Jadgeep Kaur v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Leggatt,Lord Justice Floyd |
| Judgment Date | 01 July 2019 |
| Neutral Citation | [2019] EWCA Civ 1101 |
| Docket Number | Case No: CASE NO: C7/2017/3277 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 July 2019 |
[2019] EWCA Civ 1101
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Floyd
Lord Justice Leggatt
and
Lord Justice Coulson
Case No: CASE NO: C7/2017/3277
Mr Tony Muman (instructed by ATM Law Solicitor) for the Appellants
Mr Zane Malik (instructed by the Government Legal Dept) for the Respondent
Hearing Date: 13 June 2019
Judgment Approved by the court for handing down
Introduction
This is a second appeal arising from a decision taken by the respondent (“SSHD”) on 22 October 2015, when she refused the first appellant's claim for leave to remain as a Tier 4 (General) Student Migrant under the points-based system, and for a biometric residence permit. The grounds of appeal raised what were, on analysis, two narrow issues concerning the SSHD's power to retain the appellant's original passport during a period when she was seeking fresh sponsorship. I address them in paragraphs 14 – 33 below. The arguments raised orally by Mr Muman on her behalf went much wider, and I deal with them rather more circumspectly from paragraph 33 onwards.
The Factual Background
The first appellant is a citizen of India, born on 12 January 1989. Her dependant spouse, Ashmeet Singh, who is also a citizen of India, has no free-standing claim to reside in the United Kingdom. His claim is therefore entirely dependent on hers. I therefore refer below to the first appellant only.
The first appellant arrived in the UK on 2 March 2011 with an entry clearance as a Tier 4 (General) Student, valid until 16 January 2013. Her application for further leave to remain was refused on 9 October 2014 on the ground that her educational institution, Centre for Teaching Management, had withdrawn the necessary Confirmation of Acceptance for Studies (“CAS”). The letter said that a decision had been taken to remove the appellant by way of directions under s.47 of the Immigration, Asylum and Nationality Act 2006.
The appellant appealed. It was agreed that, in reaching her decision, the SSHD had referred to the wrong CAS number and that, certainly at that time, the appellant's CAS had not been withdrawn. The matter was remitted back to the SSHD.
On 13 August 2015, the SSHD wrote to the appellant again, noting that the Centre for Teaching Management had now surrendered its sponsorship licence. This meant that the appellant's CAS was no longer valid. Accordingly, the appellant was given a further period of 60 days, during which the SSHD suspended any consideration of her application for further leave to remain as a Tier 4 (General) Student. The appellant was invited either to withdraw her application and submit a fresh application in a different category, or to leave the UK, within that 60-day period. As a further alternative, the SSHD stated that, if the appellant wanted to continue to pursue her application as it stood, she should, within those 60 days, find an alternative educational institution and submit a new CAS. A letter to be shown to other institutions was attached under the heading ‘Information Leaflet’.
It is not disputed that the appellant was unable to find an alternative sponsor or to submit a new CAS. Accordingly, on 22 October 2015, after the expiry of the 60 days, the SSHD refused her application for further leave to remain as a Tier 4 (General) Student, on the ground that there was no valid CAS or sponsorship (“the decision letter”).
The relevant parts of the decision letter read as follows:
“We have considered your application on behalf of the Secretary of State and your application has been refused under the Immigration Rules. This decision has been made in line with the Immigration Rules.
A decision has also been made to remove you from the UK by way of directions under section 47 of the Immigration Asylum Nationality Act 2006…
You were required to submit documentary evidence that you have been accepted onto a course of study with a licensed Tier 4 Sponsor and you were given a period of 60 days to do so. That period of 60 days ended on 12 October 2015.
This process of delaying consideration for 60 days is now the Secretary of State's standard policy for applicants who find that, through no fault of their own, their sponsor has been revoked. This has been arrived at following a high court ruling which stated that it would be fair to allow all applicants to have 60 days in which to address this change of circumstance, whereas previously the application would have been refused.
“Therefore the Secretary of State is not prepared to give any additional time as 60 days has been deemed to be suitable and, in order to be fair and consistent, this is applied to everyone in that situation. As you have not complied with this request within that 60 day period, we are refusing your application under 322(9) of the Immigration Rules. As you have been refused under one of the general grounds we are also refusing your application under 245ZX(i).
