Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13786/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 March 2017
On 7 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE L J MURRAY

Between

sajid ali
(anonymity direction NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: No representation
For the Respondent: Mr T Wilding, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a Pakistani national who was born on 6 February 1985. On 7 June 2014 he made an application for leave to remain in the UK as a Tier 4 (General) Student Migrant under the Points-Based System of the Immigration Rules (PBS) and that application was refused by the Secretary of State on 24 March 2015 on the grounds that the Appellant did not have a valid Confirmation of Acceptance for Studies (“CAS”) when the Tier 4 sponsor register was checked on 24 March 2015 as his college, the London School of Advanced Studies, was not listed as a Tier 4 Sponsor as of that date. As the Appellant was not in possession of a valid CAS he did not meet the requirements for “Attributes” under the Immigration Rules and consequently, also, no points were awarded for “Maintenance”. His application was therefore refused under paragraph 245ZX (c) with reference to paragraph 116 (e) of Appendix A and paragraph 245ZX (d) of the Immigration Rules. The Appellant was informed in a letter of 24 April 2015 that he did not have a right of appeal.

2. The Appellant then sought to appeal the decision to the First-tier Tribunal under section 82 of the Nationality, Immigration and Asylum Act 2002 (NIAA). His solicitors contended in their grounds of appeal dated 4 April 2015 that he did in fact have a right of appeal because he had been unaware that his leave had been curtailed as the letter purporting to curtail his leave dated 15 March 2014 was never received by him. Therefore the decision was invalid and his leave continued until 31 May 2014. He had submitted an online application on 30 May 2014 and therefore the application was valid. The Tribunal then issued directions that there be a hearing with regard to the validity of the appeal. The hearing was listed at Hatton Cross on 18 May 2016.

3. The Appellant’s appeal was dealt with by First-tier Tribunal Judge Boyes on the papers. He dismissed the appeal. The Appellant then sought permission to appeal this decision to the Upper Tribunal and permission was granted by First-tier Tribunal Judge Grant-Hutchison on 1 February 2017. The basis on which permission was granted was that it was arguable that the Judge may have erred in law by failing to take into account the curtailment letter was never served by the Respondent or received by the Appellant with reference to the case of Syed (curtailment of leave – notice) [2013] UKAIT 00144 which could have made a material difference as to whether or not he could have submitted a CAS in time.

The Grounds for Permission to appeal to the Upper Tribunal

4. The grounds of appeal argue that the decision of the Respondent dated 24 March 2015 was not in accordance with the law. The reason given for this is that the Respondent contended in her decision dated 24 March 2015 that the Appellant was served with a curtailment letter on 15 March 2014 which was valid until 16 May 2014. The grounds argue that the decision of the Respondent was ineffective because the curtailment notice was never received.

5. Further, on 16 January 2015 the Respondent issued a “60 day letter” to the Appellant but gave a wrong end date for him to submit a fresh application. The date mentioned in the letter was 17 March 2014 instead of 17 March 2015. It is said that the Appellant requested the date be corrected and was surprised to see the refusal letter dated 24 March 2015. It is therefore said that the curtailment notice is ineffective and his leave continued until 31 May 2014 and he made an in time application on 30 May 2014 as the remaining documents were posted by 6 June 2014. It is also said that the Appellant’s Article 8 rights under the European Court of Human Rights “may also be considered”.

The Grant of Permission

6. Permission was granted on the basis of the curtailment argument but not on the basis of the argument under Article 8 in respect of which Judge Grant-Hutchison concluded that the grounds did not make sense and it was unclear how the Judge had erred in this regard as the Judge had considered Article 8 and made appropriate findings which were open to her to make.

The Rule 24 Response

7. The Respondent served a Rule 24 response in which she maintained that the grounds did not disclose a material error. The Respondent contended that Judge Grant-Hutchinson who granted permission may have not fully understood the determination because permission was granted on the basis that Judge Boyes had failed properly to apply the case of Syed and treat the Appellant’s application as in time and that this may have made a material difference with respect to the submission of the CAS, whereas in fact the Judge found at paragraph 18 in favour of the Appellant on this point and that the Appellant’s application was in time. Given this finding there was no adverse impact on the CAS issue.

