Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/33817/2014

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 2 November 2016
On 3 November 2016

Before

UPPER TRIBUNAL JUDGE KEKI?

Between

ARslan Javed iqbal
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Ms Z Ahmad, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a national of Pakistan born on 6 October 1988. He entered the UK as a Tier 4 Migrant in December 2012. A subsequent application for further leave made on 27 May 2014 was refused on 13 August 2014 under paragraph 245ZX(c) and (d) because he did not have a CAS assigned to him and consequently his ability to meet the maintenance requirements could not be assessed.
2. The appeal against the refusal was dismissed by First-tier Tribunal Judge McIntosh at Taylor House on 6 March 2015 and applications for permission to appeal were refused by First-tier Tribunal Judge Shimmin and Upper Tribunal Judge Freeman on 25 June and 25 August 2015. The applicant then filed a judicial review claim and that was granted by Mr Justice Gilbart on 9 March 2016. In granting permission Gilbart, J. made comments about the poor quality of the determination both with regard to the grammatical and typographical errors and with the inconsistency in the judge's reasoning. Permission to appeal was then granted by the Upper Tribunal on 28 September 2016.

3. The appellant's case, simply put, is that when he made his application on 28 May 2014, he did so without submitting a CAS. That is accepted. He argues, however, that he mistakenly thought his old CAS would have continued to apply to his current course and also, more importantly, that he was prevented from taking the IELTS test required to obtain a CAS because his passport had been submitted to the respondent with his application and had been retained despite two requests in July 2015 for its return. He argues that the only barrier to the obtaining of a CAS was the respondent's failure to return his passport and that the decision was, therefore, unfair. He argued that the respondent should have exercised discretion in his favour.

4. There was no appearance by the appellant or anyone on his behalf at the hearing of his appeal before me on 2 November 2016. In the absence of any message and, having satisfied myself that the notice of hearing was served both on the appellant and his representatives and that neither notice had been returned undelivered, I proceeded at 11.30 a.m. to hear submissions from Ms Ahmad.

5. Ms Ahmad referred me to four judgments: Shaikh [2014] EWHC 2586 (Admin), Marghia (procedural unfairness) [2014] UKUT 00366 (IAC), EK (Ivory Coast) [2014] EWCA Civ 1517 and Patel and others [2012] EWCA Civ 741. She pointed out that whilst the appellant had relied upon Shaikh in his grounds, that decision was made on its own particular facts (as is confirmed at paragraph 35) and the circumstances differed significantly to the appellant's case. She submitted that the court had found in Marghia that the exercise of residual discretion was a matter for the Secretary of State. In EK, the court had found that where an application was made under the points based system, either an appellant met the requirements or did not. There was no obligation on the respondent to give the appellant opportunities to meet the requirements of the rules. Patel addressed the issue of article 8 made by students. A near miss under the rules could not provide substance to a human rights case otherwise lacking in merit and article 8 was concerned with private or family life and not education as such (paragraphs 56-57).

6. Ms Ahmad submitted that the judge had provided clear reasons for why he concluded that there had been no unfairness. There were no material errors of law in his determination and it should be upheld.

7. At the conclusion of the hearing I reserved my determination which I now give.

Findings and conclusions

8. The appellant does not dispute the fact that he had no CAS when he made his application for further leave in May 2014. There can, therefore, be no dispute that he does not meet the requirements of the Immigration Rules and the judge's conclusions were correct in that respect.

9. The only issue that remains is whether the judge erred in finding that the respondent acted fairly in making her decision and whether there was an error in his failure to consider article 8. Before I proceed to whether the judge made material errors of law, it is helpful to set out the background and chronology to this case.

10. Contrary to what is argued at paragraph 6 of the grounds for permission to appeal (which are very poorly prepared), the First-tier Tribunal Judge did not accept that the actions of the respondent prevented the appellant from taking an IELTS examination. That is a complete misreading of paragraph 22 of the determination.

11. By the appellant's own evidence, he was told by his college (the London College of Accountancy) that he needed a fresh IELTS certificate when he approached them for a CAS. Although he does not specify in his February 2015 witness statement when that occurred, he does confirm that it was before he made his application for further leave (on 24 February 2014), before the expiry of his leave (on 27 February 2014), before he started to approach other Tier 4 sponsors and before he was issued a conditional offer letter from Queensbury College dated 3 January 2014. His accountancy course had ended on 27 December 2013.

