Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA195602015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 June 2016
On 14 June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

mr basharat ali
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr C Mannan, Counsel
For the Respondent: Mr S Whitwell, Specialist Appeals Team

DECISION AND REASONS

1. The appellant appeals to the Upper Tribunal from the decision of the First-tier Tribunal dismissing his appeal on common law unfairness grounds against the decision of the Secretary of State to refuse to grant him further leave to remain in the United Kingdom as a Tier 4 (General) Student Migrant. The First-tier Tribunal did not make an anonymity direction, and I do not consider the appellant requires anonymity for these proceedings to the Upper Tribunal.
2. The background to this case is that the appellant applied for leave to remain on 28 March 2014 relying on a CAS assigned by Stanfords College UK Limited. On 27 April 2015 the Secretary of State refused the application because the Tier 4 Sponsor Register had been checked on that date and Stanfords College UK Limited was not listed as of that date. He had thus failed to provide a valid CAS in support of his application.
3. On page 2 of the refusal letter it stated that on 6 February 2015 he was informed that Stanfords College UK Limited was no longer listed as a Tier 4 sponsor, and he was allowed 60 days to obtain a new sponsor and CAS. He did not provide a new CAS within the 60 day period.
4. In his grounds of appeal to the First-tier Tribunal, the appellant said he had contacted the Home Office informing them of his change of address. Evidence of this would be provided upon notice of hearing. He did not receive any response to the notification of his change of address. A subsequent curtailment letter was sent to his college address, and not to him at his new address. The Home Office was aware the college had closed down and therefore the appellant could not possibly receive his curtailment letter at the college. The Home Office should have sent the correspondence to the new address which he had provided to the Home Office.
The Hearing Before, and the Decision, of the First-tier Tribunal
5. The appellant's appeal came before Judge Bowler sitting at Richmond Magistrates' Court on 10 November 2015. The appellant was represented by Mr Chohan of Immigration Chambers, and the respondent was represented by a Home Office Presenting Officer.
6. The judge's subsequent decision contains a record of the proceedings in summary form. The judge recorded that the evidence before her included the appellant's bundle which contained the documents listed in the index.
7. The appellant gave oral evidence, and adopted as his evidence-in-chief a witness statement to be found at pages 1 to 3 of the appellant's bundle.
8. In paragraph 8 of the statement, he said that he contacted the Home Office to inform them of his change of address. At page 14 of the bundle there was a letter from the appellant to the Home Office dated 8 September 2014. In this letter he wrote to inform the Home Office that the licence of his college had been revoked and therefore he would like to change his address as the correspondence address they had on their system was his college's address. The appellant then went on to give details of his home address which was in Durham Road, London E16. He asked to be issued with a 60 day letter to enable him to enrol at a different college and make a fresh Tier 4 application.
9. At page 15 of the bundle there was a copy of a certificate of posting stamped by a post office in West Drayton, Middlesex on 8 September 2014. It was a certificate to confirm that one item had been posted to the Home Office P O Box 3468 Sheffield. This was the postal address given at the top of the copy letter at page 14 of the bundle.
10. The appellant was cross-examined on his witness statement. He confirmed he was attending college every week until the point that he received a letter from the Home Office on 28 August 2014. After that he was looking on line and discovered that the college had lost its licence. He had heard a lot about 60 day letters as a result of speaking to others. He had sent a letter to the Home Office on 8 September once he found out that his college's licence had been revoked, informing the Home Office of his new contact address.
11. The judge gave his reasons for dismissing the appeal on common law unfairness grounds in paragraph 16 to 19. The obligation was on the appellant to inform the Home Office of a valid address. He said in his witness statement that he had contacted the Home Office about his address after contacting them on 30 August 2014 about the interview letter. When asked at the hearing if he had called the Home Office, he said that he wrote to them:
"However, there is no copy of that letter."
