Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16126/2015

THE IMMIGRATION ACTS

Heard at Manchester, Piccadilly
Decision & Reasons Promulgated
On 1st September 2016
On 2nd September 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR MUHAMMAD JAVED AKRAM
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr C Bates (Senior Home Office Presenting Officer)
For the Respondent: Mr S Kumar (Capitol Solicitors)

DECISION AND REASONS
1. This is an application to the Upper Tribunal by the Secretary of State, with permission, against a judgment of the First-tier Tribunal (Judge Nicholson) promulgated on 12th November 2015 in which he allowed Mr Akram's appeal against the Secretary of State's decision to refuse him leave to remain as a Tier 4 (General) Student Migrant and to remove him to Pakistan. For the purposes of continuity and clarity I will continue to refer, in this judgment, to the Secretary of State as the Respondent and to Mr Akram as the Appellant.
2. The background to this case is that the Appellant arrived in the United Kingdom in July 2011 with leave, valid until 9th September 2012 as a Tier 4 student to study a course at the Manchester College of Accountancy and Management.
3. That college's sponsorship licence was cancelled and so the Appellant approached the London College of IT and Management Studies with a view to studying there instead. Having explained the position to that college, he was accepted to do a Diploma in Business Finance, which he completed in August 2012.
4. On 8th September 2012 the Appellant applied for further leave to remain and he produced a CAS from the London College of IT and Management Services intending to continue his education there. However, that college's sponsorship licence was cancelled while the Appellant's application was pending. Accordingly, his CAS was cancelled on 24th November 2012. By a letter of 29th November 2012 the Respondent gave the Appellant a further 60 days to find another college. On 31st January 2013 the Respondent refused the Appellant's application on the grounds that he had not provided a further CAS. In fact, the Appellant had done so on 28th January 2013. He had submitted a CAS for a course at the Birmingham Institute of Education and Training and Technology issued to him on 22nd January 2013.
5. His appeal against the refusal was successful on the basis that the matter was remitted to the Secretary of State to make a further decision.
6. The Secretary of State's further decision was not taken until 15th March 2015. However, on that occasion the application was refused under paragraph 322(3) of the Immigration Rules on the basis that the Appellant had studied at college without a CAS, namely at the London College of IT and Management Studies, prior to submitting his application on 8th September 2012 and he had therefore failed to comply with the conditions attached to his grant of leave.
7. That was the decision that came before Judge Nicholson in the First-tier Tribunal. Judge Nicholson heard evidence and found that the Secretary of State should have exercised her discretion differently and he allowed the appeal.
8. The grounds upon which permission to appeal to the Upper Tribunal was granted are that there is no dispute that the Appellant had failed to comply with the conditions attached to the grant of leave and in allowing the appeal "because the Appellant acted in ignorance in studying without a CAS and not through dishonesty or any intent to circumvent the Rules" the judge misdirected himself in the law. The Secretary of State referred to the case of Cave v Robinson, Jarvis and Rolf [2002] UKHL 18 which makes clear that ignorance of the law is no defence.
9. I would say first of all that the First-tier Tribunal Judge was clearly well aware of that principle because he actually referred to it at paragraph 28 (iii) of his Decision and Reasons.
10. The Judge was considering whether or not the Secretary of State, in exercising her discretion, should have exercised it differently. In so doing he took account of all the circumstances of the case. He noted the Appellant's argument that he met the substantive requirements of the Immigration Rules for the grant of further leave to remain as a Tier 4 (General) Student Migrant; he had always been in the United Kingdom legally; it was not his fault that the Manchester College of Accountancy and Management lost its licence; he acted in good faith in studying at college without a CAS; there is support to be had for his actions in the Respondent's own policy and he had alleged that he had a legitimate expectation or at least some expectation that the Respondent would not raise this issue in March 2015 when it had not been raised in 2012 when the Secretary of State invited him to submit a further CAS.
11. The Judge's consideration is contained in paragraph 28 of the Decision and Reasons where he considered that the Appellant had a number of good points in his argument. The Judge noted that there was no dispute that the Appellant had always been in the UK with leave. He noted that there was no dispute that the Appellant had switched colleges after the Manchester College of Accountancy and Management lost its licence which meant that the Appellant was obliged to find another college. He noted that this was not a case of somebody who thought that he would simply try a different course or move to another part of the country and another college for his convenience.
12. The Judge noted that there had been no evidence put before him by the Secretary of State to show that the Appellant was actually notified at the time of his grant of entry clearance that he could not switch without a CAS, albeit ignorance of the Rules and the law was no defence to the matter.
13. The Judge found that no legitimate expectation arose from the fact that the Respondent failed to raise the issue in 2012.
14. The Judge noted that it would have been quite apparent from the documents submitted when the Appellant first applied that he had been studying at the London College of IT Management Studies until 2012 without a CAS. The Respondent's Policy Guidance was less than clear.
15. The Judge then found, taking all the matters into account, that because the Appellant had simply acted in ignorance rather than ill will or any intent to circumvent the Rules, that this was an appropriate case were discretion ought to have been exercised in his favour.
16. I cannot discern any error of law in the Judge's decision. He was considering the exercise of discretion, took all relevant factors into account, did not misdirect himself in law and reached a reasoned conclusion which he was entitled to reach upon the evidence.
17. The reality is that the Secretary of State's grounds amount to a disagreement with the Judge's conclusions and do not identify an error of law, material or otherwise.

Notice of Decision
The appeal is dismissed.
No anonymity direction having been requested none is made.
The First-tier Tribunal having declined to make a fee award, I also decline for the same reasons.

Signed Date 2nd September 2016

Upper Tribunal Judge Martin