Muhammad Haseeb Anwar v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Peter Jackson LJ |
| Judgment Date | 15 December 2017 |
| Neutral Citation | [2017] EWCA Civ 2134 |
| Docket Number | Case No: C7/2015/1751 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 December 2017 |
[2017] EWCA Civ 2134
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Rimington
IA/36817/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Jackson
and
Lord Justice Singh
Case No: C7/2015/1751
Zane Malik (instructed by Mayfair Solicitors) for the Appellant
Tom Hickman (instructed by Government Legal Department) for the Respondent
Hearing date: 23 November 2017
Judgment Approved
Introduction
This is an appeal from the decision of the Upper Tribunal (Immigration and Asylum Chamber) ("UT") promulgated on 2 March 2015. By that decision Deputy UT Judge Rimington held that the Appellant had breached an immigration condition attached to his leave to remain in the United Kingdom ("UK"). The UT allowed the appeal on another point, that the Secretary of State had failed to appreciate and exercise her discretion, and remitted the case to her. Nevertheless, the Appellant appeals against the decision by the UT that he was in breach of an immigration condition.
Permission to appeal was granted by Lewison LJ after a renewed application at an oral hearing on 5 May 2016.
It is agreed that the following two issues of law arise in the present appeal:
(1) whether section 3(1)(c)( ia) of the Immigration Act 1971 ("the 1971 Act"), on its proper construction, permits the Secretary of State to impose a condition on a person's leave to remain in the UK requiring him to study only at a particular educational institution;
(2) whether a person who is granted leave to remain in the UK as a Tier 4 (General) Student under para. 245ZY of the Immigration Rules (HC 395), by reference to an educational institution identified on the Confirmation of Acceptance of Studies Checking Service, is automatically subject to a requirement, imposed as a condition of his leave, that he may not study at another institution.
Factual Background
The essential factual background is not in dispute. I shall have to return towards the end of my judgment to certain factual matters which are in dispute.
The Appellant, who is a national of Pakistan, was born on 11 August 1990.
On 29 October 2009 the Appellant was granted entry clearance as a Tier 4 (General) Student until 31 January 2011.
On 17 February 2011 he was granted further leave to remain as a Tier 4 (General) Student until 23 May 2013 on the basis of documents showing that he was to study for a Diploma in Business Management at Grafton Management College.
On 21 May 2013 the Appellant made an application for further leave to remain as a Tier 4 (General) Student. On 7 August 2013 the Secretary of State refused that application, in part on the ground that he had been in breach of an immigration condition attached to his leave to remain. The documentation supplied by the Appellant showed that, from 14 March 2011 to 4 March 2013, he had been a student at another institution, DVC College. It should be noted that this was in addition to his course at Grafton Management College and not instead of it.
The First-tier Tribunal ("FTT") heard the Appellant's appeal against that decision on 23 September 2014 and dismissed it on 23 October 2014. On the issue which is material for present purposes, the FTT (Judge Wiseman) found that the Appellant had breached an immigration condition. At paras. 40–44 he said:
"40. However on what I might call the most substantial issue before me, the position is very much less favourable for the appellant.
41. The Appellant somewhat strangely told me that he studied for three days a week at the college in respect of which he was provided with a CAS and for two days a week at another college altogether following an entirely different course; he may have had the best intentions in seeking some kind of double qualification but I am afraid that this process failed utterly to produce the right result.
42. It is certainly suggested in the guidance that a supplementary course may be taken to the main one (evening studies are given as an example) but I do not consider that studying for three days in one college and two days in another can possibly lead to the latter being described as 'supplementary' only, it is a virtually equal division of time. In addition, the guidance makes clear that the supplementary course should not interfere with the studies at the primary college and here the appellant in this case falls down completely; he failed his studies in his main college to the extent of not emerging with any qualification at all and somewhat bizarrely has only the qualification from his suggested supplementary college. All of this shows very clearly that his studies at the supplementary college for two days must by definition have significantly interfered with his results at his primary college. He clearly needs to be spending all his time studying his main course to succeed.
