(1) Dharmeshkumar Bhupendrabhai Patel v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice Moylan |
| Judgment Date | 15 February 2018 |
| Neutral Citation | [2018] EWCA Civ 229 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C7/2016/4089 |
| Date | 15 February 2018 |
[2018] EWCA Civ 229
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT))
THE HON MRS JUSTICE McGOWAN
Ref CO/5027/2016
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hickinbottom
and
Lord Justice Moylan
Case No: C7/2016/4089
The Queen on the Application of
Parminder Saini (instructed by Hiren Patel Solicitors) for the Applicants
The Respondent was neither represented nor appeared.
Hearing date: 15 February 2018
The Applicants seek permission to appeal against the decision of McGowan J dated 25 October 2016 refusing permission to proceed with their claim for judicial review of the decision of the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judge McGeachy) dated 9 September 2016 refusing permission to appeal against the decision of the First-tier Tribunal (First-tier Tribunal Judge Fenoughty) dated 17 February 2016 dismissing the First Applicant's appeal against the Secretary of State's refusal of his application for leave to remain as a Tier 4 (General) Student Migrant. The Second Applicant is the wife of the First Applicant, and her application for leave to remain is dependent upon his claim. For convenience, I shall refer to the First Applicant as simply “the Applicant”.
On 5 August 2009, the Applicant was granted leave to enter the United Kingdom as a student until 17 April 2011, which was later extended to 11 August 2014.
On 8 August 2014, he made an application for leave to remain as a student, relying upon a Confirmation of Acceptance of Studies (“CAS”) issued by Zaskin College on 7 August 2014 in respect of its Diploma Course in Strategic Management. The Applicant correctly completed the application process in respect of the college place, including paying the fees of £3,500; but, as the college was A-rated, he could not commence his studies unless and until he had obtained leave to remain.
On 1 December 2014, unknown to the Applicant, the college withdrew the CAS. He was given no notice of that withdrawal, and has still not been given any reason for it. The first the Applicant knew of it was when he received a letter from the Home Office dated 2 February 2015 notifying him of the decision to refuse his application for leave on the basis that he had no valid CAS, the letter saying that the CAS with the number he had given had been withdrawn by the college. I pause to note that the college not only refused to give the Applicant a reason for the withdrawal of his CAS, it also refused to refund him his fees. The college has now closed.
To qualify for leave to remain as a Tier 4 (General) Student under paragraph 245ZX of the Immigration Rules, an applicant has to meet certain requirements under a points-based scheme (“PBS”), including having a minimum of 30 points under paragraphs 113–120 of Appendix A to the Rules. To obtain those points, under paragraph 114 of that appendix, the Applicant is required to have a valid CAS. By paragraph 116, a CAS is not valid if the sponsor has withdrawn its offer of sponsorship since the CAS was issued. Therefore, under the Immigration Rules, where a sponsor college withdraws a CAS prior to the determination of an application for leave to remain as a Tier 4 (General) Student, the applicant will not obtain the required number of points to be successful. That is the basis upon which the Applicant's application was refused.
The Applicant appealed to the First-tier Tribunal against that refusal. One ground upon which he did so was that the Secretary of State had acted unfairly in the manner in which she had exercised her administrative powers in the Applicant's case in the sense described in R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531, because she did not contact the college to find out why the Applicant's CAS had been withdrawn. Had she done so, she would have ascertained that the withdrawal had no basis, and would have taken action against the sponsor. It was contended that, in the circumstances, the Applicant ought to have been notified by the Secretary of State that his CAS had been withdrawn by the college, and given him 60 days leave to remain to enable him to identify a new sponsor and vary or make a new application on the basis of a CAS from it, under the principles set out in Patel (revocation of sponsor licence – fairness) India [2011] UKUT 211 (IAC). In Patel, it was held that, in circumstances in which a PBS application by a student failed because, between the date of the application and its determination, the relevant college's sponsors licence was removed by the Secretary of State, public law fairness required the Secretary of State to notify the student and allow him 60 days to identify a new sponsor and make a new or varied application. In this case, it was contended that that was the only in which unfairness to the Applicant be avoided.
