Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22407/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 August 2016
On 18 August 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

saima mahmood
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr G Davison of Counsel instructed by Adam Bernard Solicitors
For the Respondent: Mr C Avery, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Pakistan born on 10 January 1985.
2. On 26 December 2013 she applied for leave to remain as a Tier 4 (General) Student but this application was refused on 2 June 2015. The reason for the refusal was that the Confirmation of Acceptance for Studies (CAS) submitted with the appellant's application was no longer valid following a check on the sponsor register on 16 March 2015. The appellant had been informed about this on that date and allowed 60 days to obtain a new sponsor and CAS. However the appellant had not provided a new CAS within that period. Accordingly the application was refused.
3. The appellant appealed and her appeal came before a First-tier Judge on 5 January 2016. The appellant was not represented then. The judge directed herself by reference to the correct burden and standard of proof. She took account of the appellant's lack of legal representation but the appellant confirmed that she was content to represent herself and the judge was satisfied that she could speak English and properly engage with the appeal. She records that she had assisted her in giving her evidence. The judge set out her conclusions in respect of the point taken by the respondent in relation to the CAS in the following extracts from her determination:
"10. There as no dispute that the appellant had received the letter from the respondent informing her that she needed to obtain a new CAS. Her evidence is that she was unable to do so because of the timing of the letter; she had been informed by different institutions that educational sessions run twice a year in January/February or August/September. Further, the appellant's evidence is that because the respondent had taken so long to process her application (because of a query with her English Language Test Certificate) when she did manage to secure an offer from the School of Business and Law they later said that they would not issue her with a CAS without a valid visa because of the query that had been raised regarding her English Language Test Certificate.
11. The appellant accepts that she was aware that she needed to obtain a new CAS. I am not satisfied that she has suffered any unfairness based on either the timing of the respondent's 'sixty day' letter, or the earlier query raised by the respondent in relation to her English Language Test Certificate. I am satisfied that the respondent has maintained contact with the appellant regarding her application and has given her the opportunity to respond to any concerns. I am not satisfied that, based on the evidence before me, that educational institutions will not issue a CAS mid-year, and the appellant's oral evidence is that in fact the reason that she could not obtain a CAS from the School of Business and Law was because of concerns regarding her English Language Test Certificate, and not the timing of her request.
12. Without a valid CAS the appellant could not meet the requirements of the Immigration Rules and therefore the refusal is correct. Further, for the reasons given above I am satisfied that the respondent has acted fairly and that therefore the decision is in accordance with the law."
The judge accordingly dismissed the appeal.
4. The appellant applied for permission to appeal and permission to appeal was granted by a First-tier Judge on 27 June 2016. Paragraph 3 of the grant of permission reads as follows:
"The appellant was unable to obtain a fresh CAS because of the delay in processing her application and because of the query that had been raised regarding her English Language Test Certificate, albeit that had been resolved. Consequently, this is not a case where the appellant's own actions have caused difficulty but is in fact one where delay has genuinely had implications. However, as the judge did not consider the case of Marghia (procedural fairness) [2014] UKUT 366 (IAC), or indeed expressly refer to any other case, it is arguable that by omitting to consider this or any other relevant cases, that there has been a procedural irregularity in reaching his [sic] decision."
5. The respondent filed a response on 25 July 2016. It was submitted that the grounds had no merit and that the judge had rejected the argument that educational institutions will not issue a CAS mid year. While the delay was regrettable the respondent had given reasons for it. Delay had no material bearing on the appeal. Mr Davison relied on the grounds and pointed out that an application made in December 2013 had taken some eighteen months to process. The respondent had written to the appellant on 7 February 2014 raising concerns about the appellant's ETS test. She had got caught up in the ETS problems unfairly. She had responded a fortnight later with a satisfactory test score. There was no suggestion she had been fraudulent. Having delayed matters the respondent issued the 60 day notice in March 2015. The appellant had given details of the types of places she was trying to get admitted to but the university calendar was open for admissions in September or January and to issue a 60 day letter in March was completely useless. She could have applied to a less reputable college but that would have placed her in a "catch 22" situation. Having delayed matters for eighteen months for no good reason the decision had been taken at a time when no university would accept the appellant. The Secretary of State had waited until the college licence was no longer valid and then had issued a worthless 60 day notice. Counsel took issue with the respondent's reply which claimed that the delay had had no bearing on the appeal.
6. Mr Avery submitted that he was struggling to find any error of law in the arguments advanced. There had been no unfairness. The judge had not accepted that the timing of the 60 day notice had posed fundamental problems for the appellant. He referred to the case of Marghia, there was no absolute duty to make decisions which were substantively "fair". The respondent had not been Wednesbury unreasonable. The appellant could have taken a short course or could indeed have returned to her home country. There was nothing to demonstrate any unfairness or that the judge had failed to take into account the issues raised.
7. Mr Davison in reply submitted that the Home office had sat on the matter and then they had given the appellant an ineffective remedy. If the appellant had taken a short course to fill in time she would have been subject to criticism. Why should she go home when the respondent had messed matters up. She had been a victim of everyone's incompetence. She had suffered unfairness. The question of unfairness would of course depend on the particular circumstances of the individual case.
8. At the conclusion of the submissions I reserved my decision. I can of course only interfere with the judge's decision if it was materially flawed in law. I have taken careful account of the points made by the parties.
9. As I have said, the appellant was not represented before the First-tier Judge but the proceedings were conducted entirely fairly and it is plain that the judge gave close attention to what she was saying and the complaints that she made. She had in mind the issue of delay but was not able to agree that the appellant had suffered any unfairness in relation to the timing of the 60 day letter or the earlier query regarding the appellant's English language test certificate. Contact had been maintained with the appellant. Importantly the judge rejected the appellant's argument that educational institutions would not issue a CAS mid year.
10. The appellant argued in her grounds of appeal that it was not possible for the appellant to get admission in the middle of the educational year "and the respondent knew this important fact and the decision was unfair".
11. Of course if the respondent had deliberately manipulated the system in order to frustrate the appellant's chances of obtaining a CAS that would be unfair. However, that was not what the First-tier Judge found. The judge found there was no unfairness based on the timing of the 60 day letter. Secondly, the judge was not satisfied on the evidence that a CAS would not be issued mid year. That was a finding of fact open to her on the evidence.
12. The respondent sent the appellant the standard 60 day letter in accordance with her policy. That letter gave the appellant various options. She could appeal, which she had done, she could invite the respondent to reconsider the decision on the basis of new or additional information or she could submit a fresh application. Alternatively, as Mr Avery said, she could return home.
13. On the judge's finding the argument that the respondent having delayed matters gave the appellant a worthless remedy is not made out. As the judge succinctly puts it, without a valid CAS "the appellant could not meet the requirements of the Immigration Rules and therefore the refusal is correct. Further, for the reasons given above, I am satisfied that the respondent has acted fairly and that therefore the decision is in accordance with the law". I am not satisfied that the judge's decision was flawed in the light of Marghia. Despite giving careful attention to the points made by Mr Davison I am not satisfied that the First-tier Judge misdirected herself or overlooked any salient aspect of the appellant's case or otherwise materially erred in law. Her factual analysis was open to her.
Decision
14. Accordingly, this appeal is dismissed. The decision of the First-tier Judge is confirmed.
15. The First-tier Judge made no anonymity order and I make none.
Fee Award
16. The First-tier Judge made no fee award and I make none.

Signed Date 17 August 2016

G Warr
Judge of the Upper Tribunal