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PBS _ Case law update
Khalid & others (Ealing, West London and Hammersmith College) Pakistan [2011] UKUT 295 (IAC) (01 August 2011): This case concerned three appellants (Pakistani nationals) whose applications for Tier 1 (Post-Study Work) Leave to Remain in the UK had been refused by the Secretary of State for the Home Department (SSHD).  One of the appellants had a wife and daughter whose applications for leave to remain in the UK were dependent on his obtaining leave to remain on a post-study work visa.

In support of their applications, the appellants submitted what seemed to be postgraduate diplomas from Ealing, Hammersmith and West London College (EHWLC).  The SSHD had refused each application under paragraph 322(1A) of the Immigration Rules, on the basis that the qualifications claimed were false.  This meant that the appellants had failed to show they were entitled to the requisite number of points under the Points Based System to entitle them to Tier 1 status. 

The appellants provided witness statements and what seemed to be coursework to corroborate the certificates they produced in support of their applications for leave to remain in the UK.  However, these were all found to be false documents.  The certificates the appellants had produced were equally false, as witnesses from the college affirmed.  Furthermore, the college had an extensive and reliable system which recorded every student at the college.  The appellants were not on this system.     

The Court cited AA (Nigeria) [2009] EWCA Civ 773, in which the Court of Appeal held that dishonesty or deception, even though not necessarily deception by the applicant herself/himself is needed to find a ‘false representation’ as a ground for mandatory refusal of leave to remain.  The burden of proof was on the appellants to show they had attended the college (under paragraph 245ZX of the immigration rules).  The standard of proof was a balance of probabilities. 

In light of the evidence heard on the false certificates and assignments produced by the appellants, and the fact that the college had no trace of their attendance, the Court found that the SSHD’s refusal under paragraph 322(1A) of the Immigration Rules was ‘sound and manifestly in accordance with the law’.

There were no Article 8 (right to family life) European Convention of Human Rights concerns, except in the case of the appellant whose wife and daughter were with him in the UK.  The Court found that there was no breach of Article 8 because the family could return to Pakistan without any interference to their family life.  Applying ZH (Tanzania) [2011] UKSC 4, it would be in the child’s best interests to remain with her parents because of her young age.  There was no evidence that the family would be unable to re-establish themselves in Pakistan.  The decision to refuse leave to remain to the appellants was proportionate with regard to family life in each case.

 
Post Study Work- requirements imposed under Immigration Rules (Appendix A, Table 9) relate to the status of the institution at the time of study

Adubiri-Gyimah and others (Post-study work - Listed institution) Ghana [2011] UKUT 123 (IAC) (28 March 2011)

This case was heard at Field House on 1st February 2011.

The appellants are all citizens of Ghana consisting of the main appellant, husband, and two minor children. The main appellant applied for leave to remain under the Tier 1 (post study work) category. She was refused by the Secretary of State (herein after referred to as the SSHD). Her dependants were refused leave in line. They appealed against the Immigration Judge’s decision to dismiss their appeal.

Facts of the case

The main appellant arrived in the UK in December 2001 as a student. Her husband (the second appellant) arrived in January 2001 as a student. Their two children were born in the UK. The main appellant extended her leave to remain on three occasions with the last leave granted until 30th April 2010. On 31st December 2009, she was awarded a B. Sc degree from the Open University for which she was granted a certificate on 10th April 2010. On 15th April 2010, the main appellant applied for leave to remain as a Tier 1 PSW migrant. She wished to remain for two more years under this route in order to obtain work experience in her field (heath and social care) which would be an invaluable tool for her on return to Ghana.

The application was refused by the SSHD on various grounds including that she did not satisfy paragraph 2 of Appendix A of the Immigration rules which provide that:

(a)    The applicant has studied for his award at a UK institution that is UK recognised or is a listed body, or which holds a sponsor licence under Tier 4 of the points-based system

At their appeal, the Immigration judge concluded the other reasons in the appellants favour except for the above point. In considering article 8 of the ECHR and the above requirement, along with the case of Pankina, the Judge held that the appellants had made it clear that they did not wish to settle in the UK and that their stay was a temporary one. The judge accepted that the decision was inconvenient but that it did not infringe article 8. The Judge also urged the SSHD to exercise their discretion and grant the appellants leave to remain under the PSW route regardless of the decision.

