Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17104/2015

THE IMMIGRATION ACTS

Heard at Birmingham City Centre Tower
Decision & Reasons Promulgated
On 19 October 2016
On 29 November 2016

Before

UPPER TRIBUNAL JUDGE PITT

Between

Secretary of State FOR THE HOME DEPARTMENT
Appellant
and

MR SATWINDER SINGH
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr D Mills, Senior Home Office Presenting Officer
For the Respondent: Ms S Haji, Counsel instructed by S Z Solicitors

DECISION AND REASONS
1. This is an appeal by the Secretary of State for the Home Department against the decision promulgated on 14 January 2016 of First-tier Tribunal Hollingworth which allowed the appeal against refusal of leave as a Tier 4 student.
2. For the purposes of this decision, I refer to the Secretary of State as the respondent and to Mr Singh as the appellant, reflecting their positions before the First-tier Tribunal.
3. The appellant had leave as a student until 6 January 2014. He applied on 4 January 2014 for further leave as a student. The respondent refused the application in a decision dated 15 April 2015. It was found that his CAS submitted with his application on 4 January 2014 had been withdrawn on 22 January 2014. The appellant therefore could not meet the Immigration Rules.
4. The appellant maintains that he was never informed that the CAS had been withdrawn until the decision of 15 April 2015. His understanding was that very soon after he obtained the CAS the respondent began action either to suspend or remove the college from the register. He was informed by the college that something was going on and he should wait. He received a letter from the respondent dated 5 March 2014 telling him that there were exceptionally complex issues in his case so that a decision would take longer than usual. Other students had received notice of curtailment of their leave and were afforded 60 days leave to obtain a new CAS but not the appellant; see [7] and [8]. He considered that material unfairness arose where he was not told of the withdrawal of his CAS and was not afforded 60 days to obtain another one.
5. Judge Hollingworth found for the appellant regarding that unfairness; see [26]. He appeared to take the view that the respondent had acted unfairly in not informing the appellant about the withdrawal of the CAS, something the respondent must have known about by 5 March 2014 in his view, given the contents of her letter of that date. Judge Hollingworth also found unfairness arose from the respondent in not allowing the appellant time to obtain a new CAS and in failing to make a decision until April 2015. He allowed the appeal on the basis of unfairness and, at [26], under Article 8, notwithstanding the precariousness of the appellant's leave at all times.
6. The respondent challenged the decision of the First-tier Tribunal on the basis that the judge was wrong to find on the facts for the appellant as regards the CAS being withdrawn because of Home Office intervention at the college. The college had withdrawn the CAS on 22 January 2014, not the respondent and the respondent was not in error in placing weight in the refusal on the withdrawn CAS; EK (Ivory Coast) v SSHD [2014] EWCA Civ 1517 applied. In any event, the First-tier Tribunal did not have statutory power to allow an appeal on the grounds of fairness. The judge also erred in the decision under Article 8 because of the factual error set out above and because the Supreme Court had indicated in see Patel and others v SSHD [2013] UKSC 72 that Article 8 was not intended to allow for leave to be granted in circumstances such as these, the private life of a student not being capable of engaging the ECHR.
7. There was no dispute between the parties that in so far as Judge Hollingworth allowed the appeal as not being in accordance with the law this was no longer a disposal open to the Tribunal under its statutory powers.
8. It is also my judgement that an error arose in allowing the appeal on Article 8 private life grounds. The appellant could not meet the Immigration Rules without a valid CAS and his precarious leave for a very limited period was not something that amounted to a private life that could engage Article 8.
9. The decision must therefore be set aside to be re-made. I heard submissions at the end of which the parties agreed that in order to re-make the appeal I should be provided after the hearing with information from the respondent as to the dates in 2014 that she engaged with Metro College of Management Sciences and took them off the register. This was relevant as the appellant's claim before me was that the withdrawal of his CAS on 22 January 2014 was because of the respondent's actions in seeking to take the college off the register, thus triggering his right to a curtailment decision and 60 days' notice to obtain a new CAS. The material was not forthcoming as directed at the hearing and nor was it provided in a response to a direction dated 9 November 2016. The direction indicated that if the respondent did not provide the material the Tribunal would deem that it was the action of the respondent which led to the applicant's CAS being withdrawn.
10. I find the facts before me to be as follows. The applicant applied in time on 4 January 2014 for further leave as a Tier 4 student. He provided a valid application including a CAS. His CAS was withdrawn because of the respondent's intervention at the college but the appellant was not notified of this clearly by his college or the respondent. He was told almost immediately by the college when he attended for classes that "he did not have a visa" and that there were "issues" with the respondent. He understood this to mean that there were difficulties with the college's status on the register and he was bolstered in that belief by the respondent's letter of 5 April 2014. He was at no time told by the college that his CAS had been withdrawn. He did not receive any further information from the respondent until his application was refused. He has never had his leave curtailed and was not afforded 60 days to find another CAS when his CAS was withdrawn in January 2014.
11. It remains the case that there was no valid CAS when the respondent refused the application on 15 April 2015. I cannot allow an appeal under the Immigration Rules as they were not met. From the facts as I have found them the appellant here was entitled to 60 days to obtain a new CAS but was not given that opportunity. I do not have jurisdiction, however, to find that the detriment arising from that should lead to the appeal being allowed. As above, Article 8 is not engaged here.
12. I accept that it is an unsatisfactory position for the appellant here but my conclusion is that the appeal under the Immigration Rules and under Article 8 must both be refused. The only positive outcome I can provide for him is the finding that the respondent acted unfairly in failing to follow her policy in affording him 60 days to obtain a new CAS. He can expect the respondent to take that into account if he makes another application for leave.
Notice of Decision
The decision of the First-tier Tribunal discloses an error on a point of law.
The appeal is re-made as refused on all grounds.

Signed Date: 24 November 2014
Upper Tribunal Judge Pitt