Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/14826/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2nd August 2016
On 16th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE R C CAMPBELL

Between

THE Secretary of State FOR THE Home Department
Appellant
and

Mr Sheraz Ahmed Saleem
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Ms Ahmad (Senior Home Office Presenting Officer)
For the Respondent: Mr M Ilahi (Solicitor)

DECISION AND REASONS

1. It is convenient to refer to the parties as they were before the First-tier Tribunal and so Mr Saleem is the appellant and the Secretary of State the respondent. The appellant is a citizen of Pakistan. His appeal against a decision to refuse to vary his leave and to remove him from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 was allowed by First-tier Tribunal Judge Graham ("the judge") in a decision promulgated on 25th January 2016.

2. The Secretary of State's notice of decision, dated 1st April 2015, identified the reason for the adverse decisions as the absence of any Confirmation of Acceptance for Studies ("CAS") assigned to the appellant. In the absence of a CAS, the appellant failed to meet the requirements of paragraph 245ZX(c) of the rules. The Secretary of State went on to find that she was unable to assess the level of funds the appellant was required to show and so he could also not meet paragraph 245ZX(d).

3. The reason given by the judge for allowing the appeal related to revocation of the appellant's educational sponsor's licence, on 20th December 2013. Having taken into account the appellant's witness statement, in which he asserted that he was not told by his college or the Secretary of State about any change in his CAS status and did not receive a "60 day letter", the judge concluded that the Secretary of State had not acted in accordance with her own guidance, published in the light of Patel (revocation of sponsor licence - fairness) India [2011] UKUT 00211 (IAC). The judge described this as a procedural defect which rendered the decisions under appeal unlawful. The appeal was allowed "to the limited extent that the matter is referred back to the Home Office for a lawful decision" (paragraph 11 of the decision).

4. In the Secretary of State's application for permission to appeal, it was contended that the basis of the adverse decisions was withdrawal of the appellant's CAS by his sponsor and not any suspension or revocation of the sponsor's licence. Permission to appeal was granted on precisely this basis, the judge granting permission suggesting that the evidence may have been misunderstood.

Submissions on Error of Law

5. Ms Ahmad said that the judge may have failed to appreciate that following revocation of his sponsor's licence in 2013, the appellant made another application for leave, at a time when his course provider had a fully active licence. As a matter of fact, the appellant was given a period of at least 60 days in which to make a further application, following revocation of his sponsor's licence. This he did in May 2014 and it was refusal of his application on 1st April 2015 that gave rise to the present appeal. As the appellant's sponsor had withdrawn the CAS from him, his application was bound to fail.

6. Mr Ilahi accepted that the evidence before the judge, contained in the respondent's bundle, did indeed show that the CAS was withdrawn by the appellant's sponsor and that the earlier revocation of the sponsor's licence did not relate directly to the application made by the appellant in May 2014 or to refusal of that application in April 2015. He accepted that the judge had erred in law in allowing the appeal for the reasons given in the decision.

7. Nonetheless, the appellant was entitled to further time to arrange another CAS and if the decision were set aside, and if he were given further time, he would make another application for leave to remain as a student. As things currently stood, no college or course provider would issue another CAS but if the decision were set aside and the matter returned to the Home Office, the appellant would rely on relevant guidance published by the Secretary of State.

8. There then followed a short discussion on the appropriate next step, in light of the agreement between the two representatives that the decision contained an error of law. Having looked at the respondent's bundle, it is clear that revocation of the sponsor's licence occurred in December 2013, several months before the appellant made a further application for student leave. At the time he did so, in May 2014, his course provider had a fully active licence. His CAS was then withdrawn by the Bedfordian Business School and that inevitably led to failure in his application and the decisions to refuse to vary leave and to remove him.

9. The judge based her decision on a factor which did not relate to the decisions giving rise to the appeal and so there was no engagement with the Secretary of State's case. The decision of the First-tier Tribunal, containing a material error of law, is set aside and must be remade.

