Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/13619/2015
IA/13625/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 September 2016
On 21st October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

AMA SENRANGI EGODAGAMAGE
DAMITHRA THIWANKA AMBAGASPITIYA
(ANONYMITY DIRECTION NOT MADE)

Respondents

Representation:

For the Appellant: Mr L Tarlow, Home Office Presenting Officer
For the Respondent: Miss A Jones, Counsel, instructed by VMD Solicitors

DECISION AND REASONS

1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal (Judge Widdup) allowing an appeal by the applicants against the decision made on 20 March 2015 refusing to grant further leave to remain outside the Immigration Rules. In this determination I will refer to the parties as they were before the First-tier Tribunal, the applicants as the appellants and the Secretary of State as the respondent.

Background

2. The first appellant ("the appellant") is a citizen of Sri Lanka born on 19 August 1986 and the second appellant also a citizen of Sri Lanka, born on 5 October 1983, is her dependant in this application.

3. The appellant first entered the UK in March 2011 with leave to remain as a Tier 4 (General) Student until 30 December 2014. On 23 December 2014 she applied for further leave to remain outside the Rules. The reasons for the application are set out in the letter dated 29 December 2014 accompanying the application. The appellant was enrolled with the London Institute of Management and Technology (LIMT) studying an Associates Degree in Business Studies. The respondent revoked the college's licence but on her account the appellant did not receive any notice or correspondence from the Home Office. She has not been able to complete her current course or obtain a new CAS. Her application sought an extension of leave for six months to collate a new CAS, enable her to sit her IELTS exam and then submit a Tier 4 application with the supporting documentation.

4. However, the application was refused as it was the respondent's policy to consider granting leave outside the Rules only where particularly compelling circumstances existed. The respondent was not satisfied that there were any such circumstances in the appellant's case which might warrant a grant of leave to remain under Article 8 of the ECHR outside the requirements of the Rules.

5. The appellants appealed against this decision, arguing in the grounds that they had demonstrated exceptional circumstances and that the decision was otherwise not in accordance with the law. The grounds further argue that any discretion under the Rules should have been exercised differently and that the decision was unlawful because it was incompatible with their rights under the ECHR.

The Hearing before the First-tier Tribunal

6. At the hearing before the First-tier Tribunal the judge asked the appellant's representative to identify the issues in the appeal. He indicated that the appellant had been on a course of studies, the college licence had been revoked and she had been left stranded. She could not apply for another course because the 60-day letter had not been sent. The appellant's leave to remain had expired in 2014 and in order to extend her right to remain an application outside the Rules had been made. The judge then asked the presenting officer about the revocation of the college licence. She said that there was no evidence that the licence had been revoked, the appellant's leave to remain had not been curtailed and, if there had been no curtailment, no 60- day letter would be sent. The judge was referred to a letter from LIMT dated 27 May 2014 giving details of the appellant's progress at the college.

7. The appellant confirmed that the contents of her witness statement were true. She said she had received the letter dated 27 May 2014 when she went to the college to ask for it because she had some examinations. The office was not open and there were no courses. She had asked friends who told her that this was the case. She went to the college in June 2014 and found that it was closed. She applied to other colleges but was told that she had to have a 60-day letter. She checked the UKBA website but the college was not shown. After taking advice she had asked for a 60- day letter and then applied for further leave to remain.

8. In cross-examination she explained that when she had stopped studying she had been to the college in May 2014 for tuition. The academic year had started in January and was due to finish in December. She had taken exams but no results had been issued. She went on the UKBA website in June 2014 but she did not know she should contact UKBA. She had been told by universities she had approached that she needed a 60-day letter but they did not explain why. In response to a question from the judge about who had confirmed at the end of 2014 that the college licence was fully revoked, she said that she had called the administrative officer who had said this but she had had no letter about it.

9. The judge asked the presenting officer what the respondent's policy had been in 2014. She said that if the student had more than three months' leave to remain she would be told of the revocation and curtailment of leave to remain would take place and the student would be given 60 days' leave. The judge then asked further about whether the college's licence had been revoked. The case was then put back to allow enquiries to be made and when it was resumed a letter was produced dated 15 November 2011 referring to the suspension of the sponsor's licence in August 2011. The letter gave the college principal notice that the college was removed from the register with immediate effect. In her submissions the presenting officer said that unusually there had been no curtailment of leave and no 60-day letter but argued that the appellant had not been prejudiced because her leave to remain had not been curtailed.

10. In reply the appellant's representative said that there was no evidence that the college had reapplied for a licence and the appellant had been prejudiced in that her studies were terminated.

11. In setting out his conclusions the judge said that the appeal gave rise to a number of unresolved questions of fact. He found as a fact that LIMT's licence was revoked on 15 November 2011, noting that this information only came to light during the hearing and undermined the presenting officer's initial submissions that there was no evidence that the licence had been revoked. There was no evidence from the respondent that the licence had been reinstated thereafter or that LIMT was on the register in the summer of 2014. The judge said that, bearing in mind that in November 2011 the appellant had more than three years' leave to remain, the respondent should have curtailed that leave and granted 60 days' leave in order to enable the appellant to find another college. He considered whether the appellant would have paid LIMT fees and continued with her studies there had she been notified by the respondent of the revocation of the licence and the curtailment of the leave to remain and said he had no hesitation in saying that this was highly unlikely.

