Valid Confirmation of Acceptance of Studies case

Bhanushali (re-using same CAS: new rules) India [2011] UKUT 411 (IAC) (05 October 2011)

This Upper Tribunal case was heard on 9^th September 2011 at Field House. The facts of the case are as follows:

The claimant is an Indian national who arrived in the UK on 15^th July 2009 as a student. His visa was valid until 19thj February 2011. Before the expiry of his leave, the claimant applied for a variation of leave to remain under the Tier 4 general student category of the points based system. His application was refused by the Secretary of State for the Home Department (herein after referred to as the SSHD) on 4^th April 2011. The claimant appealed against the decision to the First Tier Tribunal where his appeal was allowed. The SSHD applied for permission to appeal which was granted in July 2011.

Reasons for refusal by the SSHD

The SSHD refused the claimants application on the basis that the CAS Letter (confirmation of acceptance for studies) was not valid and therefore, he had not been awarded the 30 points under Appendix A of the Immigration Rules as required.  The SSHD argued that the CAS reference number had already been used with the claimant’s previous application and a new CAS was required for each fresh application submitted.  Reference was made to Paragraph 245ZX of the Immigration Rules which stipulates that if the requirements are not met under the rule, then the application will be refused. The requirements are that the applicant has a minimum of 30 points under paragraphs 113 to 120 of Appendix A. The requirements consist of attributes which includes the CAS letter for which a total of 30 points can be awarded. The criterion as to whether the CAS letter is valid is also considered in the rules.

First Tier Tribunal determination

The claimant gave evidence to the immigration judge that he had been informed by his college that he could use the same CAS reference with his new application and that he followed that advice. He subsequently did try to obtain a new CAS but could not as the college did not have any left on their system. An explanation was sent to the SSHD in this respect. The claimant was on his ACCA course at the time.  The immigration judge appeared to accept that the claimant could not meet the requirements as he did not have a fresh CAS number however; she allowed the appeal on the basis that the claimant was a genuine student on a genuine course. She made reference to the judgement in the case of Pankina v SSHD [2010] EWCA Civ 719; [2010] Imm AR 689 interpreting the case to mean that she was free to make a any decision that would in her view, achieve a fair result. The immigration judge should have considered the Rules at the date of the decision in order to decide whether the claimant met the requirements. Her approach was not consistent with the judgement in Pankina and therefore, there was a clear error of law in her decision.

Conclusion

The argument for the claimant was that his CAS had been issued on 16^th December 2010 and was not more than 6 months before the application was made in compliance with the rules. There was no suggestion throughout the case that the other requirements of the paragraph were not satisfied. A Statement of Changes in the Immigration Rules (HC 908) was laid before Parliament on 31^st March 2011 however; these changes took effect only from 21^st April 2011. It was held that any application made before this date should be considered with rules in force prior to 20 April 2011. The official who considered the claimants case on 4^th April 2011, made reference to HC 908 which was not applicable to the claimant. That was an incorrect application of HC 908 and therefore, the initial decision was set aside as it contained an error of law (suggesting that the claimant did not qualify under the Immigration Rules but allowing the appeal on the basis that it would be unfair to refuse it). The Upper Tribunal re made the decision by allowing the claimants appeal under the Immigration Rules.

They concluded as follows:

 (1) In the fast-changing world of the points-based system, it is important (a) to ascertain the precise basis on which an application has been refused; (b) to identify the relevant provisions of the Immigration Rules; and (c) to check the relevant commencement provisions.

                                                                                            

(2)  Thus, where an applicant had been refused for not having a valid Confirmation of Acceptance for Studies, because the reference number for that Confirmation had already been used, the Immigration Judge should have ascertained what the Immigration Rules required in that regard, in the circumstances of the applicant’s case. Had she done so, she would have seen that the reason for the refusal was unsound, having regard to the commencement provisions of HC 908.

