Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28442/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 27 March 2017
On: 11 April 2017

Before
Deputy Upper Tribunal Judge Mailer

Between
Miss Rajwinder Kaur
no anonymity direction made
Appellant
and

secretary of state for the home department
Respondent

Representation
For the Appellant: Ms M Malhotra, counsel
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of India, born on 15 March 1984. She appeals with leave against the decision of the First-tier Tribunal promulgated on 4 July 2016 dismissing her appeal against the decision of the respondent dated 30 July 2015 refusing her application for leave to remain as a Tier 4 (General) Student. A decision was also made to remove the appellant from the UK.
2. The appellant contended before the First-tier Tribunal that the decision was not in accordance with the law on the grounds of unfairness.
3. The refusal letter stated that the college at which the appellant wished to study was not listed as a Tier 4 sponsor. It is contended that the appellant was informed of this on 15 June 2015 and was given 60 days to acquire a new sponsor. However, the letter erroneously stated that the 60 day period would expire on 13 July 2015.
4. A further letter was sent to the appellant which was an “information leaflet”. It is stated in that letter that during the 60 day period the student has the opportunity to withdraw her application or to obtain a new Tier 4 sponsor. If she is successful in obtaining a new Tier 4 sponsor, then the application should be submitted to vary the grounds of the original application. The leaflet is for the attention of the proposed new sponsor who will need to issue her with a new CAS.
5. It is stated in that letter that if the student failed to submit a new, valid CAS together with the required supporting documentation within the 60 day period, the application will be considered on the basis of the information currently available and will therefore fall to be refused.
6. The First-tier Tribunal Judge noted that the respondent's “60 day” letter did not as a matter of fact afford the appellant a full 60 days. As at the date of decision, the appellant had only had 45 calendar days. She noted that the appellant had not filed any evidence as to what steps, if any, she took to seek a new CAS.
7. The Judge noted that the appellant appealed the respondent's decision on the basis that it was not in accordance with the law on the grounds of unfairness. She contended that she had had inadequate time to acquire a fresh CAS by the date given by the respondent as the deadline.
8. The Judge set out the relevant paragraphs under the Rules.
9. The appellant did not attend the hearing. Neither was she represented. She did not provide a bundle for use at the hearing. She had submitted some additional documents with her notice and grounds of appeal dated 10 August 2015. In particular, there was a “proof of delivery” slip dated 20 June 2015.
10. In her grounds she made reference to a request she made to the respondent to reconsider the 60 day letter but claimed that that request was refused. Although she claimed to have included a copy with the grounds of appeal, the Judge noted that it did not appear that it was included. She also supplied a copy of the “60 day letter” addressed to prospective new colleges but only the first of the two pages.
11. The appellant accepted in her grounds of appeal that her college's licence had been revoked. She did not claim any ability to meet the requirements of the Rules as she accepted that her CAS was not valid.
12. The Judge therefore considered that the only way the respondent's decision could be found to be unlawful is if she found it to be unfair [14]. The Judge accepted that on the respondent's version the appellant was only given some 28 days to obtain a new CAS despite the letter stating that she would be given 60 days.
13. In submitting that the respondent's decision was unfair, the appellant in her grounds of appeal, relied on decisions such as Naved (Student – fairness – notice of points) [2012] UKUT 14; Patel (Revocation of sponsor licence -fairness) India [2011] UKUT 211 and Thakur (PBS decision - “common law fairness”) Bangladesh [2011] UKUT 151. She found that the consensus of the “jurisprudence” was that in situations where appellants are unaware of a change or of a development which adversely affected their application and which arose after the submission of the application and about which they had no opportunity to respond or remedy, the refusal is unfair [16]. The Judge noted that the respondent's “60 day” letter did not afford her a full 60 day period. By the date of decision she had had 45 calendar days.
14. The Judge then considered whether the respondent's actions in these circumstances amounted to procedural unfairness.
15. She referred to the decision of Fiaz (Cancellation of leave to remain – fairness) [2012] UKUT 00057, where the Tribunal held that the jurisdiction to determine that a decision is not in accordance with the law because of a lack of fairness is not to be degraded to a general judicial power to depart from the Rules where the Judge thinks such a course appropriate, or to turn a mandatory factor into a discretionary one: fairness in this context is essentially procedural.
16. She also referred to Marghia (Procedural Fairness) [2014] UKUT 00366, where it was held that the common law duty of fairness is essentially about procedural fairness. There is no absolute duty at common law to make decisions which are substantively “fair”. The Court will not interfere with decisions which are objected to as being substantively unfair, except where the decision in question falls foul of the Wednesbury test, that is, that no reasonable decision-maker or public body could have arrived at such a decision.
17. The Judge found on the evidence available that it is clear that the respondent endeavoured to provide the appellant with a further opportunity to acquire a new CAS. She gave her a deadline to comply with and did not decide the application until after that deadline.
18. Even bearing in mind that this period was not the full 60 days, absent any evidence from the appellant, the Judge was not satisfied that the respondent's decision was a breach of her common law duty of fairness or otherwise procedurally unfair [24].
19. On 8 February 2017 permission to appeal was granted on the basis that it is arguable that the Judge should have considered whether the failure to properly apply the relevant 60 day policy rendered the decision not in accordance with the law under the old statutory regime.

