This issue was explored in the recent case of JA (revocation of registration – Secretary of State’s policy) India [2011] UKUT 52 (IAC).

This case came before the Upper tribunal and concerned an Indian national who arrived in the UK with entry clearance as a student.  He subsequently applied for extensions of his leave to remain in the student category. He was studying at the London Institute of Technical Education. His leave was due to expire on 31^st August 2009. He thereafter applied to extend his leave to remain under the Tier 4 category in order to continue his studies at the same institution (on 26^th August 2009).

In October 2009, the appellant switched to studying with the London School of Business and Computing as the London Institute of Technical Education was not successful in its registration under the points based system. The appellant had notified the home office of this change by way of a letter in December 2009. However, in February 2010, the new school was also suspended as an approved education provider with the Licence later revoked. The Home office made the decision to refuse the appellant’s Tier 4 application on 12^th March 2010.

The appellant argued that he had a legitimate expectation arising from the UK Border Agency’s points based system policy guidance which provides that if an educational provider’s licence is withdrawn, the applicant will have 60 days permission to remain in the UK (unless the applicant had anything to do with the licence being revoked).

There was no suggestion in this case that the appellant was involved in any way in the institution’s licence being withdrawn. At the appellant’s initial hearing, the Immigration Judge accepted the argument that the Secretary of State acted unlawfully by not following her own policy guidance. The Respondents applied for permission to appeal arguing that the appellant’s leave expired on 31^st August 2009 and that his leave to remain did not have 6 more months to run as required by the policy. Therefore, they argued that the policy could not apply to him.

Permission to appeal to the Upper Tribunal was granted.

The Upper Tribunal considered the interpretation of the policy guidance. The policy states that where there is more than 6 months left on the student’s visa or leave to remain in the UK, then their leave can be extended for 60 days. Where less than 6 months remains, leave will not be further limited.  The appellant did not have any leave to remain save for that granted under s.3c of the Immigration Act 1971 (granting continuing leave until a decision is made in the matter). He therefore did not have leave to remain for more than 6 months to be limited to sixty days. Nor did he have other leave to remain (less than 6 months).

The appellant’s representatives argued that a grace period of 60 days should be extended to all students regardless of what leave they had left to remain and that the leave should start from the date that they discover the licence is withdrawn. The Tribunal held that this argument could not be sustained in law and it was rejected. The Tribunal held that the policy guidance could not be held to cover those remaining on s.3c leave. Even if the Tribunal accepted that a 60 day grace period should apply (which it did not), those 60 days had already expired.

In conclusion, the Tribunal held that the Immigration Judged had erred in his initial decision by stating that the appellant had a legitimate expectation and that he should be granted a further 60 days grace period.

The Upper Tribunal subsequently dismissed the appellant’s appeal.

13^th February 2011. 

The case looked at the maintenance requirements under Appendix C of the Immigration Rules and in particular, who qualified for the reduced maintenance under the Tier 4 category. The case confirmed that, in order to qualify for the reduced 2 months maintenance requirement, the applicant must show that they have completed a course of study within the last four months and that that course was for a duration of over 6 months in length. That course may still be continuing. If the course has come to an end within the last four months and the applicant is seeking to embark on a new course, it matters not whether the applicant successfully completed the previous course. Appendix C should not be read to mean ‘successfully completed’. It should read to mean that the course ended within the last four months.  The notion ‘established presence’ needn’t mean presence as a successful student.

Case summary

The appellant applied for an extension of leave to remain in December 2009 under the Tier 4 student category. He had paid his course fees but also needed to satisfy the maintenance requirements. As he was studying outside of London, he needed to show an amount of £600. The issue was whether he had an established presence and should therefore show either 2 months worth or nine months worth. According to paragraph 11 at the time, he could apply for 2 months worth of maintenance as the course had finished within 4 months however, it could also be 9 months worth as he was extending his leave to remain following the completion of a course with less than 6 months duration. The UK border agency sought to contact the appellant as his education provider stated that he had not attended classes. Therefore, they sought evidence that he had in fact completed his course of study. In the absence of such evidence, the appellant would need to show maintenance for nine months worth of study. The appellant did not have the requisite funds for nine months worth in his account and therefore, his application to extend his leave was refused on the basis of maintenance.

