Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28591/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 7 February 2017
On 9 February 2017

Before

Upper Tribunal Judge Southern

Between

SURINDER SINGH
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr S. Dey, of Lexpert Solicitors
For the Respondent: Mr T. Melvin, Senior Home Office Presenting Officer

DECISION

1. The appellant, who is a citizen of India, arrived in the United Kingdom in August 2010 and was admitted as a student with leave to remain that was subsequently extended in the same capacity on two occasions. Two days before that leave eventually came to an end on 27 April 2014 the appellant submitted an application for a further period of leave as a student. Before that application was determined, the sponsor licence of the college at which he was proposing to study had its sponsor licence revoked. In line with applicable policy, the respondent informed the appellant had he would be allowed a further 60 days to find a fresh sponsor and to submit a fresh application.
2. Unfortunately, the appellant was unable to find a fresh sponsor college. Mr Dey produced evidence to demonstrate that the respondent had been particularly active in revoking the sponsor licences of colleges that were considered not appropriate institutions to remain available, the consequence being that it became increasingly difficult to find any educational institution with the capacity to offer a place upon a course such as to generate the required Confirmation of Acceptance of Studies ("CAS").

3. Having been unable to find a new sponsor college and wishing to remain in the United Kingdom for the purpose of study, the appellant submitted, on the final day of the 60 day period granted, an application on Form FLR(O) for a period of leave to provide him with more time to find a sponsor college so that he could then submit his application for further leave as a student.

4. This application was refused under paragraph 322(1) of the immigration rules on the basis that this application was being made for a purpose not covered by the immigration rules. The respondent considered whether there were any compassionate grounds for granting leave outside the rules but concluded there were not. The respondent pointed out that the appellant could continue his studies in India or could apply for entry clearance to return if and when he was able to meet the requirements of the rules.

5. The appellant appealed against that refusal on the basis of rights protected by article 8 of the ECHR. His grounds asserted that he had established a private life in the United Kingdom and had a legitimate expectation to remain to complete his education here. Requiring him to leave before completing his education would bring about a disproportionate interference with his right to respect for that private life and that would not be desirable in the public interest. He acknowledged in his grounds of appeal that he had been granted 60 days to find a new sponsor but said that securing admission with any prospective sponsor had proved untenable due to the "rampant closure of academic sponsor institutions and scarcity of colleges willing to enrol new students in the appellant's proposed field of studies?".

6. The appeal came before First-tier Tribunal Judge Seelhoff on 2 August 2016. The appellant did not attend that hearing and was not represented and so the judge determined the appeal on the basis of the documents submitted by the appellant's solicitors. The judge said that the appellant had been provided with the 60 days leave to which he was entitled under the respondent's policy following revocation of a sponsor licence but said that he had no legitimate expectation of further leave to remain if he was unable to find a new sponsor. Addressing the article 8 claim the judge noted that the appellant had been in the United Kingdom for a relatively short period of time for the limited purpose of study. He said:

"I cannot see any scope for the application to succeed on the basis of the private life provisions of the rules given that there is no evidence before me of any obstacles to his integration back into society in India which I am required to examine under 276ADE(vi) of the Rules. I cannot see any scope of the application to succeed outside the rules because there can be no more minimal private life rights developed by the appellant to which I am required to attach little weight."

7. Despite that clear and unambiguous engagement with the ground of appeal brought under article 8 of the ECHR, First-tier Tribunal Judge Osborne granted permission because, he said:

"In a concise decision and reasons it is at least arguable that whilst the Appellant raised Article 8 grounds of appeal, the judge failed to consider Article 8 in the decision and reasons. Furthermore, it is arguable that the judge conducted an inadequate proportionality assessment."

8. That is not at all easy to follow because in explaining why the article 8 claim could not succeed, the judge has plainly done precisely that which Judge Osborne considered arguable that he had not.

