Tr (Ccol Cases) Pakista
| Jurisdiction | UK Non-devolved |
| Judge | Senior Immigration Judge Storey |
| Judgment Date | 13 January 2011 |
| Neutral Citation | [2011] UKUT 33 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 13 January 2011 |
[2011] UKUT 33 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
SENIOR IMMIGRATION JUDGE Storey
SENIOR IMMIGRATION JUDGE Perkins
For the Appellant: Ms L Ong, Home Office Presenting Officer
For the Respondent: Mr I Ahmed, Solicitor
TR (CCOL cases) Pakistan
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1) Just because findings of fact made by the Tribunal in a reported case are not binding does not mean that immigration judges are free to take account or not to take account of such findings at will: (a) the determination may contain an account of the record of evidence; (b) the Tribunal may have made findings of fact and if these relate to the same factual matrix then they should be followed unless there is a good reason to revisit them: see A (Somalia) [2007] EWCA Civ 1040 .
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2) In cases in which the Secretary of State alleges that a claimant falls foul of para 320(1A) of Statement of Changes in the Immigration Rules HC 395 as amended, it will be important to follow the guidance given by the Court of Appeal in AA (Nigeria) [2009] EWCA Civ 773 that knowing deception is needed to show false representations.
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3) Given the nature and extent of the evidence found by the Tribunal in NA and Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00033 to point overwhelmingly to a conclusion that CCOL never ran any Postgraduate Diploma in Business Management or in IT, a claimant who relies solely on documents specific to his or her own (claimed) studies in order to maintain the contrary must expect these to be scrutinised closely.
This is an appeal against the determination of Immigration Judge (IJ) Elvidge notified on 13 August 2009 allowing the respondent's (hereafter the claimant's) appeal against a decision by the appellant (hereafter “the SSHD”) dated 26 January 2009 refusing to vary leave to remain in the UK. The claimant's application was based on his having undertaken and successfully completed a Postgraduate Diploma in Business Management (PgDip in BM) at Cambridge College of Learning (CCOL) between 17 September 2007 and 15 August 2008.
This is far from being the first appeal to come before the Tribunal involving CCOL. Following a lengthy hearing before a panel comprising three Senior Immigration Judges in June 2009 the Tribunal reported the decision of NA and Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031 whose head note stated:
“Cambridge College of Learning (CCOL) never ran a Postgraduate Diploma in Business Management course or a Postgraduate Diploma in IT course. Accordingly for a person applying for leave to remain under the Tier 1 (Post-Study Work) scheme to rely on a certificate of an award of such a diploma following a course will amount to a false representation and so will fall foul of para 322(1A) of the Statement of Changes in Immigration Rules HC 395. Such a person will also be unable to meet the requirements of para 245Z because he or she could never have undertaken such a course.”
Notwithstanding the unequivocal findings made in NA and Others there continue to be a number of appeals pursued before the Tribunal in which claimants insist they did undertake PgDip studies at CCOL. This is one of them. Although we are only concerned with this appeal, it raises several points of recurring importance, which we shall try to address shortly.
The SSHD appealed on the ground that in allowing the appeal the IJ had failed to take into account the decision in NA and Others. If he had done so, the grounds averred, he would have found (1) that the claimant, in claiming to have undertaken a course of study leading to a PgDip BM at CCOL, and relying on a purported certificate of an award of such a diploma, had knowingly made a false representation so that his appeal stood to be refused under para 322(1A) and para 320(7A) of the Immigration Rules HC 395 as amended; and (2) that the claimant did not meet the requirements of para 245Z because he could never have undertaken such a course.
The IJ heard the claimant's appeal on 6 August 2009 and his determination of it was signed on 12 August and notified on 13 August 2009. Those dates are significant because NA and Others was reported on 11 August 2009, i.e. five days after the hearing but one day before he signed his determination and two days before it was notified.
