Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26844/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 September 2016
On 29 September 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

waleed raja
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Saifolah of Counsel instructed by Adam Solicitors
For the Respondent: Mr K Norton, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Pakistan born on 7 September 1989. The respondent refused his application for leave to remain as a student on 15 July 2015. The appellant had made his application on 21 March 2014.
2. In her decision the respondent had referred to the applicant having submitted a TOEIC certificate from the Educational Testing Service (ETS) to both the respondent and his sponsor in order for them to provide the appellant with a Confirmation of Acceptance for Studies (CAS). The appellant had obtained his TOEIC certificate as a result of a test that he had taken at Apex on 14 January 2014. The respondent noted that ETS had undertaken a check of the appellant's test and had found "that there was significant evidence to conclude that your certificate was fraudulently obtained by the use of a proxy test taker". The appellant's test was accordingly declared invalid.
3. The appellant's application was refused under paragraph 322(1A) of the Rules as a false document had been submitted. The respondent was satisfied that the appellant had used deception with consequences for any future applications for entry clearance. The appellant had claimed that he had a valid CAS assigned by Bradford Regional College but when the respondent checked the register on 15 July 2015 the college was not listed on that date and accordingly the appellant had not met the requirements to be awarded 30 points under Appendix A of the Rules.
4. The appellant appealed the decision and his appeal came before a First-tier Judge on 8 January 2016. The judge heard oral evidence from the appellant who denied using deception and he had never heard of Apex. He gave evidence in perfect and fluent English and the judge found it obvious that he had no need to arrange someone to take the test for him as his English was excellent and he was not satisfied that the respondent had made out her case that he did not attend the test. Accordingly that aspect of the decision fell away.
5. The judge concluded his determination as follows:
"9. I am satisfied that Mr Raja does not have a CAS. That is because Bradford Regional College is not authorised to issue one. The Appellant had 9 months to vary his application from finding out in October 2014 about the loss of the licence and July 2015 when the application was refused and a further 6 months since then to find another college. Patel refers to a discretionary power by use of the word 'may'. I decline to exercise my discretion as he has already had a fair opportunity to vary his application.
10. I do not see any 'gap' within the rules to consider human rights as they are comprehensive.
11. Even if I am wrong in that, had I been required to consider whether there are compelling circumstances, or consequences of gravity that may exist by removal, I would have relied on the following findings which I make and also dismissed the appeal.
12. Mr Raja came here as an adult for a short period to study with the expectation he would return to Pakistan after that short period. He can study in Pakistan or through distance learning. He can apply to come back. He has failed to establish it is reasonably likely he would be rendered homeless or destitute in Pakistan as he can work.
13. There is no cogent evidence that he has a family or private life that would be engaged. Even if he has a private life through studies and friends, it is of limited value and was built up whilst leave was precarious. He has failed to establish he is not an economic burden on the taxpayer given the lack of evidence of contributions through tax to the cost of public services such as emergency services and transport infrastructure. His ability to speak English is a neutral factor. No one attended to give evidence regarding his life here. In all those circumstances, had Article 8 been reached, which it had not, I would have found that his removal was proportionate to the lawful and legitimate aim of only allowing those who fulfilled the immigration rules to be here."
6. There was an application for permission to appeal in which it was pointed out that there had been a delay of over a year in making the decision and during that period the sponsoring institution had had its sponsorship licence revoked by the Home Office. Normally 60 days would be given to allow an applicant to find a new sponsor. However the respondent had stated in the decision that this would not be allowed "as you have used deception in this application". However the judge had found that there had been no deception and accordingly the respondent should have given the appellant 60 days' notice to enable him to find a new educational institution and a new CAS. Reliance was placed on Home Office guidance helpfully attached to the grounds of appeal.
7. A point was also taken in relation to Article 8. It was pointed out that the appellant could not have obtained a further CAS or made another application for an extension of leave. It was said:
"A CAS cannot be issued by a sponsor without an individual having lawful leave and appropriate identity documentation. The applicant's passport was with the Home Office and switching leave from extant leave under Section 3C (of the 1971 Act) would have resulted in the further application in any event being made by an individual that no longer has lawful leave."
7. Reliance was also placed on the respondent's delay in deciding the application. The appellant's proposed college had had a sponsorship licence as at the date of application and for several months thereafter and it was only in the following year after about seven to eight months that the licence had been revoked by the respondent. The respondent's allegation about deception had been shown to have been ill-founded and the appellant's position had been compromised.