9. In his submissions on behalf of the appellant Mr Dey developed the grounds upon which permission to appeal was sought and granted. The first ground, founded upon the concept of fairness, complained that the judge made no finding in respect of "the contributory impact of the respondent's irrational policy of licence revocation on the one hand and requiring students to find licenced sponsors on the other". That ground, however, is simply misconceived. There is nothing remotely irrational about the respondent taking steps to revoke the sponsor licences of institutions that failed to deliver what was required of them. Whilst any person wishing to seek leave to remain as a student must have a CAS, the respondent imposes no requirement on any person to make an application to remain in the United Kingdom and so to find a sponsor, although an application to remain as a student will not succeed unless an applicant is able to study at a qualifying institution. If a person in the appellant's position has no CAS then they have no basis upon which to remain in the United Kingdom as a student. That does not prevent him continuing study in his country of nationality nor applying for entry clearance to return if and when he is able to meet the requirement of the rules.

10. The second ground draws upon the reported case CDS (PBS "available" Article 8) Brazil [2010] UKUT 305 in support of the submission that article 8 is available as a ground in PBS appeals but this must be seen in the light of the decision of the Supreme Court in Patel & Ors v SSHD [2013] UKSC 72:

"It is important to remember that article 8 is not a general dispensing power. It is to be distinguished from the Secretary of State's discretion to allow leave to remain outside the rules, which may be unrelated to any protected human right. The merits of a decision not to depart from the rules are not reviewable on appeal: section 86(6). One may sympathise with Sedley LJ's call in Pankina for "common sense" in the application of the rules to graduates who have been studying in the UK for some years (see para 47 above). However, such considerations do not by themselves provide grounds of appeal under article 8, which is concerned with private or family life, not education as such. The opportunity for a promising student to complete his course in this country, however desirable in general terms, is not in itself a right protected under article 8."

11. The third ground, which addresses the question of proportionality, discloses some overlap with that discussed above. In essence, this ground asserts that as the appellant is a law abiding migrant who is likely to have integrated with society in the United Kingdom since coming here to study in 2010, the public interest does not demand an interference with his continuing to enjoy private life on the United Kingdom. It is said that the judge's consideration of factors that spoke in the appellant's favour was inadequate.

12. Although Mr Day advanced his submissions in support of those grounds as attractively as they could be, none is remotely arguable. The judge has engaged with the article 8 claim brought by the appellant, despite what was said by Judge Osborne in granting permission to appeal, and has considered the position of the appellant both within and without the rules. The judge had to determine the appeal on the basis of the material the parties had chosen to put before him. As the appellant did not appear and was not represented there was not very much material for the judge to consider. Judge Seelhoff made clear at paragraph 6 that he had regard to all that had been submitted by the appellant, including his witness statement. Certainly his consideration of the article 8 claim was brief, but in the circumstances that was sufficient to deal with this issue.

13. Drawing all of this together I am entirely satisfied that the decision of the judge discloses no material error of law. Indeed, it is hard to see what other outcome was rationally open to the judge on the evidence before him. The respondent had no duty or obligation to ensure that there were sufficient academic institution places available to provide a CAS for every person who may want one. On the other hand, the respondent did have a duty to revoke the sponsor licence of any institution that failed to meet the requirements to be met to qualify for a sponsor licence. The policy of providing a 60-day period to those who have applied to study at an institution which, through no fault of their own, has had its sponsor licence revoked is plainly lawful and would be rendered meaningless if the respondent were required to grant further leave to anyone who had been unable to find a new sponsor within that period.

14. The judge was plainly correct to conclude that the appellant has no legitimate expectation of being granted leave to continue his studies in the United Kingdom although there is no reason to believe that he will not be granted leave if and when he is in a position to meet the requirements of the rules. It was unquestionably open to the judge to reach the conclusion he did and in so doing he made no material error of law.

Summary of decision:

15. First-tier Tribunal Judge Seelhoff made no material error of law and his decision shall stand.

16. The appeal to the Upper Tribunal is dismissed.

Signed

Upper Tribunal Judge Southern

Date: 8 February 2017