Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20690/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6th October 2016
On 26th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

mr Azaharuddin gugad
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Karim instructed by MA Consultants
For the Respondent: Mr C Avery, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant a national of India appealed to the First-tier Tribunal against the decision of the Respondent dated 22nd May 2015 refusing to grant him leave to remain in the UK as a Tier 4 (General) Student. First-tier Tribunal Judge McWilliams dismissed the appeal under the Immigration Rules and on human rights grounds. The Appellant now appeals with permission to this Tribunal.
2. The background to this appeal is that on 6th December 2010 the Appellant was granted leave to enter the UK as a Tier 4 (General) Student until 28th March 2014. On 5th February 2014 the Appellant made an application for leave to remain in the UK as a Tier 4 (General) Student Migrant under the points-based system. The application was to undertake a diploma in healthcare management at Kent College of Business and Computing. On 4th September 2014 the Home Office had made a decision to revoke the licence of Kent College of Business and Computing which meant that the Confirmation of Acceptance for Studies (CAS) submitted with the application was no longer valid. On 12th January 2015 the Home Office wrote to the Appellant pointing out that the CAS was no longer valid and advising that consideration of the application was suspended for a period of 60 days to give the Appellant time to submit a fresh application or to leave the UK. The letter advised the Appellant that it was open to him to obtain a new CAS for a course of study at a fully licensed Tier 4 educational Sponsor and submit an application to vary the grounds of his original application. The Appellant failed to submit a fresh CAS. The Reasons for Refusal letter states that on 22nd May 2015 the Secretary of State checked the Tier 4 Sponsor Register but Kent College of Business and Computing was not listed as of that date. The Appellant was therefore awarded no points for a CAS and his application was refused.
3. At the hearing of the appeal against that refusal in the First-tier Tribunal the Appellant claimed that after he received the Respondent's letter of 12th January 2015 he contacted other colleges but they wanted details of his study progress. He said that he was asked for a certified copy of his passport to take an SELT exam. He accepted in cross-examination that his previous SELT certificate had expired in November 2015 and that he had not been in contact with Trinity College (where he wished to study) before 20th November 2015. He said that his family was supporting him financially and he did not want to return home to India without qualifications.
4. In his findings the judge noted that the Appellant was given a period of 60 days in January 2015 to obtain a new CAS and Sponsor but he had not done so. The judge noted that there was no independent evidence from any college or any other source to indicate that the appellant had sought to obtain a CAS and fresh Sponsor college within the period of 60 days. The judge noted that the Appellant had contacted Trinity College in London in November 2015, a considerable time after the expiry of the 60 days. The judge found that the Appellant was unable to obtain a CAS within the 60 days and had no valid CAS at the date of decision. The judge accordingly concluded that the Appellant's appeal must fail under the Immigration Rules because he could not score the requisite 30 points. The judge went on to consider Article 8 and concluded that there was no evidence that the Appellant met the requirements of Appendix FM or paragraph 276ADE of the Rules. The judge accepted that the Appellant may have established some private life in the UK but considered the circumstances and decided that there were no compelling reasons and wished to establish that a grant of leave to remain was appropriate to give effect to the Respondent's Article 8 obligations. The judge considered the circumstances of this case noting that no evidence had been produced by the Appellant to indicate that he had attempted to obtain a new Sponsor and CAS during the 60 days when his SELT certificate was valid. The Appellant had not sought to extend the period of 60 days in order to obtain a new Sponsor. The judge considered all of the evidence and found that any interference with the Appellant's established private life would be proportionate to the lawful aim pursued by the Respondent.
5. In his Grounds of Appeal to the Upper Tribunal the Appellant contends that the judge failed to consider and accept that the Appellant's passport is with the Home Office and the current Rules state that to sit an SELT a valid passport is required. He contends that, despite requests being made for the return of his passport, it was not returned and he was therefore unable to sit the SELT. It is submitted that the Appellant was unable to obtain a CAS (the grounds refer to a COS, I assume this is an error) during the 60 day period as he had no passport and the colleges he approached were not willing to offer a CAS without a valid passport. It is further submitted that the judge should have remitted this case back to the Respondent so that the passport could be returned and the Appellant could sit the SELT and obtain another CAS. It is contended that the judge made a material error by not doing this.
6. Permission to appeal was granted by First-tier Tribunal Judge Saffer on 6th September 2016 on the basis that he was satisfied that it is arguable that the judge made a material error of law as, if the Appellant's passport had been retained by the Respondent and this precluded him for applying for a further CAS, it may have been unlawful for the Respondent to rely on his not having obtained a further CAS as a reason to refuse leave.
7. In the Rule 24 notice it is pointed out on behalf of the Respondent that the judge noted that the Appellant had a valid SELT certificate during the 60 day period in which he had to obtain a further CAS and there was no evidence that colleges refused his application because he did not have a passport and in any event he had a certified copy of his passport. It is noted that the Appellant took ten months to contact Trinity College to obtain a CAS by which time the 60 days which had been extended by another 30 days had expired and the findings of the judge were open to him on the evidence.
8. At the hearing before me Mr Karim submitted that the Appellant says the Respondent retained his passport which meant that he could not sit the SELT. Mr Karim looked at the Appellant's bundle and accepted that the Appellant's requests to the Respondent for the return of his passport were made after the 60 days had expired. Mr Karim then relied on the grounds of appeal without making any further submissions. Mr Avery submitted that there is no error in this case and that the judge took into account all of the evidence. He submitted that the judge took into account that the Respondent had sent a letter to the Appellant to give him 60 days to obtain a further CAS and that the Appellant tried to get the passport back well after the 60 days whereas he could have obtained a new CAS within the 60 days.
9. I accept the submissions of Mr Avery in the Rule 24 notice and at the hearing. The Appellant had not obtained a new CAS within the 60 days he was given by the Respondent. He had a valid SELT during this period. The Appellant submitted no evidence to show that he had tried to get a new CAS during the 60 day period. It appears that it was only after the expiry of the 60 days, when the SELT had expired, that the Appellant sought the return of his passport. However he submitted little evidence to the First-tier Tribunal to show that any colleges had rejected his application for a CAS or to sit the SELT exam. Accordingly the Appellant did not have a valid CAS at the time the Respondent made the decision to refuse the application. It is clear from the decision that the judge understood this situation. He made the only decision open to him on the basis of the evidence.
10. The grounds of appeal are misleading in implying that the Appellant could not sit the SELT without a valid passport when there was little evidence before the judge to this effect and in any event this relates to the Appellant's efforts after the 60 day period. The grounds assert that the Appellant was unable to obtain a CAS during the 60 day period as he had no passport however no evidence was submitted to support this assertion. It is asserted that the Appellant made every effort to obtain a CAS during the 60 day period but there is no evidence to support that assertion. The judge made no error of fact or law in his consideration of this issue.
Notice of Decision

There is no material error of law in the First-tier Tribunal Judge's decision.
The decision of the First-tier Tribunal Judge shall stand.

No anonymity direction is made.

Signed Date: 25 October 2016

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date: 25 October 2016

Deputy Upper Tribunal Judge Grimes