EK (Ivory Coast) v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Sales,Lord Justice Floyd,Lord Justice Briggs
Judgment Date26 November 2014
Neutral Citation[2014] EWCA Civ 1517
Docket NumberCase No: C5/2013/3667
CourtCourt of Appeal (Civil Division)
Date26 November 2014
Between:
EK (Ivory Coast)
Appellant
and
The Secretary of State for the Home Department
Respondent

[2014] EWCA Civ 1517

Before:

Lord Justice Briggs

Lord Justice Floyd

and

Lord Justice Sales

Case No: C5/2013/3667

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM UPPER TRIBUNAL

(Immigration and Asylum Chamber)

UPPER TRIBUNAL

IA/02874/2013

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Paul Dipré (instructed by Calices Solicitors) for the Appellant

Mr Andrew Bird (instructed by The Treasury Solicitors) for the Respondent

Hearing date: 11 November 2014

Lord Justice Sales

Introduction

1

This appeal concerns the application of the general public law duty of fairness in the context of the points based system for applying for leave to enter or remain in the United Kingdom set out in Appendix A to the Immigration Rules HC 395 ("the PBS").

2

The Appellant is a student from the Ivory Coast. On 8 September 2012 she made an application for leave to remain in the United Kingdom as a Tier 4 (General) Student Migrant, which was supported by a letter setting out a Confirmation of Acceptance for Studies ("CAS") issued by St Stephen's College (UK) Limited ("St Stephen's"). At the time, St Stephen's was authorised by the Secretary of State for the Home Department to issue such CAS letters.

3

However, between 8 September 2012 and the date of the Secretary of State's decision on the application, by letter dated 5 January 2013, St Stephen's withdrew the CAS letter. There is evidence that St Stephen's withdrew the CAS letter as a result of an administrative error. This meant that, by the time of the Secretary of State's decision, the Appellant did not have the requisite number of points to be granted leave to remain. Her application was therefore refused.

4

The issue which arises is whether, pursuant to the general public law duty of fairness, the Secretary of State should have given notice of the withdrawal of the CAS letter to the Appellant and postponed making any decision on her application in order to allow the Appellant an opportunity to correct any error which might have been made by St Stephen's or to find another college which would issue her with a CAS letter.

The Facts

5

The Appellant arrived in the United Kingdom on 5 November 2011, aged 20, with the intention of studying for a diploma in business management. However, she was unable to complete her course because in March 2012 the college at which she was enrolled, Bliss College, lost its status as a sponsor for students and its authorisation from the Secretary of State to issue CAS letters which would be recognised under the PBS.

6

The Secretary of State then granted the Appellant leave to remain for a period to give her an opportunity to find a new college. The Appellant enrolled with St Stephen's, which issued her with a CAS letter in standard form and assigned her a unique CAS reference number. Her arrangement with St Stephen's was that she would not attend the course until the Secretary of State had made her decision whether to grant her leave to remain.

7

By application form dated 8 September 2012, the Appellant made combined applications for leave to remain in the United Kingdom as a Tier 4 (General) Student Migrant and for a Biometric Residence Permit. In support of her application, along with other information, she appended her CAS letter from St Stephen's and supplied her unique CAS reference number.

8

Under the PBS, the Appellant claimed a total of 40 points, of which 30 were claimed on the basis that she had a CAS letter from St Stephen's. Under paragraph 245ZX(c) of the Immigration Rules, the Appellant needed to score 30 points under Appendix A to the Rules. The CAS letter was thus critical to her application.

9

There is no reason to doubt that the CAS letter as issued and appended to the Appellant's application form was a valid CAS for the purposes of the PBS. However, between 8 September 2012 and the date on which an official of the Secretary of State made a decision on her application, the CAS letter was withdrawn by St Stephen's.

10

On the evidence and findings of the First-tier Tribunal ("FTT"), the exact process by which the CAS letter was withdrawn and the Secretary of State given notice of that withdrawal was not clear. It seems likely that a college such as St Stephen's registers a CAS by making an entry on a computerised database at the same time as a CAS letter is generated and given to a student, and that it is able subsequently to remove that entry; and that an official, when making a decision on an application for leave to remain, simply goes to the database to check that there is a valid and current CAS entry, and is able to see if a previously valid entry has been removed.

