Ali v Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | The Deputy Judge |
| Judgment Date | 10 October 2013 |
| Neutral Citation | [2013] EWHC 4450 (Admin) |
| Docket Number | CO/11740/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 October 2013 |
[2013] EWHC 4450 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Helen Mountfield QC (Sitting as a Deputy High Court Judge)
CO/11740/2012
The Claimant appeared in person
Mr R Harland (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
This is an application which was lodged on 2 November 2012 by Mr Ali, acting in person, for judicial review of the decision of the Secretary of State for the Home Department on 16 October 2012 to refuse Mr Ali's application for leave to remain in this country, on the basis that he had not made out the criteria of eligibility for a Tier 4 (General) Student Visa. These included a valid Confirmation of Acceptance for Studies from a qualified institution.
The immigration rules provide in rule 245ZX, "requirements for leave to remain", that to qualify for leave to remain as a Tier 4 (General) Student under this rule an applicant must meet the requirements listed in the rule. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application for leave to remain will be refused. Requirements (a) and (b) are not material. Requirements (c) and (d) provide:
"(c) The applicant must have a minimum of 30 points under paragraphs 113 to 120 of Appendix A.
(d) The applicant must have a minimum of 10 points under paragraphs 10 to 14 of Appendix C."
Appendix A sets out the attributes for a Tier 4 (General) Student. Paragraph 113 of the Appendix provides
"An applicant applying for entry clearance or leave to remain as a Tier 4 (General) Student must score 30 points for attributes.
and paragraph 114 provides that thevailable points are shown in Table 16 which follows the Appendix."
The notes to accompany the Table appear below the table.
Table 16, setting out the number of points to be awarded, provides that in relation to satisfying the criterion of Confirmation of Acceptance for Studies, 30 points will be awarded. But paragraph 116 provides that:
"116. A Confirmation of Acceptance for Studies will only be considered to be valid if:
…
(e) the institution must still hold such a licence at the time the application for entry clearance or leave to remain is determined".
The problem for Mr Ali is that although the college on the basis of whose sponsorship he applied for leave to remain as a Tier 4 Student had a licence to grant a Confirmation of Acceptance of Studies at the time when he made his application for leave to remain, by the time the application came to be determined on 16 October 2012 it did not, and so his application was refused, and he was not given an opportunity to rectify that situation. So one can well understand why he feels aggrieved in that he has paid a fee of several thousand pounds to a body but not got himself a Confirmation of Acceptance for Studies, which will be accepted so that he can get leave for remain from the UK Border Agency.
I need to set out the relevant factual background in this case in some detail, and I adopt the background set out in the acknowledgement of service in paragraph 4 with some gratitude. The story started on 22 August 2010, when the claimant applied for entry clearance as a Tier 4 Student to study for a BTEC at South Thames College. He was granted leave to enter on 28 August 2010 to 15 September 2011. It appears that then, in accordance with that entry clearance, he entered the United Kingdom on 21 September 2010. That was also the day when he was granted leave to enter the United Kingdom as a Tier 4 (General) Student, that permission apparently expiring on 15 September 2011.
On 13 September 2011, the claimant paid a full fee of £6,150 for three years' study, to the London School of Business and Finance, which did not issue him with a Confirmation of Acceptance for Studies.Nor, at any stage, I am told, has it refunded that paid fee. On 15 September 2011, the Claimant was accepted by the London School of Business and Finance as a student for accountancy exams and an MBA in financial management. On the same day, the claimant straight away applied for further leave to remain as a Tier 4 (General) Student, listing the London School of Business and Finance as his sponsor. I pause there to note that his leave to remain expired on 15 September. He applied for new leave to remain on that day and, consequentially, by operation of law, until determination of that application, he was deemed to have leave to remain.
The UK Border Agency acknowledged receipt of that application on 19 September 2011 but unfortunately there was a mistake or some error or some problem with the debit card details provided for payment of the requisite fee, and so, on 2 October 2011, that application was returned by the UK Border Agency with instructions to forward it again with correct debit card details. I understand that what happened with that application was that it was simply never pursued. The UK Border Agency invited the claimant to come for an interview in order to establish his immigration status on two dates in November 2011 and December 2012, but unfortunately the claimant was ill and he could not attend those interviews and he forwarded medical reports. There is no suggestion that the UK Border Agency objects to that or thinks that that was not the case.
In the meantime, it appeared that the London School of Business and Finance was not a body which could issue a Confirmation of Acceptance for Studies. As I have already observed, it is quite understandable that the claimant feels extremely aggrieved that he has paid this institution a fee but they have not been able to provide him with the support he needs to obtain leave to remain. The next steps that the claimant took in that respect were that on 11 April 2012, he obtained a second Confirmation of Acceptance for Studies from the London International College of Management. On the basis of that, on 11 May 2012, the claimant submitted a fresh application for leave to remain as a Tier 4 (General) Student, and a biometric residence permit application. The UK Border Agency then replied on 15 May, telling the claimant he had 15 working days to have his biometric details taken. Unfortunately for the claimant, on 28 June 2012, the London International College of Management had its Tier 4 sponsor licence revoked, for reasons which I infer are nothing to do with the claimant. Consequently, all of their Confirmation of Acceptance for Studies were automatically cancelled, or at least were no longer valid for the purposes of determining an application under rule 245ZX of the immigration rules.
That meant that on 16 October 2012, the decision which is under challenge in these proceedings was reached and the claimant was refused leave to remain on the basis that he had not provided a Confirmation of Acceptance of Studies from a fully licensed Tier 4 sponsor. He then lodged an application for judicial review. On 2 November 2012, there was an application for this to be determined immediately but Males J held that this did not need to be determined immediately because no removal directions were being set. Then, on 13 December, the defendant put in an acknowledgement of service. The short point in...
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