 

(3)  Pankina and others [2010] EWCA Civ 719; [2010] Imm AR 689 is not authority for any general proposition that the requirements of the Immigration Rules are to be disregarded, merely because an Immigration Judge considers that their application to a particular person would be “unfair”.

8^th October 2011  

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Patel (revocation of sponsor licence - fairness) India [2011] UKUT 211 (IAC) (06 June 2011)

This Upper Tribunal case was heard on 17^th May 2011 at Field House. The appellants are Indian nationals (husband and wife). The second appellant is a dependant on the first appellant (herein after referred to as “the appellant”). 

The appellant arrived in the UK IN September 2007 as a student (with leave until November 2009). The appellant applied for further leave to remain under the Tier 4 points based system to study at the Lyceum Academy. At the date of the application, the sponsor (Lyceum Academy) was an approved sponsor by the UK Border Agency (UKBA).  The appellant was refused in March 2010 on the basis that the sponsor had been removed from the list of approved sponsors and therefore, he could not earn the points he claimed. The appellant was wholly unaware of this until he received the UKBA’s decision on his application. The appellant subsequently appealed against the decision and his appeal was allowed on the basis that the UKBA had not applied the policy correctly. The Immigration Judge at the hearing also determined that the refusal amounted to a breach of the appellant’s article 8 (right to a private and family life in the UK).  The Immigration Judge’s interpretation of the policy was that, in similar situations, the UKBA should grant 60 days leave to remain to enable the appellant to find an alternate sponsor.

The UKBA did not appeal against the decision however in a letter dated 16^th September 2010; she refused to grant an extension on the basis that the immigration judge had misunderstood the policy. The UKBA recognised that there was a right of appeal against this decision as the appellants leave to remain in the UK had been extended by virtue of s.3C of the Immigration Act 1971.

In February 2011, a second immigration judge considered the decision of the first tier tribunal judge and concluded that he had misunderstood the policy guidance. However, the appellant applied for permission to appeal to the Upper Tribunal which was granted as the second judge had not considered the alternative article 8 argument.

Conclusion

The Tribunal concluded that the UKBA’s decision was not in accordance with the law because of its failure to comply with common law requirements of fairness. It was held that:

(1)    Immigration Judges have jurisdiction to determine whether decisions on variation of leave applications are in accordance with the law, where issues of fairness arise.

(2)    Where a sponsor licence has been revoked by the Secretary of State during an application for variation of leave and the applicant is both unaware of the revocation and not party to any reason why the licence has been revoked, the Secretary of State should afford an applicant a reasonable opportunity to vary the application by identifying a new sponsor before the application is determined.

(3)    It would be unfair to refuse an application without opportunity being given to vary it under s.3C (5) Immigration Act 1971.

(4)    Leave to remain granted by s.3C Immigration Act 1971 is relevant leave for the purposes of the Immigration Rules and the cases of QI (para 245ZX(1) considered) Pakistan [2010] UKUT 217 (IAC) and HM and others (PBS-legitimate expectation – paragraph 245ZX(I) [2010] UKUT 446 (IAC) have been overruled by QI (Pakistan) v SSHD [2011] EWCA Civ 614, 18 April 2011.

(5)    Where the Tribunal allows an appeal on the grounds that the decision was not taken fairly and therefore not in accordance with the law, it may be sufficient to direct that any fresh decision is not to be made for a period of sixty days from the date of the reasoned decision being transmitted to the parties, in order to give the appellant a reasonable opportunity to vary his application.

(6)    By analogy with the present UKBA policy on curtailment of leave where a sponsor licence is revoked a 60 day period to amend the application would provide such a fair opportunity.

The Upper Tribunal remade the decision by allowing the appeal.

19^th June 2011

 

Molla (established presence - date of application) Bangladesh [2011] UKUT 161 (IAC) (03 May 2011

This case was heard at the Upper Tribunal on 5^th November 2010. The case concerned a Tier 4 (General) applicant and the issue of “established presence”.

