Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20748/2015
IA/20753/2015
IA/20757/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30 September 2016
On 10 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

MUHAMMED AHMEDUZZAMAN
(ANONYMITY DIRECTION NOT MADE)
First Appellant
BUHAIRA KHANOM
(ANONYMITY DIRECTION NOT MADE)
Second Appellant
[A H]
(ANONYMITY DIRECTION NOT MADE)
Third Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Salim, of Thamina Solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DECISION AND REASONS

1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of these Appellants. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

2. This is an appeal by the Appellants against the decision of First-tier Tribunal Judge E B Grant promulgated on 21 March 2016, which dismissed the Appellants' appeals.

Background

3. The Second Appellant is the First Appellant's wife. The Third appellant is their son. The First Appellant was born on 31/12/1977. The Second Appellant was born on 16/12/1990. The Third appellant was born on 17/03/2010. All three appellants are nationals of Bangladesh.

4. The second and third appellants' appeals are entirely dependent on the first appellant's appeal. The first appellant entered the UK as a Tier 4 (general) Student with leave valid from 6 September 2009 until 31 January 2012. In June 2012 the first appellant was granted leave to remain as a Tier 4 (General) Student until 31 May 2014.

5. On 21 February 2015 the First Appellant applied for leave to remain as a Tier 2 migrant, as a Minister of Religion.

6. On 20 May 2015 the Secretary of State refused the Appellants' applications.

The Judge's Decision

7. The Appellants appealed to the First-tier Tribunal. First-tier Tribunal Judge E B Grant ("the Judge") dismissed the appeal against the Respondent's decision.

8. Grounds of appeal were lodged and on 15 August 2016 Judge Heynes gave permission to appeal stating inter alia
"3. Though the application has not raised this point, it is arguable that the finding of the Judge that the appellant's grasp of English was too poor to have enabled him to have studied for an MBA suggests that the qualification was not legitimately obtained but this does not appear to have been put to the appellant. Moreover, there is no finding as to whether a supplementary course is capable of supporting a Tier 2 application.
4. An arguable error of law is disclosed by the application."

The Hearing

9. (a) For the appellant, Mr Salim moved the grounds of appeal. He produced a copy of the version of paragraph 245HD of the immigration rules which applied at the date of decision together with a copy of the respondent's guidance upon which he placed reliance. He told me that the Judge's brief decision does not contain a record of the evidence led nor analysis of that evidence, which, he told me, is an error of law. He told me that the two issues which are influential in the Judge's decision are a refusal to accept that the MBA certificate produced by the first appellant can be relied on, coupled with the Judge's finding that the first appellant's command of the English language is poor. Those two factors (I am told) were not put to the appellant, so that the appellant had been deprived of the opportunity to address the determinative issues.

(b) Mr Salim took me through the terms of paragraph 245HD of the immigration rules and told me that, on the evidence presented, the Judge should have found that the requirements of the rules are fulfilled. He told me that in any event it is not clear from reading the Judge's decision which immigration rules the Judge was considering. He told me that the Tier 2 rules and guidance do not prohibit the pursuit of a supplementary course of study, so that the Judge's analysis of the evidence is flawed and her exclusion of consideration of the MBA awarded to the appellant is a material error of law.

(c) Mr Salim urged me to set the Judge's decision aside and substitute my own decision allowing the appellant's appeal.

10. (a) For the respondent, Mr Melvin told me that the decision does not contain any errors, material or otherwise. He relied on the terms of the respondent's rule 24 note, and told me that the Judge's decision sets out clear and sustainable findings which were well within the range of findings available to the Judge on the evidence produced.

(b) Mr Melvin told me that it is obvious that the Judge considered paragraph 245HD(d) of the rules but found that subparagraph's (ii) (iii) & (iv) cannot be met. He told me that the decision makes it clear that the Judge has addressed the reasons for refusal and, with the benefit of the oral evidence, has reached a decision well within the range of decisions available to the Judge. He told me that the MBA relied on by the appellant is not acceptable as evidence in a tier 4 application. By analogy it cannot be accepted in a tier 2 application. He urged me to dismiss the appeal and allow the decision to stand.

