IA/47699/2014

• Status of case: Unreported
• Hearing date: 7 Dec 2017
• Promulgation date: 8 Feb 2017
• Publication date: 25 Oct 2021
• Last updated on: 25 Oct 2021

The decision

IAC-FH-NL-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/47699/2014


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 7 December 2016
On 8 February 2017



Before

UPPER TRIBUNAL JUDGE ALLEN


Between

tahir hafeez
(anonymity direction NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:

For the Appellant: No appearance or representation
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer


DECISION AND REASONS


1. This is the appeal of Mr Hafeez against the Secretary of State's decision of 11 November 2014 refusing his application for leave to remain in the United Kingdom. He entered the United Kingdom as a Tier 4 student on 14 June 2011 with leave to remain until 27 July 2014.

2. The application for leave to remain was not as a Tier 4 student but was made by submitting form FLR(FP) with a covering letter explaining that his college had closed down. There was an indication on his data protection file that his visa had been curtailed and he was submitting a further leave to remain application requesting the exercise of discretion to enable him to continue as a student on the basis that he had not yet obtained a degree and had spent a substantial sum of money on his education to date and he relied on Article 8. He was refused under the Rules and outside the Rules by the respondent and in regard to exceptional circumstances the respondent noted that the Tier 4 sponsorship had been withdrawn by the college by non-attendance.

3. The judge heard evidence and submissions and concluded that the appeal could not succeed under the Rules or outside the Rules and as a consequence dismissed the appeal. The grounds of appeal are not clear, I think it is fair to say. It is possible that one can take from paragraph 4 a suggestion that there was something wrong with the standard of proof employed. It is said that the judge dismissed the appeal on the basis that the decision ought to be made with a keen importance given to the standard of probability from both parties. It is also said that it is regrettable that if the standard of probability was applied in favour of the appellant he would have been given sufficient time in obtaining a CAS from an education provider prior to his leave expiring. When making a decision, it was said, the Honourable Judge failed to address the fact that if the standard of probability was applied the appellant would have valid leave to remain in the United Kingdom.

4. Thereafter there are references to the outcome not being the appellant's fault, that the judge did not look into why the appellant was not at fault. The right to educate oneself is said to be a basic human right and again that was no fault of the appellant, he had done his best to get the relevant documentation, he had been requested to provide evidence of the money spent in educating him and the decision maker was asked to refer to the respondent's maintenance requirements and the GDP in Mr Hafeez's country Pakistan is very low, it is said. It is said that he has tried his best to get documentation. In saying that he could get a job in Pakistan this was directly contradictory with the job offer letter attached in the appeal bundle which was related to him obtaining the qualification in question and it was said therefore that the decision should be set aside.

5. The First-tier Judge who granted permission took the view that the grounds did not suggest that there was an arguable error of law or errors of law in the decision but of his own motion considered that the judge had not referred to or appeared to apply the burden and standard of proof which was arguably a material misdirection of law and so permission was granted.

6. I should say also that at the hearing today there was no appearance by or on behalf of Mr Hafeez and I am satisfied that the notice of hearing was sent to him and his representative on 22 November 2016 and accordingly it is appropriate to proceed to hear the appeal.

7. With regard to the sole point in issue, that of the burden and standard of proof, in my view it is not necessary for a judge as a matter of incantation to set these matters out. It may be of course helpful for a judge to do so reminding himself or herself of the importance of being clear as to where the burden and standard lie but otherwise it seems to me that unless it becomes manifest from a proper reading of the judge's decision that the correct burden and standard of proof have not been applied, and particularly in the case of an experienced judge such as Judge Hall in this case that is not a matter that can be said to show an error of law. There is nothing in my mind inconsistent with the proper burden and standard in the judgment in this case.

8. The judge's findings and conclusions are to be found from paragraphs 37 onwards where he makes it clear he had taken into account all the documentation, the evidence and the submissions. The appellant accepted he had no family life in the United Kingdom and so could not place reliance on Appendix FM. He also accepted that he could not rely on paragraph 276ADE(1) and therefore accepted that there were no very significant obstacles to his return to Pakistan. The judge found that he had not provided satisfactory evidence as to what progress he had made on the course between June 2011 and February 2014, no documentary evidence had been provided to prove what modules, if any, he had passed, nor had documentary evidence been provided by the respondent to support the contention that the college had withdrawn sponsorship because of non-attendance. The judge made a finding that the appellant had not submitted satisfactory evidence of progression in his course because he had accepted in his witness statement that he attempted to gain admission to other colleges but they refused him because of lack of progression in his course and that is unarguably a sound finding for the judge to make in light of the appellant's own evidence.

9. With regard to the reference to a 60 day letter, the judge made the point there was no satisfactory evidence that the appellant's leave had been curtailed, no letter had been produced by either side indicating curtailment of leave and as the judge said, if the college closed in February 2014, the appellant still had leave until 21 July of that year and could have tried to get admission to another college during that period and he had done so and was refused because of lack of progression as a consequence. There was no need for the respondent to issue a 60 day letter. Again that was an entirely proper finding.

10. The judge then went on to consider Article 8 outside the Rules and set out the terms of Article 8, set out the five stage Razgar approach, found as is usually the case in an assessment of Article 8 outside the Rules that the matter came down to proportionality. That I think is clearly right in this case.

11. The judge then went on at paragraph 46 with regard to proportionality to make the entirely proper point that the respondent has to prove the decision is proportionate so there can be no argument about the burden of proof in that regard as indeed I think there is not elsewhere. The judge took into account section 117B of the 2002 Act and the factors that assisted him and did not assist the appellant in the evaluation of the public interest, noted the precarious immigration status that the appellant had always had, noted what had been said at paragraph 57 in Patel, that Article 8 is not a general dispensing power, attached significant weight to the need to maintain effective immigration control and that the appellant could not satisfy the Immigration Rules in order to be granted leave to remain as a student or under the Rules with regard to his private life and did not find that the evidence in the appeal disclosed compelling circumstances which would warrant a grant of leave to remain under Article 8 outside the Rules, that the weight to be attached to maintenance of effective immigration control outweighed the weight to be attached to the wishes of the appellant to remain in the United Kingdom notwithstanding he could not satisfy the Immigration Rules. That in my view is a very full and proper evaluation of Article 8 as it applied in this case. There is no indication that the judge failed to take proper account of the burden or standard of proof and indeed every indication that he got the point of the burden entirely right so for all these reasons I see no error of law in this decision and the appeal is accordingly dismissed.

Notice of Decision

12. The appeal is dismissed.

13. No anonymity direction is made.



Signed Date

Upper Tribunal Judge Allen