Rauf v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Ernest Ryder,Lord Justice Hickinbottom,Lord Justice Lindblom |
| Judgment Date | 24 July 2019 |
| Neutral Citation | [2019] EWCA Civ 1276 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C7/2016/3591 |
| Date | 24 July 2019 |
[2019] EWCA Civ 1276
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Judge Rimington
IA065972015
Royal Courts of Justice
Strand, London, WC2A 2LL
THE SENIOR PRESIDENT OF TRIBUNALS
Lord Justice Lindblom
and
Lord Justice Hickinbottom
Case No: C7/2016/3591
Mr Paul Turner (instructed by Direct Access) for the Appellant
Ms Hafsah Masood (instructed by Government Legal Department) for the Respondent
Hearing date: 11 July 2019
Approved Judgment
Sir Ernest Ryder, Senior President:
Introduction:
This is an appeal against the decision of Judge Rimington sitting in the Upper Tribunal (Immigration and Asylum Chamber) [UT] made on 2 April 2016 which allowed the Secretary of State's appeal from a decision of the First-tier Tribunal [FtT]. The FtT had allowed Mr Rauf's appeal against the curtailment of his leave and directed that any decision about his leave to remain should not be made for a period of 60 days in order to give him a reasonable opportunity to find a new sponsor. Mr Rauf was granted permission to appeal to this court by Singh LJ, following an oral hearing, on 26 February 2018.
Background:
Mr Rauf is a citizen of Bangladesh. On 14 November 2010 he arrived in the United Kingdom with leave to enter as a Tier 4 (General) Student Migrant. His leave was subsequently extended. The most recent grant of leave was made on 26 June 2014 valid until 7 December 2015.
On 8 July 2014 his Tier 4 sponsor, the University of Sunderland, emailed him to inform him that it was withdrawing the offer it had made to him to commence his MBA course in August 2014. The email reads:
“On June 24 the Minister for Security and Immigration, James Brokenshire, told the House of Commons that an investigation is on-going into the alleged abuse of the UK Student Visa System.
It is within this context that the University has decided to put on hold its recruitment to London Campus until we have assurance of the validity of the English language qualifications presented by new applicants.
Regrettably I therefore inform you that the University of Sunderland is withdrawing its offer to you to commence study at its London campus in August 2014.
Whilst we appreciate how upsetting this decision may be to you it is unavoidable and we will take steps to refund to you any amounts already paid if applicable.”
There are two aspects of that email that became important to the argument before this court and which I identify for convenience at this stage: a) that the Minister had announced that there would be an investigation into English language qualifications and that is what the University said they relied upon for their decision, and b) the decision that was made about the withdrawal of the offer to study was made by the University, Mr Rauf's sponsor. It is also important to note that it is common ground that Mr Rauf is not implicated in any wrongdoing, indeed, it became clear during the hearing before this court, that because of his existing academic qualifications Mr Rauf did not need the English language qualification that was being investigated.
On 3 February 2015 the Secretary of State sent Mr Rauf a decision letter notifying him that his leave was being curtailed under paragraph 323A(a)(ii)(1) of the Immigration Rules with immediate effect because he had failed to commence studying with his Tier 4 sponsor. According to the letter the University of Sunderland had notified the Home Office about Mr Rauf's alleged failure on 4 July 2014. The letter also stated that a decision had been made to remove Mr Rauf from the United Kingdom under section 47 of the Immigration, Asylum and Nationality Act 2006.
Mr Rauf appealed the Secretary of State's decision. On 22 February 2016 Judge Courtney sitting in the FtT allowed the appeal. The Secretary of State applied for permission to appeal the FtT's decision which was granted on 6 January 2016 by Judge Frankish. On 2 April 2016 the UT allowed the Secretary of State's appeal.
The scheme that was applied by the Secretary of State in the decision that was made is to be found in the Immigration Rules. The relevant version of the Rules is set out below. This appeal does not involve a challenge to the policy but rather a challenge to the application of the scheme on the facts of the case.