8. Permission was granted by the First-tier Tribunal on 8 July 2016. It was arguable that the judge had failed to take into account the matters advanced in the grounds. The appellant would not be able to obtain another CAS without his passport or a certified copy and would also have difficulty because given the requirements placed on sponsors, colleges would be concerned about whether the appellant did in fact have extant leave to remain: the judge referred to Patel (revocation of sponsor licence - fairness) India [2011] UKUT 00211 (IAC).
9. At the hearing Counsel relied on the grounds of appeal and the grant of permission. It was submitted that the judge had failed to apply Patel correctly: as was said in paragraph 8 of Patel an applicant would face difficulties in making a fresh application. The Home Office had made it quite clear in the decision that "as you have used deception in this application you were not allowed 60 days to obtain a new sponsor and CAS". It was unfair to refuse the application without giving the appellant an opportunity to vary it. After the decision itself the appellant would have had no leave to vary - Counsel referred to paragraphs 20 to 22 of Patel. The deception point needed to be adjudicated upon and it would have contaminated any further applications. She had not settled the grounds and it was accepted that the case could not be brought under the Immigration Rules themselves. However discretion should have been exercised in the light of the guidance and the fairness issue. Article 8 could be raised in the light of what was said in Patel at paragraph 17.
10. Mr Norton submitted that there was no valid CAS at the date of hearing and the appellant had had nine months in which to vary his application. Once he had known that the licence had been revoked he had the opportunity to vary the application. He did not accept that the application would be fruitless because no application had been made. It was accepted that as at the date of decision the appellant could not make an application and the judge had erred on that point. It did not appear that Article 8 had been argued before the First-tier Judge although it was accepted that the judge had dealt with Article 8 issues.
11. In reply Counsel submitted that there were practical difficulties in finding sponsors as was highlighted in paragraph 8 of Patel. The decision breached the requirement of fairness. Article 8 had been considered by the First-tier judge.
12. At the conclusion of the submissions I reserved my decision. I remind myself that I can only interfere with the decision of the First-tier Judge if it was materially flawed in law.
13. The first point to note is that there was a considerable delay between the application and the decision. The second point is that the decision raised serious allegations against the appellant, no doubt with serious consequences for the future if the allegation were made out.
14. Mr Norton made the point that it was open to the appellant to find a new sponsor during the decision-making process, a point that had commended itself to the First-tier Judge. However the difficulty with this argument is that it does not appear to be the way in which the respondent put the matter in the decision. Counsel highlighted the following sentence on page 3 of the decision:
"As you have used deception in this application you were not allowed 60 days to obtain a new sponsor and CAS."
The respondent's position was quite unequivocal.
15. The requirement to act fairly will always depend upon the context and the specific facts of the case as was made clear in Patel at paragraph 13. It is also pointed out that there are difficulties in obtaining a fresh CAS.
16. In relation to the period after refusal Mr Norton accepts that the judge erred in taking into account that period.
17. It is difficult to see why a person who has had an allegation made against him which turns out to be unfounded should not be put in the position that he would have been had the allegation not been made in the first place. In such circumstances it is incumbent on the decision-maker to re-visit the refusal to allow the appellant the usual 60 days to obtain a new sponsor and CAS. Were it otherwise the respondent would be both judge and jury and any favourable findings in the appeal would not assist him. The appellant should be put as far as possible in the position he would have been had the allegation not been made.
18. In relation to Article 8 it is quite clear that the judge considered the matter whether or not there was reference to Article 8 issues at the hearing. Article 8 was in fact raised albeit briefly in the grounds before the First-tier Judge and so he was correct to deal with it.
19. I have already referred to Mr Norton's concession that the judge erred in referring to the postdecision period from July 2015. It does appear to me that the approach to Article 8 needs to be seen in the context of this case where the appellant had had an allegation made against him of a serious kind which would potentially blight his career and prospects which turned out to be without foundation. The judge indeed found it "blindingly obvious" that the appellant had no need of a proxy test taker as his English was excellent. As is pointed out in Patel at paragraph 16, bona fide students may build up a private life which should not be arbitrarily interfered with.
20. In relation to the fairness issue Mr Norton accepts that the judge's approach was in part flawed. I am satisfied that he erred in considering that the appellant had had a fair opportunity to vary the application in all the circumstances.
21. I re-make the decision. The appeal is allowed on the fairness issue and under Article 8. It is for the respondent to exercise discretion to grant the appellant 60 days to find a new CAS in the light of the positive findings made by the First-tier Judge.

Notice of Decision
22. The appeal is allowed.
Anonymity Direction
23. The First-tier Judge made no anonymity direction and I make none.
Fee Award
26. Any fee paid by the appellant should be returned to him.

Signed Date 28 September 2016

G Warr, Judge of the Upper Tribunal