Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/25489/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 4 July 2013
On 9 July 2013

Before

UPPER TRIBUNAL JUDGE MOULDEN

Between

MR MUHAMMAD IRFAN SABIR
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: the appellant did not attend and was not represented
For the Respondent: Mrs M Tanner a Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a citizen of Pakistan who was born on 2 March 1980. He has been given permission to appeal the determination of First-Tier Tribunal Judge Carroll who dismissed his appeal against the respondent's decision of 31 October 2012 to refuse him leave to remain in the UK as a Tier 4 (General) Student Migrant by reference to paragraph 245ZX(d) of the Immigration Rules and to remove him from the UK by way of directions under section 47 of the Immigration and Asylum and Nationality Act 2006.

2. The appellant came to the UK on 7 November 2010 with a visa giving him leave to enter until 31 December 2011. He was subsequently granted further leave to remain from 23 January 2012 until 31 May 2012. On 30 May 2012 he made a further application for leave to remain as a Tier 4 (General) Student Migrant. The respondent refused the application. The appellant was awarded zero points under the heading of "Maintenance (Funds)" because he had not shown that he had an established presence in the UK as defined in paragraph 14 of Appendix C of the Immigration Rules. As a result the appellant was required to show that he had higher level of maintenance funds and had not done so.

3. The appellant appealed and the judge heard his appeal on 18 April 2013. Both parties were represented at the hearing and the appellant gave evidence. The judge found that the appellant had not shown that he met the requirements of the Immigration Rules because he had neither finished a single course that was at least six months long within his last period of leave to remain nor was he applying for continued study on a single course where he had completed at least six months of that course. The judge also considered the Article 8 human rights grounds. The appeal was dismissed.

4. The appellant sought and was granted permission to appeal. The judge who did so did not say that he found any merit in the grounds except for the question of whether the judge should have allowed the appeal against the decision to remove the appellant from the UK by way of directions under s 47 of the Immigration and Asylum and Nationality Act 2006.

5. I have a letter from the appellant's solicitors dated 3 July 2013 in which they submit a skeleton argument and indicate that neither they nor the appellant will be attending the hearing. The appellant "is in Pakistan due to health of his father". Whilst they asked that the appeal should be determined on the papers I heard it in the absence of the appellant and considered both submissions from Mrs Tanner and the skeleton argument.

6. The appellant claimed to have an "established presence" in the UK. If this was so then he would have to show that he had maintenance funds at a lower level than would otherwise be the case. If he did not have an established presence then, studying outside Inner London, he needed to show that he had total funds of £8700 for the required consecutive 28 day period. His bank statements showed no more than £4124.25.

7. Paragraph 14 of Appendix C of the Immigration Rules provides;

"14. An applicant will have an established presence studying in the UK if the applicant has current entry clearance, leave to enter or leave to remain as a Tier 4 migrant, Student or as a Postgraduate Doctor or Dentist and at the date of application:
(i) has finished a single course that was at least six months long within the applicant's last period of entry clearance, leave to enter or leave to remain, or
(ii) is applying for continued study on a single course where the applicant has completed at least six months of that course, or
(iii) is applying for leave to remain as a Tier 4 (General) Student on the doctorate extension scheme.”

8. The respondent's position is that the appellant was last given permission to study at Cardiff Metropolitan University from 19 September 2011 until 31 May 2012 (not 31 March 2012 as incorrectly stated in the refusal letter of 31 October 2012). However, the University told the respondent that the appellant left the course after four months. The appellant claimed that he had started at the University in August 2011, passed his first assignment but failed the second submitted in November 2011. He admitted that he was "exited" from the MBA course at the university on 7 February 2012 (not 2 February 2012 which appears to be a typographical error in the determination).

9. However, on the documentary evidence before him the judge found that the appellant's course started on 1 October 2011 not, as the appellant claimed, in August 2011. There was no documentary evidence to support the appellant's contention. There was written evidence from the University showing that the course commenced on 1 October 2011. The period between 1 October 2011 and 7 February 2012 is four months and seven days. The judge found that the appellant had neither finished a single course that was at least six months long within the his last period of entry clearance, leave to enter or leave to remain, nor was he applying for continued study on a single course where he had completed at least six months of that course.

10. The appellant's grounds of appeal are not entirely clear but I cannot see that it assists him to meet the requirements of the disputed element of the Immigration Rules for this application if he was granted a level 7 diploma from Stratford College of Management prior to attending Cardiff Metropolitan University or if London Waltham College agreed to admit him. Indeed, the respondent awarded him the required 30 points for the Confirmation of Acceptance for Studies (CAS) issued by that college. Even if he had been granted a level 7 diploma by Stratford College of Management this did not demonstrate that he had the required "established presence". As the application form makes clear the appellant relied on his course at Cardiff Metropolitan University as the course which was at least six months long within his last period of entry clearance.

11. The appellant also claims that he appealed against the decision of Cardiff Metropolitan University to "exit" him and there is documentary evidence to show that he did. However, the appellant said that the appeal process had not been completed by the time of the hearing before the judge and he has not provided any evidence to show that it has been completed even now. On the other hand, he admits that his final project "was not up to the standard of the University".

12. I cannot find any merit in the grounds that argue that the judge should have reached a different conclusion in relation to the Article 8 grounds because the appellant had a right to a continuing education in this country.

13. The line of authorities culminating in Adamally and Jaferi (section 47 removal decisions: Tribunal Procedures) [2012] UKUT 00414 (IAC) establishes that when a removal decision purportedly under s 47 of the Immigration, Asylum and Nationality Act 2006 is made concurrently with a decision refusing further leave the s 47 decision is unlawful, but the decision refusing leave is a separate decision, that requires determination; s 85(1) of the Nationality, Immigration and Asylum Act 2002 brings the two decisions into one appeal, but s 86 of that Act allows and requires the determination to reflect differences in outcome. The judge was correct to determine the decision refusing further leave but should have allowed the appellant's appeal against the s 47 removal decision. To this extent he erred in law as Mrs Tanner concedes.

14. I find that the judge erred in law by failing to allow the appellant's appeal against the s 47 removal decision. To this extent I set aside her decision and remake it by allowing the appeal against the against the s 47 removal decision. In relation to the judge's decision under the Immigration Rules and the Article 8 human rights grounds I find that the judge did not err in law and I uphold her decision.

………………………………………
Signed Date 5 July 2013
Upper Tribunal Judge Moulden