Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30332/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons
On 10th October 2016
On 14th October 2016

Before

Upper Tribunal Judge Rimington

Between

Miss Mandeep Kaur Toor
(No Anonymity Direction)
Appellant
And

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr A Arayn, instructed by Farani Javid Taylor Solicitors LLP
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant made an application for leave to remain as a Tier 4 (General) Student Migrant on 29th March 2012. Twice, the colleges for which she obtained a Confirmation of Acceptance of Studies (CAS), had their licences revoked by the Secretary of State. After nearly three years, on 9th February 2015 the appellant was given 60 days leave in order to obtain a further CAS. Her application was then refused on 26th August 2015 for lack of a CAS. As she had failed to provide a CAS the Secretary of State was also unable to assess the funds evidence she had produced. Her application was refused under paragraph 322(9) of the Immigration Rules, that is a failure within a reasonable time to produce a document or other evidence required by the Secretary of State to establish the claim to remain under the Rules. As she was refused under the general provisions her application was also refused under paragraph 245ZX (a) and as she did not have the relevant points under Appendix A she was refused under paragraph 245ZX (c). She was, however, granted an in country right of appeal which she exercised.
2. First Tier Tribunal Judge Sweet dismissed the appellant's appeal recording in his/her decision at [8] that
'The appellant's college, London School of Technology, has in the meantime had its licence revoked and the appellant was given an opportunity on 9th February 2015 to find an alternative CAS from a licensed sponsor within 60 days but she failed to do so. According to her grounds of appeal this was because the respondent failed to provide her passport and other educational certificates to enable her to find an alternative CAS. No documentation was provided with that notice of appeal, nor any correspondence, nor was a bundle provided for this appeal, though the Appellant was represented by solicitors'.
3. The appellant made an application for permission to appeal to the Upper Tribunal on the basis that she had indeed supplied further documentation to the First-tier Tribunal for her appeal. Her appeal bundle included copies of correspondence from her solicitors to the Secretary of State, prior to the refusal of her application, requesting documents such as her passport and educational documents or at least attested copies, to produce to colleges, to enable her to obtain the necessary CAS. The correspondence from her solicitors to the Secretary of State explained that without those documents, colleges were rejecting her applications for a CAS.
4. Initially permission to appeal was refused by the First-tier Tribunal but was then granted by Upper Tribunal Judge McWilliam.
5. At the hearing before me Mr Arayn produced a witness statement of the caseworker from Farani Javid Taylor who confirmed sending a timely appeal bundle to the First-tier Tribunal. That statement was supported by evidence of the posting of the appeal bundle, in the form of an excel sheet. This showed that documentation had been forwarded to the First-tier Tribunal on 29th October 2015 by first class post in order to meet the evidential deadline of 3rd November 2015.
6. I accept that it is more than probable than not, that the posting record referred to the appeal bundle said by the judge to be missing, and that either it was lost in the post or not linked with the file. I find that there is a procedural error and resulting unfairness. There can be no fault attributed to the appellant. The appeal bundle documentation was simply not with the file. In the making of the First-tier Tribunal decision there was an error of law stemming from the procedural irregularity. I set that decision aside. In passing I note the error was not the fault of the judge. I was encouraged by both parties to remake the decision myself.
7. The omission of the appeal bundle was rectified in accordance with Rule 15(2) of The Tribunal Procedure (Upper Tribunal) Rules 2008 and the appeal bundle put before me.
8. It is clear that the Secretary of State offered the appellant, by way of letter dated 9th February 2015, the opportunity to obtain a new CAS. Mr Kotas submitted that the appellant should not succeed in her appeal. There had been no failure on the part of the Secretary of State and the rules needed to be applied consistently. He drew my attention to the last paragraph of the letter which stated
'if you fail to submit a new, valid CAS together with the required supporting documentation within this 60 day period, then our application will be considered on the basis of the information currently available and will therefore fall to be refused'.
9. Mr Kotas added that the Secretary of State had given the appellant more than 60 days as the refusal did not take place until 26th August 2015. Mr Kotas also referred to the letter which he said accompanied all such letters. This was in the form of an information leaflet addressed to the appellant but informed any college that the passport of the applicant had been retained by the Secretary of State.
10. The appellant's case was that she had attempted to obtain a CAS from numerous colleges but they would not entertain her application without attested educational certificates and passport copies.
11. Mr Arayn pointed out, however, that the solicitors had written to the Secretary of State twice before the expiry of the 60 day period which would have been on or around 10th April 2015, both on 19th March 2015 and again in April (the actual date is indecipherable but appears to be a single digit), explaining that despite the information leaflet, colleges would not offer a CAS without the original passport or attested copies and original academic certificates and requesting that the Secretary of State forward these to the appellant. There was no response. The letter of 19th March 2015 to the Secretary of State, in order to underline the recognised difficulties relating to the production of documents in such circumstances, contained the following extract from Kaur (Patel fairness: respondent's policy) [2013] UKUT 00344 (IAC)
'13. The appellant, through Mr Murphy, expressed concern that she would not be able to obtain a CAS without her passport and that this was with the Home Office. Mr Deller referred to the internal case working instruction which states that a certified copy of the student's passport will be given to the appellant because colleges will require evidence of status. We suggested to Mr Murphy that the appellant contacts the respondent forthwith to secure her passport to enable her to vary her application. We do not know when the 60 days period commences and neither party was able to assist in this regard'.
12. That is self explanatory. A further letter from the appellant's solicitors with a similar exhortation followed in April 2015 this time also quoting Thakur (PBS decision - common law fairness) Bangladesh [2011] UKUT 00151 (IAC).
13. Neither the appellant nor the solicitors received a response prior to the refusal. Mr Kotas could locate no response on his file.
14. With the caselaw set out above, I find that it is evident that the appellant, without an attested copy of her passport and original educational certificates, or at least certified copies, was unable to obtain, through no fault of her own a further CAS. She was given no response, nor information as to the status of her application and although she endeavoured to obtain a reply or documents from the Secretary of State, she failed to elicit either. That is a procedural unfairness which rendered the treatment of her application unfair. It is known to the Secretary of State by virtue of the caselaw that appellants cannot obtain a CAS without the relevant documents. She had to her mind produced a CAS with her application and twice they had become invalid. No doubt colleges have become more wary about the procedure for enlisting applicants and would apply increasingly more rigorous practices when enrolling students because of the risk of losing their sponsorship licences. The appellant could not provide that which was with the respondent.
15. As the application was made prior to the 20th October 2014 through the saving provisions effected by The Immigration Act 2014 (Commencement No 4 Transitional and Saving Provisions and Amendment) Order 2015 the 'old rights' of appeal apply as do the former provisions in respect of Section 86 of the Nationality Immigration and Asylum Act 2002 and, effectively, how the tribunal resolves the appeal. I find that the inaction and failure of the Secretary of State to provide the appellant, despite repeated requests, with the necessary documentation prior to the refusal of her application unfair and thus not in accordance with the law.
16. The appellant awaits a lawful decision. She should contact the Secretary of State for the provision of the relevant documentation (certified/attested passport and original educational certificates) and on receipt of such documentation should be given a 60 day period in order to obtain the relevant CAS so she may vary her application.
Notice
Appeal Allowed to the limited extent outlined above.

Signed: Upper Tribunal Judge Rimington
Date: 13th October 2016

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make a whole fee award because the appellant was successful.