Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/24943/2015
IA/24945/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 January 2017

On 30 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

JASPREET KAUR GILL
SATNAM SINGH
(ANONYMITY DIRECTION NOT made)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
For the Appellants: Mr V. Mahol, instructed by Maalik & Co Solicitiors
For the Respondent: Mr D. Clarke, Home Office Presenting Officer

DECISION AND REASONS

1. The first appellant (hereinafter "the appellant") is a citizen of India born on 27 February 1992. The second appellant is her spouse.

2. On 21 December 2012 the appellant applied for leave to remain in the UK as a Tier 4 (General) Student. On 1 March 2013 her application was refused. She appealed successfully and the matter was remitted to the respondent.

3. On 1 March 2015 the respondent wrote to the appellant informing her that the licence for her college had been revoked and allowing her sixty days to submit a new Confirmation of Acceptance for Studies (CAS).

4. On 20 April 2015 the appellant's representative wrote to the respondent requesting that she be sent a certified copy of her passport. The letter stated that the appellant had been told by various potential Tier 4 sponsors that they needed her to provide them with a certified copy of her passport. A 28 day extension was requested in the letter.

5. On 25 June 2015, the appellant's application of 21 December 2012 was refused on the basis that a valid CAS had not been submitted.

6. The appellant appealed and her appeal was heard by First-tier Tribunal ("FtT") Judge Swinnerton. The appellant's argument before the FtT, in sum, was that she had been treated unfairly as she had not been provided with her passport (or a certified copy) and this meant she was unable to enrol with a new sponsor and thereby obtain a CAS.

7. In a decision promulgated on 26 July 2016 the judge dismissed the appeal. The judge's reasoning is set out in paragraph 24, where it is said:

"I do not accept the arguments of the first appellant that she has not been allowed sufficient time and opportunity to obtain a CAS. The first appellant has had sufficient time to obtain a CAS and has clearly not done so."

8. The appellant is now appealing against the decision of FtT Judge Swinnerton.

9. The grounds of appeal argue that the judge failed to address the key issue, which is that the respondent failed to provide her with the documentation she needed in order to obtain the CAS.

10. At the error of law hearing Mr Clarke, on behalf of the respondent, accepted that it was Home Office policy to send applicants certified copies of their passport as this is needed to obtain a CAS. He handed me a copy of a letter from the Home Office dated 6 May 2015. The letter is a response to the appellant's letter of 20 April 2015 and states that it encloses a certified copy of her passport. The letter, however, is addressed incorrectly (to a different firm of solicitors to those representing the appellant). Mr Clarke accepted that because the letter was misdirected it was unlikely that the appellant had ever received a copy of her certified passport and that this meant she would have been unable to obtain a new CAS.

Analysis and Findings

11. The respondent has a policy whereby she will grant foreign students sixty days to obtain a new CAS. This policy is intended to give effect to the principle of common law fairness.

12. As a practical matter, to obtain a CAS an applicant will need, inter alia, a certified copy of her passport. Where an applicant's passport is held by the respondent, fairness requires both that the respondent send the applicant her passport (or a certified copy) and that the applicant is given reasonable time, after receiving the passport (or certified copy), to obtain a new CAS.

13. The judge made a material error of law by finding that the appellant had "sufficient time and opportunity to obtain a CAS". Plainly, she did not, as through no fault of her own she did not receive a certified copy of her passport (it having been sent by the respondent to the wrong solicitors).

14. It follows from the forgoing analysis that the appellant's appeal against the respondent's decision should be allowed to the extent that she should be given a reasonable period of time whilst in possession of the documentation necessary to obtain a CAS to locate a sponsor and obtain a new CAS.

Decision
A. The decision of the First-tier Tribunal contains a material error of law and is set aside.
B. I remake the decision by allowing the appellant's appeal.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 27 January 2017