Patel (Tier 4 – No sixty day extension) India
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Edwards-Stuart |
| Judgment Date | 16 March 2011 |
| Neutral Citation | [2011] UKUT 187 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 16 March 2011 |
[2011] UKUT 187 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Edwards-Stuart
Senior Immigration Judge Gleeson
For the Appellant: Mr Soloman, instructed by APP Immigration Advocates LPP
For the Respondent: Ms Ong, Home Office Presenting Officer
Patel (Tier 4 — no ‘60-day extension’) India
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(1) Where a sponsor's Tier 4 licence is withdrawn, the UKBA Policy Guidance as at November 2009 (page 52) operates to restrict the remaining leave granted to 60 days where a student has more than six months' of the original leave remaining. It has no effect on periods of less than six months.
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(2) The policy does not operate to extend leave and in particular, it does not provide a 60 day extension of leave to remain in a case where that leave to remain has already expired.
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(3) The 60 day restriction, if applicable, rums from the time when the Secretary of State notifies the student of the imposition of the restriction following the withdrawal of the licence.
This is an appeal, with the permission of the Senior Immigration Judge, against a Determination of Immigration Judge Buchanan promulgated on 11 November 2010 dismissing the appellant's appeal against the refusal of leave to remain as a Tier 4 (General) Student Migrant on 9 September 2010.
The appellant is a citizen of India. She was born on 30 July 1973. She came to the United Kingdom in September 2008. She then undertook and completed a Diploma in Business Administration and had applied to take an Advanced Diploma in Business Management from BC College of North West London.
Unfortunately, after she applied the college was withdrawn from the list of Tier 4 licensed providers.
At the hearing before the First-tier Tribunal counsel for the appellant, who was not counsel who appeared before us, suggested that the appeal could be conducted on the basis of submissions only. However, during the course of the hearing a point arose which needed clarification and the Immigration Judge put the relevant question to the appellant. She did not understand the question and it then emerged that her command of English was apparently limited. It transpired that her counsel had throughout taken instructions from the appellant's husband and was not aware of her poor command of English.
Whilst, on the facts as we have just summarised them, there is no reason to believe that counsel was deliberately trying to mislead the tribunal by concealing the appellant's lack of English, we wish to make it perfectly clear that we regard it as quite unacceptable for any advocate to submit that an appeal could be dealt with by way of submissions only in order to avoid revealing to the tribunal the fact that his or her client has a very poor command of English.
The appellant's case was that she had completed her Diploma in Business Administration and had been issued with an appropriate certificate on 18 September 2009. Having been granted a place on the course for the Advanced Diploma in Business Management from BC College, on 18 November 2009 she submitted an application to the respondent for an extension of her leave to remain under the Tier 4 system, her existing visa being due to expire on the 30 November 2009.
But sadly, in December 2009, the appellant discovered that she had breast cancer, for which she had to undergo treatment. This prevented her from starting the proposed course of study at BC College. In January 2010 she contacted the college and explained why she had not been able to start the course. However, later that month she discovered that the college was no longer recognised as a Tier 4 provider. She said that she then tried to contact the respondent in order to find out about the progress of her application, but was simply told that it was pending.
On 9 September 2010 she was told that her application was refused because BC College was not a Tier 4 sponsor. She said that she had tried to enrol on other courses but could not do so because the respondent had retained her passport. However, she did eventually obtain a conditional place on a recognised course provided by Khalsa College and she produced a letter of confirmation of the offer dated 3 November 2010. This was for an Associate Degree in Business Management that was due to start on 27 November 2010. This letter of confirmation was written two days before the hearing before the tribunal.
At paragraph 19 of his determination the Immigration Judge noted that:
“Both parties accepted at the hearing that this application was not going to succeed under the Rules and although there may well be scope for the appellant to make a fresh application within 60 days after the notice of refusal, and although [counsel for the appellant] made it clear that she would be doing so immediately after the hearing, the issues raised relate only to Article 8 ECHR.”
The grounds of appeal, prepared by counsel who appeared before the Immigration Judge, asserted that this was not the case. It was said that the submission to the Immigration Judge was that the tribunal could allow the appeal on the basis that the respondent had failed to follow her own policy.
In relation to Article 8, it was submitted on behalf of the appellant that she “ had been robbed of her expectations to be able to study”. The Immigration Judge said that he was not satisfied that the appellant had taken any real steps either to pursue the respondent for a decision on her application for the extension of her leave to remain or to investigate the availability of alternative courses during the intervening period.
In addition, the Immigration Judge said that there must also be a very real concern as to whether the appellant really did have the ability to take the proposed course, bearing in mind the very limited command of English that she had exhibited at the hearing.
Mr Solomon, who represented the appellant before us, made it clear that he did rely on the “so-called “60 day extension”. He submitted that the policy of the respondent was to grant a minimum of 60 days from the date of notification of refusal in a case where the course provider's licence had been withdrawn in order to enable the student to find an alternative course. He said that in this case that policy had not been followed.
Mr Solomon referred us to the Policy Guidance document for the Tier 4 of the Points Based System, in the version that was in force from 5 October 2009 onwards. The relevant guidance is at page 52 of the document.
This deals with the situation where a sponsor's Tier 4 licence is withdrawn. In this situation the document says that “ all confirmations of acceptance for studies and visa letters will become invalid”. There is a table which sets out what will happen if the licence is withdrawn at various stages of the application process. The first two situations set out in the table cover the position before a student has travelled to the United Kingdom. The third situation arises where the student is “ already in the United Kingdom studying”. In this situation “ What will happen” is described as follows:
“We will limit the student's permission to stay to:
60 days if the student was not involved in the reason why the Tier 4...
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