ANALYSIS

11. The respondent's decision dated 20 May 2015 is that the first appellant cannot meet the requirements of paragraph 245 HD(d) of the immigration rules. At [7] of the decision the Judge correctly summarises the respondent's position, which is that the MBA qualification from Anglia Ruskin University produced by the first appellant is not acceptable because the appellant's grant of leave to remain as a tier 4 student migrant prohibited study at any institution other than Churchill College, where he was studying full-time for a diploma.

12. At [8] of the decision the judge correctly records the appellants' argument that the MBA qualification should be considered because tier 4 guidance indicates that no extra permission is needed to undertake supplementary courses of study. At [7] & [8] of the decision the Judge concisely sets out the area of dispute and the arguments for both parties.

13. Paragraph 245HD(d)(iv) says
'To qualify for leave to remain as a tier 2 (general) migrant, Tier 2 (minister of religion) migrant or Tier 2 (sportsperson) migrant under this rule, an applicant must meet the requirements listed below. The applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
(d) an applicant under the provisions in (b)(ii) above must meet the following requirements?
(vi) the applicant's periods of UK study and/or research towards the course in (i) must have been undertaken whilst he had entry clearance, leave to enter or leave to remain in the UK and that was not subject to restriction preventing him from undertaking that course of study and/or research.'
14. It is beyond dispute that the appellant was granted leave to remain in the UK to study at London Churchill College, not an Anglia Ruskin University. The MBA course pursued at Anglia Ruskin University was an online course which did not require attendance at classes. Mr Salim referred to the Home Office tier 4 points-based system policy guidance version 7/11. The policy guidance which is relevant to this case was issued on November 2014 (not in July 2011) and contains the following.
'Can I do extra studies whilst in the UK?
338.
You are allowed to do a supplementary course, for example, an evening class, as well as your main course of study. This supplementary course can be in any subject, and does
not have to relate to your main course of study. You do not need permission from us to undertake a supplementary course and you are not required to tell your Tier 4 sponsor.
However, you must make sure that your supplementary course does not in any way hinder your progress on your main course of studies.'
15. The Judge correctly identifies that the determinative issue in this case is whether or not the MBA qualification obtained from Anglia Ruskin University meets the requirements of paragraph 245 HD (d) of the immigration rules. For the reasons given in [9] of the decision, the Judge finds that the MBA is not a supplementary course of study, and so does not fall within the tier 4 guidance given by the respondent.

16. That is a finding which was reasonably open to the Judge on the evidence presented. It would have been helpful if the Judge had then added another sentenced to [9] or [10] of the decision to spell out that her finding is that the appellant did not have leave to remain in the UK allowing him to undertake the MBA course of study.

17. It is not disputed that the grant of leave to remain in the UK is a grant of leave to allow the appellant to pursue a separate course of study at diploma level at London Churchill College, and that the grant of leave to remain carried conditions preventing study at any institution other than London Churchill. The grant of leave to remain was therefore subject to restriction envisaged by paragraph 245 HD(d) (iv) of the immigration rules.

18. The Judge's conclusion was therefore correct. As I have already indicated it would have been helpful if the Judge had made explicit reference to paragraph 245 HD(d)(iv) of the immigration rules, but a failure to do so is not a material error of law because it does not affect the decision, and, as I have indicated, the decision is correct on the evidence presented to the first-tier.

19. The grounds of appeal to the Upper Tribunal make reference to an article 8 ECHR argument, and section 55 of the Borders Citizenship & Immigration Act 2009. Permission to appeal was not granted to advance those arguments and, in any event, no challenge is taken to [11] of the Judge's decision where the Judge records
"Article 8 has not been raised in the grounds of appeal and was not argued before the Tribunal."
20. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that (i) Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge; (ii) Although a decision may contain an error of law where the requirements to give adequate reasons are not met, the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the judge draws from the primary data were not reasonably open to him or her.

21. I therefore find that although brief the decision is adequate because it focuses on the central area of dispute, there is no misdirection of law, and the Judge's fact-finding exercise is sufficient. The decision does not contain a material error of law.

22. As the decision does not contain a material error of law stands in the appeal is dismissed.
CONCLUSION
23. No errors of law have been established. The Judge's decision stands.
DECISION
24. The appeal is dismissed. The decision of the First-tier Tribunal stands.

Signed Date 6 October 2016

Deputy Upper Tribunal Judge Doyle