The appellant appealed and requested a hearing on papers. The appeal was dismissed and the appellant subsequently sought permission to appeal to the Upper Tribunal. The appellant in his grounds argued that the previous judge had not taken into account an additional bank statement which he had provided indicating that he had the necessary funds available in his account. In accordance with Pankina, it was stated that funds acquired after the application was made would not avail to the appellant. It was funds that he had at the time of making the application that counted. This was overlooked by the senior immigration judge when granting the appellant permission to appeal. The senior immigration judge was instead concerned with the fact that the First Tier Tribunal consulted the policy guidance. However, the stipulation as to funds required for 2 month or 9 months periods is not only in the policy guidance but also in the Immigration Rules. This was not therefore, a Pankina like scenario (case of Pankina v SSHD).

The Tribunal held that whilst the appellant did not need to show that he had successfully completed his previous course, he would still need to meet the nine month maintenance requirements as his course had lasted for less than 6 months and there was a gap of longer than 4 months between his previous course and the commencement of his intended course.

The Tribunal held that there had been no error of law and the appeal was dismissed.

This case concerned appellants originating from Ghana in the UK on student visas. The appellants applied to extend their leave by applying for a Tier 1 general visa. However, their extension applications were refused on the basis that they had remained in the UK in breach of their immigration conditions namely, having worked in excess of the hours permitted under their student visas.

One of the appellants was a research student making good progress on his doctorate. However, his leave was curtailed before his examinations on the basis of having worked over the hours permitted under the terms of his visa. An appeal against the decision was lodged and dismissed both under the Immigration Rules and under Article 8. Whilst the appellant did have article 8 arguments in favour of his appeal, the immigration judge considered the decision to be proportionate stating that, the appellant could not expect to benefit entirely from article 8 whilst remaining in the UK in breach of his conditions of leave i.e. by working excessive hours for a prolonged period of time. The judge concluded that it was a proportionate response to someone who had totally disregarded his obligations under the Immigration rules. The appellant applied for permission to appeal and this was granted.

The Tribunal noted that working restrictions on student are difficult to police and therefore, those who breach their conditions whilst other students who may wish to work longer hours but don’t, should not be entitled to rely on human rights grounds for further leave to remain. This was deemed to be unfair to students who adhered to their conditions of stay.

The immigration judge considered the recent cases of Pankina v SSHD [2010] EWCA Civ 719 and CDS (PBS: “available”: article 8) Brazil [2010] UKUT 00305 (IAC.  The judge commented that, these cases are examples of how, those who have committed minor offences or breaches under the immigration rules may successfully rely on human rights to continue to exercise their leave/extend their leave of remain However, these cases do not provide for serious breaches of the immigration rules to be overlooked.

In this case, the immigration judge decided that there was no error of law in the initial decision to dismiss the appellant’s appeal. The appellant had entered into a contract with an employer for 20 hour per week. However, in reality, the appellant worked in excess of 20 hours per week. The judge stated that the case of CDS did not give the courts free standing liberty to disregard the immigration rules and that it was unlikely that a person coming to the UK for temporary purposes could show an article 8 right. Instead, the CDS and Pankina case highlight that, a person who has come to the UK to pursue a course of study which he or she has not yet completed, may have built up an article 8 private life that deserves consideration. Public interest may be considered ‘reduced’ where sufficient financial resources are available.  The appellants in those cases had succeeded as their breaches were technical (i.e. lack of funds for a short period due to unforeseen circumstances).

 

This case could be differentiated as it did not involve minor technical infringements of the immigration rules. The immigration judge concluded that the effective maintenance of immigration control is a strong public interest which must be considered in the balancing exercise by the Tribunal.

The appeal was dismissed.