The appellants appealed both under the Immigration Rules and in respect of article 8.  Permission to appeal was granted as the Immigration Judge had dismissed the appeal on the fact that “the college at which the first appellant had studied for a degree that was awarded by the open University was not, at the date of her application, a UK recognised or a listed body, or one which holds a sponsor licence under Tier 4 of the points-based system”. It was held that the Judge had erred given that at the time the main appellant was studying, it was registered and recognised. The court also stated that the decision in respect of article 8 was perverse given that the Judge accepted the credibility of the appellants and acknowledged the length of time the family had spent in the UK with two of the children being born here.

Conclusion

The case turned on the interpretation of paragraph 2 (a) of Table 9 of Appendix A. The Court noted that there was an ‘inherent ambiguity’ in the wording with different tenses used in the same sentence i.e. ‘the applicant has studied for his award at a UK institution that is... a listed body’

The Court concluded that the correct interpretation of the Rules was that in order to accumulate 20 points for the institution of study, the appellant must have studied at a UK institution which was, at the time of her studies, recognised or a listed body, or one which held a sponsor licence under Tier 4.

The main appellant’s degree was awarded on 31st December 2009. The College was a listed body at that time and had applied for a Tier 4 sponsor licence which was under consideration. On 10th February she received her certificate which would enable her to make her PSW application. Sometime between January and April 2010, the College was refused a Tier 4 licence and closed down. The appellant discovered this upon being refused her visa. The Court held that the appellants had done everything correctly and that the main appellant had studied at a recognised instirtion in accordance with the Immigration Rules.

The appeals were therefore, allowed.

April 2011

Deception used in post study work application

FW v Secretary of State for the Home Department [2011] EWCA Civ 264 (14 March 2011)

This is a Court of Appeal case against the decision of the Upper Tribunal.

The appellant arrived in the UK in January 2007 as a student. He extended his leave to remain on multiple occasions until June 2009 when he applied for a variation of leave to remain under the Tier 1 Post Study Work category. When applying, the application requires information as to whether the applicant has any criminal convictions including road traffic offences.  It also provides that convictions which will be considered spent under the Rehabilitation of Offenders Act 1974 need not be enclosed. As such, the appellant answered ‘No’. However, in June 2007, he had in fact, been convicted of driving with excess alcohol in his blood and was subsequently disqualified from driving for 12 months.

Paragraph 322 of the Immigration Rules provides that an application can be refused where false representations, documents or information is given whether or not this is material to the application or whether or not the applicant has knowledge of it.

The Secretary of State for the Homer Department (herein after referred to as the SSHD) refused the appellants application in July 2009 on the basis that he had failed to disclose his conviction.  Further, the SSHD was satisfied that the appellant Hs used deception. The appellant appealed against the decision arguing that he did not deliberately withhold the information. He believed the conviction to be spent as he had paid his fine and the disqualification period had ended.

At the appeal, the Immigration Judge rejected the appellant’s credibility and ultimately dismissed the appeal.

The appellant sought for and obtained reconsideration. At the Upper Tribunal, the appellant argued that, the conviction was not material to the application as, had it been disclosed, it would not have led the SSHD to refuse the application.  Also, it was argued that the Tribunal had failed to give proper consideration to his article 8 rights.

On 12th May 2010, the Upper Tribunal promulgated its decision maintaining that the Tribunal had not made an error of law. It also rejected the argument that the conviction was not a material fact. The case came before the Court of Appeal.

Conclusion

The Court of Appeal decided that ultimately, the Upper Tribunal decision was correct and contained no material error of law. The Immigration Judge had heard the appellant’s evidence and concluded that he has used deception in his application. The Tribunal had the opportunity to question the appellant and there was nothing in the decision to suggest that a conclusion was not properly reached. The Immigration Judge was right to proceed on the basis that proof on the balance of probabilities was all that was required.

