EA (Section 85 (4))
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 30 January 2007 |
| Neutral Citation | [2007] UKAIT 13 |
| Court | Asylum and Immigration Tribunal |
| Date | 30 January 2007 |
[2007] UKAIT 13
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Warr
Senior Immigration Judge Batiste
For the Appellant: Ms M Yagnik, instructed by Remar & Co. Solicitors
For the Respondent: Mr C Avery, Home Office Presenting Officer
EA (Section 85 (4) explained) Nigeria
The effect of s85(4) of the 2002 Act (as expounded in LS (Gambia) [2005] UKAIT 00085) is not to make the Tribunal a primary decision-maker. The focus must always be on the decision actually made in response to the appellant's application. An in-country appellant does not succeed by showing that he meets the requirements of the Immigration Rules at the date of the hearing. He can succeed only by showing that the application that he made would be successful at the date of the hearing.
This is the reconsideration of the appeal of the appellant, a citizen of Nigeria, against the decision of the respondent on 7 February 2006 refusing to vary his leave in order to enable him to remain in the United Kingdom as a student.
He had leave to enter for twelve months on the usual terms applicable to a student. He was subsequently granted leave to remain on 30 November 2005 in order to study for a degree course in accountancy and finance at London Metropolitan University. He did not in fact continue his studies at London Metropolitan University. He began a course at an institution called Anfell College. On 23 November 2005 he applied for leave to remain in order to continue his studies for a Bachelor of Science degree in computer science at Anfell College. Anfell College closed in December 2005. On 7 February 2006 the appellant's application was refused, the ground of refusal being that Anfell College was not, on that date, on the Department of Education and Skills' Register of Education and Training Providers. Further, as the college had closed, the Secretary of State was not satisfied that the appellant was enrolled on a course of study meeting the requirements of the Immigration Rules. The appellant thereupon (although having no permission from the respondent to do so) began a course at Holborn College, an institution that he had attended previously. He began studies for a three year accountancy degree. There is no doubt that Holborn College is on the Register.
Before the Immigration Judge it was submitted on the appellant's behalf that, because he met the requirements of the Immigration Rules on the date of the hearing, he was entitled to the benefit of s85(4) of the 2002 Act as interpreted in LS (Gambia) [2005] UKAIT 00085, and that his appeal should be allowed although he did not meet the requirements of the Rules at the date of the decision. The Immigration Judge wrote in her determination as follows:
“I accept the respondent's submissions that, as Anfell College was not registered with the Department for Education and Skills [the] application was bound to fail as the appellant was unable to meet all the criteria of paragraph 57 of HC 395. The decision of the Secretary of State was thus correct. I do not accept counsel's argument that the appellant's subsequent enrolment at London Metropolitan University [sic: no doubt Holborn college is intended] retrospectively fulfilled the requirements of Rule 57. At the time of decision the Secretary of State was correct.”
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