Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/19442/2015
IA/19449/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On March 30, 2017
On April 10, 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MR PRABUDDHA LUCKSHAN ATHAUDA
MRS CHATHURANI DINUSHA KARUNARATHNA RALAHAMILLAGE
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Bellara, Counsel instructed by Louis Kennedy Solicitors
For the Respondent: Mr Duffy, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellants are Sri Lankan nationals. The first named appellant came to the United Kingdom in order to study on September 15, 2007. The second named appellant joined him as his dependant. On July 17, 2012 the first named appellant secured a Bachelor of Engineering and extended his stay to study at Level 6 Advanced Diploma in Business Management at Cromwell College of IT and Management. On June 7, 2014 the appellant applied to vary his leave to study Level 7 Diploma in Strategic Management and Leadership at Essex College. No CAS had been issued by that college. On June 24, 2014 a CAS was assigned by Newcastle Academy of Business and Technology to enable the appellant to study Level 7 Diploma in Tourism and Hospitality Management. He was called to an interview on September 19, 2014 and on December 16, 2014 he was informed that the respondent has suspended the licence of the Appellant’s college but was also suspending consideration of the application for 60 days to enable the appellant to find a new Tier 4 sponsor. On March 31, 2015 the appellant was given a further 30 days to enable him to obtain a Tier 4 sponsor. On May 7, 2015 the respondent refused the applications.
2. The appellants appealed under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 and the case was listed before Judge of the First-tier Tribunal Froom (hereinafter referred to as the Judge) on July 19, 2016. In a decision promulgated on July 26, 2016 she dismissed the appellants’ appeals.
3. Permission to appeal was lodged and came before Judge of the First-tier Tribunal Colyer on December 7, 2016 but permission to appeal was refused. The appellants renewed their grounds of appeal submitting a witness statement and the matter was considered by Upper Tribunal Judge Kebede on February 9, 2017.
4. Having considered the grounds of appeal she found it was arguable there was a material error in law and directed that the appellants’ solicitors file a statement to confirm and clarify a telephone conversation that had taken place on the day of the original hearing. That statement was served on March 23, 2017.
5. The matter came before me on the above date and whilst neither appellant were in attendance they were represented, as was the respondent.
6. No anonymity direction is made.

PRELIMINARY ISSUES
7. Prior to my entering court it appears that Mr Duffy and Mr Bellara had discussed matters. In essence there were three issues being put forward.
8. The first issue related to grounds of fairness and the way the case had been dealt with by Counsel who had represented the appellants before the First-tier Tribunal.
9. The second issue centred around the decision letter and the Judge’s speculative findings.
10. The third issue related to whether it was appropriate to deal with a hearing on Article 8 grounds without taking oral evidence.

SUBMISSIONS
11. Mr Duffy indicated that the decision letter contained a material error in that it referred to a CAS certificate number which was not the subject of the appellants’ applications. He accepted that when the Judge heard the matter there was no evidence that the CAS relied on issued by Newcastle Academy of Business and Technology had been cancelled. He had sought to make enquiries about the matter but had not had a formal response from his colleagues in the appropriate department. Mr Duffy’s view was that the decision was not in accordance with the law because there was nothing before the Judge, contrary to the Judge’s findings made, that the CAS was not valid. He therefore invited the Tribunal to find there had been an error of law and to remit the decision back to the Secretary of State for a lawful decision to be made. This appeal predated the amendments brought in by the Immigration Act 2014 and it was therefore appropriate to take this course of action.
12. Mr Bellara agreed with this course of action. He felt it was more desirable to deal with it this way for the simple reason that the first ground was very messy and perhaps needed further evidence in light of the conflict between Counsel’s statement and the statement put forward by the solicitor. This was a sensible approach and he invited the Tribunal to take this course of action.

FINDINGS
13. The appellants made an application for further leave to remain and that application was refused because the requirements of the Rules had not been met according to the respondent. It is accepted by Mr Duffy that the decision letter contained a material error and this was something that the Judge was aware of when she heard this matter originally in the First-tier Tribunal. She made findings and it is those findings that Mr Duffy does not seek to rely on. He did not seek to rely on them because he is uncertain that that CAS certificate was invalid. He invited me to remit this matter back to the Secretary of State so she can look into the matter and carry out the necessary checks.
14. Mr Bellara took no issue with this approach.
15. I agree with Mr Bellara that the first ground is a messy ground in that the solicitor is saying that he gave specific instructions about an adjournment whereas Counsel, who originally represented the appellants at the First-tier hearing, suggests otherwise although she has not been given an opportunity to respond to the solicitor’s letter. I am therefore not required to deliberate on that ground.
16. I was invited to allow this appeal based on paragraph 15 of the amended grounds of appeal submitted to the Upper Tribunal and based on the concession given by Mr Duffy and I agree with that submission.

17. I therefore find the decision is not in accordance with the law and should be sent back to the respondent for a lawful decision to be made.

Notice of Decision
18. I allow the appellants’ appeal to the extent that I remit this matter back to the Secretary of State for a lawful decision to be made.

Signed Date April 6, 2017

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD

I do make a fee award as the respondent accepts the decision is not in accordance with the law. I refund the two fees (£280) paid by the appellants in this matter.

Signed Date April 6, 2017

Deputy Upper Tribunal Judge Alis