12. The judge said that he did not overlook the fact that some features of the evidence presented by the appellant were unsatisfactory in that she was unable to explain who confirmed to her that the college's licence had been revoked and it would seem that she had been able to attend lessons at the college and sit examinations until May 2014, some two and a half years after the revocation. Her continued involvement with LIMT was supported by the documents in the appeal bundle at pages 8 and 9 and pages 74 to 76 showed receipts from LIMT for fees paid by the appellant. He found that these matters did not alter the fact that the licence was revoked in November 2011 and there was no evidence of notice of revocation being given to the appellant.

13. The judge found that the appellant was not notified of the revocation, her leave to remain was not curtailed and she was not given a 60-day letter. In consequence the respondent did not comply with her own policy. The judge added that he did not need to consider whether the appellant had suffered prejudice because of the omission to notify her of the revocation but in any event he rejected the submission that there was no prejudice as she still had leave to remain. Had the appellant been notified of the revocation of the licence in or about November 2011, it was highly unlikely that she would have continued to attend LIMT and the omission to serve a 60-day letter meant that she was unable to seek a new CAS.

14. The judge went on to consider Article 8 finding that the appellant's private life in the UK as a student was engaged and that the respondent's failure to comply with her own policy meant that the appellant's studies were interrupted and delayed. This failure had consequences of sufficient seriousness to engage Article 8. He then found that the respondent's decision was not in accordance with the law by reason of the failure to follow her own policy and in these circumstances he did not need to deal with the question of proportionality. The judge allowed the appeal to the extent that the application was remitted to the respondent to enable her to comply with her policy.

The Grounds and Submissions

15. In the respondent's grounds it is argued that the judge erred in law by failing to understand the presenting officer's submission that the appellant's leave had not been curtailed and therefore the respondent would not have been required to provide the 60-day leave letter as that procedure was activated only when leave was curtailed. The presenting officer had reiterated this more than once but it appeared that the judge did not understand this despite the clear fact that the appellant's leave was not curtailed as it expired on 30 December 2014 and therefore the appellant was clearly not prejudiced. In the appellant's Rule 24 response it is submitted that the application was for leave to remain outside the Rules. The judge had found that in November 2011 the appellant had more than three years leave to remain and the respondent should have curtailed that leave and granted 60 days leave to enable her to find another college. She had not been given an opportunity to enrol for a new college or university to continue her studies. Accordingly, there was no error of law.

16. Mr Tarlow adopted the grounds, submitting that the appellant could not bring herself within the terms of the policy, which specifically provided that the 60-day leave letter would only be sent once leave had been curtailed. In the present case the appellant's leave had expired by the effluxion of time and had not been curtailed.

17. Ms Jones submitted that the judge's decision was clearly open to him. The appellant had a right of appeal on the basis that the decision was not in accordance with the law as the application and decision preceded the coming into force of the amended provisions of s.84 of the Nationality, Immigration and Asylum Act 2002. She submitted that the judge could hardly be faulted for relying on a policy explained by the presenting officer at the hearing. Even if there was any substance in the argument that it was open to the respondent not to grant a further 60 days' leave under the policy because leave had not been formally curtailed, it was implicit in the judge's findings that there had been a breach of the common law duty of fairness.

Consideration of whether the First-tier Tribunal erred in law

18. It is not in dispute between the parties that in 2014 there was a policy covering the position of students studying at a college whose licence was revoked. The judge was told that the position was that if the student had more than three months' leave to remain he or she would be told of the revocation, curtailment of leave to remain would take place and the student would be given 60 days' leave to enable him or her to attain a place at another college. This was the only evidence of the policy before the judge. It appears that no written copy of the policy was produced at the hearing and indeed none was produced at the hearing before me. Nonetheless, it was conceded that there was a published policy effective at the relevant time.

19. In Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12, Lord Dyson at [35] confirmed that an individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by statute. Lord Dyson added that there was a co-relative right to know what the existing policy was so that he or she could make relevant representations in relation to it. In the present case the appellant was found only to have become aware of the position in relation to her college in June 2014. It was her case and the judge accepted that she asked for a 60-day letter and then applied for further leave to remain.

20. The judge noted that some features of the appellant's evidence were unsatisfactory but found that these did not alter the fact that the licence for her college had been revoked in November 2011 and there was no evidence that she was given notice of that revocation. On the basis of the evidence and submissions before him, the judge was therefore entitled to find that the respondent had not complied with her own policy. He also found that the appellant had been prejudiced by the failure to notify her that the college licence had been revoked.

21. The respondent relies on the fact that the policy provided that a student would only be given notice of revocation where he or she had more than three months' leave to remain, that leave would then be curtailed and the student be given 60 days' further leave. I am not satisfied that it is open to the respondent to argue that the policy does not apply in circumstances where leave has not been curtailed following an admitted failure to notify the appellant that her college licence had been revoked at a time when otherwise she fell within the policy. I am not satisfied that the judge erred in law by finding that the respondent had not complied with her own policy and that the decision was not in accordance with the law. As the judge pointed out there were unsatisfactory features in the evidence but he took those into account and reached findings properly open to him in a case which very much turned on its own facts.

22. Even if the judge had accepted the submission that it was not now open to the respondent to grant leave under the policy following the expiry of the appellant's leave through effluxion of time rather than curtailment, he would have found that there had been a procedural failure by the respondent giving rise to unfairness, so making the decision not in accordance with the law for that reason in accordance with the jurisdiction in cases such as Thakur (PBS decision-common law fairness) Bangladesh [2011] UKUT 151 and Patel (revocation of sponsor licence-fairness) India [2011] UKUT211.

Decision

23. In summary, for the reasons I have given, I am not satisfied that the judge erred in law such that the decision should be set aside.

Signed H J E Latter Date: 18 October 2016

Deputy Upper Tribunal Judge Latter