The appeal
20. Ms Malhotra submitted that although given 60 days, the respondent in fact considered her application prematurely. That constituted unfairness in the circumstances.
21. On behalf of the respondent, Mr Wilding submitted that there was no material error of law that was established. In particular there was no evidence from the appellant as to what effective disadvantage she suffered as a result of the reduced time.
22. The appellant did not attend the hearing and provided no evidence at all to indicate that a CAS could or would have been obtained within the 60 day period. Her grounds of appeal, moreover, appeared to indicate that she had not obtained a CAS by the expiry of the 60 day period.
23. Mr Wilding referred to the appellant's reasons for appealing set out in her application for permission. There she stated that she can definitely secure a CAS from a “reputed sponsor” and only needs a “permission as most of the sponsors are now looking to have permission.”
24. He submitted that Patel is a case where no notice has been given. The error here however was a miscalculation of the 60 day period. No prejudice has been shown to have been suffered.
25. Nor did the appellant attend the First-tier Tribunal hearing or the appeal before the Upper Tribunal. No evidence has been provided as to what efforts, if any, she has made some one and a half years since. Leave was curtailed in 2014. She has accordingly had ample time to obtain a CAS.
26. Moreover, the respondent in fact took the decision two weeks after 13 July 2015. He submitted that the decision taken by the respondent was in accordance with the law and was not unfair in the circumstances.
27. In reply, Ms Malhotra submitted that “60 days is 60 days.” The respondent is not absolved from that duty. The Rules do not require the appellant to make any effort.
Assessment
28. The First-tier Tribunal Judge set out the underlying facts in full. The Judge considered whether in the circumstances the decision of the respondent constituted a breach of her common law duty of fairness or was otherwise procedurally unfair.
29. The Judge set out the relevant authorities that informed her decision. She found that the appellant had not filed any evidence to show the steps that she took to acquire a new CAS. Nor did she produce any evidence showing that her efforts had been frustrated by the shortened period. Nor were there any further steps taken to raise the issue with the respondent. The appellant had not produced any evidence of any attempt to find an alternative sponsor.
30. In those circumstances the Judge was satisfied that the decision did not breach any common law duty of fairness to the appellant.
31. That was a finding to which the Judge was entitled to come on the basis of the lack of any evidence of any prejudice claimed to have been suffered by the appellant in the circumstances.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of any material errors on a point of law. It shall accordingly stand.
No anonymity direction is made.

Signed Date 6 April 2017
Deputy Upper Tribunal Judge C R Mailer