Upper Tribunal (Immigration and asylum chamber), 2014-02-12, IA/03964/2012
| Jurisdiction | UK Non-devolved |
| Status | Unreported |
| Date | 12 February 2014 |
| Published date | 12 March 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/03964/2012 |
`1
AI
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/03964/2012
THE IMMIGRATION ACTS
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Determined Without a Hearing at Field House |
Determination Promulgated |
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On 24th October, 2012 |
On 22nd February 2013 |
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Before
Upper Tribunal Judge Chalkley
Between
anwar khan
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
DETERMINATION AND REASONS
1. The Secretary of State for the Home Department appeals the decision of First-tier Tribunal Judge Khawar, promulgated on 10th May, 2012, but to avoid confusion she remains described as being the respondent in this appeal and Mr Anwar Khan remains described as being the appellant.
2. The respondent appeals against the determination of First-tier Tribunal Judge Khawar, promulgated on 10th May, 2012, following a hearing at Hatton Cross on 24th April, 2012 when he purported to allow the appellant’s appeal against the decision of the respondent, taken on 24th January, 2012, refusing the appellant’s application for further leave to remain in the United Kingdom as a Tier 4 (General) Student Migrant under the points-based system and under paragraph 245ZX(c) and 245ZX(d) of Statement of Changes in Immigration Rules, HC 395, as amended (“the Immigration Rules”).
3. The appellant is a citizen of Pakistan who was born on 4th October 1971.
4. In refusing the appellant’s application to vary his leave, the respondent was not satisfied that the appellant was entitled to claim 10 points for funds under Appendix C, since he had failed to demonstrate that he had the required level of funds for the 28 day period prior to his application and she was not satisfied that his sponsor’s assessment of the appellant’s English language ability meet the requirements of the Immigration Rules and as such the appellant was not entitled to claim 30 points for Confirmation of Acceptance for Studies.
5. The judge noted that in the Secretary of State’s letter refusing leave and during the appeal before him, the respondent relied on Section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002 and submitted that the appellant did not have a right of appeal, because he had extant leave to remain until 31st January, 2012. The judge concluded that the respondent’s argument was, “something of a technicality” because if the appellant made a fresh application on 31st January, 2012 the respondent’s subsequent refusal would have carried with it a right of appeal. He formed the view that sub-paragraph (e) did not apply, because the specific requirement “If when the variation takes effect” are not in fact made out in the appellant’s case. He went on to consider Sapkota & Anor (Pakistan) v SSHD [2011] EWCA Civ 1320 and Patel (Consideration of Sapkota – unfairness) India [2011] UKUT 00484 (IAC) and concluded that the appellant had a right of appeal, “if only under Article 8 of the ECHR”.
6. The judge went on to find that the appellant met the English language requirement of paragraph 245ZX, by having achieved a Postgraduate Diploma which the judge believed was the equivalent of a Masters degree. Accordingly, he found himself satisfied that the appellant’s college was entitled to issue such Level 7 qualification, studied in the United Kingdom in the English language, as representing the appellant’s competence in the English language as being at least equivalent to minimum CEFR Level B2.
7. The judge allowed the appeal.
8. The respondent challenged the judge’s determination and in granting permission Ms M Plimmer, sitting as a Deputy Judge of the Upper Tribunal, said:-
“The grounds of appeal submit that the judge has erred in law in finding that there is an immigration decision capable of lending itself to an appeal. The judge has arguably erred in law in regarding this as a technicality on the basis that he must determine Article 8 of the ECHR in any event. Article 8 is a ground of appeal that can only be raised before the Tribunal in response to an immigration decision for the purposes of Section 82 of the Nationality, Immigration and Asylum Act 2002.”
9. She went on to agree that both grounds could be argued. The second challenge was on the basis that the judge had found that the appellant met the English language requirement of paragraph 245ZX, because he had achieved a Postgraduate Diploma which was taught in English in the United Kingdom. However the Postgraduate Diploma was, as the judge noted, a professional award and not an academic qualification. The challenge suggested that the judge had erred in law as a result.
10. When Ms Plimmer’s grant of permission to appeal was sent to the parties by prepaid first class post on 26th June 2012, which was accompanied by standard directions in the form set out in the Appendix to this determination.
11. Despite the requirement that the respondent should, no later than 28 days after the date on which the directions are sent out, file a response under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Rules”) nothing further had been heard by the Upper Tribunal from the respondent.
12. On 17th September, 2012 the Upper Tribunal issued the following directions:-
“1. Neither party has responded to the directions sent to them with the grant of permission to appeal on 26th June, 2012 and presumably has nothing further to say about the appeal, has no further submissions to make and is content to rely on the evidence already before the Tribunal.
2. Subject to any further comments from the parties which were made in writing to the Upper Tribunal before 20th October, 2012 the appeal will be placed in a paper list and the appeal determined without an oral hearing.”
13. The Upper Tribunal directions were sent to the parties by first class prepaid post on 26th September, 2012.
14. On 24th October, 2012 neither party had responded to the directions. I have assumed that the parties have nothing (or nothing further) to say or advance in support of the appeal before the Upper Tribunal and I have concluded that this appeal is suitable for disposal without an oral hearing.
15. It is first necessary for me to decide whether First-tier Tribunal Judge Khawar has erred in law. I have concluded that he has.
16. As Ms Plimmer has pointed out, the judge was wrong to regard Section 82(2)(e) as “something of a technicality”. The appellant did have extant leave to remain until 31st January, 2012 and the effect of the respondent’s decision being dated 26th January, 2012 meant that the appellant did not have a right of appeal. He would only have had a human rights appeal in response to an immigration decision for the purposes of Section 82 of the 2002 Act.
17. The judge’s first mistake was compounded when he went on to find that the appellant’s Postgraduate Diploma was at least equivalent to a UK bachelors degree, because although he had noted it, he had failed to take account of the fact that it was a professional award and not an academic one.
18. I set aside the First-tier Tribunal Judge’s decision.
19. The respondent’s decision was made on 26th January, 2012. At the time of that decision the appellant had leave until 31st January, 2012. Applying Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 I find that the appellant did not have a right of appeal.
Upper Tribunal Judge Chalkley
APPENDIX A
Upper Tribunal (Immigration and Asylum Chamber)
DIRECTIONS
Note: In these directions, “appellant” means the party who has been granted permission to appeal to the Upper Tribunal against the determination of the First-tier Tribunal and “respondent” means any other person who was a party before the First-tier Tribunal
1. Not later than 21 days after the date on which these directions are sent out:-:-
(a) the appellant must file with the Upper Tribunal and serve on the respondent a written notice stating whether the appellant wishes the case to be dealt with at an oral hearing or decided on the papers without an oral hearing (giving reasons for the appellant’s preference); and
(b) unless the appellant is relying solely on the grounds for seeking permission to appeal, the appellant must file with the Upper Tribunal and serve on the respondent a skeleton argument or written submissions, setting out all lines of argument pursued, both as regards the reasons why the determination of the First-tier Tribunal should be set aside and as to the re-making of the decision in the appeal, if that determination is set aside; and
(c) where the appellant wishes the Upper Tribunal to consider evidence that was not before the First-tier Tribunal, that evidence (including any witness statement) must be filed with the Upper Tribunal and served on the respondent; together with the notice required by rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008, indicating the nature of that evidence and explaining why it was not submitted to the First-tier Tribunal.
2. Not later than 28 days after the date on which these directions are sent out, the respondent must file with the Upper Tribunal and serve on the appellant:-
(a) any response under rule...
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