8. The Judge subsequently proceeded to the remaining issue which was if the Secretary of State was correct to refuse the application for failure to provide a CAS after not acceding to the Appellant’s request to give him longer than 60 days allowed for in her policy. The Judge rightly found that the decision was correct entirely in accordance with the policy and this was not unfair under common law principles. The respondent requested an oral hearing.

The Hearing

9. The matter was listed for hearing before the Upper Tribunal to be determined whether there was a material error of law in the decision of the First-tier Tribunal and if so what to do about it. The Appellant wrote to the Tribunal on 9 March 2017 regarding the hearing asking for the matter to be dealt with on the papers. The jurisdiction of the Tribunal is to consider whether or not there is an error of law in the decision of the First-tier Tribunal and that is not a matter that can be dealt with in the absence of an oral hearing given the Respondent’s request to be heard.

10. At the hearing Mr Wilding relied on the Rule 24 notice and said in view of the fact that the Appellant was not represented and did not appear at the hearing it was important to stress that the requisite notice had not been sent out with the grant of permission to appeal limiting the grounds to the curtailment point only (Ferrer (limited appeal grounds; Alvi) [2012] UKUT 00304(IAC)). However, with regard to the Article 8 ground, it was not particularised and it was evident that the First-tier Tribunal Judge had considered Article 8 and come to a conclusion open to him on the facts. He also drew my attention to the letter of 16 January 2015 which had been sent to the Appellant informing him that he had 60 calendar days to submit a fresh application and that this letter was accompanied by a leaflet which would have been provided to the sponsor.

Discussion

11. I find that there is no material error of law in the decision of the First-tier Tribunal. The First-tier Tribunal was clearly aware of the Appellant’s contention in the grounds of appeal that he had not received the letter purporting to curtail his leave which is dated 15 March 2014. The First-tier Tribunal found that the Respondent had not provided a copy of the curtailment decision dated 15 March 2014 nor had she provided any details at all as to when and how it was claimed the curtailment decision was served upon the Appellant. The Tribunal concluded therefore that the Respondent had not demonstrated that a valid curtailment decision was made on that occasion and she had not demonstrated that there had been actual or deemed service of the decision in accordance with the Immigration Leave to Enter and Remain Order 2000 as amended by the 2013 Order. The First-tier Judge found, in terms, at paragraph 18 of the decision that the Appellant made an in time application for further leave to remain on 30 May 2014 and therefore had a right of appeal against the Respondent’s decision of 24 March 2015. Therefore, notwithstanding that the Appellant was refused a right of appeal by the Respondent in the letter of 24 March 2015, the First-tier Tribunal found that in view of the fact that the curtailment notice was not served the Appellant did have a valid appeal and therefore determined the appeal on that basis. The Appellant’s ground therefore in relation to the curtailment point is simply not made out and I conclude that the First-tier Tribunal in granting permission to appeal to the Upper Tribunal may have misunderstood the grounds of appeal.

12. The First-tier Tribunal therefore determined the appeal on the basis of the evidence before it and determined the appeal on the key issue of whether the Secretary of State was correct to refuse the application for failure to provide a CAS and he found that the decision was correct. I find no error in that decision and also no error in relation to the assessment of the Appellant’s Article 8 rights both within and outside the Immigration Rules. The grounds in this respect are not particularised in any event and the court conducted a balancing exercise and came to a conclusion that was open to it on the facts of the case. There was therefore no material error of law in the decision of the First-tier Tribunal which also took into account the Appellant’s argument that the 60 days letter was wrongly dated and concluded the Appellant was in no doubt what the deadline was for him to provide a new CAS or make a variation of his application because he had asked by letter for more time. It was open to the Tribunal to conclude that there was no fairness in this regard because of the typographical error because this could not have left him in any doubt what the real deadline was.

Notice of Decision

There was no error of law in the decision of the First-tier Tribunal and I do not set it aside.

I dismiss the appeal.

No anonymity direction is made.

Signed Date 28 March 2017

Deputy Upper Tribunal Judge L J Murray