The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00914/2013


Heard at Field House
Determination Promulgated
On 5 July 2013
On 9 July 2013
Prepared 5 July 2013









For the Appellant: Mr T Uddin of Immigration 4U
For the Respondent: Mr P Nath, Senior Home Office Presenting Officer


1. The Secretary of State appeals, with permission, against a decision of Judge of the First-tier Tribunal Wyman who, in a determination promulgated on 8 May 2013, allowed the appeal of Md Saeed Hasan against a decision of the Secretary of State made on 2 January 2013 to refuse the appellant's application for leave to remain in the United Kingdom as a Tier 4 (General) Student.

2. Although the Secretary of State is the appellant in the appeal before me I will refer to her as the respondent in this determination as she was the respondent in the First-tier Tribunal. Similarly, although Md Saeed Hasan is the respondent in this appeal, I will refer to him as the appellant as he was the appellant in the First-tier Tribunal.

3. The appellant was granted leave to enter Britain in January 2008 as a student, being given leave until 30 April 2011. On 25 January 2012 he was granted further leave to remain in Britain as a Tier 4 (General) Student until 30 July 2012. He made an application on 30 July for an extension of stay as a student. He did not, at that date, have the necessary certificate of proficiency in English.

4. On 16 August 2012 UKBA wrote to him thank him for his “attempted application for leave to remain”. They went on to say that his application was invalid and that the application form was returned. The reason being given that “although credit/ debit card details had been provided the issuing bank rejected the payment”. He was invited to make a further application. The writer of the letter stated:

“The making of a valid application that is one in the correct form which complies with the above requirements does not guarantee the application will be successful. The application will be considered on its own merits and where appropriate, in accordance with Immigration Rules, and published policy.”

5. The appellant then made a further application for leave to remain on 13 September 2012. This application was sent with a CAS dated 12 September 2012 and the English language test certificate which had been issued on 12 September 2012.

6. That application was refused on 2 January 2013 on the basis that the appellant did not meet the maintenance requirements of the Rules in that it was not accepted that he had an established presence for studying in Britain because his application was not made in time. It was stated that at the time of his application on 13 September 2012 he no longer had any valid leave to remain and therefore did not have an established presence in the United Kingdom. Therefore he would require funds of £1,000 a month for nine months being a total of £9,000. However the appellant had only produced bank statements showing a balance of £4,002 during the relevant period.

7. Section C of the letter of refusal stated as follows:

“You made an application on 13 September 2012. However, your leave to remain expired on 30 July 2012. You therefore did not have leave to remain at the time of your application. There is no right of appeal against the decision.”

8. The appellant was informed of his liability to be removed.

9. The appellant's grounds of appeal stated inter alia that he had made a combined application for leave to remain in Britain as a Tier 4 (General) Student Migrant on 13 September 2012. Although the grounds of appeal acknowledge that he had been told that he did not have any right of appeal as it was alleged that he did not have valid leave in Britain at the time of making his application, it was stated that he denied that allegation and submitted that the Secretary of State had failed to properly consider his submitted documents and wrongfully refused his application. The grounds asserted that he had made his first application on 30 July 2012 within the limit of his valid leave and a post office receipt dated that date and an acknowledgment dated 1 August 2012 was produced. It was stated the application was returned because of non-payment of fees and therefore the application had been re-sent on 13 September 2012.

10. It was stated that the appellant relied on the decision in JH (Zimbabwe) [2009] EWCA Civ 78 alleging that the second application was a continuation and variation of the variation of the first application and should be treated as a first application. It was submitted that the appellant had satisfied the Immigration Rules.

11. The grounds of appeal included a “Plea for right of appeal” and asserted that the appellant should be given an in country right of appeal and asserted that for him not to be granted a right of appeal was a “gross mistake of injustice”.

