RK (Nepal) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Lloyd Jones
Judgment Date12 Oct 2016
Neutral Citation[2016] EWCA Civ 1107
Docket NumberCase No: C5/2014/3798; C5/2014/3798(A)

[2016] EWCA Civ 1107

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

Royal Courts of Justice

Strand

London, WC2A 2LL

Before:

Lord Justice Lloyd Jones

Case No: C5/2014/3798; C5/2014/3798(A)

RK (Nepal)
applicant
and
Secretary of State for the Home Department
respondent

The Applicant Did Not Appear And Was Not Represented

The Respondent Did Not Appear And Was Not Represented

Lord Justice Lloyd Jones
1

This is a renewed application for permission to appeal against a decision of the Upper Tribunal which found that the First-tier Tribunal erred in law when it overturned the Secretary of State's refusal of the applicant's application for further leave to remain in the United Kingdom. The applicant had been studying under a Tier 4 student visa and wished to embark upon a new course at a new institution. The matter has been listed before me this morning. The applicant, who has been acting in person in this matter, did yesterday seek an adjournment in order to obtain legal representation, which I refused. This morning nobody has attended on the application. This is a proposed second appeal and the applicant therefore needs to show that the appeal raises an important point of principle or practice or that there is some other compelling reason for the Court of Appeal to hear the case.

2

The applicant is a Nepalese woman who was granted leave to enter on a successful application made on 12 January 2010 for entry clearance as a Tier 4 (General) student migrant to study with EThames Graduate School valid to 31 August 2013. She arrived in the United Kingdom on 11 July 2010 but due to difficulties she experienced at EThames Graduate School she decided to change to an alternative college, Hendon Business School. EThames Graduate School confirmed that they had stopped sponsoring the applicant on 21 June 2011 and Hendon Business School confirmed that she started to study there on 16 February 2012. The applicant wrote to immigration services on 17 February 2012 with confirmation of her intention to change to an alternative college and again on 19 July 2016. The immigration services did not respond to either letter.

3

On 28 August 2013 the appellant applied for further Tier 4 leave to remain. The application was refused by the Secretary of State on 19 November 2013 on the basis that the applicant had been granted leave to enter to study at one sponsored institution but had switched to another institution without making a fresh application for leave to remain supported by a Confirmation of Acceptance for Studies ("CAS") from the new institution as required by paragraph 245ZW(c)(4) of the Immigration Rules.

4

The applicant appealed to the First-tier Tribunal, which allowed the appeal on 9 May 2014 and directed that further clearance under Tier 4 should be given. The respondent appealed to the Upper Tribunal, which allowed the respondent's appeal on 9 September 2014 on the grounds that it displayed an error of law. The Upper Tribunal remade the decision of the First-tier Tribunal, dismissing the appeal against the Home Office's refusal of leave to remain. The applicant now appeals to the Court of Appeal. Permission to appeal was refused on the papers by Vos LJ on 24 February 2015.

5

The respondent challenged the First-tier Tribunal decision on the basis that the findings reached by the First-tier Tribunal on the basis that the findings reached by the First-tier Tribunal which related to whether or not the letters written by the applicant had been received by the respondent were irrelevant to whether the applicant was entitled to succeed in her application under the rules. The relevant considerations were the fact that she did not have a CAS from the new school and the fact that the new business school was not a highly trusted sponsor. The applicant recognised that it was unfortunate that she did not have a CAS but asked the Upper Tribunal nevertheless to exercise its discretion in her favour. She also relied on Article 8 with respect to private life.

6

Deputy Upper Tribunal Judge Juss allowed the...

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