IA/24381/2012
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The decision
IA 24381 2012
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Heard at Field House
Determination Promulgated
On 4 June 2013
On 4 June 2013
Before
UPPER TRIBUNAL JUDGE WARR
Between
VINOD WANIGASOORIYA MUDIYANSELEAGE
Appellant
and
SECRETARY OF STATE
Respondent
Representation:
For the Appellant: Ms T Star, of counsel, instructed by VMD Solicitors
For the Respondent: Ms A Holmes, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant is a citizen of Sri Lanka born on 3 February, 1982. He was granted leave to enter the United Kingdom on 17 January, 2009 until 31 May, 2012.
2. The appellant applied on 31 May, 2012 for leave to remain as a Tier 4 student at the London Academy of Learning. When the respondent came to consider the matter it was found that the London Academy of Learning was not listed and accordingly the Confirmation of Acceptance for Studies (CAS) was not valid. The appellant was given 60 days to obtain a new sponsor and a new CAS.
3. On 26 October, 2012 the respondent refused the application as the appellant’s CAS was not valid for the reasons already given.
4. The appellant appealed and his appeal was dealt with on the papers by a First-tier Judge on 9 January 2013.
5. The appellant claimed that he had sent a new CAS from the London Academy of Management Science and that he had sent it to the Secretary of State on 19 October, 2012. He produced a Royal Mail tracking document which indicated that an item had been delivered from the Durham delivery office on 22 October, 2012. The judge could not see why the Durham delivery office was involved since the Secretary of State would be in either Sheffield or Croydon. A copy of the letter had not been included in the bundle. The judge could not be satisfied that a new CAS had been lodged as claimed.
6. The judge accordingly dismissed the appeal under the immigration rules but held that the decision to remove the appellant under section 47 of the Immigration, Asylum and Nationality Act 2006 was unlawful following Ahmadi (s. 47 decision: validity; Sapkota) [2012] UKUT 00147 (IAC) (see now Ahmadi v Secretary of State [2013] EWCA Civ 512).
7. Permission to appeal was sought and Upper Tribunal Judge Chalkley granted permission commenting that if the Home Office address was indeed in Durham the judge might have made a mistake of fact leading to an error of law.
8. At the hearing before me Ms Holmes indicated she wished to check on the validity of a letter in the appellant’s bundle from the Home Office on 23 October, 2012. This was a document that had not been placed before the First-tier Judge acknowledging the appellant’s application. A letter dated 19 October, 2012 from the representatives to the Home Office was also included. On 20 February, 2013 this application was returned on the basis of the outstanding appeal.
9. The hearing was put back and when it resumed Ms Holmes confirmed that the letter in the appellant’s bundle was a genuine document.
10. Counsel submitted that in the circumstances it was accepted that the appellant’s revised application had been submitted in time.
11. It was accordingly agreed that the matter should be returned to the Home Office on both the issue under section 47 and on the decision under the immigration rules.
12. Counsel commented that a simple Internet search “UKBA Durham” might have allayed the concerns of the First-tier Judge although in fairness the appellant’s case could have been put more clearly before the judge.
13. Counsel submitted the appellant should receive a fee award.
14. By agreement the appeal is allowed to the extent that the matter is to be reconsidered by the Home Office on the basis that the appellant did return the new CAS within the required deadline. Appeal also allowed on the section 47 point.
I remake the decision:
Appeal allowed as indicated
Fee Award
It is appropriate in the premises to make a whole fee award
Signed
4 June 2013
Judge of the Upper Tribunal
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Heard at Field House
Determination Promulgated
On 4 June 2013
On 4 June 2013
Before
UPPER TRIBUNAL JUDGE WARR
Between
VINOD WANIGASOORIYA MUDIYANSELEAGE
Appellant
and
SECRETARY OF STATE
Respondent
Representation:
For the Appellant: Ms T Star, of counsel, instructed by VMD Solicitors
For the Respondent: Ms A Holmes, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant is a citizen of Sri Lanka born on 3 February, 1982. He was granted leave to enter the United Kingdom on 17 January, 2009 until 31 May, 2012.
2. The appellant applied on 31 May, 2012 for leave to remain as a Tier 4 student at the London Academy of Learning. When the respondent came to consider the matter it was found that the London Academy of Learning was not listed and accordingly the Confirmation of Acceptance for Studies (CAS) was not valid. The appellant was given 60 days to obtain a new sponsor and a new CAS.
3. On 26 October, 2012 the respondent refused the application as the appellant’s CAS was not valid for the reasons already given.
4. The appellant appealed and his appeal was dealt with on the papers by a First-tier Judge on 9 January 2013.
5. The appellant claimed that he had sent a new CAS from the London Academy of Management Science and that he had sent it to the Secretary of State on 19 October, 2012. He produced a Royal Mail tracking document which indicated that an item had been delivered from the Durham delivery office on 22 October, 2012. The judge could not see why the Durham delivery office was involved since the Secretary of State would be in either Sheffield or Croydon. A copy of the letter had not been included in the bundle. The judge could not be satisfied that a new CAS had been lodged as claimed.
6. The judge accordingly dismissed the appeal under the immigration rules but held that the decision to remove the appellant under section 47 of the Immigration, Asylum and Nationality Act 2006 was unlawful following Ahmadi (s. 47 decision: validity; Sapkota) [2012] UKUT 00147 (IAC) (see now Ahmadi v Secretary of State [2013] EWCA Civ 512).
7. Permission to appeal was sought and Upper Tribunal Judge Chalkley granted permission commenting that if the Home Office address was indeed in Durham the judge might have made a mistake of fact leading to an error of law.
8. At the hearing before me Ms Holmes indicated she wished to check on the validity of a letter in the appellant’s bundle from the Home Office on 23 October, 2012. This was a document that had not been placed before the First-tier Judge acknowledging the appellant’s application. A letter dated 19 October, 2012 from the representatives to the Home Office was also included. On 20 February, 2013 this application was returned on the basis of the outstanding appeal.
9. The hearing was put back and when it resumed Ms Holmes confirmed that the letter in the appellant’s bundle was a genuine document.
10. Counsel submitted that in the circumstances it was accepted that the appellant’s revised application had been submitted in time.
11. It was accordingly agreed that the matter should be returned to the Home Office on both the issue under section 47 and on the decision under the immigration rules.
12. Counsel commented that a simple Internet search “UKBA Durham” might have allayed the concerns of the First-tier Judge although in fairness the appellant’s case could have been put more clearly before the judge.
13. Counsel submitted the appellant should receive a fee award.
14. By agreement the appeal is allowed to the extent that the matter is to be reconsidered by the Home Office on the basis that the appellant did return the new CAS within the required deadline. Appeal also allowed on the section 47 point.
I remake the decision:
Appeal allowed as indicated
Fee Award
It is appropriate in the premises to make a whole fee award
Signed
4 June 2013
Judge of the Upper Tribunal