The IJ stated that he was aware that there were a “number of test cases pending on CCOL”, but that these had not yet been decided and that “I can only decide this appeal on the evidence before me, which concerns one individual student”. Noting that the Home Office evidence before him had not been tested by oral evidence and that the absence of a Home Office Presenting Officer meant that the claimant's evidence could not be tested by cross-examination, the IJ concluded:
“18. I found the appellant to be credible in his evidence. He was able to name the modules he had followed. Even more importantly he was able to produce the four assignments he had written for the course. I have studied these carefully. The first thing to note is that they are written in good English, are logical and well argued. They are of a high standard. They may well have been largely based on what is available on the internet, but this requires application and methodology in itself. The appellant was able in oral evidence to give a description of the contents of the two of the modules, and would have gone on to give others if I had not indicated that that was enough. The appellant's lecture notes are dated, and start on 22.10.07 with a definition of management, and an account of strategic management processes. The notes cover lectures given on different dates, some of the dates are given, and continue to be about different related subjects. I find that they are clearly genuine lecture notes taken over a period of time, and all to do with business management. The spelling is excellent. They fill a small ring backed notebook
19. I find that, whatever the position after the appellant received his diploma, that he was genuinely studying there and received a genuine diploma, which the college was authorised by the respondent to issue. His case has been given no individual consideration, since he is caught by the blanket ban imposed by the respondent as Mr Stewart describes. It may well be that many diplomas were being issued that were false. However, I conclude on all the evidence before me that the appellant's diploma was genuine and was the fruit of going to many lectures and producing written work. He went there because the College was on the approved list, and he ought not to be disadvantaged by the removal of the College from the approved list after he left. Since I find that the diploma was genuine and not false, the respondent has not acted in accordance with the law and the Rules, and so I must allow the appeal.”
We should note that we know from the case of NA and Others that CCOL was taken off the Department for Innovation, Universities and Skills (DIUS) Register on 4 December 2008: that is what the IJ must mean in para 19 by the college being on “the approved list” at the relevant time.
Mr Ahmed submitted that the IJ committed no error of law in deciding the appeal as he did. Although he noted in his determination that test cases on appeals involving CCOL (which were reported as NA and Others) were pending, he properly confined himself to the evidence before him in the instant appeal. Mr Ahmed said he accepted that if there exists a higher court or starred Tribunal decision on a matter of law, that is legally binding and an IJ must be taken to err in law if he applies the law contrarily, even if in fact he is unaware of such a decision. He also accepted that similar principles must apply when an IJ decides a case in a way that is at variance with Tribunal country guidance. However, he submitted, NA and Others was neither a higher court or starred case, nor was it a country guidance case. There were two cogent reasons why the IJ should not be seen as having erred. First, there was a reason of practicality. It was not reasonably practical to expect an IJ who has heard a case to check anything further between that date and the date of notification. The judicial norm was and should be to decide the case on the basis of the case as presented at the hearing.
Second, submitted Mr Ahmed, even if NA and Others had been reported by the date of the hearing and the IJ had been referred to it, it was not incumbent on the IJ to treat its findings of fact as binding. The IJ had done precisely what every judge is supposed to do in an immigration appeal – he had decided the case on the facts of the particular case. He reminded us that in this case the claimant had not simply relied on the standard documents which he had submitted to the respondent when applying for variation of leave to remain (the original of his award by CCOL of a PgDip in BM; a transcript of his marks in various subjects; and a letter from CCOL). The claimant had also adduced:
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(i) A witness statement dated 18 March 2009. This explained, inter alia, how he came to choose CCOL as his institution of study, noting that [at that time] it was listed on the DIUS Register and also had the approval of the British Accreditation Council (BAC); identifying the course structure (eight modules split into two semesters); giving the names of his three regular lecturers (who included the course co-ordinator (Mr Saif Ullah); explaining that the course teaching consisted in lectures and group work with private study in the library; stating that his modules were assessed by way of assignments, each 2,000–3,000 words in length; and specifying that he attended three days a week,...
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