12. The judge's record of proceedings records that the appellant's evidence was that he received this information in February 2014, some two weeks before his leave was due to expire. That does not sit well with the documentary evidence. The appellant must have known well before 3 January 2014 that he required a fresh certificate as it was on that date that he obtained a conditional offer letter from a new Tier 4 sponsor. Given that his course had ended on 27 December 2013, it is safe to presume that he would have sought to make enquiries about a further course before that date. Further, the passport copy shows that the appellant's leave expired on 27 February 2014, so his assertion on his application form on 27 May 2014, that he had PBS leave at the time, is incorrect.

13. The appellant sought an extension of his leave on 24 February 2014 but his application was rejected as invalid on 30 April 2014 because he did not enrol his biometric information. He does not explain why. Nor does he explain why he waiting almost a month to re-submit his application on 27 May 2014. When he did so, his passport was already with the respondent as evidenced by his application form (on p. 4). Both the February and May applications were to follow a new course with a new sponsor - Queensbury College, from 3 March 2014 - 24 April 2015. Whereas the appellant had previously sought to remain to complete his accountancy qualification (although as at June 2014 he had completed only 3 of 14 required examinations), the new course was for a diploma in Strategic Management. He does not explain why he chose to abandon his accountancy studies. In his application for leave, reference was made to an English language test certificate issued on 5 June 2014. However, this has not been produced and indeed it is difficult to see how, in May 2014, he could have in his possession a test certificate for 5 June 2014. The only certificate on file is an IELTS certificate dated 21 June 2012 taken at the British Council in Lahore, Pakistan.

14. It was not until 8 July 2014 that the appellant's representatives made the first request for the return of the appellant's passport, three days after the appellant booked his language test. The second request was made on 18 July 2014, the day before he was due to take the test.

15. The judge's determination does, indeed, contain unfortunate typographical errors as identified by Mr Justice Gilbart. There are also factual errors. The judge wrongly found that the date of expiry of the appellant's leave was 31 May 2014; no doubt arising from the respondent's appeal papers which give that date. He also wrongly concluded that the appellant had his passport at the time his May application was made, when the evidence clearly showed that he had already submitted it to the respondent with his February application. Notwithstanding those errors, having carefully read the determination as a whole and having considered the evidence at length despite the absence of the appellant, I am not satisfied that they are such as to vitiate the decision.

16. The judge considered the submissions made on the respondent's residual discretion and properly found that the judgments relied upon by the appellant all related to cases where individuals found themselves in difficult positions due to their colleges losing their licences. The position here is very different. The appellant had his passport until 27 February 2014 when he submitted it with his first (invalid) application. He provides no explanation as to why he did not seek to take the language test before then. His booking form shows that tests can be taken at short notice so the long delay between December 2013 when he would have discovered he needed to take the test, and July 2014 when he booked it, is unexplained. The appellant has brought his difficulties upon himself. The respondent has not caused them.

17. The appellant failed to request the return of his passport until 8 July 2014, over 4 months after his leave had expired. Even if he had received it and taken the test, it would not have advanced his position.

18. The respondent does indeed have discretion to grant leave outside the rules but whether or not she chooses to exercise it is a matter for her (Marghia op cit). She cannot be accused of unfairness for failing to exercise it, particularly in these circumstances, and the judge cannot be criticized for failing to find that she acted unfairly.

19. On the matter of article 8, I cannot see the basis on which this argument is advanced. The grounds of appeal refer to breaches of article 8 but nowhere does the appellant seek to set out the basis of any private/family life claim. In as much as his private life is associated with studies, that does not assist. It is established authority that article 8 is not generally concerned with a wish to study and in any event the appellant does not seek to complete the studies on which he embarked; his last course was for something completely different. A student who seeks to rely on article 8 to bypass his inability to meet the requirements of the rules has virtually no chance of success. The judgments relied on by Ms Ahmad reinforce that position.

20. It follows therefore that although it would have been far better had the judge's determination not contained the unfortunate and regrettable errors that have been pointed out, on the facts of this case no other outcome would have been possible.

21. Decision

22. The determination does not contain any errors of law such that the decision should be set aside.

23. The decision is upheld. The appeal is dismissed.

Signed

Upper Tribunal Judge

Date: 3 November 2016