April 2013.

2. The appellant is a Pakistani citizen born on 9 December 1970. He seeks an extension as a Tier 4 Migrant. His appeal was dismissed on the papers by First-tier Tribunal Judge Macdonald by way of a determination promulgated on 16 August 2012.

3. Permission to appeal was granted on the basis that the judge should arguably have remitted the appeal to the Secretary of State given that following Ahmadi [2012] UKUT 00147 (IAC) her decision under section 47 was unlawful. The judge commented that the other grounds were “extremely thin” but did not rule out argument on them.

4. Essentially, the case is that the appellant’s college notified the respondent on 8 November 2011 that he had not commenced studying there and, having confirmed that the appellant had made no other application for leave to remain, the Secretary of State decided on 3 May 2012 to curtail his leave. The appellant maintained that the college made a mistake and produced two letters dated 9 and 25 February 2012 (the second being addressed to the UKBA) to say that the appellant was attending college and that a mistake had been made.

5. The judge was not happy with the reliability of the letters and gave his reasons for this at paragraphs 12-15. He dismissed the appeal accordingly.

6. The appellant argues that the judge erred in his approach to the letters, that he had not explained why it was important to have the originals and that, as the appeal was lodged on 16 May 2012 before (sic) the commencement of section 19 of the Borders Act 2007, the UKBA was in a position to have sight of the letters. It is also argued that the judge failed to consider Article 8 and should have found that the section 47 removal was unlawful. The appellant also argues that the judge did not address his Article 8 claim.

Error of law hearing

7. At the commencement of the hearing, Ms Daykin sought leave to amend the grounds of the application which after hearing from Mrs Vidyadharan and noting her objections I allowed her to do. Ms Daykin relied on Thakur (PBS decision – common law fairness) Bangladesh [2011] UKUT 00151 (IAC) and Naved (Student – fairness – notice of points) [2012] UKUT 14 (IAC) and argued that the issue of unfairness had been raised as part of the appellant’s original grounds of appeal and that the judge had referred to them at paragraph 7 of his determination. She submitted that according to fairness principles, the Secretary of State should have alerted the appellant to the problem over his alleged non attendance before curtailing his leave. She had not done so and the judge had failed to resolve this issue. She conceded that the grounds on the section 19 point were unintelligible but suggested that the author might have meant that the evidence predated the decision and so should have been considered. She also relied on the unlawfulness of the decision under sections 47. She asked that the decision be set aside.

8. Mrs Vidyadharan conceded that the decision to remove the appellant under section 47 had been unlawful. She argued, however, that the substantive matters had been properly addressed. The judgments relied upon by the appellant did not deal with the situation where an appellant had not attended college. She pointed out that the appellant could have adduced other evidence to show that he had been attending college such as coursework, a letter from a teacher or examination results but had not done so. The judge had given ample reasons for raising concerns about the letters and for rejecting the credibility of the evidence. There had been no explanation as to how the ‘error’ by the college had occurred and no explanation from the appellant as to how he obtained the letters from the college. The appeal should be dismissed.

9. Ms Daykin replied. She maintained that the issue was that of fairness and of the obligation on the respondent to alert the appellant to a circumstance which he was not aware of. Given the contents of the college letters, the appellant had not considered it necessary to adduce further documentary evidence.

10. At the conclusion of the hearing I reserved my determination which I now give.

Findings and conclusions

11. I have considered with care the submissions made, the evidence and the First-tier Tribunal Judge’s determination. The Secretary of State made a combined decision to refuse to vary leave and to issue directions for the appellant’s removal under section 47. Although the immigration decision is not in the papers before me, a letter of 3 May 2012 suggests that the decisions were taken simultaneously. Following Ahmadi (op cit) this was unlawful and Mrs Vidyadharan accepts this is so. However, the decision to remove does not render the variation decision invalid. What it means is that the decision to give removal directions was not properly made. The judge erred in failing to address this point (although it was not raised in the grounds of appeal to him); what he should have done was to allow the appeal to that limited extent. His failure to do so was an error of law.

