Tribunal decisions

The decision

IAC-AH-LR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/31147/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 5 December 2013
On 19 December 2013

Before

UPPER TRIBUNAL JUDGE PINKERTON

Between

Mr divyesh dhirubhai patel
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr N Butt
For the Respondent: Mr S Whitwell

DETERMINATION AND REASONS
1. The appellant is a citizen of India who was born on 1 October 1987. He was given permission to appeal to the Upper Tribunal against a determination promulgated on 16 September 2013 by a First-tier Tribunal Judge. By that decision the judge found that at the time the appellant sought to appeal the respondent’s decision dated 9 July 2013 refusing his application for discretionary leave to remain within the United Kingdom under Article 8 of the ECHR the appellant did not have leave. That leave, the judge found, had expired in 2012. As the judge put it “because of the expiry of leave the appellant had no right to remain within the United Kingdom and his right of appeal is extinguished”.
2. At the hearing before me it became clear that the appellant does, in fact, have a right of appeal.
3. The judge granting leave to appeal to the Upper Tribunal commented that the grounds seeking leave are both vague and extravagant and, elsewhere, that they are verbose and unfocused. However, despite this, the following facts emerge.
4. The appellant arrived in the United Kingdom on 1 October 2009 and was granted leave as a Tier 4 (General) Migrant until 23 July 2011. He then made an application on 12 April 2011 for further leave. With that application he submitted a Confirmation of Acceptance for Studies (CAS) at London Business Academy. On 27 September 2011 UKBA made the decision to revoke the licence of London Business Academy. It seems that the appellant also submitted a CAS number for Lincolns College but their licence was revoked also. For some reason it was not until 31 July 2012 that a final decision was made upon the application that had been made some fifteen months previously. In that decision letter of 31 July 2012 the appellant was told that he had 60 days to withdraw his application and submit a fresh one in a different category or to leave the United Kingdom. He was told also that it was open to him to obtain a new CAS for a course of study at a fully licensed Tier 4 educational sponsor and then submit an application to vary the grounds of his original application.
5. It is apparent that the appellant did just that and he was issued with a residence permit on 27 September 2012 granting him leave until 12 January 2015 as a Tier 4 (General) Student. However, the appellant’s problems were not over because the leave he was granted was to enable him to study at the Graduate School of London. That institution’s sponsor licence was revoked on 24 November 2012. As a result the respondent varied the duration of the appellant’s leave so as to expire on 20 April 2013. He was told in the letter from UKBA dated 19 February 2013 that he was expected to either leave the United Kingdom or submit a fresh application for leave to remain before his current leave to remain expires.
6. Again the appellant made a further application. That application is dated 3 April 2013. He was issued with an acknowledgment letter from the respondent to his solicitors dated 9 April 2013 in which the appellant was informed that it would be appreciated if he did not enquire about the progress of the application before hearing further from UKBA. There is a further letter in the bundle from UKBA to the appellant himself dated 19 April 2013 referring to the application and informing him that he must have his biometrics taken.
7. The next occurrence was a letter from UKBA dated 9 July 2013 enclosing a notice of decision refusing the appellant leave to remain. The refusal refers to the application made on 3 April 2013 but then wrongly refers to his leave to remain having expired in 2012. It was against that decision that the appellant sought to appeal but the First-tier Tribunal Judge ruled that he had no valid right of appeal.
Conclusions
8. The history can be gleaned from the documentation that I have before me. Mr Whitwell on behalf of the respondent did not seek to argue that the appellant does not, in fact, have a right of appeal.
9. For the above reasons the decision of the First-tier Judge cannot stand. There was discussion as to the best method of moving matters forward. The appellant, it appears, has made several unfortunate choices as to the colleges at which he has sought to attend and I am told that he has lost many thousands of pounds as a result. The respondent was incorrect to state that the appellant’s leave to remain expired in 2012. It did not and the appellant made his application for further leave within the period granted to him. Therefore the appellant’s application made on 3 April 2013 still remains outstanding before the respondent and awaits a lawful decision to be made on it.
Decision
10. The First-tier tribunal judge erred for the reasons set out above and his decision is set aside.
11. This appeal is allowed to the extent that the matter is remitted to the respondent for a lawful decision to be made upon the application of the appellant of 3 April 2013.
12. The circumstances of this appeal do not require that there should be an anonymity direction made.

Signed: Date:

Upper Tribunal Judge Pinkerton