Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15046/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 October 2016
On 12 October 2016
Extempore

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

MD SABUJ UDDIN
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: no appearance
For the Respondent: Miss I Fijiwala, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Swinnerton promulgated on 16 March 2016. The appellant requested that that appeal be dealt with on the basis of the papers before the Tribunal and did not appear. There is no indication from the file that any papers other than those submitted with the notice of appeal were provided other than a very short bundle received on 11 December 2015 providing a skeleton argument.
2. The appellant did not attend before the Upper Tribunal at 10 a.m., the time fixed for the hearing. I am satisfied from enquiries made by the by the court staff who spoke to the applicant's solicitors that he was aware of the decision and indeed a copy of the notice of decision was sent to the address provided by the appellant which appears on the court records.
3. Whilst the appellant's solicitors did indicate that the appellant was aware of the hearing and he was on his way here, they also indicated that they were without instructions. In all the circumstances I am satisfied that there is no reason not to proceed in the absence of the appellant.
4. In summary, the appellant's case is that the appellant was refused further leave to remain in the United Kingdom as a Tier 4 (General) Student on 13 March 2015 in that he was not awarded 30 point for his Confirmation of Acceptance for Studies, commonly referred to as a CAS, as the CAS had been withdrawn. He submits that he should have been entitled in the circumstances to a letter giving him 60 days in which to find another sponsor.
5. It is somewhat unclear on what basis the CAS was withdrawn. It is not disputed that there was no valid CAS at the date of decision which is a mandatory requirement of the Immigration Rules. The letter of refusal of 13 March states that the CAS reference ending in OMOMO had been withdrawn by the sponsor. If that is so, then it cannot be argued that the Secretary of State erred in not issuing a 60-day letter given that that policy applies only where, for example, the sponsor's licence has been withdrawn.
6. The judge found that:
(i) The appellant did not dispute that the CAS had been withdrawn;
(ii) having had regard to the documents, that the appellant did not meet the requirements of the Immigration Rules;
(iii) the removal of the appellant would not be in breach of Article 8 of the Human Rights Convention.
7. The grounds of appeal as drafted submit:
(i) the judge failed properly to consider the provisions of the Immigration Rules;
(ii) failed to consider the issue of the CAS being withdrawn and where there was a duty to give the appellant 60 days in which to submit a new CAS.
8. Permission to appeal was granted by First-tier Tribunal Judge Shimmin who observed that the judge appeared not to have considered the issue of the 60 day letter which could constitute an error of law.
9. The Secretary of State in responding to that by way of submissions pursuant to Rule 24 provided a letter dated 14 December 2014. That letter, addressed to the appellant t the address in Milton Keynes he has maintained throughout, gives him 60 days in which to find a new sponsor given that his sponsor had had its licence revoked.
10. There is no merit in the submission that the judge erred in his application of the Immigration Rules. Whilst the consideration of the Rules is succinct, the appellant simply cannot disregard the clear requirement of the Immigration Rules that he was required to have a valid CAS as a mandatory requirement of the Immigration Rules. He clearly did not and on that basis alone his appeal under the Immigration Rules could not succeed.
11. Turning to the issue of Article 8, this is not challenged and I see no basis on which the judge's conclusion on that issue could be overturned.
12. It is however correct to say that the judge did not deal with the issue of the CAS and its withdrawal and did not consider whether the appellant would in fairness and in conformity with relevant policy have been issued with a 60 day letter. Whilst it now appears to be the case that this did occur, the judge did not deal with that and there does not appear to have been a copy of that letter before him.
13. Accordingly, I accept that the judge did err in failing to deal with this issue which was expressly referred to in the skeleton argument put to him by the appellant and this amounts to an error of law. It therefore follows that that part of the decision must be remade.
14. It is clear on the basis of the evidence before me that the Secretary of State did indeed serve the appellant with a 60-day letter on 14 December 2014. There is also no indication that the appellant obtained a CAS subsequent to that letter or subsequently and accordingly it cannot be argued that the Secretary of State's decision was not in accordance with the law, as she manifestly followed the relevant policy and no other basis
15. For these reasons, I remake the appeal by dismissing it on all grounds.
SUMMARY OF CONCLUSIONS
1. The decision of the First-tier Tribunal involved the making of an error of law and I set is aside.
2. I remake the decision by dismissing the appeal on all grounds.

Signed Date: 11 October 2016

Upper Tribunal Judge Rintoul