Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17577/2015

THE IMMIGRATION ACTS

Heard at : Field House
Decision & Reasons Promulgated
On : 11 August 2016
On: 15 August 2016

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

abdul kadir
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr M Datta of Haque & Hausman Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Bangladesh, born on 31 December 1990. He has been given permission to appeal against the decision of First-tier Tribunal Judge E B Grant, dismissing his appeal against the respondent's decision to refuse his application for leave to remain in the UK as a Tier 4 (General) Student Migrant.

2. The appellant entered the United Kingdom on 5 January 2011 with leave to enter as a Tier 4 (General) Student Migrant until 20 April 2012. On 18 August 2012 he was granted further leave to remain as a Tier 4 (General) Student Migrant until 31 May 2014.

3. On 30 May 2014 the appellant applied for further leave to remain as a Tier 4 (General) Student Migrant and submitted with his application a Confirmation of Acceptance for Studies (CAS) for a Diploma in Strategic Management & Leadership at London College of Advanced Management.

4. In a letter dated 14 January 2015 the respondent informed the appellant that the sponsor licence for London College of Advanced Management had been revoked on 12 January 2015 and that his CAS was therefore no longer valid. He was given a period of 60 days in which to obtain a new CAS from another Tier 4 sponsor and submit a fresh application.

5. Following the appellant's request of 6 March 2015 for the return of his passport which had since expired, the respondent, in a letter dated 11 March 2015, advised him that his passport was still valid and sent him a certified copy of the passport together with a further 60 day extension until 14 April 2015 to submit a fresh application with a valid CAS.

6. The appellant's application was refused by the respondent on 29 April 2015, on the grounds that he had not produced a valid CAS, since London College of Advanced Management was no longer listed on the Tier 4 Sponsor register as a Tier 4 sponsor. He was awarded zero points for Attributes and Maintenance and therefore could not meet the requirements of paragraph 245ZX(c) with reference to Appendix 116(e) of Appendix A and paragraph 245ZX(d) of the Immigration Rules.

7. The appellant appealed against that decision. In his grounds of appeal, he asserted that the respondent's decision was unfair as he had not been able to sit the IELTS examination to obtain the required English language certificate without his original passport which the respondent had refused to send him.

8. The appellant's appeal against that decision was heard on 7 December 2015 in the First-tier Tribunal. Judge Grant found that it was not correct that the appellant required his original passport to sit the IELTS test, but found that he could have used his national identity card from Bangladesh. Since he had failed to submit a valid CAS he could not meet the requirements of the Immigration Rules. The judge dismissed the appeal on that basis and also on Article 8 human rights grounds.

9. The appellant then sought permission to appeal to the Upper Tribunal, on the grounds that the judge was wrong to find that he could have used his national identity card from Bangladesh as the IELTS form made it clear that candidates taking the test outside their own country had to present a current passport. The attested copy of his passport provided by the respondent was not accepted by the IELTS provider as the original passport was required. Further, his Bangladesh identity card had expired and he was not able to obtain a new one as he was not present and residing in Bangladesh. The respondent's decision was therefore unfair.

10. Permission to appeal was initially refused, but was subsequently granted on 27 June 2016.

11. In her Rule 24 response, the Secretary of State stated that the appellant did not need his passport to sit the English language test as he already had a City and Guilds certificate which was valid and he was therefore not required to take the IELTS test.

12. At the hearing before me Mr Datta submitted that City & Guilds did not appear in the respondent's policy or the list of acceptable awarding bodies set out in Appendix O or as part of the transitional arrangements for Appendix O and therefore the appellant needed to sit the IELTS test. He relied on the decisions in Forrester, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 2307 and 'Q' & Ors, R (on the application of) v Secretary of State for the Home Department [2003] EWCA Civ 364 in submitting that the respondent had displayed a lack of common sense by not returning the appellant's original passport to enable him to sit the IELTS test. The appellant could not sit the test without his original passport. He could not have used his Bangladesh identity card as he was taking the test outside his own country and in any event he could not have obtained a new Bangladesh identity card as he was not residing in Bangladesh.

13. Mr Tufan submitted that the City & Guilds qualification would have been sufficient for the purposes of finding a new sponsor and obtaining a new CAS, as the appellant did not fall within the transitional provisions for Appendix O. In any event, there was no unfairness on the part of the respondent. Mr Tufan relied on the case of EK (Ivory Coast) v The Secretary of State for the Home Department [2014] EWCA Civ 1517, as confirmed in Kaur v The Secretary of State for the Home Department [2015] EWCA Civ 13, in that regard, which he submitted had found that Naved (Student - fairness - notice of points) Pakistan [2012] UKUT 14, as relied upon by the appellant, was wrongly decided. There was in any event no evidence from the appellant to show that the certified copy of his passport, as provided by the Home Office, was not acceptable for the IELTS test. Mr Tufan suggested that the refusal by the Home Office to return the passport was in any event a matter for challenge by way of judicial review and not through a statutory appeal.