Facts of the case

The appellant is a Bangladeshi national. On 30^th March 2010, he applied for leave to remain as a Tier 4 general migrant under the points based system.  He was unrepresented at the hearing.

The appellant was refused and subsequently appealed against the refusal. He attended the First Tier Tribunal before Immigration Judge Monro who subsequently dismissed his appeal on the basis that he did not meet the requirements of para 245ZX(d) of HC 395. In brief, the Immigration Judge held that the appellant did not qualify for the reduced maintenance levels as he did not have “an established presence studying in the United Kingdom”. As a result, he had insufficient funds in his account. The appellant successfully obtained permission to appeal submitting that he should have been treated as qualifying for the reduced levels of funds based on his circumstances and that he had completed a course that was at least 6 months long during the last period of his leave (from March 2009 until March 2010).

The Immigration Judge did not correctly identify the relevant policy guidance applicable and the appellant sought permission to appeal against the decision to dismiss his appeal. During this time, the Court of Appeal gave judgement in the case of Pankina [2010] EWCA Civ 719.

The Tribunal considered Para 245ZX(d) as amended on 6^th April 2010 which provides that “The applicant must have a minimum of 10 points under paragraphs 10 to 14 of Appendix C”. It further states that

“An applicant will have an established presence studying in the United Kingdom if the applicant has completed a course that was at least six months long within their last period of leave as a Tier 4 migrant..... and this course finished within the last four months, or the applicant is applying for continued study on a course where the applicant has completed at least six months of that course and has been studying within the last four months”.

The Tribunal referred to the case of DN (student; course @completed’; ‘established presence’) Kenya [2010] UKUT 443 where the Tribunal had held that, in order to show only 2 months worth of maintenance in accordance with Appendix C (rather than 9 months worth), a student must have been studying on a course within the last four months and that course must have lasted for more than 6 months. The course could still be ongoing however, if the course ended within the last 4 months and the student is beginning a new course (or repeating the same one), it does not matter whether he was successful on the previous course. Appendix C should not be taken to mean that the student successfully completed the course within the last 4 months but merely that he completed it. It was held that ‘established presence’ meant presence as a student as opposed to success as a student for the purposes of the maintenance requirement.

Present case

In this case it was clear that the appellant was studying in inner London. He did not have funds to cover the full costs of the course fees together with the £800 for each month up to a maximum of 9 months (at the time of his application). The Respondent Secretary of State for the Home Department (herein after referred to as SSHD), accepted that the appellant could qualify under Appendix C if he could demonstrate having an “established presence”.

It was reiterated that, even though the Tier 4 policy guidance as referred to by the Immigration Judge at the first appeal, could not be used to establish the requirements under the Immigration Rules, following the decision in Pankina, it could give rise to a legitimate expectation that students could benefit from its provisions which appear more generous than the Rules. However, the notion of “established presence” reiterates the requirements under paras 10-14 of Appendix C of the Rules. As a result, the Tribunal held that the Immigration Judge had not erred in respect of her application of the policy guidance or requirements. 

The Tribunal held that the appellant had met some of the criterion. Namely, he has been studying in the UK within the last 4 months. However, his course was only for a duration of 4 months and not 6 months as required. Therefore, he did not qualify under that limb f the Rules.

The Tribunal concluded that the appellant could not benefit from the provisions of Appendix C and thus, did not qualify for reduced fees. There was no legal error of law.

May 2011

Thakur (PBS decision - common law fairness) Bangladesh [2011] UKUT 00151 (IAC)

This Upper Tribunal case was heard at Field House on 24^th February 2011. The case concerned the decision of the Secretary of State for the Home Department’s (herein after referred to as the SSHD) to refuse the appellant, a Tier 4 general student migrant, leave to remain in the UK. The case turned on the principles of fairness and the common law duty of the SSHD to act fairly and to allow the appellant adequate time to locate another institute at which to enrol following the withdrawal of his sponsor’s licence.

