Patel (Revocation of Sponsoring Licence - Fairness) India
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Blake |
| Judgment Date | 06 June 2011 |
| Neutral Citation | [2011] UKUT 211 (IAC) |
| Date | 06 June 2011 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2011] UKUT 211 (IAC)
Mr Justice Blake, THE PRESIDENT
Mr Batiste, A JUDGE OF THE UPPER TRIBUNAL
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Patel (revocation of sponsor licence — fairness) India
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(1) Immigration Judges have jurisdiction to determine whether decisions on variation of leave applications are in accordance with the law, where issues of fairness arise.
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(2) Where a sponsor licence has been revoked by the Secretary of state during an application for variation of leave and the applicant is both unaware of the revocation and not party to any reason why the licence has been revoked, the Secretary of State should afford an applicant a reasonable opportunity to vary the application by identifying a new sponsor before the application is determined.
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(3) It would be unfair to refuse an application without opportunity being given to vary it under s.3C(5) Immigration Act 1971.
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(4) Leave to remain granted by s.3C Immigration Act 1971is relevant leave for the purposes of the Immigration Rules and the cases of QI (para 245ZX(1) considered) Pakistan [2010] UKUT 217 (IAC) and HM and others (PBS – legitimate expectation – paragraph 245ZX(I) [2010] UKUT 446 (IAC) have been overruled by QI (Pakistan) v SSHD [2011] EWCA Civ 614 , 18 April 2011.
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(5) Where the Tribunal allows an appeal on the grounds that the decision was not taken fairly and therefore not in accordance with the law, it may be sufficient to direct that any fresh decision is not to be made for a period of sixty days from the date of the reasoned decision being transmitted to the parties, in order to give the appellant a reasonable opportunity to vary his application.
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(6) By analogy with the present UKBA policy on curtailment of leave where a sponsor licence is revoked a 60 day period to amend the application would provide such a fair opportunity.
For the Appellant: Mrs T White, Counsel instructed by Ali Sinclair Solicitors
For the Respondent: Mr S Kandola, Senior Home Office Presenting Officer
The appellants are citizens of India and are husband and wife. The second appellant's appeal depends upon the outcome of the first appellant's who will be referred to as “the appellant”. The appellant arrived in the United Kingdom on 8 September 2007 and was granted leave to enter as a student until 30 November 2009. During his period of leave he successfully studied for an Information Technology Diploma at South Bank College between November 2007 and April 2009. He then wanted to continue his stay for the purpose of obtaining a post-graduate diploma in Information Technology. He had been accepted on an eighteen month course for that purpose by the Lyceum Academy. On 18 November 2009, the appellant applied for further leave to remain under the points based system with a sponsorship letter from the Lyceum Academy. At that date the Academy was a sponsor approved by the Home Office. The appellant heard nothing more about his application until he received a notice of decision dated 5 March 2010 refusing his application on the basis that the Lyceum Academy had been removed from the list of approved sponsors and he therefore had no sponsorship letter capable of earning him points under the points based system. According to the appellant's evidence the Academy had been removed from the list of sponsors that day or shortly before and he was wholly unaware of this until he received his refusal letter.
The appellant appealed to the First-tier Judge. In August 2010 the Immigration Judge allowed the appeal on the basis that the respondent had not applied to the appellant its policy as the Judge understood it to be. He directed that the application should be reconsidered in the light of the policy. He did consider an alternative case that the refusal was a violation of Article 8 of the ECHR but dismissed that case on its merits. The judge understood that the Home Office policy was that where a point based system application was to be rejected because the sponsor was no longer an approved sponsor a period of sixty days leave to remain was granted to enable an appellant to make an application with an alternative approved sponsor. That was a misunderstanding of the UKBA policy that was restricted to cases where it proposed to curtail leave of more than six months; in those circumstances and where the appellant was unconnected with the reasons for the loss of the sponsor licence UKBA would exercise its powers of curtailment to reduce the leave to two months that would enable the holder of the leave to make a variation application with a new sponsor.
