Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/195402012
IA/19541/2012

THE IMMIGRATION ACTS

Heard at : Field House
Determination Promulgated
On : 29th May 2013
On : 3rd June 2013

Before

Upper Tribunal Judge McKee

Between

amit & tsering lama

Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Z. Nasim, instructed by Malik & Malik Solicitors
For the Respondent: Miss E. Martin of the Specialist Appeals Team

DETERMINATION AND REASONS

1. On 1st July 2011, within the currency of their leave to enter the United Kingdom as a Tier 4 Migrant and his wife, Amit and Tsering Lama applied for further leave to remain in the same categories. On 30th January 2012 the applications were refused, because the Confirmation of Acceptance for Studies issued to Amit Lama by Harrow International Business School did not indicate that he had achieved level B2 competence in English after taking a test with an English language test provider approved by the Secretary of State (none of the other ways of demonstrating such competence being open to him). On 10th September 2012 Malik & Malik gave notice of appeal to the First-tier Tribunal. This notice should have been given within ten working days after Mr and Mrs Lama had been served with notice of the decision on their applications. In the notice of appeal it is indicated that service of the Home Office decision was on 4th September, both the ‘post’ and ‘fax/personal service’ boxes being ticked. Why it should have taken seven months for Mr and Mrs Lama to be notified of the decision on their applications is not a question that occurred to anyone in the course of these appeals, and it only occurred to me when I started writing this determination. Curiously, at the back of the court file there is a pay slip signed by Amit Lama on 3rd February 2012, authorizing the Tribunal Service to debit the appeal fee from his payment card. But there is nothing else to show that notice of appeal was given any earlier than 10th September, and a Certificate of Fee Satisfaction was only issued on 13th September 2012. A point of sale receipt for £80 was issued on 17th September.

2. The fee of £80 was for a determination ‘on the papers’, as requested in the notice of appeal, and it was for one appeal only. The IAFT-1 notice submitted by Malik & Malik was just for Amit Lama, and only one appeal fee was paid. There is nothing in Tsering Lama’s file to show that notice of appeal was also given on her behalf, or that an appeal fee was paid. Yet separate files were opened, and separate appeal numbers assigned, to both Amit and Tsering Lama. This is another difficulty that only occurred to me after the hearing. I turn now to the difficulties which I did raise at the hearing.

3. The grounds of appeal drafted by Malik & Malik are couched in vague and formulaic terms. Mention is made of the ‘evidential flexibility’ policy, and there is a reference to “paragraph 16 of the refusal letter”. The refusal letter has no numbered paragraphs, so one cannot tell what is being referred to. There is no suggestion that Mr Lama has at any time obtained an English language test certificate, as required by Appendix A of the Immigration Rules.

4. On 26th September 2012 the First-tier Tribunal sent an IA35 notice to Malik & Malik, confirming that the appeal would be determined on the papers, and giving a deadline of 24th October for the receipt of any further documents or submissions. On that very date Malik & Malik wrote to the Arnhem Support Centre in Leicester, requesting an oral hearing. The letter was stamped as received at the Centre on 7th November. The envelope in which it came has not been preserved, so one cannot tell when the letter was actually posted. Curiously, a letter was also written on 24th October to “AIT Walsall”, with reference to “hearing on 24th October 2012”, but asking for an oral hearing. Why a letter was sent to the hearing centre at Walsall is unexplained. Perhaps the solicitors made inquiry as to where the appeal was to be determined ‘on the papers’. The papers were in fact put before Judge A.W. Khan on 30th October in Birmingham. Meanwhile, the letter was stamped as received by Walsall Hearing Centre on 30th October, and was sent on to the Birmingham Hearing Centre, where it arrived the next day, with a slip saying “please list for oral”. This was not done. Judge Khan signed off his determination on 5th November, and it was posted to Malik & Malik the next day.

5. There is nothing more on file from Malik & Malik until a letter faxed and then posted to the Arnhem Support Centre on 18th March 2013, requesting a copy of the determination. To this is attached “reconsideration grounds”, complaining that the appellant did not receive the determination, and that a copy of the determination was not sent to both the appellant and his representatives. That complaint is a little rich. In their notice of appeal Malik & Malik gave their client’s address as c/o their own office. The Tribunal staff always take the appellant’s address from the notice of appeal, so they had no other address to send the determination to. It seems odd that the determination, sent to Malik & Malik by first class post on 6th November 2012, did not reach them.

6. On receipt of the determination, Malik & Malik submitted full grounds of appeal against Judge Khan’s determination, citing extensively from case law but making no mention of the English language test certificate, the absence of which caused Mr Lama’s application to be rejected. Permission to appeal to the Upper Tribunal was granted by Designated Judge Barton, who was concerned lest an administrative error in not listing the appeal for an oral hearing might have been productive of unfairness. There was no ‘Rule 24 Response’ on file, so I was surprised to learn, when the appeal came before me, that one had indeed been produced by Mr Protap Nath on 4th May. This did indeed reach Malik & Malik, who replied (presumably under rule 25 of the Upper Tribunal Procedure Rules) by sending a small bundle to the Presenting Officers’ Unit. But they did not copy it to the Upper Tribunal. I saw it for the first time at the hearing.

7. The bundle contains a copy of an IELTS test certificate, with an overall band score of 6.0, issued to Mr Lama on 20th December 2011, and an undated letter from Mr Lama, said to have been posted to the Border Agency on the same date, asking that a decision on his application be deferred until the test certificate arrives. The certificate itself is said to have been posted to the Border Agency on 28th December, so that it should have been with the caseworker who decided the application on 30th January 2012. Mr Nasim made a valiant effort to persuade me that I could find an error of law and could then use this evidence to allow the appeal. Miss Martin had come prepared with authorities on ‘evidential flexibility’, the ‘time line’ for submission of evidence in support of a PBS application, and the Article 8 rights of students. Now, at last, Mr Lama had a competent representative to present his case, which Miss Martin was well equipped to rebut.

8. The appeal cannot, however, get beyond the error of law stage. I have catalogued the problems which have dogged this appeal from the outset, including the two very long gaps between the initial immigration decision and the notice of appeal against it, and between the First-tier determination and the appeal against that. The complaint that Mr (and Mrs?) Lama should have had an oral hearing cannot get off the ground. The request to switch from a decision on the papers was not accompanied by the requisite fee. Only £80 for a paper determination had been paid. An oral hearing costs £140. The balance had not been paid, and the Tribunal staff would not have been able to list the appeal for an oral hearing without a certificate of fee satisfaction, despite what was said on the note from the Walsall to the Birmingham staff.

9. Besides that, it is quite astonishing that, if Mr Lama had sent his English language test certificate to the Border Agency a month before the refusal of his application, no mention was made of that, either in the notice of appeal to the First-tier Tribunal, or in the application for leave to appeal to the Upper Tribunal. This could, and should, have been drawn to the attention of the First-tier judge. As it was, there was nothing before him which could possibly have justified allowing the appeal. There has simply been no error of law, and the appeal must fail. I note that there has been no decision to remove Mr and Mrs Lama. It is open to them to apply to the Secretary of State for further leave to remain on a discretionary basis, if Mr Lama needs more time to complete his studies, especially if he has for the last year and a half had the necessary English language certificate to demonstrate his ability to pursue those studies.

DECISION

The appeal is dismissed.

Richard McKee
Judge of the Upper Tribunal
29th May 2013