Background to the case

The appellant is a Bangladeshi citizen who arrived in the UK on 20^th March 2008 having obtained prior entry clearance as a Tier 4 general student. His leave was valid until 31^st December 2009. Before the expiry of his leave, on 29^th December 2009, he applied for further leave to remain in the UK. He was enrolled at the London Commonwealth College of Law and Business Studies on a diploma in tourism and hospitality management. His application was refused by the SSHD on 15^th July 2010 because the sponsor no longer had a valid licence at the date of the decision. The College’s licence was suspended in January 2010 and in July 2010 they were no longer operating. The appellant appealed.

The case went to the First Tier Tribunal in which the Immigration Judge considered the Tier 4 policy guidance which provides that a migrant should be granted 60 days to enrol at a new institution provided he was not involved in the reasons why the licence was withdrawn. Also, the appellant had, by the time he went to appeal, received a conditional offer from another institution which was on the registrar of Tier 4 sponsors. The appeal was allowed and the SSHD decision was said not to be in accordance with the law. The SSHD appealed against this decision on the basis that the immigration judge failed to properly identify the policy he was referring to and failed to properly apply it.

The representative for the SSHD relied on the case of JA (Revocation of Registration-Secretary of State’s policy) India [2011] UKUT 52 (IAC) arguing that the policy could not apply to the appellant in this case as he did not have existing leave which could be limited to 60 days or an extant period of 6 months leave.

The Tier 4 policy guidance

The Upper Tribunal was referred to the policy guidance which provides as follows:

The SSHD will ‘limit the student’s permission to stay

·       To 60 days if the student was not involved in the reasons why the Tier 4 sponsor had their licence withdrawn (they will not limit the students stay where the student has less than 6 months left). The student may wish to apply for permission to remain with another Tier 4 sponsor.

·       Immediately if the student is involved in the reasons for the licence being withdrawn

 

The Upper Tribunal considered the decision in the case of JA where the Tribunal held that the policy did not entitle the appellant in that case, to a 60 day period of leave. However, the Tribunal made it clear that the policy could lead to unfairness ‘giving rise to arbitrary results’ (paragraph 13 of the determination).

Upper Tribunal decision

Firstly, the Upper Tribunal decided that the decision in JA was correct and that the appellant in that case was not entitled to 60 days leave under the policy. However, this case could be distinguished as the appellant in his circumstances, had been deprived, as at the date of the SSHD’s decision, of an adequate opportunity to locate another Tier4 sponsor. The Tribunal considered the common law duty of acting fairly in the decision making process.

The principle behind the policy is that students studying at an institutions whose licence is suspended or withdrawn, be given the opportunity to find a place at a different institution. In this case, the appellant was transferring from studying under the previous student rules into the new Tier 4 points based system. As the appellant applied shortly before his visa expired (i.e. on 29^th December), he did not have 6 months extant leave. The Tribunal considered that this did not mean he could not benefit from the policy in finding another college. The appellant continued to study at his college until June 2010. He was not aware that the college had been suspended until July 2010 when the college lost its licence and neither the college nor the SSHD had informed him prior to this. The Tribunal was not satisfied that the appellant had adequate opportunity to locate another Tier 4 sponsor and were satisfied therefore, that the immigration judge’s decision was correct. When the appellant was refused further leave to remain, he could not easily locate another provider due to his lack of leave to remain in the UK. He had not been given an opportunity to make representations either.

The Tribunal surmised that ‘The principles of fairness are not to be applied by rote: what fairness demands is dependent on the context of the decision and the particular circumstances of the applicant’.

The claimant’s licence was subsequently suspended by the UKBA on 18 December 2009.  A decision was taken to revoke the licence on 5 July 2010, and that decision was confirmed on 19 August 2010.  The claimant challenged the lawfulness of each of these decisions.

There is no Immigration Rule defining when a Tier 4 Sponsor Licence will be granted, suspended or revoked.  However, the UKBA’s Tier 4 Guidance stated that organisations suspected of issuing visa letters to students unqualified to come to the UK would have their licence suspended while the UKBA investigates (Paragraph 328).