12. The judge went on to find in paragraph 18 that the appellant did not write to the Home Office to inform them of his change in contact address. She found that he had had plenty of opportunity to do so given that his college's licence was revoked in June 2014. There was a form which could be completed to inform the Home Office of a change of address or it could be done on line. The appellant did neither.
The Reasons for the Grant of Permission to Appeal to the Upper Tribunal
13. On 6 May 2016 First-tier Tribunal Judge Davidge gave her reasons for granting the appellant permission to appeal to the Upper Tribunal:
"It is apparent on the face of the decision in the bundle that the judge appears to overlook the documentary evidence supporting the representative's submissions and the oral evidence of the appellant. It is arguable that the judge reached his conclusion without regard to the evidence and if he had taken that evidence into account he may have come to a different conclusion"
Reasons for Finding an Error of Law
14. Mr Melvin of Specialist Appeals Team settled a Rule 24 response opposing the appeal on the ground that, after checking Home Office systems, no change of address letter or correspondence could be located. The appellant's address was not changed in the Home Office records until 12 May 2015.
15. However, at the hearing before me Mr Whitwell accepted that the judge made a clear error in stating that no change of address letter had been produced in evidence, when in fact it clearly had been.
16. There is a copy of the letter of 8 September 2014 in the appellant's bundle which the appellant relied on as showing that he had notified the Home Office that future correspondence should be addressed to him at his home address, and not to the college address.
17. Mr Whitwell said he did not dispute that the judge's error was material in that the outcome of the appeal might have been different if the judge had taken into account the documentary evidence at pages 14 and 15 of the appellant's bundle. As I informed the parties at the hearing, I agree with Mr Whitwell's concession and I find that an error of law is made out and that the decision of the First-tier Tribunal should be set aside.
The Remaking of the Decision
18. Both Mr Whitwell and Mr Mannan were content that I should remake the decision on the evidence that was before the First-tier Tribunal. Mr Whitwell accepted that if the evidence relied on was taken at its face value, the appeal should succeed on common law unfairness grounds, and the appellant should be issued with a 60 day letter. However, he identified two reasons for not taking the evidence at its face value. The first was that the appellant had not produced the original of the post office receipt at page 15 of the bundle. Secondly, the letter of 8 September 2014 was in a different typeface from the letter which the appellant had sent on 30 August 2014 in response to a Home Office letter of 8 August 2014.
19. I consider that both concerns raised by Mr Whitwell are legitimate ones. In addition, in the grounds of appeal the appellant did not specify that he had informed the Home Office in writing by letter dated 8 September 2014 of his change of address. As he was able to produce a copy of the letter for the purposes of the appeal hearing, he must have had a copy of the same letter in his possession when formulating the grounds of appeal. So it was bizarre not to refer to it.
20. However, the appellant does not have to prove his case beyond reasonable doubt, but only on the balance of probabilities. Moreover, the appellant was cross-examined at the hearing in the First-tier Tribunal, and so there was an opportunity at that stage to explore any outstanding concerns about the reliability of the documentary evidence at pages 14 and 15 of the appellant's bundle.
21. In conclusion, I am satisfied on the balance of probabilities that the appellant notified the Home Office of his change of address by the letter of 8 September 2014 which was posted to the Home Office on that date, and thus the sole ground for resisting his appeal has gone. The appellant discharged the duty to keep the Home Office informed of his correct address, and the Home Office thus sent the 60 day letter to the wrong address.
22. By not providing the appellant with a 60 day letter in accordance with her published policy, the Secretary of State acted unlawfully in refusing the application for leave to remain on the false premise that she had provided the appellant with a 60 day letter, when in fact she had not.
Notice of Decision

The decision of the First-tier Tribunal dismissing the appellant's appeal contained an error of law, and accordingly the decision is set aside and the following decision is substituted: this appeal is allowed on the ground the decision appealed against was not in accordance with the law as the respondent failed to provide the appellant with a 60 day letter so as to enable the appellant to vary his application before a decision was made on his original application.

I make no anonymity direction.

Signed Date 14 June 2016

Deputy Upper Tribunal Judge Monson