Naveed (Student - fairness - notice of points) Pakistan
| Jurisdiction | UK Non-devolved |
| Judge | The Hon Mr Justice Blake,Freeman |
| Judgment Date | 06 January 2012 |
| Neutral Citation | [2012] UKUT 14 (IAC) |
| Date | 06 January 2012 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2012] UKUT 14 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The Hon Mr Justice Blake, President
Upper Tribunal Judge Freeman
For the Appellant: Mr Osaro Richards, ‘Law Clinic’, Corby NN17 1BF
For the Respondent: Mr Richard Hopkin, Home Office Presenting Officer
Naved (Student — fairness — notice of points) Pakistan
Fairness requires the Secretary of State to give an applicant an opportunity to address grounds for refusal, of which he did not know and could not have known, failing which the resulting decision may be set aside on appeal as contrary to law (without contravening the provisions of s. 85A of the Nationality, Asylum and Immigration Act 2002).
1. This is an appeal, by the appellant, against the decision of the First-tier Tribunal (Judge BH Forster OBE), sitting at Newport on 18 July, to dismiss a Tier 4 (general) student migrant appeal by a citizen of Pakistan, against refusal of leave to remain on 31 May. There is only one issue before us, which is whether the appellant was entitled to be treated as having an ‘established presence’ as a student in this country, on the basis of the course he had already taken. It is common ground that, if he was entitled to that treatment, then he could show the necessary funding under the points-based system; but if not, then not: there is no issue on the other requirements.
2. The appellant arrived in this country on a student visa on 31 January 2010 (the ‘2011’ in the PF1 seems to be the result of the writer misreading the date obscured by the ornamental border of the passport page attached at (2)). His visa had been issued on 18 December 2009, and was valid till 31 May 2011. The appellant then enrolled on an Association of Computer Professionals [ACP] course at the London College of Research (LCR, based in Reading, despite its name), and duly completed it in March 2011, getting his ACP certificate on the 29th. Again it is common ground that, if he had produced evidence of this with his application for further leave to remain, then he would have been entitled to be treated as having an ‘established presence’ here.
3. The application form runs to 39 pages, and a great many questions that he answered accurately. The appellant was now applying for leave to remain on another course, at a college called ‘Eurospeak’, and at section K (‘Attributes’) of the form he gave the Confirmation of Acceptance for Studies [CAS] number and other details for that. Next he completed section L (‘Maintenance (funds)’). Again the questions in that referred to his funding for the new course: the only question which referred to his previous one was L4.
4. At L4 the appellant ticked the box entitled ‘Application for a further period of study and qualifies for the reduced maintenance level’. This led to question L10: “The student must have £600 for each calendar month of their course up to a maximum of 2 months. Please state what this amount is”. He duly did so - £1,200 - and produced the bank or building society statements required at question L24 to vouch for his having that money. What nothing anywhere in the form required him to do was to produce documentary evidence that he had completed his previous course.
5. The appellant made his application on 18 April, and on 19 May the Home Office caseworker, without further reference to him, set about verifying his claim to an ‘established presence’. This was done by sending an e-mail to LCR, answered the same day by Zahid Raza, who did not give his position with the college, but said:
“In response to your e-mail I can confirm that Mr Naveed Ahmed was enrolled on ACP computing course with us but he did not complete his course and moved to another college.”
The subject line referred, following the Home Office query, to “Muhammad Naveed”. There is no issue but that the inquiry was taken to relate to this appellant; or that the answer was in fact incorrect, because the appellant had finished his course and got his certificate.
6. The next thing that happened, again without further reference to the appellant, was that the Home Office refused his application on 31 May, in a standard form which dealt with the result of their inquiries as follows:
“As … your previous college have stated that you have not completed your course of study you are not eligible for claiming the reduced maintenance rate …”
7. On 13 June the appellant appealed, completing the form himself, and fully setting out his case at section 8. He also enclosed three documents, entitled
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(a) ‘Certificate in Information Technology & Programming’ from the ACP, dated 29 March, showing he had passed four subjects in that course, one with a credit, and was entitled to the award of the Certificate, which was to follow;
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(b) ‘Certification of Student Status’ from the LCR, dated 14 April, showing his course as starting on 8 February 2010, and finishing in March 2011, with an 88% attendance rate by the appellant: it is signed “K. Shehzad, Principal”;
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(c) ‘Confirmation of Student Progress’, from the LCR, dated 9 June, showing that he was (clearly meaning had been in the past) enrolled on a full-time ACP course with them, on which he had successfully completed the first of three year-long stages, for the Certificate.
8. It is common ground that, if the appellant had sent in these documents, or the two which were available, with his application on 18 April, then he would have been entitled to be treated as having an ‘established presence’ in this country, and so to succeed on his appeal. It is also clear that, had the law remained what it was when the appellant applied for his extension of stay, then he could have produced the certificate to the First-tier judge without difficulty and succeeded in his appeal..
9. The general rule for...
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