“Curtailment of leave in relation to a Tier 2 Migrant, a Tier 5 Migrant or a Tier 4 Migrant
323A. In addition to the grounds specified in paragraph 323, the leave to enter or remain of a Tier 2 Migrant, a Tier 4 Migrant or a Tier 5 Migrant:
(a) is to be curtailed if:
[…]
(ii) in the case of a Tier 4 Migrant:
(1) the migrant fails to commence studying with the Sponsor, or
(2) the Sponsor has excluded or withdrawn the migrant, or the migrant has withdrawn, from the course of studies, or
(2A) the migrant's course of study has ceased, or will cease, before the end date recorded on the Certificate of Sponsorship Checking Service, or
(3) the Sponsor withdraws their sponsorship of a migrant on the doctorate extension scheme, or
(4) the Sponsor withdraws their sponsorship of a migrant who, having completed a pre-sessional course as provided in paragraph 120(b) (i) of Appendix A, does not have a knowledge of English equivalent to level B2 of the Council of Europe's Common European Framework for Language Learning in all four components (reading, writing, speaking and listening) or above.
(b) may be curtailed if:
(i) the migrant's Sponsor ceases to have a sponsor licence (for whatever reason);
or[…]
(iv) paragraph (a) above applies but:
(1) the migrant is under the age of 18;
(2) the migrant has a dependant child under the age of 18;
(3) leave is to be varied such that when the variation takes effect the migrant will have leave to enter or remain and the migrant has less than 60 days extant leave remaining;
(4) the migrant has been granted leave to enter or remain with another Sponsor or under another immigration category; or
(5) the migrant has a pending application for leave to remain, or variation of leave, with the UK Border Agency, or has a pending appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002, or has a pending administrative review.”
Decision appealed:
In the FtT, Judge Courtney began by noting that at “ first blush the refusal letter made no apparent sense”. The relevant decision letter stated that on 4 July 2014 the University of Sunderland had informed the Home Office that Mr Rauf had failed to commence studying with them. That was a month before the start date of his course in August 2014.
The Judge also found that it was misleading of Mr Rauf to assert in his witness statement that the reasons for his inability to start his course were unknown to him when he had not only been informed by email of the University's reasons for withdrawing the course but he had also produced that email to the tribunal from his own mobile phone.
Judge Courtney undoubtedly took a generous course in allowing Mr Rauf's appeal but that course was almost inevitable given that the Home Office presenting officer conceded before that tribunal that Mr Rauf should have been given 60 days in which to identify a new sponsor by the Secretary of State. It subsequently transpired that the concession that was made was wrong, having regard to the Immigration Rules and, in any event, Mr Rauf had had approximately 7 months in which to find an alternative sponsor and to make an application to vary his leave to remain, neither of which he had done before the curtailment decision was made.
In the Upper Tribunal Mr Rauf was neither present nor represented. There is an issue of fact about this but Judge Rimington concluded that she “ was satisfied that [Mr Rauf] had been advised of the date, time and venue of the hearing…and in light of the overriding objective of the Upper Tribunal Procedure Rules (sic) it was fair to proceed and in the interests of justice.” That conclusion, made in accordance with rules 2 and 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008,...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2023-12-15, UI-2022-000463
...doubt that this was simply a mistake properly to apply the law to the facts of the case. In Rauf v Secretary State the Home Department [2019] EWCA Civ 1276 at [28 – 29] in which that Court found: Mr Rauf cannot now be heard to say that he has been denied an opportunity to make representatio......
-
Upper Tribunal (Immigration and asylum chamber), 2022-10-21, PA/03592/2020
...previously made. He referred to the judgments of the Court of Appeal in NR (Jamaica) v SSHD [2009] EWCA Civ 856, Rauf v SSHD [2019] EWCA Civ 1276 and Koori v SSHD [2016] EWCA Civ 552. Mr Bates submits the concession made by the respondent in March 2022 was made on a mistaken premise and con......
-
Upper Tribunal (Immigration and asylum chamber), 2020-08-26, HU/10294/2019
...granted.’ I find that the judge’s reasoning is legally accurate. Mr Bates directed me to the judgement of the Court of Appeal in Rauf [2019] EWCA Civ 1276 at “The only other basis for the contention that the UT fell into error is that it did not consider the law relating to withdrawals of c......
-
Upper Tribunal (Immigration and asylum chamber), 2019-08-15, HU/18557/2018 & Ors.
...is any withdrawal of a concession on the part of the respondent, that is made unambiguously clear to the other side: see further Rauf [2019] EWCA Civ 1276. In this case, the Home Office Presenting Officer, although having cross-examined the witnesses about the entire history of Ms NB’s rela......