Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26205/2012

THE IMMIGRATION ACTS

Heard at Bradford
Determination Promulgated
On 23rd May 2013
On 3rd June 2013

Before

UPPER TRIBUNAL JUDGE D E TAYLOR

Between

AMANAT ALI
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Ahmed, Counsel, instructed by S.Z. Solicitors
For the Respondent: Mr M Diwnycz, Home Office Presenting Officer

DETERMINATION AND REASONS

1. This is the Appellant's appeal against the decision of Judge Sachs made following a hearing at North Shields on 4th February 2013.
Background
2. The Appellant is a citizen of Pakistan born on 12th September 1980. On 13th June 2012 he made a combined application for leave to remain in the UK as a Tier 4 (General) Student Migrant under the points-based system and for a biometric residence permit, after arriving in the UK on 17th February 2010.
3. He was refused under paragraph 322(1A) of the Immigration Rules on the grounds that he had failed to disclose a material fact in his application form. He had an unspent conviction having answered “no” to the question E1 “Has the applicant had any criminal convictions in the UK or any other country (including trafficking offences) or any civil judgments made against them?” However on 30th January 2012 he was convicted of battery at Leeds District Magistrates’ Court and was given a twelve month conditional discharge. The conviction was not spent at the time of the application and should have been declared. He was also refused on the basis that he was not in possession of a valid CAS because West Yorkshire College, where he had studied, was not listed on the Tier 4 Sponsor Register at the time that the decision was made.
4. The judge heard evidence from the Appellant. He said that he was under the impression that it was only a restraining order imposed on him because of a domestic issue with his wife and he believed that if he followed the terms of the restraining order he would not be committing any offence, which is why he did not declare the conditional discharge on his application form. With respect to the college, it was on the Tier 4 Sponsor Register at the time of the application and he had not been officially advised by the immigration authorities of its removal. He argued that he should have been given 60 days’ leave in the light of the judgment in Patel.
5. The judge found against the Appellant on both issues. He did not accept that he was ignorant of the fact that a conditional discharge was imposed upon him or of its terms, and he was not satisfied that the Appellant could benefit from the decision in Patel in that he had been afforded more than adequate time to vary his application by identifying a new Sponsor before the appeal was determined.
The Grounds of Application
6. The Appellant sought permission to appeal on the grounds that the Appellant had explained in detail that he was of the view that he was conditionally discharged and only convicted if another similar complaint was made against him in the proceeding twelve month and since he followed the order he believed that he had not committed any offence and therefore declared as such on his form. The Appellant also argued that the judge had failed to analyse the appeal on the principle of fairness in Patel (India) [2011] UKUT 00211 (IAC). Finally, the judge had failed to consider the appeal on the basis of Article 8 although it had been pleaded in the grounds.
7. Permission to appeal was granted by Judge Nightingale on 11 March 2011 for the reasons stated in the grounds.
Submissions
8. Mr Ahmed relied on his grounds and the grant of permission to appeal. He submitted that the Respondent bears the burden of proof to show that a false representation had been made and it was the Appellant's genuine belief that he had not been convicted of any offence.
9. The Appellant was not in a position to obtain another CAS because all of his documents were with the Secretary of State and no college would be able to offer him anything without a letter from the UKBA giving him 60 days’ leave. He was aware of the removal of the college from the register in July 2012 but waited for a decision by the Secretary of State, believing that he would be granted 60 days in order to find a new college. In not doing so the Secretary of State had acted inconsistently and unfairly.
10. Finally, with respect to Article 8, he said that the Appellant had come to the UK lawfully and applied for an extension of his visa within time. It was not his fault that the college had been removed from the register and he had not been able to get a proper return on his investment. It would be disproportionate to expect him to return to Pakistan at this stage.
11. Mr Diwnycz relied on his Rule 24 reply, and, whilst he accepted that the judge had not dealt with Article 8, there was little to be said on the Appellant's behalf save to say that he enjoyed private life here as a student. It should have been plain to him from the wording of the form that the conviction for battery should have been disclosed. With respect to the fairness point he said that there was no obligation on the Secretary of State to track down every applicant in order to issue letters to them. The Appellant had not approached the Secretary of State although he had had plenty of opportunity to do so.
12. By way of reply Mr Ahmed relied on his previous submissions.
Findings and Conclusions
13. Under paragraph 322(1a), leave to remain in the UK is to be refused where false representations have been made or false documents have been submitted (whether or not material to the application and whether or not to the applicant’s knowledge) or material facts have not been disclosed in relation to the application.
14. The judge properly considered the Appellant's explanation for the lack of disclosure and rejected it. He was represented at the hearing when the conditional discharge was imposed upon him and would have had the effect explained to him both by the court and presumably his solicitors. He did not accept that the Appellant was ignorant of what it meant. He therefore correctly addressed himself to the question of whether the Appellant had acted dishonestly and he was entitled to decide that he had.
15. Similarly, it was open to the judge to find that there was no unfairness in this case. The Appellant took no steps from July 2012, when he was aware that his college had been suspended from the register, until the date of decision in order to try and identify a new Sponsor. As the judge said, it was for the Appellant to take the necessary steps to obtain the letter from UKBA and obtain a new CAS. The Appellant had four months in order to try to regularise his position and did absolutely nothing. The fact that he could not in practice have obtained a further CAS without Home Office documentation does not absolve him from the responsibility of seeking to identify a new college and making the necessary enquiries for himself. Had he done so he would have been able to then approach the Secretary of State who may well have granted him 60 days’ leave in compliance with her policy. As it turns out the Appellant had rather more than 60 days in which to seek to regularise his position. It is not arguable that the Secretary of State acted unfairly.
16. With respect to Article 8, it is right that the judge did not address the issue which was pleaded in the original Grounds of Appeal and to that extent the decision must therefore be remade.
17. The Appellant has enjoyed private life in the UK as a student for a little over three years and his removal would be an interference with his private life and his ability to study in the UK. It would however be lawful and in pursuit of a legitimate aim and proportionate for the following reasons.
18. This Appellant has a conviction of battery as a consequence of domestic violence against his wife. He did not seek to ameliorate his situation when his college was suspended from the register by seeking to study elsewhere which may cast some light upon his commitment to his studies here. If he wishes to return to the UK as a student it is open to him to apply for the requisite entry clearance.
Decision
19. The judge’s decision with respect to the Immigration Rules contains no error of law and shall stand. The Appellant’s appeal is also dismissed on Article 8 grounds.

Signed Date

Upper Tribunal Judge Taylor