12. I now deal with the substantive appeal. The thrust of the arguments made by Counsel concerned fairness, or the lack of it, on the part of the Secretary of State. It is argued that she should have contacted the appellant about the college notification prior to curtailing his leave. The argument is based on the two letters from Oxbridge College of 9 and 24 February 2012 adduced by the appellant in support of his appeal and on the reliability of those letters without which the appellant has no case.

13. The judge considered the two letters at paragraphs 12-16 of the determination. He was not happy with their reliability, found that the respondent had been right to curtail the appellant’s leave for non attendance and dismissed the appeal. It is argued that the judge did not resolve the issue of whether the respondent should have contacted him prior to curtailing his leave. This was a point argued in the grounds of appeal as the judge noted (paragraph 7). In paragraph 9 he expressly considered the argument and the letters adduced to see if they would have made any difference to the respondent’s decision (paragraph 8). If the judge made any errors of law in his consideration of the two letters, then the appellant’s argument about fairness would have some mileage. However, if the letters were correctly found to be unreliable then the fact that the respondent did not contact the appellant before curtailing his leave would be of no significance as he would not have succeeded in his attempts to remain here in any case.

14. I have been given the originals of the two letters dated 9 and 25 February 2012. The first is a To Whom it May Concern letter and the second is addressed to the UKBA, Tier 4 Sheffield, with no further address or postcode. The respondent has never received copies. The appellant maintains he was given these letters by the college after he received the refusal letter. It is not explained how he could have the originals if at least one purports to have been sent to the UKBA; there is nothing on the letters to confirm they are certified copies of the originals rather than the originals themselves. It is also unexplained why the college should have prepared these letters and kept them on file until the appellant allegedly approached them in May 2012 or how, having notified the UKBA of the appellant’s failure to attend college, they suddenly realised, some months later, that they had made an error.

15. The appellant claimed to have been attending Oxbridge College based in the East End of London whilst he was living in Wembley. He was said to be studying a 24 month PGDIT course which, according to the CAS of 31 May 2011, commenced on 14 June 2011 and was due to end on 14 June 2013. I compare that letter with the two February letters. Neither of those two letters bears the second college endorsement that can be seen on the CAS. More significantly, the letter of 9 February 2012 gives wholly different commencement and completion dates to the CAS, a different duration of the course (4 months as opposed to two years) and a different number of hours’ attendance required each week. The letter of 25 February 2012 appears to have been prepared on the date the appellant would have completed his course (if the completion date on the 9 February letter is accepted) yet maintains that the appellant is continuing his studies. These matters only serve to reinforce the judge’s finding that the letters were unreliable. The judge was not satisfied that either of these letters had ever been forwarded to the UKBA and plainly he was right in his assumption given that neither may be found on the respondent’s file. There are anomalies between the letters and the CAS and the judge was entitled to find that the ‘mistake’ apparently acknowledged by the college had not been explained. He also noted the long delay between the notification to the Secretary of State and the issue of the letter, without any explanation for what triggered same. Given the difficulties of these letters, their consideration by the respondent, had she alerted the appellant and seen these prior to the decision, would have made no difference at all. I do not therefore find that the judge erred in his approach to the evidence and I do not agree that he failed to resolve the matters raised by the appellant in his original grounds of appeal.

16. Whilst I accept that Article 8 was raised in the appellant’s grounds of appeal, it was not pursued by Counsel in submissions before me. In any event, I note that the claim was limited to a private life by way of studies. No other details are provided and no evidence was submitted. It is difficult to see what findings the judge could have made on a claim that was not pursued in any meaningful way. Moreover, as the judge found that the appellant had not been studying, there was no basis on which a private life based on studies could have succeeded.

Decision

17. The First-tier Tribunal did not make any errors of law with regard to the substantive matters and the decision to dismiss the appeal under the Immigration Rules stands. However, I remake the decision to the extent that the appeal is allowed on the limited basis that the decision to remove the appellant under section 47 was unlawful.

Signed:

Dr R Kekić
Upper Tribunal Judge
4 June 2013