The appeal was ultimately dismissed as the application had been properly refused by the SSHD in accordance with paragraph 322 (1A) of the immigration rules. The Upper Tribunal was correct to hold that the AIT decision contained no material error of law.
HM and others (PBS- legitimate expectation - paragraph 245ZX(I)) Malawi [2010] UKUT 446 (IAC) (08 December 2010)

The appellants are nationals from Malawi. The main appellant is the applicant and the second appellant is her spouse whilst the third appellant is her son.  The appellant was granted leave to enter the UK on 6th May 2005 as a working holidaymaker.  She was subsequently granted an extension of her leave by switching into the student category. Her visa was valid until 30th June 2009. Her husband had arrived in the UK in 2001 and was granted leave to remain as a student. He had extended his visa on multiple occasions and varied his leave to remain as the dependant spouse of a student in June 2008. His leave was valid until the same time as the main appellant, his spouse.  The appellant’s son was born in the UK and granted the same terms of leave until June 2009.

The appellant’s applied for an extension of leave to remain under the Tier 4 student category (husband and son applied in line as dependants). The application was refused in a Secretary of State for the Home Department (herein after referred to as SSHD) decision dated 10th August 2009 on the basis that the appellant’s had not satisfied appendix C of the Immigration Rules HC 395. 10 points is required for maintenance purposes under Appendix C.

The SSHD provided that the appellants needed to show maintenance for both herself and her dependants and also that she could pay the rest of her course fees.  The appellant had submitted a letter from a Dr. in Malawi confirming that he would financially support the appellants however,  the SSHD provided that in accordance with published policy, third party support was only permitted in specified circumstances, none of which applied in this case. The appellants appealed against the SSHD decision and their appeal was subsequently dismissed by an Immigration Judge in January 2010 both under the Immigration Rules and under Article 8 of the ECHR. The judge had noted evidence in the form of joint funds in the names of the first and second appellants totaling almost £35,000. The appellants argued that they had applied to the National Bank of Malawi for the transfer of the funds however; they had only been permitted to transfer US$1,000. The appellants argued that they obtained funds in sterling from individuals who wished to transfer money to Malawi. The appellants made transfers of the funds to the intended beneficiaries of the individuals. They did this due to lack of foreign exchange services in Malawi.

The appellants sought permission to appeal to the Upper Tribunal which was granted and heard on 23rd July 2010. The Court held that, on proper interpretation of the word ‘available’ in respect of funds at paragraph 11 of Appendix C, the appellants did have the funds available to them. They were unable to transfer the funds due to money exchange regulations in Malawi so could not immediately access them. The appellants’ representatives argued that the SSHD’s guidance states that funds can be shown to be in an overseas bank account as long as the specified information is on the bank statement. Therefore, there is a legitimate expectation that the SSHD will adhere to its own guidance. The guidance does not require those funds to be immediately available for withdrawal.

In conclusion, the court held that

a)     Funds are considered to be available to a person at the material time if they in his control in an overseas bank account

b)     In accordance with the decision in the case of Pankina v SSHD, policy guidance which has not been laid before Parliament for scrutiny, cannot be relied on by the SSHD. It can give rise to legitimate expectation that the SSHD to that guidance when considering the appellant’s claim

December 2010

 
BD (work permit - “continuous period”) Nigeria [2010] UKUT 418 (IAC)

This case concerned a work permit holder who, after five years on his work permit, applied for settlement and was refused by the UK border agency.  The basis of the refusal was that the appellant had not spent a continuous period of 5 lawful years in the UK. Usually, a person who has completed 5 years on a work permit in the UK and who continues to work, will be granted indefinite leave to remain (provided the immigration rules are met).

The appellant was a Nigerian national who had arrived in the UK at the age of 16, some thirteen years ago.  He pursued studies in the UK from Foundation through to postgraduate levels. He then obtained employment with a large British company named Global Graduate Development Programme. His employers obtained a work permit for the appellant for 60 months (five years). The appellant worked continuously for his employers however, much of his employment was spent overseas in work permit approved employment.   In fact, during his work permit period, he spent more than half the time outside the UK stating that this was a part of his duties. He continues to pay tax and national insurance and his earnings were paid into his bank account in the UK.  He purchased a home in Wolverhampton and enrolled on his employer’s pension plan.