The Secretary of State has considered whether the particular circumstances of your case merit the exercise of discretion. Having considered those circumstances the Secretary of State is satisfied that the refusal remains appropriate and is not prepared to exercise discretion in your favour.
We wrote to you on 13 August 2015 giving you 60 days, to 12 October 2015 in which to submit further information but have not received a response to date. Therefore your application has been assessed on the documentation previously submitted and available at the time of consideration.”
The appellant appealed against that decision. The basis of her appeal was that she had been hampered in finding alternative sponsorship or another CAS because, although she had been given an attested copy of her passport, the SSHD had retained the original.
Her appeal was rejected by the FtT on 9 December 2016. Judge Green's reasons for dismissing the appeal were principally based on the facts. He said:
“11… The First Appellant claims that none of the colleges that she visited would issue a CAS without sight of her original passport. However, she has not provided any supporting evidence of this because she claims that they refused to issue anything in writing. Frankly, I do not find that credible. 60 day extensions in these circumstances are common, and I have heard many similar cases and I know that it is standard practice of the respondent to retain the original passport and that prospective colleges will accept an attested copy and can be guided by the explanatory leaflet. Whilst the Respondent acted discourteously in failing to answer the First Appellant's letters, I do not think that she acted unfairly under the circumstances. The Respondent discharged her common law duty. The First Appellant had an adequate opportunity to enrol at another institution and had the necessary documentation to do so.”
There is and can be no appeal against those findings of fact. That was a point made by the Upper Tribunal when, on 15 September 2017, UTJ Hanson rejected the appellant's appeal against the decision of the FtT as being without merit. He pointed out that the FtT's findings of fact meant that the appeal could not succeed. In addition, he rejected the submission that the SSHD had not acted in accordance with her own guidance, ‘Retention of valuable documents, version 7’.
His overall conclusions were at paragraphs 16 and 17, in the following terms:
“16 The appellant did not make out before the Judge that the actions of the Secretary of State were in anyway procedurally unfair in providing an attested copy of the passport and an explanatory leaflet. The Secretary of State was arguably entitled to retain the passport in the circumstances of this case where, without lawful leave to remain in the United Kingdom, the appellants were removable. Their application was refused as the first appellant did not have a valid CAS and their leave had been curtailed.
“17 The appellants failed to produce sufficient evidence before the First-Tier Tribunal to show that sufficient inquiries had been made of the colleges in question. The Judge expresses surprise at the claim the colleges were not willing to set out their position in writing and during his submissions Mr Kotas referred to difficulties that may have been experienced by the appellant in doing no more than speaking to a receptionist who, understandably, may have advised the prospective applicant who is not a British national that a copy of their passport was required.”
It is common ground that the last sentence of paragraph 16 was wrong: leave had not been curtailed at the time that the original passport was retained. However, as explained below, that error does not affect the outcome of the appeal.
The Second Appeal
Permission to bring this second appeal was granted on two grounds only. The first was based on the submission that the decisions of the FtT and/or the UT were not in accordance with another UT judgment, Nanette Marcellana v SSHD UT 1A/01888/2013 (a case never previously referred to). The second ground was that the SSHD should have exercised her discretion to return the appellant's passport because these were “exceptional circumstances”.
A threshold issue arose at the appeal hearing, concerned with jurisdiction. I deal with that first, because it leads conveniently into a consideration of the effect of the factual findings by the FtT on this appeal. Thereafter, I deal with the two stated grounds, before going on to consider Mr Muman's wider submissions.
Threshold Point
In his skeleton argument, Mr Malik argued that neither the FtT, nor the UT, had any jurisdiction to deal with the challenge to the decision letter. The...
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Upper Tribunal (Immigration and asylum chamber), 2020-10-26, IA/00005/2019
...further, the reasoning behind Judge Herbert’s decision has been undermined by Kaur & Anor v Secretary of State for the Home Department [2019] EWCA Civ 1101 whereby the court clarified the legal impact of the Secretary of State’s retention of passports. In essence, Section 17 of the Asylum a......
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Upper Tribunal (Immigration and asylum chamber), 2019-11-19, IA/00149/2018
...was granted on the basis that it was arguable that the lack of a CAS was the result of an act or an omission of the respondent (Kaur [2019] EWCA Civ 1101). In her Rule 24 reply, the respondent sought to distinguish Kaur and relied on EK (Ivory Coast) [2014] EWCA Civ 1517 instead, maintainin......