Joxin Kizhakudan v Secretary of State for Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix,Lord Justice Moses,Mr Justice Briggs |
| Judgment Date | 02 May 2012 |
| Neutral Citation | [2012] EWCA Civ 566 |
| Docket Number | Case No: C5/2011/1117 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 May 2012 |
[2012] EWCA Civ 566
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
SIJ WAUMSLEY
IA/22653/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rix
Lord Justice Moses
and
Mr Justice Briggs
Case No: C5/2011/1117
Mr Tim Buley (instructed by Messrs Hafiz & Haque) for the Appellant
Mr Ben Hooper (instructed by Treasury Solicitors) for the Respondent
Hearing date : Friday 27 th January 2012
The appellant, Joxin Kizhakudan, is a student from India who has been studying in the United Kingdom for a number of years. His latest enrolment in a course came to nothing when his college was removed from the register of Tier 4 student sponsors. In those circumstances Mr Kizhakudan found himself in difficulties because by the time his application for an extension to his leave to remain was refused in the light of his college's deregistration it was too late for him to find alternative sponsorship at another college. His appeal against the refusal to extend his leave to remain was nevertheless allowed, mistakenly as is now common ground, in the belief that in such circumstances his case fell within a policy which allowed 60 days to find new student sponsorship. In due course the decision of the first-tier tribunal in his favour was overturned, upon the appeal of the Secretary of State, in the upper tribunal for error of law. It was nevertheless submitted on behalf of Mr Kizhakkudan in the upper tribunal that, in considering his case anew as the upper tribunal was obliged to do (unless it remitted it to the first-tier tribunal), that tribunal ought to have taken account of his private life in the UK pursuant to article 8 of the European Convention on Human Rights. However, the judge refused to hear argument on article 8 on the ground that the point was not open to Mr Kizhakudan: in circumstances where there was no error of law in the FTT in not considering a point, the article 8 point, which had not been raised before it.
On this appeal Mr Kizhakudan submits that the Upper Tribunal was itself in error: first in requiring an error of law in the FTT in relation to article 8 when as was common ground there was already an error of law in relation to the Secretary of State's policy; and secondly in refusing to accede to a request to consider article 8 for itself in relation to the need to make a new decision. This is a second appeal, but Lord Justice Sullivan nevertheless gave permission for it on the basis that the upper tribunal's refusal to consider the article 8 point was of importance.
The facts
Mr Kizhakudan was granted leave to enter the United Kingdom as a student on 30 January 2002. Originally his leave extended until 31 October 2003, but he was subsequently granted a series of extensions until 14 February 2010. One day before that deadline he applied for a further extension, as a Tier 4 (General) Student. In his application form he stated his enrolment for a "professional graduate diploma in information technology" at Gateway2UKeducation, South Ealing. At that time that college was registered as a Tier 4 sponsor: however, by the time that Mr Kizhakudan's application came to be considered on behalf of the Secretary of State, the college had been removed from the register, and consequently the application for an extension of his leave to remain failed.
Mr Kizhakudan's appeal litigation
Mr Kizhakudan exercised his right of appeal to an immigration judge in the first-tier tribunal. In his grounds of appeal he submitted that the Secretary of State's decision was –
"not in accordance with Immigration Rules being unfair and/or that the decision has been taken wrongly…Kindly note that the Immigration Rules are silent on this matter and it is the duty of the SOSHD to exercise correct scrutiny rather than relying on different policy guidelines…the SOSHD has failed to consider the appellant's circumstances sympathetically by providing him with an opportunity to rectify shortfall by change the college…"
However, there was no reliance on article 8, even though Mr Kizhakudan was told in the Secretary of State's decision letter, in the standard way, of his rights of appeal inter alia on human rights grounds pursuant to the Convention and was there given the conventional "one-stop warning".
When his appeal came on in the first-tier tribunal before Immigration Judge Widdup on 13 September 2010 Mr Kizhakudan was represented by Mr Madhu Chempakasari, a solicitor with Hafiz and Haque solicitors. Mr Chempakasari had three points up his sleeve, but he was so successful when he revealed his first point that the other two went unmentioned. Meanwhile the Secretary of State had not been represented, so that argument was no doubt brief.
