Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26505/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 February 2017
On 16 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

Mr MD Akhtaruzzaman Khan
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr M Bhuiyan, Legal Representative, Londonium Solicitors
For the Respondent: Mr P Nath, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal from a decision of First-tier Tribunal Judge Cockrill promulgated on 30 August 2016. The appellant is a citizen of Bangladesh who was born on 18 December 1982. He has an immigration history going back some years during the course of which he has been the beneficiary of a series of student visas. His application for leave to remain, which forms the basis of the current proceedings, was granted on 11 September 2013 as a Tier 4 (General) Student. It was expressed to last until 30 April 2015 although this was subsequently curtailed so as to expire on 16 February 2015.

2. The matter was dealt with in the First-tier Tribunal and there is a substantial and detailed decision running to some 78 paragraphs. The appellant was represented by Counsel before the First-tier Tribunal. The Secretary of State was unrepresented.

3. The grounds of appeal were settled by Counsel and raise a number of matters. The case has been advanced in oral submissions before me by Mr Bhuiyan on behalf of the appellant in a more narrow and focused way.

4. Mr Bhuiyan took me first to paragraph 73 of the determination where the judge stated in terms "I do not consider the matter is entirely clear-cut". The suggestion by Mr Bhuiyan was that this statement by the judge gives rise to an expectation that the benefit of any doubt in the matter should be construed in the appellant's favour. This is a fundamentally flawed submission. Judges are regularly required to construe and apply legislation to infinitely variable sets of the facts. It is not uncommon for cases not to be clear-cut, but the judicial function is apply the law to the facts, which is exactly what the judge did. The responsibility of an appellant before the Upper Tribunal is to demonstrate that there is a material error of law in the judge's decision.

5. I had push Mr Bhuiyan quite hard in order to get him to identify what he considered to be a material error of law. It was not straightforward getting him to focus on this. What ultimately he seemed to be saying was that there was evidence before the First-tier Tribunal which the judge failed to take into account suggestive of the fact that the appellant continued to attend Docklands College notwithstanding that it was in free-fall so far as the provision of education was concerned. Mr Bhuiyan was unable to identify in any of the documentation that was before the First-tier Tribunal any material which was disregarded by the judge. Although he took me to the witness statement of the appellant dated 26 July 2016, he was unable to identify within it anything which supported his submission that there were matters which the judge had failed to take into account.

6. Mr Bhuiyan next took me to submissions made by Counsel before the First-tier Tribunal but I reminded him that submissions from Counsel do not constitute evidence. He then referred me to paragraph 27 of the decision, which comes in a section where the judge summarises the evidence given during the course of the hearing. That paragraph reads as follows:

"In his oral evidence, it was reconfirmed that the sponsor college was Docklands College. The appellant had gained a postgraduate diploma in hospitality and tourism management. He had undertaken eighteen hours per week study for that course."

This constitutes evidence that the appellant had actually studied at some unparticularised time at Docklands College but I am far from satisfied that this, without more, took matters as far as Mr Bhuiyan claimed.

7. Two further paragraphs in the determination which give colour and context to this background.

"36. When asked as to when his studies really ceased at Docklands College [the appellant] indicated that his attendance was going down after January but appeared to end therefore at about the end of May or June 2014, although the appellant still turned up at Docklands College.

37. As well as the foregoing, the appellant also appears to have undertaken a course which was being offered in the Elephant & Castle District of London. It was offered by the London School of Management and Science, and the award on successful completion of the diploma was from Glyndwr University based in Wrexham."

8. The judge's findings and reasoning on this point can be found in paragraphs 67 and following of the determination. They read as follows:

"67. Can it really be said that what the appellant was doing was supplementary? It seems to me that the character of that study at Anglia Ruskin University was not supplementary but really was becoming the principal course of study undertaken by the appellant.

68. That position became stronger and stronger, if I can term it such, the more that Docklands College failed in its duty to provide a proper course of study for the appellant.

69. Although it is an intriguing argument that [Counsel for the appellant] has presented, it does seem to me rather artificial to be saying that this whole course of study conducted through the London School of Marketing which led to a masters degree from a perfectly well-recognised university in this country, Anglia Ruskin, was supplementary. I think that is straining the meaning of 'supplementary' too far.

70. In any event, the London School of Marketing was itself removed in October 2014 and that was before the degree certificate was awarded."

9. It seems to me that the arguments pursued by Mr Bhuiyan on behalf of the appellant amount to no more than a dispute as to factual findings of the judge. He has not identified any material error of law. The conclusions to which the judge came are closely reasoned, take into account the evidence which was heard by the judge and assessed appropriately, giving due weight to such parts as the judge considered fit. It is not the function of the Upper Tribunal to review issues of weight and credibility and factual findings to which a First-tier Tribunal came, and to which a First-tier Tribunal was entitled to come. In my assessment the judge's conclusion on this matter is wholly rooted in the evidence which was tendered tested and is unimpeachable.

10. There is then a second ground of appeal pursued in the written grounds and argued before me by Mr Bhuiyan, namely that the judge's consideration of the separate Article 8 claim relying on the appellant's family life was not sufficiently dealt with by the judge. He is quite correct to say that it is a brief treatment as appears at paragraph 78 of the determination where express reference is made to the decision of Patel v Secretary of State for the Home Department [2013] UKSC 72. The judge reminded himself that Article 8 is not to be used as some form of general dispensing power where there has been a near miss in relation to a Rules-based claim. In my view, although succinct, this treatment is more than sufficient so that the litigants know the reasons why the judge concluded as he did. I can see no error of law in the treatment of the Article 8 claim in the decision. So, similarly, I reject the contention that this amounts to a material error of law. Though shortly stated, it is proper and adequate exercise of judicial discretion.

11. In all the circumstances this appeal is dismissed and the decision of the First-tier Tribunal affirmed.

Notice of Decision

Appeal dismissed.

No anonymity direction is made.

Signed Mark Hill Date 16 February 2017

Deputy Upper Tribunal Judge Hill QC