Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/11430/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 January 2016
On 20 January 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE PEART

Between

umme habiba sifat
(anonymity direction not made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Rahman
For the Respondent: Mr Nath, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Bangladesh. She was born on 1 January 1996.
2. She appealed against the Entry Clearance Officer's decision to refuse her application under Tier 4 (General) Student of the points-based system with particular relevance to paragraph 245ZV.
3. Judge of the First-tier Tribunal Oakley (the judge) in a decision promulgated on 16 July 2015 allowed the appellant's appeal as he found that the respondent had not substantiated her conclusion that the appellant was not a genuine student. He went on to find that the respondent's decision was not in accordance with the law and the applicable Immigration Rules such that he allowed the appeal under the Immigration Rules.
4. The grounds claimed that the appellant had no out-of-country right of appeal as it was a points-based application. She was only entitled to administrative review. The judge erred in not striking the case out for want of jurisdiction. The judge could not impose a right of appeal or jurisdiction which did not have any statutory basis. The respondent sought that the determination be set aside for want of jurisdiction.
5. Judge P J M Hollingworth granted permission to appeal. He said that an arguable error of law had arisen in relation to the question of the scope of the jurisdiction of the judge.
Submission on Error of Law
6. Mr Nath relied upon the grounds. He submitted that the appellant had no right of appeal. He relied upon a document he handed up with regard to the commencement date of the provisions of the 2014 Act, that is, with regard to Tier 4, 20 October 2014.
7. Mr Rahman submitted that the judge had not erred and asked me to find that he had made no error in his decision.
Conclusions on Error of Law
8. The decision was dated 25 August 2014. At that time, not all of the provisions of the Immigration Act 2014 had come into effect
9. Relevant commencement dates under the 2014 Act for Tier 4 were as follows:
20 October 2014. No right of Tier 4 PBS appeal against a decision made on any application submitted on or after this date.
6 April 2015. No right of Tier 4 PBS appeal against a decision made on or after this date on any application submitted before 20 October 2014.
10. With effect from 1 April 2008 in relation to decisions made under part 6A of the Immigration Rules relating to the points-based system, Tier 4 applicants wishing to challenge a refusal of entry clearance were not entitled to appeal except on human rights and race discrimination grounds. S.88A 2002 Act inserted by s.4(1) of the 2006 Act. Annex 4 of the Tier 4 policy guidance provided for an alternative administrative review mechanism, such request having to be made within 28 days from the date of the refusal notice.
11. Mr Nath submitted the appellant had no right of appeal whatsoever against the decision. I find the Immigration Act 2014 was irrelevant to the appellant's circumstances as the application and decision were prior to the commencement dates. Nevertheless, in so far as the appellant's grounds of appeal before the judge raised issues under the Immigration Rules, the judge had no jurisdiction to consider the same. The only jurisdiction the judge had, was with regard to s.6 of the Human Rights Act 1998 raised at [2] iii of the grounds before him. I find that the appellant did have a right of appeal but limited to s.84(1)(c) of the 2002 Act as indicated in the refusal of entry clearance.
12. The judge erred in allowing the appeal under the Immigration Rules in circumstances where there was no right of appeal in respect of the same, only on grounds that the decision was unlawful under Section 6 of the Human Rights Act 1998, regarding which he did not address. For the reasons I have given, I set aside the judge's decision and remake the same.
13. I have taken account of the grounds of appeal before the judge insofar as they are relevant to the human rights grounds raised. The appellant had been accepted to study for an LLB at BPP University. The ECO did not accept she was a genuine student for the reasons set out in the refusal. The grounds claimed the decision had shattered her hopes and aspirations. Further, that she had been psychologically devastated. There was no credible evidence in that regard. It was in those circumstances that the appellant claimed that the respondent had unlawfully interfered with her private life.
14. SS (Congo) [2015] EWCA Civ 387 is authority for the proposition that Article 8 imposes no general obligation to facilitate the choice of a person to reside here. See SS at [39]. Sunassee [2005] EWHC 1604 (Admin) gave a helpful analysis of SS and sought to simplify the complex requirements under the Rules by suggesting that whether circumstances were "compelling" or "exceptional" was not a matter of substance. Rather, they must be relevant, weighty and not fully provided for within the Rules. That is, there must be a "gap", not covered by the Rules. Whilst in practice, those gap issues were likely to be both compelling and exceptional, that was not a legal requirement.
15. I am required to give consideration to the aspects specified in S.117 of the 2002 Act as amended by the Immigration Act 2014. There is an overlap between the Rules and S.117. A relevant factor under S.117B(1) is that the maintenance of effective immigration control is in the public interest. The appellant has no right of appeal under the Rules. I do not accept that it is any answer to claim that the refusal has devastated the appellant's hopes and aspirations and caused psychological distress.
16. I bear in mind S.117B(5) that little weight should be given to life established when immigration status was precarious. See SS at [37] which discusses marriage and family life to a foreign national when that person has no right to come here. I find that a student or prospective student is arguably in a more precarious situation than that considered in SS. See also Patel [2013] UKSC 72 at [57]:
"It is important to remember that Article 8 is not a general dispensing power. It is to be distinguished from the Secretary of State's discretion to allow leave to remain outside the Rules, which may be unrelated to any protected human right. The merits of a decision not to depart from the Rules are not reviewable on appeal: Section 86(6). One may sympathise with Sedley LJ's core in Pankina 'for commonsense' in the application of the Rules to graduates who have been studying in the UK for some years (see para 47 above). However, such considerations do not by themselves provide grounds of appeal under Article 8, which is concerned with private or family life, not education as such. The opportunity for a promising student to complete his course in this country, however desirable in general terms, is not in itself a right protected under Article 8". (My emphasis)
17. For the reasons I have given, I set aside the judge's decision and remake the same. The appellant's limited right of appeal is dismissed on human rights grounds there being no jurisdiction with regard to the Immigration Rules.

Notice of Decision
12. Appeal dismissed.
Anonymity direction not made.

Signed Date 8 January 2016

Deputy Upper Tribunal Judge Peart

TO THE RESPONDENT
FEE AWARD

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

Signed Date 8 January 2016

Deputy Upper Tribunal Judge Peart