The claimant argued that this guidance was unlawful in itself.  It had not been subjected to Parliamentary scrutiny as prescribed by section 3(2) of the 1971 Immigration Act.  Rather, the government had turned into a rule what should have been a policy (Pankina and Others v SSHD [2010] 3 WLR 1526).  The government has discretion to follow policies to help it implement legislation.  However, rules are not policies.  They limit public officials’ ability to make fair decisions based on the individual circumstances of each case, as there is no exercise of discretion in applying a predetermined rule.  The challenge to the lawfulness of the Guidance was rejected.  It did not introduce Pankina-style rules.  It was a legitimate policy based on Immigration Rules approved by Parliament.

On the decision to suspend the licence, in the interests of fairness the UKBA should have allowed the claimant to make representations as to why its licence should not be suspended.  The reputation of the company suffered.  New students could not be enrolled.  Thus there were financial implications.  The continuance of the suspension was however lawful.  Reasons were given for the decisions, and the UKBA was proceeding with legitimate investigations into the college’s practices.

The UKBA had valid reasons for revoking the claimant’s licence.  The claimant company was not dealing with the problem of low attendance amongst its students, and it failed to monitor the immigration status of students.  Thirty-five per cent of the candidates given visas by the college were then refused entry clearance to the UK.  As such the claimant could not be said to be recruiting ‘genuine’ students.  Such reasoning for revoking the licence was neither unreasonable nor irrational.  The decisions were lawful.

On human rights grounds, there was a potential violation of the claimant’s right to enjoy property (Article 1 of the First Protocol ECHR).  Although the licence was non-transferable and so did not have a market value as such, its suspension materially affected business (Tre Traktörer Aktiebolag v Sweden [1989] EHRR 309).  However, the UKBA’s measures were proportionate in the circumstances.  Any interference with Article 1 rights was justified.

 

 

VB (Student-attendance and progress not equated) Jamaica [2011] UKUT 119 (IAC) (28 March 2011)

This Upper Tribunal case was held on 2^nd December 2010 at Field House. The case considered the issue of the good progress requirement under Tier 4 of the points-based system.

Facts of the case

The appellant is a Jamaican national who had applied for an extension of stay in the UK as a student. The Secretary of State for the Home Department (herein after referred to as the SSHD) refused her application on 13^th January 2010. The appellant had stated that when she applied, on 26^th February 2009, she was a student at the London Computer Academy where she was undertaking a computer course.  The SSHD’s refusal received in January stated that the college was not a publicly funded institution of further of higher education and that it did not maintain satisfactory records of enrolment or attendance. Nor were they satisfied that it was a bona fide private education institution or an independent fee paying school.  The appellant enrolled at the South Chelsea College on 1^st February 2010 claiming that the College was on the register. The course enrolled on was due to be completed in January 2012.

At her appeal, the Immigration Judge stated that she had provided no evidence of attendance on the course or evidence of any progress. She had provided no reasons for her change in course either and the appeal was subsequently dismissed.

The appellant successfully sought permission to appeal against the decision on the basis that the determination was ‘inadequately reasoned and contained irrelevant references to the points-based system which has no relevance to this appeal as the application was made under the previous student rules’.  The appellant argued that she had only recently commenced her course and therefore had not undertaken any exams or assessment to demonstrate progress on the course. Further, the change in direction raised by the Judge had not been raised at the hearing itself and therefore, the appellant had not had an opportunity to address that point.

A hearing took place on 14^th October 2010 where the senior immigration judge directed that the parties adduce up to date information within 14 days.

It was accepted that the College was on the Register however, the respondents argued that the appellant could not show satisfactory evidence of regular attendance and satisfactory progress in accordance with sub paragraph (v) of paragraph 60 of HC 395.

