Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27402/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd January 2017
On 8th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

mr Imran Sarker
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Z Khan (Counsel)
For the Respondent: Mr D Clarke (Senior HOPO)

DECISION AND REASONS

1. This is an appeal against the decision of First-tier Tribunal Judge Lingam, promulgated on 12th July 2016, following a hearing at Taylor House on 1st July 2016. In the determination, the judge dismissed the appeal of Imran Sarker, whereupon the latter applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a citizen of Bangladesh. He was born on 9th November 1990. He appealed against the decision of the Respondent Secretary of State dated 17th July 2015, refusing his application for a variation of leave to remain against the decision to remove him on the basis that he had made a combined application for leave as a Tier 4 (General) Student, which could not succeed under paragraph 245ZX of HC 395 because he did not have a CAS because a CAS had been assigned on 21st May 2014 by London School of Technology, but this institution was not listed as a Tier 4 Sponsor and on 8th May 2015 the Appellant was informed of this and allowed 60 days to obtain a new Sponsor but was unable to do so.
The Judge's Findings
3. At the hearing before Judge Lingam, the Appellant did not attend. Nor did he arrange for any representation on his behalf. The judge observed that, "I am satisfied that the Appellant has not explained his absence" (paragraph 6). The Appellant's claim, as summarised by the judge was that he was a regular student in the UK since entry here and he had filed a Tier 4 application with a valid CAS but the Sponsor's licence was subsequently revoked and that the original grant of 60 days was not sufficient and additional time was needed.
4. The judge heard submissions by the Respondent Secretary of State that the appeal should be dismissed for lack of substantial evidence to support the Grounds of Appeal (paragraph 10). The judge observed that the Appellant filed his appeal grounds on 31st July 2015 but since then there had been no communication. He also observed that, "as the Appellant did not attend his hearing, there is little point in assessing if the Respondent had properly issued him the 60 day period to obtain a new CAS" (paragraph 14).
5. In addition, reference was also made to the case of Amjid Khan [2016] EWCA Civ 137 which was to the effect that when an applicant is offered extra time to submit a new valid CAS, he must also submit new financial information to show that he met the requirements for his new course at the material time. The Appellant did not do so here (paragraph 16). The judge then went on to consider Article 8 and found that the Sponsor adequately dealt with the set of circumstances at the date of the decision (paragraph 19) and that there were no exceptional circumstances (paragraph 20) so as to require a consideration of the Appellant's position outside the Immigration Rules.
6. The appeal was dismissed.
Grounds of Application
7. The grounds of application state that evidence was filed before the hearing but did not find its way to the judge so that his failure to consider this evidence amounted to an error of law. On 17th November 2016, permission to appeal was granted by the Tribunal on the basis that,
"Whilst the Appellant was entirely at fault by not faxing it until after 5pm on 30th June 2016, and the judge cannot be faulted if the papers did not make their way through to him by the time he approved it for promulgation on 5th July 2016, the fact remains that the papers were filed before the hearing" (see paragraph 3).
8. On 5th December 2016, a Rule 24 response was entered to the effect that the Appellant had been granted 60 days to find another college and he could not find a place within that timeframe, it was open to him to leave the UK and seek an appropriate entry clearance to return which he had failed to do.
The Hearing
9. At the hearing before me, on 3rd January 2017, the Appellant was represented by Mr Z Khan of Counsel who began by submitting that he did not place complete reliance upon the grounds of application but would seek to introduce further new matters. No application was made by him to amend the grounds of application. However, he continued to make two specific submissions.
10. First, the Appellant's case was not that he had failed to find an appropriate college within 60 days, as the judge had understood the case to be at the time of the hearing, but that he did find a college, but that the college required him to verify his identity which the Appellant was unable to do because the password was held by the Respondent Home Office. Therefore, on 17th June 2015 his representatives, SEB Solicitors, had written to the Home Office in Sheffield asking them to provide certified copies of his passport. This was done before the decision to refuse the application was made on 17th July 2015. No reply was forthcoming with the certified copies such that the Appellant could then seek entry into his chosen college.
