Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/47725/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 February 2016
On 7 April 2016
Prepared 15 February 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

SANDEEP SINGH
(ANONYMITY DIRECTION NOT MADE)

Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr V Makol, Counsel, instructed by Maalik & Co Solicitors
For the Respondent: Mr E Tufan, Senior Presenting Officer

DECISION AND REASONS

1. The Appellant, a national of India, date of birth 14 May 1989, appealed against the Respondent's decision made on 13 November 2014, incorrectly referred to in the decision of First-tier Tribunal Judge Woolf (the judge) of 24 May 2014, to refuse an application for variation of leave as a Tier 4 (General) Student under the PBS system.

2. The basis of the Respondent's refusal was that the Appellant, as applicant, had submitted with an application, dated 24 May 2014, a CAS registration number E4G4QG8B19FO09 which had been assigned by the Newcastle Academy of Business and Technology on 23 May 2014. There was unsurprisingly, a significant delay before the Secretary of State determined the application. On the date of determination, 13 November 2014, the Secretary of State recorded that the applicant's CAS reference as above, had been withdrawn by the Sponsor and as such the Appellant failed to meet the requirements of paragraph 117(b) of Appendix A of the immigration rules (the Rules). It followed therefore that he was not in possession of a valid CAS. Further, the Secretary of State confirmed that on the same date, 13 November 2014, the college was no longer registered as an approved Tier 4 Sponsor. That was due to the fact that the college had ceased to be on the Tier 4 sponsorship register at some date, unstated: Accordingly the requirements of paragraph 116(e) of Appendix A could not stand.

3. The grounds of appeal against that decision simply asserted that the decision was not in accordance with Immigration Rules or in a court of law and was incompatible with the European Convention on Human Rights. Those grounds settled by UK Legal and Immigration sought to have an oral hearing of the appeal. For reasons that are simply not provided the Appellant and representatives did not attend the hearing on 2 June 2015 and there was no explanation for their absence. The Respondent was not represented because it was a "float case" and no Presenting Officer had been allocated. The Respondent had requested a hearing and it does not appear that in those circumstances the judge was in error in proceeding in the absence of the parties.

4. It is clear from the case file that no documents were submitted to the judge to support the claims that the Appellant had been unaware of the withdrawal of the CAS letter and indeed no evidence advanced confirming that the Appellant had been unaware of the college's status on the register being, at some unspecified date, removed. It was said that with the Respondent's decision was the first time the Appellant had learned of what had happened to his application.
5. The sole ground of appeal before me was essentially that there has been unfairness and as the grounds stated in its subsequent form the Sponsor withdrew the Appellant's CAS unlawfully and due to some irregularities the Sponsor's licence was later revoked by the Home Office. The Appellant claimed to be victimised by the Sponsor institution which is currently not on the Tier 4 Sponsor lists.

6. The grounds went on to plead "the Respondent's act is also against the common-law duty of fairness. The Appellant was never contacted by the Respondent before making the decision and never given an opportunity to vary the application". There was then reference to the familiar case of Patel (Revocation of sponsor licence - fairness) India [2011] UKUT 00210 (IAC). There was also a reference to the case of Naved (Student - fairness - notice of points) Pakistan [2012].

7. The judge had, it would seem, some documents provided by UK Visas including the application but no evidence concerning the CAS and the particulars of it: Save to say that the appeal summary sheet provided, simply said the CAS has been marked as withdrawn and there was nothing further by way of information provided.

8. The judge looking at this matter concluded on both grounds that the refusal was justified: First, because there was no CAS, it having been withdrawn at some earlier stage,; and Secondly, because the college no longer existed.

9. It seemed to me that if the CAS had not been withdrawn then the Appellant's position before the judge would have been stronger because the case of Patel would have indicated the possibilities of the Appellant having the opportunity, within a limited period, to find an alternative college. This, however, was not the case here.

10. While it is not on all fours it is, it seems to me, a proper reflection of the legal position, that as found in the case of EK (Ivory Coast) [2014] EWCA Civ 1517, where the absence of a valid CAS was fatal to the application being permitted by the Secretary of State. When the CAS was withdrawn is not known to the Appellant and why it was withdrawn is not known to the Appellant. It was submitted by Mr Tufan in these circumstances the unfair outcome was the conduct of the college and not of the Secretary of State. If, as I say, the only basis of refusal had been the later withdrawal of registration in the Tier 4 Sponsors list then that could have been unfairness as recognised arguably in the case law: It was conduct of the college that has been the basis of this Appellant's downfall.

11. Accordingly I do not find the Original Tribunal's reasons, however brief they may be, largely caused by the absence of bundles and the absence of any statement or explanation of the circumstances in which these matters came to be, left the judge with no option but to conclude that the appeal could not succeed.

12. In the circumstances, whilst Mr Makol submitted that the issue of the withdrawal of the CAS letter was of no moment and the case essentially turned on the lack of opportunity being given following the revocation of the Tier 4 Sponsor's licence I do not accept that he is right. Mr Makol did not accept the case of EK was rightly decided nor that I should follow it. I think he recognised that I am on the face of it entitled to have regard to what the court has said on the issue of circumstances where there was no demonstrable unfairness by the Secretary of State. I assume for the purposes of his argument that the Appellant was an innocent victim of others and that he had no responsibility for the withdrawal of the CAS letter and nor did he have responsibility for the Tier 4 Sponsor's licence being revoked but I make no findings on these points.

13. I cannot on the information before me wholly exclude the Appellant's responsibility for the withdrawal of the CAS or circumstances that may have borne on that issue simply because the Appellant's previous representatives in the full knowledge of the decision failed apparently to write to UKBA or the visa agency, to establish on what basis the CAS letter had been withdrawn, when it was withdrawn or any other explanation for its withdrawal.

14. In those circumstances it seemed to me the Original Tribunal's decision stands and the grounds do not disclose an error of law.
15. For the avoidance of doubt it was confirmed to me that issues relating to Article 8 and any claim being made hereunder were not being pursued in this appeal for the very good reason that Mr Makol gave, namely that it has no substance because if the Appellant failed under the Rules there was nothing advanced before the judge to suggest that there was any basis to remain reliant on Article 8 ECHR.

No anonymity direction is made.

Signed Date 14 March 2016

Deputy Upper Tribunal Judge Davey

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 14 March 2016

Deputy Upper Tribunal Judge Davey