Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17057/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 December 2016
On 7 December 2016

Before

UPPER TRIBUNAL JUDGE PITT

Between

Md Shahin Khondoker
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

Secretary of State FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A O'Dair, Counsel instructed by Visa Inn
For the Respondent: Ms A Fijiwala, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against the decision promulgated on 8 April 2016 of First-tier Tribunal Judge McWilliams which refused the appeal against refusal of leave as a Tier 4 student.
2. The appellant here applied in time to extend his Tier 4 leave on 26 July 2013. On 20 January 2015 the respondent informed the appellant that the college that issued his CAS was no longer listed as a Tier 4 sponsor. He was informed that he had 60 days to find a new sponsor and obtain a new CAS. The application was refused on 16 April 2015 as the appellant had not provided a new CAS.
3. First-tier Tribunal Judge McWilliams found against the appellant for the reasons given at [14] of the determination. The appellant had contacted the respondent to ask for his passport back in order to sit for an English language test in order to obtain a new CAS from a new sponsor. A certified copy was provided and a test booked but only after 18 April 2016 and outside the 60 days allowed. In the event, the appellant was not allowed to sit the test as he did not have his original passport, but that was outside the 60 days.
4. Permission to appeal was granted by Upper Tribunal Judge Kekic on 4 November 2016 on the ground that the appellant had shown that he had been prevented from finding a new sponsor and CAS because of the respondent's failure to return his original passport as requested.
5. Notwithstanding the defence put forward by the respondent in the Rule 24 reply dated 18 November 2016, at the hearing before me the parties were in agreement that the appellant had been prevented from sitting an appropriate English language test as only a copy of his passport was returned and that this had, in turn, prevented him from obtaining a new sponsor and CAS within the 60 days allowed. The parties indicated agreement to the error of law appeal being made out, the decision of the First-tier Tribunal being set aside and the decision re-made.
6. The parties also indicated that in that re-making the Upper Tribunal retained a not in accordance with the law jurisdiction. This arose from Article 9(1)(a) of the Immigration Act 2014 (Commencement No.3, Transitional and Saving Provisions) Order 2014/2771. This provides that the changes to the appeal regime brought in by the Immigration Act 2014 did not apply to:
"a decision made on or after 6th April 2015 to reuse an application to vary leave to enter or remain made before 20th October 2014 where the person was seeking leave to remain as a Tier 4 Migrant or as the family member of a Tier 4 Migrant and where the result of that decision is that the applicant has no leave to enter or remain."
7. The parties were in agreement that under that jurisdiction the respondent's decision had not been in accordance with the law as by her failure to return the original passport, the appellant had not been able to use the 60 days afforded to him to obtain a new sponsor and new CAS. Ms Fijiwala and Mr O'Dair agreed that the appeal should therefore be allowed as not in accordance with the law.
8. There was some discussion as to where that left the appellant. Ms Fijiwala conceded he was in difficulty as, where the obvious course was for the respondent to allow him a further 60 days with the benefit of his original passport in order to obtain new sponsor and CAS, that would not be sufficient as his passport has now expired and he would need to obtain a new one if the new period of 60 days was to be of any real benefit to him. Ms Fijiwala indicated that this would appear be appropriate matter for the case worker considering the re-making of the respondent's decision to liaise on with the appellant's legal representatives.

Notice of Decision

The decision of the First-tier Tribunal discloses an error on a point of law and is set aside.

The appeal is allowed as not in accordance with the law.

Signed Date: 5 December 2016
Upper Tribunal Judge Pitt