The difficulty with that ground was that it had been considered and rejected by this court in EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517, which doomed the ground to failure in this case. In EK (Ivory Coast), between the date of the application and the date upon which the Secretary of State determined it, as a result of an administrative error on its part, the relevant college withdrew the CAS letter upon which the applicant relied for her application for leave to remain as a student. At the time of her decision, neither the Secretary of State nor the college was aware that a mistake had been made; and the majority (Briggs and Sales LJJ, Floyd LJ dissenting) considered that she could proceed on the basis that the withdrawal was for good reason and that the sponsor had informed the student of its decision to do so. They held that the Secretary of State was under no obligation to make enquiries of the college or the student to ascertain the reason for the withdrawal of the CAS or for the student's representations on the issue. There had therefore been no unfairness in the public law sense at the hands of the Secretary of State; any unfairness to the Applicant resulting from the acts and omissions of the college.
In any event, in this case, Judge Fenoughty considered he was bound by EK (Ivory Coast), and rejected the ground of appeal to which I have referred.
The Appellant sought permission to appeal to the Upper Tribunal. One ground upon which he did so was new: he submitted that EK (Ivory Coast) was decided per incuriam because the court in that case had proceeded on the basis that the Secretary of State was unaware of the reason why the college had withdrawn the CAS, namely as a result of an administrative error. In fact, the Secretary of State would (or, at least, should) have been fully aware as to why the Appellant's CAS had been withdrawn, on the following basis.
The Tier 4 Guidance for Sponsors, prescriptive so far as sponsor colleges are concerned, under the heading “Sponsorship Duties”, states, at paragraphs 5.111–5.112:
“5.111 You can withdraw a CAS that you have assigned to a student if they have not yet used it to support an application for a visa or an extension of stay. You must withdraw the CAS using the SMS and inform the student.
5.112 If a CAS is cancelled or withdrawn we will not refund your fee. Once a CAS has been cancelled or withdrawn, we will automatically refuse any application supported by that CAS.”
“SMS” is a reference to the Sponsorship Management System used by the Secretary of State to manage application under the PBS.
The guidance makes clear that, where the student is in default of his obligations, the sponsor is under a duty to report that default to the Secretary of State. Paragraph 3.1 states that the Secretary of State has a duty to ensure that all sponsors discharge their responsibilities, and that a sponsor's act or omissions do not create a risk to immigration control. Paragraph 3.4 indicates that she will “always take action when [she] considers that a sponsor poses, or may pose, a risk to immigration control”. Today before us, Mr Saini has pointed to the indication by Silber J in R (Westech College) v Secretary of State for the Home Department [2011] EWHC 1484 (Admin) at [17]–[18] (approved by this court in R (Raj and Knoll Limited) v Secretary of State for the Home Department [2016] EWCA Civ 770 at [23(6)]), that, where the Secretary of State has reasonable grounds for suspecting that a breach of immigration control might occur as a result of an act or omission by a sponsor college, she “can, and indeed, should” take steps in relation to suspending or revoking sponsorship.
Thus, in the attempt to obtain permission to appeal to the Upper Tribunal, it was argued that, under the guidance, a college sponsor can only withdraw a CAS that has already been assigned to a student “if they have not yet used it to support an application for a visa or an extension of stay”, or where the student has been at fault by (e.g.) failing to comply with his obligations. In those latter circumstances, the sponsor is required to report that default to the Secretary of State. Manual 5 of the SMS Manuals published by the Secretary of State, entitled “Reporting student activity”, provides a print out of a computer screen on the SMS which concerns any withdrawal of sponsorship by the sponsor college. In addition to a field for “date sponsorship withdrawn”, there is a further field, “Please give details”. Those two fields are asterisked, showing that they must be completed by the sponsor when reporting the withdrawal of a CAS.
The Applicant contended that as a sponsor college must give reasons for withdrawing the CAS, which has to be...
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