12. At the appeal before Judge Wyman there was no appearance on behalf of the Secretary of State. Judge Wyman noted the appellant's application had been returned due to non-payment of fees and that the application had been re-sent on 13 September 2012. The judge referred to the judgment in JH (Zimbabwe) [2009] EWCA Civ 78 and stated that that judgment:

“reports that the second application in such cases is a continuation of a variation of the first application. Accordingly the appellant has satisfied the Immigration Rules.”

13. The judge went on to consider the merits of the appeal stating that it was the appellant's evidence that he had had to obtain an English language certificate and he had been unable to do this before his leave expired. He had been booked to take the English language course on 15 August but that test was cancelled. He then had to wait until 1 September 2012 to take the test. The results had come out on 12 September and the appellant had then sent them in on 13 September to the Home Office.

14. The judge had before her a copy of the Immigration (Leave to Remain) Regulations 2007 which was provided by the appellant's representative as well as copies of the original letter from the UK Borders Agency of 1 August confirming receipt of the application and the second from UKBA dated 16 August stating that the specified fee had not been paid.

15. In paragraphs 21 onwards of the determination the judge set out her findings. She referred to the “evidential flexibility” policy and to the determination in Rodriguez [2013] UKUT 00042 (IAC). In paragraph 25 of the determination the judge stated:

“In this case the appellant appears to have made two significant errors. The first is when he submitted the application he did not provide his correct bank details. The second was at the time of submitting the application, he had not even taken, let alone passed, his English language tests.”

16. She stated, however, that following the judgment in JH (Zimbabwe) any application should be treated as a continuation of the first application and therefore the appellant had an established presence in British which required a lower level of maintenance and that had been met by appellant.

17. However the judge went on to state in paragraphs 29 and 30:

“29. However with respect to the issue of the appellant's English language certificate, I propose to remit this case back to the Secretary of State for their further consideration.

30. Accordingly, I allow the appeal to the limited extent that the case is now sent back to the Home Office for further considerations of the appellant's case.”

18. The Secretary of State appealed arguing that the judge had erred by failing to “adequately reason” why the appellant had submitted a valid application and had a right of appeal. It was claimed that the appellant did not have a valid leave at the time of the application was made.

19. It was pointed out that it appeared to be accepted by the judge that the appellant could not meet the Immigration Rules and therefore it was stated that the determination in Rodriguez was not relevant.

20. Upper Tribunal Judge Poole granted permission to appeal on 22 May 2013.

21. At the hearing of the appeal before me Mr Nath relied on the grounds of appeal emphasising the appellant had not had valid leave to remain – his application in July had been ruled invalid because he had not paid the fee. Moreover the appellant had not had the English language certificate when he had made the application.

22. In reply Mr Uddin stated that the issue of whether or not the appellant had a right of appeal against the refusal of 2 January 2013 have been considered by Judge of the First-tier Tribunal Robinson in March. He argued, moreover, that the application was a continued application because it had been refused although there had not been a right of appeal. He also argued that the determination should stand.

23. The first issue before me is whether or not there was a valid appeal before the Immigration Judge.

24. As noted above, the refusal letter stated that there was no right of appeal and the appeal had been made after the appellant's leave to remain had expired. The reality is that if that assertion is correct the appellant would not be entitled to a right of appeal. In the determination in LS (Post decision evidence; directions; appealability) Gambia [2005] UKAIT 00085 the Tribunal wrote in paragraph 16:

“The third issue which arose at the hearing of the appeal is not mentioned in the grounds, but arises from the underlying facts. As we have already indicated, the application which was the subject of the refusal, and of the adjudicator's determination, was made on 2 April 2003. At that time, the appellant had no leave to remain in the United Kingdom: his leave had expired on 31 March 2003. Examination of the appellant's passport at the hearing confirmed that date. There is no process by which leave to remain in the United Kingdom could be granted other than by writing as required by Section 4(1) of the 1971 Act. Nobody has pointed to any writing extending the appellant's leave for the necessary two days. The consequence of this is very serious indeed. Although when making his decision in this case, the respondent indicated that the appellant had no right of appeal, that was not correct. The refusal of leave to remain in respect of a person who does not have leave at the time the decision is made is not a decision appealable under Section 82(2) of the 2002 Act. That is because the lack of extant leave means that the decision is not a refusal to vary existing leave: and, in addition, if the person has no extant leave it is not the case that the ‘result of the refusal is that the person’s sole leave to enter or remain’: he had not such leave even before the refusal despite the somewhat lengthy process in this case, the position of the appellant never had any right of appeal.”