His application for settlement was refused on the basis of paragraph 134 (i) HC 395 which provides that there must be a continuous period of 5 years lawful residence in the UK in order to qualify. He was also considered on the basis of 10 years lawful residence in the UK in accordance with paragraph 276(b)(i)(a) of HC 395 however, he was excluded from this as well for having spent over 18 months outside the UK. The UK border agency also considered the appellant’s article 8 ECHR. They found that he has not established a private life in the UK as he travelled outside of it so often.

The Immigration Judge dismissed the appellants appeal under paragraph 134 of the Rules stating that although she accepted the appellant had spent time outside the UK in accordance with his employment, he had simply not spent five continuous lawful years in the UK. She dismissed his appeal on human rights grounds and 10 years lawful residence as well. The appellant subsequently applied for permission to appeal and the case came before the Upper Tribunal. The appellants representative argued that the words of paragraph 134 should not be taken literally otherwise even one day spent outside the UK could amount to breaking lawful continuous residence. The respondent on the other hand, was unable to provide any evidence in the Immigration Directorates’ Instructions of how discretion should be exercised to waive breaks in continuity.

The Tribunal held that this could be due to the fact that the work permit scheme had been replaced by Tier 2 of the points based system on 27th November 2008. Any previous IDI’s containing this information may have been deleted. The Tribunal agreed with the appellant’s representative stating that, taking a literal construction of paragraph 134 would make no sense. Discretion should clearly be exercised in some matters and it was the Tribunal’s view that, in this case, the appellant had very strong connections to the UK and clearly intended to make this his home. Whilst the Tribunal concluded that the first immigration judge was correct in dismissing the appeal under paragraph 276, they found that she had erred in law for taking a restrictive approach to paragraph 134.  The Tribunal commented that whilst the appellant clearly had a strong article 8 claim, there was no need to consider it having found an error of law in respect of his claim under paragraph 134. In conclusion, the Upper Tribunal held that the appellant did meet the requirements under paragraph 134 and should be entitled to indefinite leave to remain on that basis.

 
MM ( Tier1 PSW;Art 8"private life") Zimbabwe [2009] UKAIT 00037
 

A reconsidered appeal for further leave under the Tier 1 post study scheme has been refused after it was judged proportionate to interfere with the appellant’s Article 8 right to private life.

 

The appellant was a citizen of Zimbabwe who had come to the UK to study, later joined by her dependant daughter who studied at a British school. After graduating, the appellant undertook part time and voluntary work. She applied for further leave in order to work full time for her employers before returning to Zimbabwe at a later date.

 

The application for further leave was refused by the respondent as the appellant failed to show she had sufficient funds under the points based system. The senior immigration judge in the reconsidered appeal agreed that she did not satisfy these requirements.

 

The senior immigration judge also considered whether the respondent’s refusal to further leave breached the appellant’s Article 8 rights. The respondent had concluded that there was no interference in the appellant and her daughters’ family life as this could be resumed in Zimbabwe. However, the appellant argued that the respondent has erred in law by only considering her family life and not her and her daughter’s private life. It was submitted that the appellant's opportunity to gain post-study work experience and the effect upon her daughter of ending her schooling in the UK if she had to return to Zimbabwe engaged the right to respect for the private life of both the appellant and her daughter.

 

The scope of private life under Article 8 has not been comprehensively defined. The social ties and relationships actually formed in the work place and at school fall within the protected right to personal development accepted in the case law. However, the appellant put her Article 8 case in a narrower way. She argued that Article 8 is engaged because she has a 'right' to gain work experience and her daughter has a 'right' not to have her education deleteriously affected.
 

Drawing on Sidabras v Lithuania (2006) 42 EHRR 6. it was held that the right to work may fall within the ambit of Art 8 private life, but this case was extreme on its own facts and does not establish any general proposition that such a right is an aspect of 'private life' within Art 8.

 

Following the 5 stage test proposed in R(Razgar) v SSHD [2004] UKHL 27, the senior immigration judge held that the appellant’s private life has been affected by the decision, in that any professional and social ties she has forged will cease, as will those of her daughter. The interference with the private life of the Appellant and her daughter crosses the minimum level of severity to engage Art 8. However, the decision furthers a legitimate aim, namely proper and effective immigration control, and the decision is held to be proportionate to that legitimate aim.

 

 

 

 

 
 

 
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