11

However that may be, the decision letter dated 5 January 2013 explained that the Appellant's application had been rejected because "the Secretary of State is not satisfied that you have a valid CAS because the reference number submitted with your application has been withdrawn by the sponsor [i.e. St Stephen's]".

12

It is relevant to note that at this point the Secretary of State was functus officio. She had made her decision on the application, which was final subject only to any appeal by the Appellant. It was not open to the Secretary of State to review and change her decision in the light of any new information which came to light during the appeal process.

13

Although the FTT made no findings about this, the Appellant says that St Stephen's did not contact her before the Secretary of State made her decision, to let the Appellant know that her CAS letter had been withdrawn. There is no reason to doubt this.

14

By Notice of Appeal dated 23 January 2013, the Appellant appealed to the FTT. Her Grounds of Appeal were that the Secretary of State's decision was "not in accordance with Immigration Rules and Law" and was not compatible with her Convention rights under the Human Rights Act 1998. She maintained that it was "extremely unfair" that she was refused leave to remain as a result of St Stephen's decision to withdraw the CAS letter.

15

The Appellant's case on this appeal is that fairness required that, upon discovering that the Appellant had been issued with a CAS letter which had later been withdrawn, the Secretary of State should have postponed taking a decision on the application in order to give the Appellant an opportunity to clarify the position with St Stephen's and to rectify any mistake made by it or to find another approved course and obtain another, valid CAS letter. This was not a ground of appeal which the Appellant developed in her submissions before the FTT. But it was a matter covered by the Appellant's submissions in the Upper Tribunal and in the reasons of Beatson LJ in granting permission to appeal to this Court. It is a pure point of law intimated to the Secretary of State in good time in advance of the hearings in the Upper Tribunal and in this Court, and addressed in submissions by her, so there is no difficulty about allowing the Appellant to take the point at this stage. It was an argument which could have been addressed to the FTT, as falling within its jurisdiction set out in section 84(1)(e) ("that the decision is otherwise not in accordance with the law"), and hence is an argument which this Court can entertain on an appeal stemming from a decision of the FTT: see Naved (Student – fairness – notice of points) [2012] UKUT 14 (IAC), [15]–[19].

16

Other arguments presented by the Appellant in the FTT and in the Upper Tribunal were not pursued before us. Mr Dipré for the Appellant (who did not appear below) accepted that there was no evidence that the Appellant had developed private life in the United Kingdom such that her removal would constitute an illegitimate interference with it within the scope of Article 8 of the European Convention on Human Rights. He also accepted that her case did not fall within the evidential flexibility policy of the Secretary of State (to deal with minor apparent defects in submitted documents) considered in Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2 and now contained in paragraph 245AA of the Immigration Rules.

17

The Appellant's appeal from the Secretary of State was heard by the FTT (Immigration Judge Fletcher-Hill) on 2 July 2013. The Appellant adduced evidence, in the form of a letter dated 26 June 2013 from the Principal of St Stephen's, Mr R.K. Gupta, confirming that St Stephen's had issued a CAS letter for the Appellant and stating: "Due to an administrative error [the Appellant's] CAS was accidentally withdrawn and I accept responsibility for the mistake. I can confirm that the student had no role in the process so it was not her fault". Mr Gupta's letter also stated that, to rectify the error, St Stephen's was ready to issue a new CAS to the Appellant. The FTT admitted this evidence (albeit it had not been available to the Secretary of State when she took her decision), no point being taken by the Secretary of State to object to this course.

18

The FTT said that "there was simply no evidence" as to why St Stephen's had decided to withdraw the CAS letter, nor that the Appellant had sought to discover the reason. Mr Bird, for the Secretary of State, accepts that there was in fact evidence before the FTT that the CAS letter had been withdrawn by St Stephen's by reason of an administrative error. Although no findings were made as to whether the Appellant sought to discover the reason for this before the Secretary of State's decision, the appeal before us proceeded on the footing (which appears correct) that the...

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