Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/48026/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 January 2017
On 9 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

Dinesh Karki
(anonymity direction Not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No Representative
For the Respondent: Mr. P. Duffy, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Omotosho, promulgated on 9 February 2016, in which he dismissed the Appellant’s appeal against the Respondent’s decision to refuse to vary leave to remain in the United Kingdom.
2. Permission to appeal was granted as it was arguable that the judge had overlooked the content of the documents filed by the Appellant with his application.

3. The Appellant did not attend the hearing. The file showed that notice of the time and place of the hearing had been sent to the Appellant. Further, on 5 January 2017 he had written to the Tribunal submitting a supplementary witness statement. In the accompanying letter he had indicated that he knew that the hearing was at Field House on Thursday 19 January 2017. In the circumstances where the Appellant had been given notice of the date and time of the hearing, where he had shown that he was aware of this, and where he had failed to request an adjournment or indicate to the Tribunal that there was any reason for his failure to attend, I considered that I could proceed to hear the appeal in his absence in accordance with rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

4. I heard brief submissions from Mr. Duffy following which I reserved my decision.

Error of Law Decision

5. Bearing in mind the grant of appeal, I have carefully considered the Tribunal file to establish which documents were on file. It is correct that there is a notice of immigration decision on the file which does not relate to the Appellant. However the full decision and reasons dated 11 November 2014, which includes removal directions, is in the Appellant’s name, with the Appellant’s nationality and date of birth as given by him. There is also on file, although not found with the majority of documents, but on the right hand side of the file, a letter from the Appellant’s representatives, UK Immigration Consultants, dated 30 May 2014, to which the judge has referred in paragraph [15] of the decision.

6. While there appears to be some confusion surrounding the documents on file, I find that the judge has not referred in the decision to documents which are not on the Tribunal file. Further I have not been able to find any evidence in the Tribunal file that there was a CAS in the Respondent’s bundle. Mr. Duffy confirmed that Respondent’s file does not contain a CAS, so it is difficult to see how the bundle the Respondent provided for the Tribunal would have contained one.

7. The application form which I have before me, which is in the name of the Appellant with his date of birth and nationality as stated, indicates in response to the question “do you have a CAS?” “No” (page 7 of 14). Given this, I would not expect to see a CAS in any bundle.

8. The only reference to a CAS having been submitted is in paragraph [3] of the grounds of appeal to the First-tier Tribunal. This states that the Appellant is a “Bangladesh national”, whereas he is a national of Nepal. It states that “he applied for further leave to remain in the United Kingdom as a Tier 4 (General) Student Migrant under the points-based system. Along with the Tier 4 application form, he submitted a CAS letter issued by his college, which was at the time listed on the Tier 4 Register of Sponsors. However this was no longer the case when checks were carried out by the respondant (sic)”. This was before the judge in the First-tier Tribunal.

9. I was satisfied that the documents on file were as stated by the judge in the decision.

10. Having satisfied myself as to this issue, I have considered the findings of the judge [14] to [20]. In paragraph [15] the judge states:

“The appellant had applied for further leave to remain in the UK as a Tier 4 General Student Migrant. In his application form in answer to the question whether he has a CAS, he answered ‘NO’. I note in addition that in a letter dated 30.05.14 from UK Immigration Consultant in support of his application, it was noted that the appellant did not have a CAS “at the moment”.”

11. Having considered the documents on file, I find that the judge is correct in stating that in his application form the Appellant indicated that he did not have a CAS, and that the letter from UK Immigration Consultants confirmed that the Appellant did not have a CAS. I find there is no error in the judge’s findings in paragraph [15].

12. In paragraph [16] the judge refers to the grounds of appeal and paragraph 3. In paragraph [17] he states that he is somewhat confused by the grounds especially as the Appellant and his representatives “accepted at the time of the application that he had no CAS”. There is no error in the finding that both the Appellant and his representatives had accepted that there was no CAS at the time of application. He states in paragraph [17]: “No evidence of any CAS being issued has been produced in evidence before me”. As stated above, I have fully considered the documents on file and there is no CAS.

13. Further, although the grounds of appeal and the submission to this Tribunal state that the Appellant submitted a CAS issued by Docklands College, no evidence has been provided to corroborate this. Given that the Appellant’s own evidence and that of his representatives was that there was no CAS, this is not entirely surprising. No evidence has been provided to corroborate the claim that a CAS was ever provided. I find that there is no error of law in the judge’s finding in paragraph [17].

14. Having found that there is no CAS, the judge goes on to state that the decision was in accordance with the immigration rules [18]. I find that he was entitled to come to this finding. There is no error in this finding.

15. In the grounds of appeal and submission to this Tribunal it is submitted that the judge’s decision is not in keeping with the case law of Thakur (PBS decision – common law fairness) Bangladesh [2011] UKUT 0051 (IAC). However, following the case of Thakur, 60 days is only granted to an applicant when he has provided a CAS, and when between the date of application and decision, the CAS becomes invalid owing to actions of the Respondent in removing the college which issued the CAS from the Tier 4 Sponsor Register. That has not happened in this case. The Appellant and his representatives were clear that as at the date of the application the Appellant did not have a CAS. I therefore find that the case of Thakur is irrelevant to the appeal before me, just as it was irrelevant to the appeal before the First-tier Tribunal.

16. I find that the decision of the First-tier Tribunal does not involve the making of an error of law. The judge set out the evidence which was before him. This evidence indicated that the Appellant did not have a valid CAS at the date of application. In the circumstances the judge was correct to dismiss the appeal on the basis that no valid CAS had been provided and therefore the Appellant could not meet the requirements of the immigration rules.

Notice of Decision

17. The decision of the First-tier Tribunal does not involve the making of an error of law and I do not set it aside.

18. The decision of the First-tier Tribunal stands.

No anonymity direction is made.

Signed Date 6 February 2017

Deputy Upper Tribunal Judge Chamberlain

TO THE RESPONDENT
FEE AWARD

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

Signed Date 6 February 2017

Deputy Upper Tribunal Judge Chamberlain