43. The appellant in my view clearly breached the terms of his visa and the refusal under paragraph 322 (3) with reference to the relevant paragraph in the rules I have quoted above, is clearly justified.
44. Both in the skeleton argument and before me, Mr Rahman used every argument possible to try to get round this fundamental difficulty; he referred to the fact that the condition in question was not endorsed on the appellant's passport and even suggested that the condition did not attach to the appellant's leave 'automatically' and that it was somehow a discretionary matter or a matter in which the appellant should have been approached to offer an explanation. I am afraid I do not accept any of these propositions; the rule is clear and has to be complied with."
With the permission of the FTT (granted on 9 December 2014) the Appellant appealed to the UT. The UT heard the appeal on 2 February 2015 and decided it on 2 March 2015. As I have already mentioned, the UT (Deputy Judge Rimington) allowed the appeal to a limited extent but, importantly for present purposes, confirmed the finding that the Appellant had breached an immigration condition.
The UT in this respect followed its own earlier decision in Bhimani (Student: Switching Institution: Requirements) [2014] UKUT 00516 (IAC). The UT agreed with the FTT that there had been a breach of an immigration condition for the purpose of para. 322(3) of the Immigration Rules.
Before the UT the Appellant expressly reserved his position as to the correctness of Bhimani and now appeals on the basis that that decision was wrong in law. The essential reasoning of the UT on the point which now concerns this Court is to be found at para. 18 of its judgment:
"At the hearing Mr Malik concentrated on grounds three and four of the application for permission and requested to reserve his position in relation to Section 50. He accepted that I would follow the decision in Bhimani (Student Switching Institution: Requirements) [2014] UKUT 00516 (IAC). In effect where a student chooses to study at another institution holding a different sponsor licence number from that of the institution where he or she was granted leave to remain to study, he is required to make a fresh application for leave to remain. Judge Allen accepted that it was clear from Section 3(1)(c) of the Immigration Act 1971 that a person given limited leave to enter or remain in the UK may be given that leave subject to conditions which include the provisions inserted by Section 50 of the Borders, Citizenship and Immigration Act 2009, that is a condition restricting his studies in the UK and in effect that entry clearance in the case of a Tier 4 (General) Student will be granted subject to conditions including the requirement that the student is not allowed to study except at the institution which the Confirmation of Acceptance for Studies checking records service records as their sponsor."
As will become apparent later in this judgment, when I set out the material legislation, section 4(1) of the 1971 Act requires that, if a condition is to be attached to leave to remain, written notice of that condition must be given to the person affected. Neither the FTT nor the UT explained in terms how section 4(1) was complied with in the present case, perhaps because of the way the case was presented before them and, in particular, because it was accepted (certainly in the UT) that Bhimani should be followed at that level of the legal system.
Is the Present Appeal Academic?
When permission to appeal in the present case was first refused on the papers by Simon LJ, it was on the ground that the case had become academic because the Appellant's appeal had succeeded in front of the UT. As I have already mentioned, the outcome of the appeal was that the UT remitted the case to the Secretary of State for reconsideration.
In granting permission at the oral hearing on 5 May 2016 Lewison LJ noted that the normal rule in ordinary litigation is that appeals are made against orders rather than against the reasons for making those orders. That was decided in Lake v Lake [1955] P 336, although, as Lewison LJ observed, where the appellant does not get all the relief from the lower court that he is entitled to, the court nevertheless has the power to entertain an appeal: see Curtis v London Rent Assessment Committee [1999] QB 92.
Lewison LJ also noted that the right of appeal to this Court in cases of the present kind is conferred by section 13 of the Tribunals, Courts and Enforcement Act 2007. Subsection (1) of that section provides:
"For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision by the Upper Tribunal other than an excluded decision."
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