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| Tier 4 _ Case Law |
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Cambridge College of Learning cases: postgraduate certificates
Khan and Tabassum (CCOL: Postgraduate certificates) Bangladesh [2011] UKUT 249 (IAC) (08 June 2011)
This Upper Tribunal case was heard on 29th March 2011 at Field House.
Facts of the case
The respondents are Bangladeshi nationals (husband and wife). The first respondent entered the UK as a student (in June 2003). He successfully extended his leave to remain on several occasions. In September 2008, he was granted leave to remain in the UK under the Tier 1 Post Study Work route (valid until 4th September 2010). His wife entered the UK on 23rd February 2009 as a dependant spouse and was also granted leave to remain in line (until 4th September 2010).
On 3rd September 2010, both respondents applied for leave to remain as a Tier 1 General migrant (with the second respondent as a dependant on the first). In October 2010, the Secretary of State for the Home Department (herein after referred to as the SSHD) refused the respondents applications. The basis for the refusal was that, the first respondent had not told the truth as, in a previous application, he had submitted and relied upon a postgraduate certificate in business management from the Cambridge College of Learning. The SSHD stated that this College had never offered a legitimate postgraduate qualification. Therefore, the application was rejected under paragraph 322(1A) of the Immigration Rules in the present case and under paragraph 322 (2) as regards the previous application. The SSHD was not prepared to exercise discretion in this case. Also, the SSHD refused the application on the basis that the first respondent had not scored enough points for earnings (30 points) and had only scored 20 points. The second respondent’s application was refused in line. The respondents appealed against the decision on the basis that 30 points should have been awarded for the earnings on the basis of the evidence provided and that the respondent had genuinely obtained his PGD qualification and was willing to prove the authenticity of it.
The SSHD’s presenting officer at the hearing relied on the case of NA and Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031. However, the Immigration Judge at the First Tier Tribunal was satisfied that the respondent had genuinely obtained his qualification and that he had not employed deception as alleged by the SSHD. The Judge states that the onus had shifted to the SSHD to prove her case. The appeal was consequently allowed.
The SSHD sought permission to appeal on the basis that the Judge had failed to give adequate reasons as to why he accepted the certificate to be a genuine document when it was clear from the case of NA that the institution had not offered any post graduate qualifications. Permission was subsequently granted.
Conclusions
The Tribunal concluded that the respondent had used deception and that his application had rightly been refused. The Tribunal held as follows:
“(1) Those who assert they were awarded postgraduate certificates in business management (and IT) by Cambridge College of Learning, after completing relevant courses there, will have to surmount the important and obvious problem that, if such certificate courses had been run and examined by CCOL, and certificates awarded to successful candidates, the witnesses who gave evidence to the Tribunal in NA and Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031 and who were found credible, would have said so. There was no credible evidence before the AIT in that case to suggest that any postgraduate courses in business management or IT were taught and examined by CCOL. It follows that, whilst the evidence in each case must be individually assessed, NA and Others is indicative of there being no such thing as a genuinely issued CCOL postgraduate certificate in those subjects and it is therefore necessary for a claimant seeking to rely on such a certificate to adduce cogent evidence in support.
(2) For the correct way to approach the use of the determination in NA and Others, see paragraphs 32 to 40 of the Upper Tribunal’s determination in TR (CCOL cases) Pakistan [2011] UKUT 33 (IAC).”
The First Tier Tribunal decision was set aside and the Upper Tribunal made a new decision allowing the SSHD’s appeal (and thereby dismissing the respondents appeal).
5th July 2011
Revocation of Tier 4 sponsor licence
Westech College, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 1484 (Admin) (13 June 2011)
In October 2009, the claimant Westech College was granted a Tier 4 sponsor licence by the UKBA, which enabled the college to issue letters which would allow non-European Union nationals to enter and remain in the United Kingdom so as to be able to study at the claimant's institution.
In June 2010, the UKBA requested details of all visa letters sent and confirmation of acceptance of studies issued to claimants for a specified period and the college was notified of the consequence of failure to adhere. The claimant failed to respond and in July 2010, the UKBA reduced the college’s allocation limit to zero on the assumption that the college failed to maintain accurate record keeping.
The UKBA suspended the colleges licence with immediate effect, after the conclusion of the investigation where the college was found to have failed to keep accurate records as well as the absence of planning permission.
In September, the UKBA suspended the claimant's licence with immediate effect and began revocation action. The claimant appealed this decision and issued an application for judicial review on three grounds.
First ground
The college first contested the UKBA’s decision to reduce its allocation to zero. It was determined in the judicial review proceedings that the review proceedings was not to take the primary decision but to ensure that the primary decision-maker had operated within lawful limits
On the evidence, it was concluded that there had been no procedural unfairness in the decision to reduce the allocation figure. The UKBA had requested from the claimant to provide the requested information and was fully within its right to reduce the allocation figure to zero on the basis of failure to comply. Furthermore had the college adhered to the UKBA’s demand, it would have shown serious errors in the claimant's records justifying a decision to reduce the claimant's ability to issue further CAS letters.