Remaking the Decision

10. Ms Ahmad handed up a copy of the decision of the Court of Appeal in EK (Ivory Coast) [2014] EWCA Civ 1517. She said that the Upper Tribunal could proceed to remake the decision. It was clear from EK (Ivory Coast) that the Secretary of State was not under any duty to provide another opportunity to the appellant to obtain a CAS. As he failed to meet the requirements of the rules because he had no CAS, his appeal should be dismissed.

11. Mr Ilahi replied that EK (Ivory Coast) related only to common law fairness. The appellant was able to rely on published guidance on the points-based system, relevant in his case. Mr Ilahi handed up a copy of the Tier 4 guidance, the version published in July 2016. He said that reliance was placed on two parts of this guidance. First, at paragraph 37, the guidance showed that a CAS might be withdrawn or cancelled at any time by a person's sponsor or by the Home Office. Where a CAS was withdrawn or cancelled, the same procedures applied as where a CAS became invalid and these were explained in detail in Annex 1 of the guidance. Turning then to Annex 1, page 78 of the guidance, Mr Ilahi drew attention to the penultimate paragraph on that page. The appellant relied on this paragraph, which read as follows:

"If you have applied for leave to remain and the only ground for refusing your application is that your CAS has become invalid following the revocation of your Tier 4 sponsor's licence, where your revoked sponsor is an HEI, overseas HEI, embedded college offering pathway courses or an independent school, you will be given 60 days to regularise your stay or leave the UK."

12. Mr Ilahi said that there was no information or evidence showing whether, as at the date of decision, the appellant's Tier 4 sponsor's licence had been revoked, although the sponsor clearly had an active licence when he applied for leave in May 2014.

Conclusions

13. I am grateful to the representatives for the succinct way in which they put their cases. As noted above, the decision of the First-tier Tribunal must be remade as the Secretary of State's case was not engaged with. A decision letter dated 1st April 2015 identifies withdrawal of the CAS by the appellant's sponsor as the reason why the application for further leave failed. The evidence before the First-tier Tribunal, and before me, explains the decision very clearly. The document setting out details of the appellant's student circumstances and those of his sponsor shows beyond doubt that when he made his application for leave, his course provider had a fully active licence. The CAS status is clearly described as "withdrawn", as at 10th July 2014, following assignment of that CAS some months earlier on 10th February that year. At the head of page 17 of the document, in bold type, there are the words "The CAS has been marked as withdrawn."

14. With great respect to Mr Ilahi, the parts of the Secretary of State's Tier 4 guidance the appellant relies upon do not show that he is entitled to any further period in which to seek another CAS. If a CAS is withdrawn, the same procedures apply as where a CAS becomes invalid. As Appendix 1 to the guidance makes clear, a further 60 days to regularise a person's stay will be given where "the only ground for refusing your application is that your CAS has become invalid following the revocation of your Tier 4 sponsor's licence". Appendix 1 contains nothing suggesting that 60 days to regularise a person's position will be given where a CAS is withdrawn by his sponsor.

15. As the appellant failed to meet the requirements of the rules, precisely because his CAS was withdrawn by his sponsor, his application for leave was bound to fail. There is nothing in the rules or the Tier 4 policy guidance showing that he is entitled to any further period of time in which to seek another CAS. The appellant's case was put on the narrow basis that he could benefit from the Tier 4 policy guidance in his particular circumstances (and was not put on any other basis) but that case has not been made out. It follows that the appeal must be dismissed.

NOTICE OF DECISION

The decision of the First-tier Tribunal having been set aside, it is remade as follows: appeal dismissed.

Signed Date

Deputy Upper Tribunal Judge R C Campbell

ANONYMITY

There has been no application for anonymity at any stage in these proceedings and I make no direction on this occasion.

Signed Date

Deputy Upper Tribunal Judge R C Campbell

TO THE RESPONDENT
FEE AWARD

As the appeal has been dismissed, I make no fee award.

Signed Date 16/08/2016

Deputy Upper Tribunal Judge R C Campbell