Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15971/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 October 2016
On 31 October 2016

Before

UPPER TRIBUNAL JUDGE KING TD

Between

Secretary of State for the Home Department
Appellant
and

ATIQUR RAHMAN
(anonymity direction NOT MADE)

Respondent/Claimant

Representation:

For the Appellant: Mr E Tufan, Home Office Presenting Officer
For the Respondent: Mr M A Chowdhury, Solicitor instructed by KC Solicitors

DECISION AND REASONS

1. The claimant is a citizen of Bangladesh, who seeks to appeal against the decision of the Secretary of State dated 7 April 2015, refusing his application for leave to remain in the United Kingdom outside the Immigration Rules under Article 8 of the ECHR.

2. The claimant first arrived in the United Kingdom in October 2009 with leave to enter as a Tier 4 (General) Student until 27 August 2013. That leave was extended to 30 January 2015.

3. The college at which the claimant was studying, London Regal College, had its licence revoked on 11 September 2014. The claimant did not approach another college at that time because he was awaiting the 60 day letter from the respondent. That letter was in fact unnecessary because the claimant had extant leave up until 30 January 2015, and had effectively four and a half months in which to find alternative sponsorship. In the event the claimant was unable to obtain a new CAS to support his further application to remain as a student. There is no indication that he had alerted the Secretary of State to any difficulties in obtaining such a college, rather he sought to vary his application to be one in respect of private and family life.

4. The reasons for that particular claim were set out in the letter from his solicitors dated 18 February 2015. There was a request that the claimant be granted further leave to remain in order to obtain a new CAS and continue his study. He stressed that he has paid a lot of money for his education and would be bitterly disappointed if he were unable to complete it. His family in Bangladesh would be disappointed at him for his failure to make progress. His contacts in the United Kingdom and particularly his friendships are also highlighted.

5. The Secretary of State, in refusing that application, did not consider that his circumstances were so compelling as to be entitled to leave outside the Immigration Rules.

6. The First-tier Tribunal Judge upheld a subsequent appeal against that decision and decided that the claimant should be granted 60 days in order to find another college. He purported to follow the decision in CDS (Brazil) [2010].

7. The Secretary of State has sought to appeal against that decision on the basis that an incorrect approach has been adopted by the judge. There is no consideration of the Immigration Rules or 276AD, nor any identification as to what were compelling circumstances, such would warrant consideration outside of the Rules. No account has been taken as to the public interest except that the Judge fundamentally misunderstood the operation of the grant of a sixty day period of leave. Such was important in cases where leave would expire.

8. I find that those concerns have merit. The issue of further studies and Article 8 was considered by the Supreme Court in Patel & Others [2013] UKSC 72, the rationale in CDS was not approved. Indeed at paragraph 57 of the judgment it was made clear that Article 8 is concerned with private or family life, not with education as such. The opportunity for a promising student to complete his course in the United Kingdom, however desirable in general terms, is not in itself a right protected under Article 8.

9. In these circumstances therefore I find that the approach of the First-tier Tribunal Judge was one made in error of law and accordingly I uphold the appeal of the Secretary of State to the extent that the decision is to be set aside and re-made.

10. I invited Mr Chowdhury to indicate whether any further evidence other than that already within the trial bundle was to be presented in support of the appeal. I was informed that there was none. I have regard to the Senior President's Practice Direction to determine what is the appropriate forum in which the re-hearing should be conducted. I see no reason at all why the matter should be remitted to the First-tier Tribunal, given the absence of any requirement of further evidence or argument. In those circumstances the matter shall be retained in the Upper Tribunal and before myself. This is an application made outside of the Immigration Rules, specifically for the narrow purpose of extending time in order to assist the claimant in finding another educational sponsor. The broader context of the application is one of private life having been established in the United Kingdom.

11. In that connection I have had particular regard to what is set out on behalf of the claimant in the letter of 18 February 2015, which is in essence the nature of the application that was made.

12. In terms of an extension of time to obtain a CAS it is abundantly clear that the claimant had four and a half months from the withdrawal of the sponsor licence to find somewhere else. There is no indication that he was proactive in that process nor indeed has he communicated his difficulties to the Secretary of State prior to the decision being made. The letter from the solicitors is somewhat unclear as to why the claimant was unable to obtain a new CAS, speaking of some of the colleges going through some internal problems with the UK visa authorities. It is said that the claimant did not have his original passport or biometric residence permit as they had been submitted to the Home Office and that no university would give a CAS without those documents. No doubt had a suitable college been located a request could have been made for the return of those documents or at least a certified true copy of the same. I can detect very little evidence that the claimant did very much to find another sponsor. I do not find there to be any unfairness in the process as outlined by him. Largely the claimant seeks to rely upon the case of CDS which now must be read in the light of Patel & Others.

13. Apart from the money expended on his education the claimant speaks in general terms through his solicitors of friendships in the United Kingdom. Looking through the lens of the current legislation and judicial decisions on the matter, there is little of a compelling or compassionate nature which arises such as to justify departing from the relative Immigration Rules. It is not in issue that the claimant cannot meet those Rules.

14. In the course of the submissions it was suggested that he would be in danger from his family and from others were he to return to Bangladesh empty-handed. If there is any substance to that claim, it is one that can be made in person to the Secretary of State in a claim for protection.

15. Looking at the matter overall I find nothing in the circumstances which have been advanced on behalf of the claimant for the application to support the appeal against the decision to refuse. The claimant can return to Bangladesh and make the appropriate application should he so desire.

16. In all the circumstances therefore the decision of the Secretary of State was lawfully open to be made and accordingly the claimant's appeal is dismissed.

Notice of Decision

The appeal of the appellant is dismissed upon human rights grounds and under the Immigration Rules.

No anonymity direction is made.

Signed Date 31 October 2016

Upper Tribunal Judge King TD