Cd (S. 10 Curtailment: Right of Appeal)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge P R Lane |
| Judgment Date | 04 April 2008 |
| Neutral Citation | [2008] UKAIT 55 |
| Court | Asylum and Immigration Tribunal |
| Date | 04 April 2008 |
[2008] UKAIT 55
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
SENIOR IMMIGRATION JUDGE P R Lane
For the Appellant: Mr Z. Nasin, Counsel, instructed by Messrs FLK Solicitors
For the Respondent: Ms L. Kalaher, Home Office Presenting Officer
CD (s. 10 curtailment: right of appeal) India
A decision under section 10 of the Immigration and Asylum Act 1999 that involves the invalidation of any leave to enter or remain is to be treated for the purposes of the 2002 Act as a curtailment of that leave within section 82(2)(e), with the result that a person may appeal against that decision whilst he is in the United Kingdom, whether or not he has made an asylum claim or a human rights claim.
The appellant, a citizen of India born on 17 July 1978, was granted entry clearance to the United Kingdom as a student on 31 October 2005. On 30 March 2006 he was granted leave to enter as a student until 31 March 2007.
On 21 February 2007, the appellant applied for leave to remain as a student at Lloyds College, London, E7, studying for a BBA in Accounting and Finance. On 1 April 2007 the appellant was granted leave to remain in the United Kingdom as a student until 30 March 2008, in order to study at Lloyds College.
On 13 December 2007, however, the respondent decided that the appellant should be removed from the United Kingdom by way of directions because it had come to the respondent's attention that Lloyds College was not a bona fide education establishment. According to the respondent's letter, which accompanied her notice of decision:-
“As part of an application for leave to remain as a student signed by on you on 21 February 2007 you submitted a letter of enrolment from Lloyds College dated 21 February 2007 stating that you had enrolled for a BBA Accounting and Finance course commencing on 16 January 2006 until January 2009. We are aware from our own enquiries that Lloyds College is not, and never has been, a bona fide educational establishment and that it is reasonable to believe that this would have been known to any person claiming to have studied or enrolled there.
Therefore, we are satisfied, on the basis of the evidence available, that you have obtained leave to remain in the United Kingdom by means of deception.
A decision has also been taken to remove you and spouse [sic] from the United Kingdom pursuant to powers contained in Section 10(1)(b) of the Immigration and Asylum Act 1999. Enclosed are forms IS151A which sets out [sic] your immigration status and liability to detention. You may appeal against the decision to remove you and your spouse under Section 82 of the Nationality, Immigration and Asylum Act 2002 from abroad, on the basis of one or more of the grounds of appeal contained within form IS151A Part 2 Notice of Decision, attached. In accordance with Section 10(8) of that Act, this decision invalidates any leave to enter or remain in the United Kingdom that you and your spouse have been granted. You and your spouse may wish to take note of the conditions of the ‘One-Stop’ procedure set out in form IS75 and complete and return IS76 if appropriate. Both forms are attached.
You and your spouse now have no basis of stay in the United Kingdom, and should make arrangements to leave the United Kingdom without delay. If you and your spouse do not depart voluntarily, directions for your removal may be made.”
At the hearing before the Immigration Judge, the appellant gave evidence. He told the Immigration Judge that he was not satisfied with the management and educational standards of Lloyds College and, consequently, on 23 April 2007, he decided that he should move to Stevens College of Technology and Management, where he remained on the same BBA course.
Relying upon a letter of 21 February 2007 from Lloyds College, which gave the DfES reference number of 21933, the Immigration Judge found that, certainly when the appellant applied for his further leave, Lloyds College was on the DfES register. It appeared to be common ground before the Immigration Judge that at some subsequent point, which the respondent was unable to identify, the college had ceased to be on the register. The significance of being on the register is apparent from paragraph 57(i) of the Immigration Rules, which requires a person to have been accepted for a course of study which is to be provided by an organisation which is included on the Department for Education and Skills' Register of Education and Training Providers.
The relevant provisions of section 10 of the Immigration and Asylum Act 1999 are as follows:-
“(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an Immigration Officer, if –
…
(b) he uses deception in seeking (whether successfully or not) leave to remain.
(8) When a person is notified that a decision has been made to remove him in accordance with this section, the notification invalidates any leave to enter or remain in the United Kingdom previously given to him.”
It is common ground that the service upon the appellant of form IS151A constituted notification for the purposes of section 10(8). At paragraph 9 of the determination, the Immigration Judge found:-
“9. It seems to me to be not only draconian but plainly wrong on the part of the respondent to suggest that the appellant obtained leave to remain by means of deception. I reached that conclusion on the basis of the evidence before me that, in February 2007 and at the time of the appellant's last application for leave (21.2.08), Lloyds College was indeed on the DfES register being given the number 21933 (A15, respondent's bundle). The respondent is wrong to say that Lloyds College ‘never has been a bona fide educational establishment…’ It seems little short of astonishing that the respondent would seek to apply such legislation to a student with an exemplary past record who has fallen foul of a failing College. If the respondent had taken the time to research the facts she would have discovered that Lloyds College was on the register certainly in February 2007 when [the appellant] last applied – indeed the evidence was in the respondent's bundle.”
The Immigration Judge went on to opine that the same predicament as faced the appellant “must apply to many students from overseas who have spent a great deal of money and put much effort into their studies. It is not suggested that [the appellant] is a poor student who has failed to produce evidence of the taking and passing of relevant examinations. He is facing removal because, the respondent submits, he employed deception. For the reasons I have outlined that cannot be right.”
At paragraph 11, the Immigration Judge accordingly allowed the appellant's appeal, with the result that he found that “the variation of leave application remains outstanding before the respondent”. I have to say that it is unclear whether the appellant has made such an application. It is possible that, in saying what he did, the Immigration Judge considered that the grounds of appeal in some way constituted such an application since, at paragraph 10, he found that the appellant “had a legitimate expectation that the notice of appeal would receive proper attention from the...
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