The appellant argued that she had not taken any examinations and that they were not due to take place until spring 2011. Therefore, evidence on that basis could not be provided. However, the appellant relied upon a letter sent by her College dated 11^th November 2010 which indicated that she had a high degree of attendance. The appellant argued that this was sufficient for the purposes of establishing satisfactory progress.

Conclusion

The Upper Tribunal did not agree with this argument and provided that attendance could not equate to progress. An adjournment was granted for the appellant to obtain further evidence of satisfactory progress. A document was subsequently provided by the Director of Studies at the College stating that the appellant’s class teacher confirmed that the appellant was above average for her group based on her work in the class and on the tests taken in the class which showed she had obtained 64% and 58%. The respondents then subsequently accepted that this evidence amounted to good evidence of progress.

As a result, in light of the fact that the College was back on the Register and that evidence demonstrated satisfactory progress, the appellant had satisfied the requirements under the Immigration Rules and her appeal was allowed.

It is important to note from this case however, that satisfactory progress in a student appeal; cannot not necessarily be assumed from a good record of attendance. More evidence to prove progress would be required.

April 2011

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San Michael College Ltd, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 642 (Admin) (18 March 2011)

This High Court appeal was heard on 18^th March 2011. The claimant was San Michael College who’s Tier 4 sponsorship licence had been suspended by the defendant Secretary of State for the Home Department (herein after referred to as the SSHD).  The College, based in Birmingham, catered for overseas students. They held a sponsorship licence since 25^th November 2008 until the SSHD suspended it in a decision dated 18^th February 2010. On 14^th June, the suspension was lifted and the College was reinstated as a B rated sponsor. The SSHD provided the College with an action plan advising the College that they needed to improve in migrant tracking and monitoring and record keeping. The action plan set a target date for 14^th July 2010. The College did not have any students from 14^th June until September 2010 due to the holiday season.

 The SSHD subsequently inspected the College in August and found that the College had not been fully compliant with the action plan. They suspended their licence finally revoking it on 15^th October 2010. The College initiated judicial review proceedings to challenge the suspension and revocation of the licence.

Permission to apply for judicial review was granted and the College’s licence was reinstated pending the outcome by way of interim relief.

The court considered the guidance and requirements issued to sponsors including what to do once licensed under Tier 4. The relevant guidance in this case was that which was promulgated in October 2009.

The revocation of the Tier 4 licence

7 allegations had been made against the College including delays in reporting, tracking of work placements and inconsistencies in record keeping. The College’s legal advisor put arguments forward however, these were rejected. The SSHD also rejected arguments of overseas fraud not attributable to the College. The SSHD argued that suspension and revocation was justified on the basis of the following:

1.       Failure to provide accurate figures as to the amount of visa letters issued

2.       A large number of those issued the visa letters did not actually attend the College

3.       Failure to implement the action plan which was an opportunity for the College to meet the requirements

Submissions

The court considered the following issues:

Historic failures: The claimant argued that the SSHD should not consider previous failures pre dating the June 2010. The court did not accept this and held that stated that the fact that the matters took place prior to June 2010 did not preclude the SSHD from considering them.

 

Failure to substantiate allegations of fraud by the UKBA/SSHD: The claimants sought to rely on evidence of fraud overseas (in India, Beijing and Manila). The SSHD argued that there was no allegation of fraud but rather, an allegation of serious inadequacies in record keeping. The Court accepted that the College had issued a large number of visa letters to undeclared applicants and that, whilst a few may have forged them themselves, the idea that a large number of the letters was forged was ‘fanciful’. The court accepted that the SSHD was entitled to conclude failings in the College’s record keeping.

Reference to 80% attendance: the UKBA clarified that they needed to be notified where the student missed ten consecutive expected contacts. The SSHD argued that the College did not have ‘robust procedures in place’ to ensure compliance in this respect.

Conclusion

The Court held that the claimant’s arguments were not well founded and that the SSHD’s decision was justified. The application for judicial review was therefore refused.