IA/23550/2015

• Status of case: Unreported
• Hearing date: 9 Nov 2016
• Promulgation date: 14 Nov 2016
• Publication date: 17 Aug 2020
• Last updated on: 17 Aug 2020

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23550/2015


THE IMMIGRATION ACTS


Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 9 November 2016
On 14 November 2016




Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

mr hassan mohammed sadique
(ANONYMITY DIRECTION not made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:

For the Appellant: Mr M Chowdhury instructed by Liberty Legal Solicitors
For the Respondent: Mr E Tufan, Home Office Presenting Officer


DECISION AND REASONS


1. The appellant is a citizen of Bangladesh and his date of birth is 5 March 1990. He made an application for leave to remain as a Tier 4 (General) Student Migrant and this application was refused by the Secretary of State in a decision of 10 June 2015. It was refused under paragraph 322(3) of the Immigration Rules. Paragraph 322(3) is a discretionary ground on which leave to remain should normally be refused if there has been a "failure to comply with any conditions attached to the grant of leave to enter or remain".

2. The appellant appealed against the decision of the Secretary of State and his appeal came before Judge of the First-tier Tribunal Samimi. The appeal was determined on the papers at the appellant's request. Judge Samimi made a number of findings and the relevant findings as far as this decision is concerned are the following;

"8. The Grounds of appeal have submitted that the Respondent has failed to grant the Appellant 60 days to find an alternative College. There is no reference to the Appellant having been awarded 60 days in order to find a new College. There is no indication from the respondent's refusal letter that the respondent has followed her own guidance in this regard.

9. Accordingly, I allow the Appellant's appeal to the extent that the Respondent should apply her policy of allowing the appellant 60 days to register at a new College. The Tier 4 sponsor guidance at paragraph 400 sets out the position clearly;

'What happens to our sponsored students if our organisations licence is withdrawn?

Immediately end (curtail) the permission to stay in the United Kingdom of any students whom we believe were actively involved (complicit) in any dishonesty by the former sponsor (for example, if the student agreed that the sponsor would arrange a non existent course for him/her so he/she could come to the United Kingdom); and

Reduce the length of the permission to stay in the United Kingdom of any other students (those who were not actively) involved to 60 calendar days, to give them a chance to find a new sponsor. (If a student has less than six months of his or her leave remaining, we will not curtail his/her leave).'

12. In relation to the Respondent's refusal under Paragraph 322(3), there is no evidence before me to corroborate the Respondent's allegations that the Appellant has received a caution for stealing from his employer's Iceland. There are no statements or contemporaneous reports supporting the aforementioned allegations. I therefore do not find that the Respondent has satisfied the burden of proof in showing that the Appellant has failed to comply with the requirements of the Immigration rules, in accordance with Paragraph 322(3).

13. The appeal is allowed, to the extent that it should be remitted to the Secretary of State to allow the appellant a period of sixty days in order to give the Appellant a reasonable opportunity to make a new PBS application."

3. The judge also had regard to the case of Thakur (PBS decision - common law fairness) Bangladesh [2011] UKUT 00151 and Patel (revocation of sponsor licence - fairness) India [2011] UKUT 211.

4. Confusingly at the end of the decision under the heading 'Notice of Decision' the following is stated: "I dismiss the appeal under the Immigration Rules".

5. The appellant was granted permission to appeal by Judge of the First-tier Tribunal Baker on 3 October 2016. The appellant argues that the judge should have allowed the appeal to the extent that there was no lawful decision. There was no cross appeal by the respondent, but there is a response under Rule 24 of the 2008 Procedure Rules in which the Secretary of State makes it clear that her position is that the decision under paragraph 322(3) of the Immigration Rules at [12] ( where the judge seemingly allows the appeal under the Rules) is not accepted. He relied on EG and NG (UT rule 17: withdrawal; rule 24: scope) Ethiopia [2013] UKUT 00143 specifically at [45] and [46] and argued that it was not necessary for the respondent to make an application for permission to appeal in relation to the paragraph 322(3) point and it is sufficient to raise the issue in the rule 24 response. It was also argued by Mr Tufan that the appellant had already been given 60 days in order to find a new sponsor and that the judge erred in her conclusions at [13] of the decision.

6. Mr Choudhury on behalf of the appellant maintained the ground of appeal and in response to the rule 24 response argued that the decision under paragraph 322(3) was one that was open to the judge on the evidence. He did not make submissions relating to the EG and NG point. However, he did not argue that the judge intended to or should have allowed the appeal under the Rules.

7. The decision entirely lacks clarity. On the one hand the judge purports to dismiss the appeal under the Rules but this not consistent with paragraph 12. I have considered whether the final paragraph of the decision indicating that the appeal is dismissed under the Rules is a typographical error and whether the judge's intention was to allow the appeal under the Rules, but this is not consistent with the finding that the judge makes at paragraph 13. I have considered whether the judge intended to allow the appeal on fairness grounds only and dismiss it under the Rules, but this does not sit well with the conclusions at 12. She may have intended to allow the appeal on both grounds, but this was not argued and in any event the outcomes (following a decision to allow on fairness grounds and a decision to allow under the Rules) are different. I am unable to conclude whether the intention of the judge was to allow or dismiss the appeal under the Rules or on fairness grounds and I am not prepared to speculate. Because of this ambiguity I cannot accept the appellant's representations that what the judge should have done following on from her findings is to allow the appeal on the basis that there is no lawful decision. However, I accept that there is a material error of law in the purported decision to dismiss the appeal under the Rules. It is irrational because it does not follow the findings in the main body of the decision. I set aside the decision. If indeed the judge did allow the appeal on fairness grounds similarly I set aside that decision.

8. It is clear to me that the judge did not properly engage with the terms of paragraph 322(3) or the appellant's evidence. She did not properly direct herself on the law. The issue was whether the appellant had breached a condition of leave, not whether he had received a caution. It may be that for one reason or another the judge did not have sight of the appellant's witness statement, but it reached the FtT by the time the matter came before her. It was faxed to the Tribunal on 9 March 2016. She either failed to consider material evidence or there was a material procedural irregularity as the statement had not been linked to the file. The matter was determined on the papers and the judge did not have the assistance of the appellant or a legal representative at a hearing.

9. In respect of the findings relating to fairness, the judge did not engage with the evidence of the appellant contained in his witness statement which indicates that he had in fact been given 60 days in a previous decision. The issue for the judge was whether or not the licence had been reinstated at the date of the decision and if not whether the appellant should have been given a further 60 days. Mr Tufan agreed that the licence had at some stage been reinstated, but he was unable to provide clear details of this.

10. There needs to be a de novo hearing and the parties agreed with me that the matter should be remitted to the First-tier Tribunal for a re-hearing. The FtT will need to determine the appeal under the Rules and if necessary on fairness grounds.

Notice of Decision

The appeal is allowed. The decision of the FtT to dismiss the appeal under the rules is set aside. If the judge made a decision to allow the appeal on fairness grounds, this is also set aside. The appeal will be re-heard afresh.

Direction

I direct the respondent to provide the appellant and the FtT with relevant details including dates regarding the revocation and re-instatement of the sponsor's licence.


Signed Joanna McWilliam Date 11 November 2016

Upper Tribunal Judge McWilliam