Second ground
The claimant further argued the UKBA’s decision in suspending the college’s sponsorship. It was deemed that there was no need for the UKBA to wait for a breach of immigration control, by the omission of the college before suspending the sponsorship. The UKBA was entitled to ensure that any relevant sponsor was operating lawfully in compliance with immigration rules.
It was held that the UKBA was entitled to make the decision to suspend the colleges’ sponsorship due to the serious nature of the breach and the absence of any relevant explanation or justification. Furthermore the judicial review also concluded that the college had been using its premises unlawfully.
Third ground
The college also challenged the decision made by the UKBA to terminate the college’s sponsorship licence. It was concluded that the UKBA had been entitled to terminate the claimant’s sponsorship licence on the basis that the UKBA provided ample warning within the suspension letter requesting the college to adequately address the issues, failure to do so would result in the revocation of the licence. Furthermore it was also concluded that the college had been using the premises unlawfully due to the lack of planning permission, which the UKBA was entitled to regard as a very serious matter.
The claim was subsequently dismissed.
June 2011
VVT (LCPS: no post graduate diplomas) India [2011] UKUT 162 (IAC) (31st March 2011)
This case concerned VVT, an Indian citizen appealing before the First-tier Tribunal against the refusal of his application for permission to remain in the United Kingdom. The respondent in this case was the Secretary of State for the Home Department.
Appellant history
VVT was given leave to enter the UK as a student on September 7th 2005, until December 31st 2006. This leave was granted two extensions- once from November 24th 2006 until December 24th 2007, and again from December 21st 2007 until July 31st 2009. He subsequently applied for permission to stay further as a Tier 1 (Post-Study Work) migrant.
Paragraphs 245Z(c), 245Z(d) and 245Z(e) of the Immigration Rules stipulate that an applicant must have a certain number of “points” to succeed in their application. A minimum of 75 points (earned via “attributes”) is required, as well as mandatory English language skills and adequate funds for personal maintenance. In order to obtain these 75 points, VVT claimed to have a Post-Graduate qualification in Information Technology from the London College of Professional Studies (LCPS), providing a number of documents which purported to support this.
His application was rejected on December 10th 2009 on the grounds of “false representation,” specifically the submission of fake academic documents. Paragraph 322(1A) of the Immigration Rules clearly cites the submission of any false credential as grounds for refusal. Providing false information is also considered an offence under the Immigration Act 1971, and in submitting his application VVT would have had to sign a declaration indicating his awareness of this.
Because the documents were deemed invalid, VVT was awarded 0 of the 75 points. Additionally, the Secretary of State was unconvinced that VVT had met Appendix B of the Immigration Rules (mandatory English language requirements). VVT was warned that, given his offence, the UK Border Agency might consider taking further action against him.
VVT subsequently appealed under section 82 of the Nationality, Immigration and Asylum Act 2002, claiming that his application had not involved deception or misrepresentation, and furthermore that the Secretary of State had not adequately proved otherwise.
The case
The Tribunal observed that there had been a number of similar recent appeals involving LCPS and the alleged submission of fake documents. It was hoped that a handful of pilot cases could be heard ahead of the bulk, in order to set useful precedents. Unfortunately, owing to various circumstances, VVT’s case became the only one to serve as a “lead.”
The Tribunal noted that the standard of proof when examining issues around the Immigration Rules is the “balance of probability.” The burden of proof was said to fall on the Respondent, as established in paragraphs 98-102 of NA and Others (Cambridge College Of Learning) Pakistan, with regard to Re B (Children) 2008.
The appellant claimed to have been awarded a Postgraduate diploma in IT from LCPS in December 2008, upon the completion of his course. The appellant provided several items of copied documentation (the original documents being held elsewhere along with his initial application) to support his claims, including copies of his enrolment letter, academic transcript and degree certificate.
Upon examination of the evidence, the Tribunal concluded that the documents provided by VVT contained too many unacceptable inconsistencies. No reliable evidence was found to prove that the LCPS had taught the appellant’s claimed course on the dates given.
General conclusions
For future reference in cases involving LCPS, the Tribunal noted that it had established two things: a) that LCPS Student ID numbers contained six digits, not seven or more, and b) that LCPS did not teach any non-accredited courses nor itself award or issue post-graduate degrees in any subject.
Specific conclusion
It was the conclusion of the Tribunal that LCPS did not in fact teach the course that VVT claimed to have been awarded a diploma in, that the documents supplied by him purporting to be proof of such were therefore manifestly false, and that VVT was certainly aware that this amounted to false representation and deception.
Thus. VVT’s appeal was dismissed.
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