25. In the following paragraph the Tribunal wrote:

“Insofar as we have power to do so we declare that the decision against which the appellant purported to appeal was not a decision carrying a right of appeal under the 2002 Act; that the adjudicator accordingly had no jurisdiction; and that his determination and direction can have no effect. To that extent, the parties should proceed as though the separate had been appeals had been allowed in full and we had subsisted a determination dismissing the appellant's appeal to the adjudicator.”

26. Although, in this case, Mr Uddin argued that the issue of whether or not there was a right of appeal had been properly considered in the appellant's favour at a preliminary hearing in March that does not appear to be the case from the file before me. The matter does appear to have been argued before Judge of the First-tier Tribunal Robinson. His note of the proceedings states:

“A appears.

Issue of validity of in country appeal. A claim sent application form in prior to expiry of visa. It is not clear if he quoted his CAS details in it. If so, it should be valid appeal. Request adjournment to bring in application form covering letters sent in on 30/7/2011 (respondent does not have a copy). Adjourn to first open date after 1/4/2013.

27. The issue of whether or not there was a valid appeal was not, I consider, properly considered by Judge Wyman. She referred to the judgment in JH (Zimbabwe) [2009] EWCA Civ 79 stating that that said that a second application was a continuation of a variation of a first application. That assertion is, however, incorrect: what happened in the case of JH (Zimbabwe) was that the “second application” was made after an appeal had been lodged and while the appellant had leave under Section 3C of the Immigration Act 1971. In this case no appeal was lodged against the refusal by the Secretary of State on 16 August and in reality it was not argued that the refusal carried a right of appeal. There was no attempt to lodge an appeal after the refusal and therefore no 3C leave applied.

28. That being the case the application made on 13 September was a fresh application made when the appellant did not have leave to remain. For the reasons given in the determination of the Tribunal in LS (Gambia) the appellant would therefore not have a right of appeal.

29. I would point out that, in any event, should the appellant have had a right to appeal the decision set out in the letter of 16 August that appeal could not have succeeded because at that stage he did not have the certificate of proficiency in English.

30. If there had at one time been an argument that the application would be deemed to be under consideration until there had been a further decision that would clearly no longer be sustainable after the judgment of the Court of Appeal in Raju [2013] EWCA Civ 775. This was, after all, a points-based system application.

31. I would add moreover that the reference by the First-tier Tribunal to a policy of “evidential flexibility” is similarly incorrect. The principles set out in the determination in Rodriguez [2013] UKUT 00042 (IAC) could only have effect if there is material evidence which was in existence and had not been submitted which could have been requested by the respondent. The reality is that the English test certificate was submitted with the application. I do not see that therefore the “evidential flexibility” policy has any relevance in this case.

32. Moreover the judge stated that she allowed the appeal “to the limited extent that the case is now sent back to the Home Office for further consideration of the appellant's case”.

33. That is a procedure which could really only be used if the decision was not in accordance with the law. In this case the decision was in accordance with the law. The judge was therefore wrong to allow the appeal to the limited extent which she did but, in any event, I conclude that there was no valid appeal for the reasons which I have set out above.

34. I therefore, having found that there are material errors of law in the determination, set aside the decision of the Immigration Judge allowing this appeal and make my own decision which, following the procedure in LS (Gambia) is to dismiss this purported appeal.

Signed Date 8 July 2013

Upper Tribunal Judge McGeachy