Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13024/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 August 2016

On 22 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

Mr MD ASHRAFUZZAMAN KHAN
(ANONYMITY DIRECTION not made)
Appellant
and

Secretary of State FOR THE Home Department
Respondent

Representation
For the Appellant: Mr A Rahman, instructed by JKR Solicitors
For the Respondent: Mr S Walker, Home Office Presenting Officer

DECISION AND REASONS
1. This appeal arises from the respondent's decision, made on 17 March 2015, to refuse to vary the appellant's leave to remain as a Tier 4 (General) Student following his failure to submit a valid Confirmation of Acceptance for Studies ("CAS"). The appellant's ensuing appeal to the First-tier Tribunal ("FtT") was dismissed. He now appeals the FtT's decision, which was made by FtT Judge Blundell and promulgated on 19 January 2016.
Background
2. The appellant is a citizen of Bangladesh born on 25 September 1982 who entered the UK on 24 March 2007.
3. On 5 June 2013 he was granted leave to remain as a Tier 4 (General) Student until 30 April 2016 in order to undertake a course of study at Eden College International ("Eden College"). On 2 May 2014 the sponsor license for Eden College was revoked.
4. On 22 May 2014 the appellant's leave was curtailed under paragraph 323A(b)(i) of the Immigration Rules so as to expire on 28 July 2014. On that date (28 July 2014) the appellant submitted a fresh Tier 4 application, with a CAS from Newcastle Academy of Business and Technology ("Newcastle Academy").
5. On 2 January 2015, whilst the application was pending, the appellant was sent a letter informing him that the license for Newcastle Academy had been revoked and therefore the CAS submitted with his application of 28 July 2014 was no longer valid. He was given a period of 60 days (until 2 March 2015) to obtain a new CAS. The appellant did not obtain a new CAS by 2 March 2015.
6. On 2 March 2015 the appellant wrote to the respondent explaining that he had not managed to obtain a new CAS but had received a conditional offer. The letter stated:
"Unfortunately, during the [60 day] time period no other sponsor offered me to get [sic] admission. Later on, a college named 'Finance & Technology Institute of London' offered me to continue my studies. However, I managed to collect a conditional offer letter from them and attached here [sic] the conditional offer letter for your consideration. Further to note that I will send the confirmation of acceptance of studies (CAS) to you as soon as I received [sic] it. I, therefore, pray and hope that you would kindly consider my situation".
7. On 17 March 2015 the appellant was sent a decision by the respondent refusing his application for leave to remain on the basis that he did not have a valid CAS. No reference was made in the decision to the appellant's letter of 2 March 2015.
Decision of the First-tier Tribunal
8. The appellant appealed and his appeal was heard by FtT Judge Blundell.
9. At paragraph [14] of the decision, the judge described the appellant's letter of 2 March 2015 as "critical to the lawfulness of the respondent's decision". The judge found that the respondent failed, in making her decision of 17 March 2015, to have regard to the appellant's letter of 2 March 2015 or his particular circumstances as set out therein. The judge found this to be contrary to the public law principle that a public authority cannot refuse to listen when confronted with an application to depart from a policy and therefore that the respondent had approached the appellant's case unlawfully. However, the judge went on to find that the error was not material, as had the respondent considered the letter of 2 March 2015, the only proper outcome would have been, in any event, to refuse the application.
Grounds of appeal and submissions
10. The grounds argue that the judge was not entitled to approve an unlawful decision by the respondent on the basis that the unlawfulness was not material. Once the judge found the respondent's decision to be unlawful, the proper course, irrespective of the judge's view on materiality, was to allow the appeal to the extent that the respondent's decision was not in accordance with the law, with the matter being remitted to the Secretary of State to make a lawful decision.
11. Before me, Mr Rahman reiterated the argument in the grounds that the consequence of the judge finding the decision was unlawful is that there is a lawful decision remaining to be made. I asked Mr Rahman to comment on the respondent's Rule 24 Response, which challenged the judge's finding that the respondent's decision was not in accordance with the law. His response was that the judge explained, citing the relevant authorities, why it was unfair of the respondent to not have regard to the appellant's letter of 2 March 2015. That unfairness arose from not taking into account the appellant's particular circumstances and treating the 60 day period as a fixed period that could not be modified to reflect the individual situation.
12. Mr Walker argued that the respondent followed her own policy, by providing the appellant with a further 60 days, which was a sufficient period for him to obtain a new CAS. He argued that there was no obligation on the respondent to take into consideration the letter of 2 March 2015 but even if there was the judge was correct to recognise that that the letter would not have changed the outcome, and therefore was not material.
Consideration
13. The respondent, in a letter dated 2 January 2015, suspended consideration of the appellant's application for 60 days. In so doing, the respondent was acting in accordance both with her own policy, which is to give applicants an additional 60 days to obtain a new CAS, and case law which establishes that the principle of common law fairness requires that a person in the appellant's situation be given an adequate opportunity to find another college. See Thakur (PBS decision - common law fairness) Bangladesh [2011] UKUT 00151 and Patel (revocation of sponsor licence - fairness) India [2011] UKUT 00211 (IAC).
14. Where submissions to the respondent giving reasons why an applicant's particular circumstances are such that additional time beyond 60 days should be granted are made in a timely manner, fairness requires that those submissions are given consideration by the respondent in order that in circumstances where 60 days would not constitute an adequate opportunity to obtain a new CAS additional time is granted to an applicant.
15. In this case, however, the appellant's submissions were not made in a timely manner. They were sent to the respondent on 2 March 2015, which was at the very end of the 60 day period. If the appellant wanted the respondent to grant him longer than 60 days because of his particular circumstances it was incumbent upon him to advise the respondent of this as soon as possible and at the very least before the expiry of the 60 day period.
16. As to the content of the appellant's submissions, they do not state, or even estimate, when the CAS will be obtained (the appellant's letter merely says it will be sent as soon as it is received). The appellant's letter does not explain what difficulties the appellant faced or describe any extenuating circumstances. There is, in fact, nothing in the letter to explain or justify why the appellant has not managed to find a new CAS in the 60 day period granted to him. Given both the content and timing of the letter of 2 March 2015, there was no unfairness arising from the respondent's failure to consider, or refer to, it in her decision of 17 March 2015.
17. Accordingly, in my judgment the respondent did not make an unlawful decision when refusing to vary the appellant's leave to remain on 17 March 2015 and the judge made an error of law in finding that she had.
18. I agree with Mr Rahman that, having found the respondent's decision to be unlawful, it was an error of law for the judge to proceed to consider the materiality of the unlawfulness. If the decision of the respondent was unlawful because of common law unfairness, then the application remains outstanding for a lawful decision to be made by the respondent. That is the case whether or not the judge considers the unlawfulness to be material.
19. However, although the judge, having found the respondent's decision was unlawful, erred by dismissing the appeal instead of remitting it to the respondent to make a lawful decision, the error was not material as the judge should not, in the first place, have found the respondent's decision to be unlawful. If the judge had recognised that the decision was not unlawful, the correct outcome would have been to dismiss the appeal and therefore the judge's error was not material.
Decision
20. The decision of the First-tier Tribunal did not involve the making of a material error of law and shall stand.
21. The appeal is dismissed.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 19 August 2016