The respondent did not appeal the IJ's decision but on 16 September 2010 wrote refusing to grant an extension of stay because the IJ had misunderstood the policy. It recognised that there was a right of appeal against this fresh decision because by reason of the IJ's allowing of the appeal the leave to remain that had been extended by operation of s. 3C of the Immigration Act 1971 as amended continued.
On 9 February 2011 a second Immigration Judge of the First-tier Tribunal considered this appeal. He recognised that it was now clear that the first judge had misunderstood the policy in reaching the decision the previous August. This error was established in no fewer than three decisions of the Upper Tribunal namely MM and SA (Pankina: near–miss) Pakistan [2010] UKUT 481 (IAC); JA (Revocation of registration - Secretary of State's policy) India [2011] UKUT 52 (IAC); and Patel (Tier 4 – No sixty day extension) India [2011] UKUT 187 (IAC). The law is now certain on what the respondent's policy was.
Nevertheless the appellant's application for permission to appeal to the Upper Tribunal was granted on the basis that the second Immigration Judge had not considered the alternative Article 8 claim and had confined his consideration to the applicable Immigration Rules relating to the point based system.
In the skeleton argument prepared for the purposes of this appeal, Mrs White drew attention to the important decision of the Upper Tribunal in the case of Thakur (PBS decision - common law fairness) Bangladesh [2011] UKUT 151 (IAC) promulgated on 23 March 2011. That was a case where the Tribunal proceeded on the basis that the appellant was unaware that his college had lost it sponsor's license and he had “no adequate opportunity of finding an alternative college”. It drew attention to and relied upon the case of R (on the application of Q) v Secretary of State for the Home Department [2003] EWCA Civ 364 where the Court of Appeal applied the common law principle of fairness to immigration decision making (see paragraphs 69 to 70).
The Tribunal agreed with the previous UT decisions clarifying what the sixty day policy was but concluded that those decisions either did not or did not need to address the question of fairness, on the particular facts before them. In both JA and Patel the Tribunal expressed some concern as to the potential for arbitrariness of the application of the sixty day policy in revocation cases but without having some similar opportunity of enrolling at another college and substituting that college in the immigration application in refusal cases.
The Tribunal in Thakur observed as follows at [19]:
“In the present case the appellant had neither sixty days nor a reasonable period to find an alternative course by the date of decision. We were told at the hearing that the practical problem which appellants are faced with when seeking further leave to remain under the points based scheme when they were previously granted leave to remain under the student rules is that they have difficulty in persuading colleges to offer them places as there is concern about whether they have extant leave to remain, colleges not being aware that appellants in these circumstances have leave under section 3C.”
The Tribunal concluded that the respondent's decision was not in accordance with the law because of the failure to comply with common law requirements of fairness.
Mr Kandola accepted that the principle in Thakur applied in this case. He did not seek to oppose the appeal. We nevertheless concluded that we should hear submissions about what the content of the duty of fairness was in this class of case and how the duty could be fulfilled in the course of this appeal. Having received further submissions from the parties we indicated that his appeal would be allowed with reasons to be given later. We now give those reasons.
Under s. 82 of the Nationality Immigration and Asylum Act 2002 there is a general right of appeal in respect of immigration decisions as they are defined. By s. 84 the grounds of appeal may include:
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a) that the decision is not in accordance with the immigration rules;
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b) that the decision is unlawful by reason of the Race Relations Act;
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c) that the decision is unlawful by reason of the Human Rights Act;
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d) that the decision breaches the appellant's rights under the EE Community Treaties in respect of entry or residence United Kingdom;
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e) that the decision is otherwise not in accordance with the law;
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f) that the person taking the decision should have exercised differently discretion conferred by the immigration rules;
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g) removal would be contrary to obligations under the Refugee Convention or the Human Rights Act 1998.
By s. 86:
“(2) The Tribunal must determine:
a) any matter raised as ground of appeal and;
b) any matter which section 85 requires it to consider;
(3) the Tribunal must allow the appeal insofar as it thinks that:
a) a decision against which the appeal is brought or is treated as being brought was not in...
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