Jo (Philippines) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson |
| Judgment Date | 23 April 2013 |
| Neutral Citation | [2013] EWCA Civ 833 |
| Docket Number | Case No: C5/2012/3295 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 April 2013 |
[2013] EWCA civ 833
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[APPEAL No: IA/27957/2011]
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Beatson
Case No: C5/2012/3295
Mr Jason Jamil (of Arndale Solicitors) appeared as a solicitor-advocate on behalf of the Applicant
The Respondent did not appear and was not represented
(Draft for approval)
This is a renewed application for permission to appeal against the decisions of the Upper Tribunal on 12 September 2012, dismissing the appeal of the applicant, JO, against the decision of the First-tier Tribunal, which in turn dismissed her appeal against the Secretary of State's refusal of her application for an extension of leave as a Tier 4 (General) Student Migrant. It is also a renewed application of the Upper Tribunal's decision, given by the same judge, Upper Tribunal Judge Taylor, refusing JO permission to appeal.
The background of the applicant's case is to be found in the decisions of the Tribunal. It is not necessary for me to set it out in full. In summary, she and her family are citizens of the Philippines. She entered the United Kingdom on 28 January 2007 on a student visa and was granted variations of leave to remain as a student until 28 February 2010. A further application for leave to remain as a student, now under the new system as a Tier 4 (General) Student Migrant, was refused, but an appeal against that decision succeeded, not under the Immigration Rules, but on Article 8 grounds.
Following that successful appeal, on 16 March 2011 the applicant was granted discretionary leave to remain in the United Kingdom until 9 September 2011. She is aged approximately 38. Her husband and son, who arrived in the United Kingdom on 29 June 2008, are respectively aged 40 and 12. They are dependants on her application.
The current application relates to her application on 3 July 2011, just over two months before her leave expired, for an extension of her leave as a Tier 4 (General) Student. Her application was accompanied by a letter from the registrar of West Tech College, which stated that she was proposing to study for a graduate diploma in Health and Social Care Management. The course was stated in the letter to commence on 11 April 2011 and to finish on 28 March 201The letter stated that the applicant was making good progress on the course but was awaiting her English IELTS results. The college stated that it would be "assigning her confirmation of acceptance for studies (CAS) as soon as the results are published". The letter asked the respondent to keep the application pending until her results are accessible, and a CAS was assigned.
In fact, it appears from the decision of Immigration Judge Parker in the FTT that, when the Registrar gave evidence, she stated she had been told by the applicant that she had sat the exams and was awaiting the results, but it was put to her that this was not true, and she then said that many of West Tech College's students were having problems booking their English exams because test centres were fully booked as a result of a change in the Immigration Rules requiring the test results.
Returning to the chronology, on 1 July 2011, the day after the letter in support of the application from the Registrar, West Tech College's licence was revoked and it was removed from the register. It appears from the FTT's decision (paragraph 7) that the reason the applicant had not, at the time of her application on 3 July (that is, after West Tech College's licence had been revoked) got her IELTS test results was because, when she had taken the test in December 2010, she did not achieve the required standard and she had to retake the test.
The application was refused by the UK Border Agency in a letter dated 13 September 2011. That letter stated that the applicant did not qualify for leave to remain as a Tier 4 (General) Student Migrant under the points-based system, because, although she claimed 30 points under Appendix A of the Immigration Rules for a valid CAS, no valid CAS was provided and the Secretary of State was not satisfied that the applicant had a valid CAS and was therefore not satisfied that she met the requirements for more than 30 points under Appendix A. Moreover, because she had not submitted a CAS in support of her application, the Border Agency was unable to assess the funds that she would require, and therefore the Secretary of State was not satisfied that she achieved the 10 points that she would otherwise have done under Appendix C of the rules. Thirdly, the Secretary of State was not satisfied that, since the applicant's previous leave was discretionary leave, she had satisfied the requirements of paragraph 245ZX(b) of the Immigration Rules as having leave to remain under one of the categories specified in that paragraph. The fact that no CAS was submitted also meant it was not possible for her to confirm that the requirement of rule 245ZX(l), that there is a gap of less than one month between the end of the applicant's current leave and the start of her course, was met.
Her appeal to the Tribunal was against that decision. The first Tribunal Judge stated that, as it was a requirement under the rules that an applicant for this sort of visa have a CAS, and she did not, the appeal had to be dismissed. He referred to two items of mitigation offered by her: that the test centres were booked and that she needed her passport for identification purposes at the test centre and, although she requested it, it had not been returned to her.
The judge considered that the letter from West Tech College misrepresented the position, but the reason for this, in the light of the applicant's leave not expiring until 9 September 2011, was not apparent. He referred to the good reports she had from the college and he stated that the respondent might wish to consider granting her further leave to remain outside the rules so she may continue with her study. But that was a matter within the respondent's...
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