Mr Chempakasari's first point was his reliance on the Secretary of State's policy guidance "Tier 4 of the Points Based System – Policy Guidance". At paragraph 27 of that guidance the applicant is told "What will happen" if "your approved education provider's licence is withdrawn". Then, "If you are already in the United Kingdom studying", the guidance states as follows:
"We will limit your permission to stay to:
• 60 days if you were not involved in the reasons why your approved education provider had their licence withdrawn (we will not limit your permission to stay if you have less than six months left. You may want to apply for permission to stay with another approved education provider during this time).
• immediately if we think you were involved in the reasons why your sponsor's licence was withdrawn."
It is now common ground that this policy does not extend a student's leave to stay, but limits it to 60 days (unless the student visa has less than six months to run, in which case it remains in place). In the present case, Mr Kizhakudan's visa expired the day after his application, so that the policy guidance on its terms was of no assistance to him.
It may be observed that this point was not within Mr Kizhakudan's grounds of appeal, which, on the contrary, had proceeded on the correct basis that policy guidelines were of no assistance to him, and instead appealed to fairness (of which more below).
However, the point was embraced by IJ Widdup so firmly that Mr Chempakasari's second and third points remained unrevealed. His second point would have reflected the grounds of appeal in relying on the alleged unfairness of the lacuna which policy guidance creates for persons whose visa has run out before they realise any need to remedy their position. His third point would have relied on article 8 and a private life arising from the pursuit of Mr Kizhakudan's studies in the UK for approaching 9 years. We know that Mr Chempakasari intended to make the second and third points by reason of his subsequent witness statement dated 17 May 2011, made for the purposes of this appeal.
All that IJ Widdup considered that he needed to say in his short determination was that the policy guidance should have led to Mr Kizhakudan being granted leave to remain for 60 days to enable him to register elsewhere. As I have said, it is now common ground that that was an error of law.
The Secretary of State applied to and obtained permission to appeal to the upper tribunal on the ground that the policy guidance had been misinterpreted: "the limitation of extant permission to stay does not equate to the granting of further leave to remain". There was, however, no respondent's notice to rely on the unspoken second and third points; and, because they were unspoken, there was naturally no record of them having been made.
The Secretary of State's appeal came before Senior Immigration Judge Waumsley on 4 January 2011 and his determination was promulgated on 17 January 2011. He allowed the appeal, indeed the policy guidance point was conceded, but in doing so refused to consider an attempt by Mr Kizhakudan, on that occasion represented by Ms Panagiotopoulou of counsel, to rely on article 8. The correctness of that refusal is now the essential question of the further appeal to this court.
Ms Panagiotopoulou has also made a witness statement, dated 10 November 2011, for this appeal. In it she states that she conceded that IJ Widdup's determination contained an error of law, but continues as follows:
"At the second stage of the proceedings (which required SIJ Waumsley to remake a decision) it was argued on behalf of [Mr Kizhakudan] that this was a de novo hearing and hence it was incumbent on the SIJ to reconsider [his] appeal under the Immigration Rules and under article 8 of the ECHR regardless of whether or not any human rights arguments had been raised before the Immigration Judge at the first tier tribunal. During the course of my submissions specific reference was made to the case of CDS (Brazil) [2010] UKUT 00305 in support…"
In CDS (Brazil) the upper tribunal (presided over by Mr Justice Blake, President) had applied article 8 in support of a student who had studied in the UK for some 4/5 years, on the basis that "a relevant connection with the course, the institution, an educational sequence for the ultimate professional qualification sought" may inter alia count in the student's favour (at [19]).
The upper tribunal's determination
However SIJ Waumsley considered that the article 8 point was not and could not be open to Mr Kizhakudan. In his determination he expressed the matter as follows:
"8. Ms Panagiotopoulou argued that the Immigration Judge had erred in failing to consider the issue of the...
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