11. Second, although the Grounds of Appeal referred to the case of CDS (Brazil) Mr Khan would not wish to rely upon that decision at all but would seek to say that the judge had failed to approach the Article 8 issue in the correct and lawful manner. He had only dealt with Article 8 in two brief paragraphs and he had failed to consider the position outside the Immigration Rules on the basis of freestanding Article 8 jurisprudence which it was incumbent upon him to do.
12. For his part, Mr Clarke submitted that although the Appellant's witness statement does refer to the fact that on 8th May 2015 he had been given 60 days to find a new college, there was nothing in the bundle of documents asking the Home Office to have them send him certified copies of his passport at all. It was incontestable that he was given 60 days and he was given his documents within three months to find another college.
13. Second, although CDS (Brazil) was not now being relied upon, it was in the grounds of application, and this case was entirely different because that was the case where the Appellant had already embarked upon a course of study when the status of the college was put into question, which is not the case here, because the Appellant has yet to begin a course anywhere at all.
14. Third, as far as Article 8 is concerned, the Appellant did not attend, and the two paragraphs are adequately reasoned, with the second paragraph (paragraph 20) referring to the fact that there are no "compelling" circumstances here such that would necessitate enquiry into freestanding Article 8 jurisprudence. If the Appellant was not relying upon paragraph 276ADE of the Immigration Rules there was nothing further to be said as far as freestanding Article 8 jurisprudence was concerned.
15. In his reply, Mr Khan now handed up a copy of the letter of 17th June 2015 from SEB Solicitors, apparently written to the Home Office in Sheffield, and to this was attached the Home Office response of 8th May 2015, which had given the Appellant 60 days to find another college. Mr Khan submitted that he only had one copy of this. I pointed it out to him that the approach on his side had been dogged by a piecemeal and unstructured handling of this appeal. At the very least, copies of this, apparently vital document, should have been provided both for the Tribunal, and for Mr Clarke on behalf of the Home Office, prior to this hearing. It is not a matter that should have been brought to the attention of the Tribunal in the reply of Mr Khan to the submissions made by Mr Clarke. Nevertheless, two copies of this document were made and one was kept on the Tribunal file and the other given to Mr Clarke for his records. I enquired of Mr Khan whether this document, which was not in the Appellant's bundle and not even referred to in the grounds of application to the Upper Tribunal, was actually sent to the Home Office requesting them for the Appellant's certified copies of his passport, in a timeous manner, so as to enable them to deal with the matters raised. Mr Khan could not give the Tribunal that assurance. He submitted that it was open to the Home Office to either deny receipt of this letter of 17th June 2015 asking for documentation, or to concede to the fact that such an application had been made.
No Error of Law
16. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows. First, the grounds of application to the Upper Tribunal dated 26th July 2016 from SEB Solicitors (see pages 6 to 8 of the Home Office bundle) do not refer to the letter of 17th June 2015 requesting the Home Office to provide certified copies of the Appellant's passport so as to enable him to get a CAS from an approved institution. If anything, the understanding up to this point has been that the Appellant failed to secure a college on the basis that the 60 days were not enough. Second, insofar as evidence is sent to the Tribunal for consideration in the appeal, it is sent after 5pm on 30th June 2016, which is after close of business, and in any event far too late for a hearing the next day on 1st July 2016. Third, the Appellant did not attend and neither did his legal representatives, so that assuming that this late submission of evidence had been produced before the Tribunal, Judge Lingam would have wished to know whether the letter of 17th June 2015 had been posted to the Home Office on that date bearing in mind that the letter sent in June 2015 does not refer to a named institution that is approved as an educational Sponsor, but just states that "our client has been offered by a Tier 4 educational Sponsor who is ready to issue a new CAS". In all the circumstances of the case, therefore, the decision reached by Judge Lingam was the only one that was open to him and there is no material error of law in his decision.
Notice of Decision
17. There is no material error of law in the original judge's decision. The determination shall stand.
18. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 7th February 2017