Thakur (PBS Decision - Common Law Fairness) Bangladesh
| Jurisdiction | UK Non-devolved |
| Judge | Simon,Latter |
| Judgment Date | 23 March 2011 |
| Neutral Citation | [2011] UKUT 151 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 23 March 2011 |
[2011] UKUT 151 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
MR JUSTICE Simon
SENIOR IMMIGRATION JUDGE Latter
For the Appellant: Mr N Bramble, Home Office Presenting Officer
For the Respondent: Mr A Rahman of AK, Solicitors
Thakur (PBS decision — common law fairness) Bangladesh
1. A decision by the Secretary of State to refuse further leave to remain as a Tier 4 (General) Student Migrant was not in accordance with the law because of a failure to comply with the common law duty to act fairly in the decision making process when an applicant had not had an adequate opportunity of enrolling at another college following the withdrawal of his sponsor's licence or of making further representations before the decision was made.
2. The principles of fairness are not to be applied by rote: what fairness demands is dependent on the context of the decision and the particular circumstances of the applicant.
This is an appeal by the Secretary of State against the determination of Immigration Judge Youngerwood who allowed an appeal by the respondent against a decision made on 15 July 2010 refusing him further leave to remain as a Tier 4 (General) Student Migrant on the grounds that the decision was not in accordance with the law. In this determination we will refer to the parties as they were before the First-tier Tribunal, Mr Thakur as the appellant and the Secretary of State as the respondent.
The appellant is a citizen of Bangladesh born on 23 January 1973. He arrived in the UK on 20 March 2008 with entry clearance as a student giving him leave to remain until 31 December 2009. On 29 December 2009 he applied for further leave to remain as a Tier 4 (General) Student Migrant to continue his studies. At the time of application he was enrolled with the London Commonwealth College of Law and Business Studies on a diploma and higher diploma in tourism and hospitality management. His application was refused on 15 July 2010 because as at the date of decision the college was no longer on the register of Tier 4 sponsors. In his grounds of appeal against this decision the appellant accepted that the college's licence was suspended in January 2010 and then subsequently revoked and that the college ceased operating in July 2010.
In his witness statement of 25 October 2010 the appellant said:
“4. The London Commonwealth College of Law and Business Studies was an A rated sponsor college at the time of application and in the middle of January 2010 they had their licence suspended and their licence was subsequently revoked. But the college did not inform us when the college's licence was revoked.
5. I started the course on 25/01/2010 and the expected completion date was 30/01/2011. I attended the college until the end of June 2010. Since July 2010 the college is not operating any more.
6. Since July 2010 I have been trying to get enrolled for a course with another college. I approached a few colleges but none of the colleges agreed to enrol me to start the course immediately, as I don't now have a leave endorsed on my passport. At last on 25 October 2010 I was able to find a conditional offer on PG diploma in management from London West Valley College which is also a UKBA Tier 4 sponsor college (sponsor licence: 07D46KMYX). Their course is due to start on January [2011].”
The appeal before the immigration judge proceeded on the basis that as there were no factual matters in issue, the appeal should proceed by way of submissions. The judge was referred to the Tier 4 Policy Guidance on the course the respondent would take if a college's licence was withdrawn and in substance it was argued that the appellant should have been granted 60 days further leave to remain if he was not involved in the reasons why the licence was withdrawn to enable him to apply for permission to study with another Tier 4 sponsor. It was also argued that he could now comply with the Rules as he had obtained a conditional offer from a licensed sponsor.
The judge set out his findings as follows:
“10. Although different policy guidance has been issued in relation to Tier 4 applications, there has been a consistent policy in relation to the position where a Tier 4 sponsor's licence is withdrawn or they are taken over. In relation to the policy guidance for applications made on or after 5 October 2009, which appears to govern the current application, page 52 of the guidance makes it clear that, if the Tier 4 sponsor licence is withdrawn then, where a student is already in the UK studying, the normal position would be that he would be granted 60 days further leave if he was not involved with the reasons why the licence was withdrawn. This enables the student to apply for permission to study with another Tier 4 sponsor.
11. The above policy guidance does not appear to have been considered in any way by the respondent and it is, frankly puzzling that I, and no doubt many other immigration judge's, have had many examples of similar appeals where the respondent appears to be totally ignorant of their own policy.
12. It follows that, on my findings, the decision cannot stand as not being in accordance with the law. I was urged by Mr Rahman to substantially allow the appeal because the appellant now has a conditional offer from a college which is on the register, relying on Section 85(4) of the 2002 Act. However, the offer concerned is a conditional one and is specified as such, depending on the appellant passing an English placement test in the future. In these circumstances I do not consider that this conditional offer complies with the requirements in the rules and, therefore, the appeal can only be allowed for the limited extent indicated above.
My Decision
The appeal is allowed as the decision is not in accordance with the law.”
In the grounds the respondent argued that the policy guidance referred to by the judge did not mandate a grant of 60 days leave to remain in the appellant's circumstances. In the event the judge had failed properly to identify the guidance he was referring to and had failed properly to apply it. In a response filed by the appellant he maintained his argument that the respondent had failed to consider and apply the appropriate Tier 4 policy guidance which should have led to him being granted 60 days' leave. It is also argued that the appellant could meet the requirements of the Rules in the light of the fact that he now had a conditional offer at a licensed college.
Mr Bramble adopted his grounds and relied on the Tribunal determination in JA (Revocation of Registration – Secretary of State's policy) India [2011] UKUT 52 (IAC) arguing that the policy could not apply to the appellant as he did not have existing leave which could be limited to 60 days or an extant period of six months leave. He accepted that there could be hard cases where an appellant might not have had an adequate opportunity of finding an alternative college but nonetheless the provisions of the policy could not apply to the appellant for the reasons given in JA. Mr Rahman submitted that on this issue JA was wrongly decided and in any event the appellant was entitled to rely on s.85(4) of the Nationality, Immigration and Asylum Act 2002 to show that he could now meet the requirements of the Rules.
We were referred to the policy guidance for Tier 4 to be used for applications made on or after 5 October 2009. The relevant guidance in circumstances where the sponsor's licence is withdrawn is set out at page 51. This sets out in tabular form what will happen when a sponsor's Tier 4 licence is withdrawn. In circumstances where the student is already in the United Kingdom studying, the position is as follows:
“We will limit the student's permission to stay:
• to 60 days if the student was not involved in the reasons why the Tier 4 sponsor had their licence withdrawn (we will not limit the student's...
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