14. Mr Datta reiterated the points made previously, relying on the case of Patel (revocation of sponsor licence - fairness) India [2011] UKUT 211, and submitted that there was no reason why the Home Office could not have sent the original passport to the test centre if they did not want to send it to the appellant.

Consideration and Findings

15. Having had regard to the documentary evidence before me now, and indeed on the basis of the documentary evidence before Judge Grant, I would agree that the presentation by the appellant of his Bangladesh identity card would not have been sufficient to permit him to take the IELTS test. That appears to be made clear in the IELTS application form at page 23 of the appellant's appeal bundle, at point 10, and the first paragraph of the IELTS Notice to Candidates at page 25 of the bundle. To that extent, therefore, I find that Judge Grant erred in her findings at [4].

16. However whether or not that error is material is a matter for further consideration. Mr Tufan submitted that it was not, as there was in any event no unfairness on the part of the respondent in refusing the appellant's application on the basis that she did.

17. One reason given by Mr Tufan for concluding that there was no such unfairness was that the appellant could have used his City & Guilds English language certificates to obtain a new CAS and did not need to take the IELTS test and therefore did not need his passport. According to the respondent's Rule 24 response and to the extract from the City & Guilds website produced by Mr Tufan, any certificates issued by City & Guilds for International ESOL (IESOL) examinations held before 6 April 2015 could be used for UK visa applications until 5 November 2015. The appellant's City & Guilds certificate is for an IESOL test taken on 11 December 2013 and would therefore appear to fall within this category as being valid for use in obtaining a new CAS. Whilst Mr Datta submitted that the City & Guilds article referred only to visa applications and that City & Guilds were not listed as an acceptable awarding body in Appendix O or the transitional provisions applying to Appendix O, I note that he has supplied extracts from Appendix O relevant only to 30 June 2014 and thereafter. Mr Tufan submitted that those provisions did not apply to the appellant as he had made his application on 30 May 2014, prior to 1 July 2014, and I accept that that is correct. There is no evidence before me to show that the appellant could not have relied upon his City & Guilds certificates and, on the contrary, the evidence I have indicates that he could have done so.

18. Accordingly there was no need for the appellant to take the IELTS test in order to find a new sponsor and obtain a new CAS, and he did not need his original passport. It cannot therefore be argued that the appellant's failure to produce a valid CAS within the time limit provided to him could be said to be attributed to the respondent and to give rise to unfairness on the part of the respondent through the refusal to return to him his original passport.

19. In any event, even if the appellant could not have used his City & Guilds certificate to obtain a new CAS, there is no evidence to support the appellant's claim that a certified copy of his passport bearing a certification from UK Visas and Immigration would not have been acceptable proof of identity to enable him to take the IELTS test. It is particularly relevant to note from the letter from the appellant's solicitors dated 6 March 2015 requesting the return of the appellant's passport that the request was initially made on the basis that the passport had expired and that the certified copy of the expired passport was not acceptable to any sponsor. The certified copy of the appellant's passport at pages 16 to 18 of the appellant's bundle shows that the date of expiry of the passport was originally 13 October 2014, but that it was extended for a year to expire on 13 October 2015 (page 17). It is clear from the letter of 11 March 2015 from UKVI that a certified copy of the passport including the renewal page was then sent to the appellant, suggesting that the problem for the appellant in finding a sponsor was not so much that he did not have the original document, but that the copy with which he had initially been provided had not included the renewal page and thus suggested that the document had expired. Whilst the appellant's solicitors then made a further request, on 14 April 2015, for the original document, there is no evidence to show that the document sent to him by UKVI on 11 March 2015 was not acceptable by any college or test centre. I find it highly unlikely that a document certified by the Home Office itself as a true copy of the original would be rejected.

20. However even putting those matters aside, I do not consider that the respondent's decision refusing the appellant's application can be considered to be unlawful and unfair. The appellant was given not one but two extensions of 60 days to enable him to find a new sponsor. The respondent clearly acted in accordance with her own policy and guidance and in accordance with the established case law on fairness, in providing the appellant with a considerable amount of time to find a new sponsor. If it was indeed the case that a test provider refused to allow the appellant to take the IELTS test without his original passport, then it was open to the appellant to challenge the decision of the test-provider or sponsor on grounds of unfairness. I agree with Mr Tufan that the principles in EK (Ivory Coast) apply, albeit that the circumstances are not identical, and that there was no breach by the Secretary of State of her public duty to act fairly.

21. In the circumstances there was no unfairness on the part of the respondent in refusing the appellant's application on the basis that she did. The appellant could not meet the requirements of the Immigration Rules as he had not presented a valid CAS. Judge Grant was entitled to find that that was the case and to dismiss the appeal under the Immigration Rules, as well as on human rights grounds. Any error that was made in finding that the appellant could have used his Bangladesh national identity card to sit the IELTS test was immaterial.

DECISION

22. The making of the decision of the First-tier Tribunal did not involve an error on a point of law requiring it to be set aside. I do not set aside the decision. The decision to dismiss the appeal stands.

Signed

Upper Tribunal Judge Kebede Dated: 15/08/2016