Upper Tribunal (Immigration and asylum chamber), 2014-12-15, IA/49562/2013
| Jurisdiction | UK Non-devolved |
| Date | 15 December 2014 |
| Published date | 24 March 2015 |
| Hearing Date | 11 December 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/49562/2013 |
Appeal Number: IA/49562/2013
Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/49562/2013
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 11 December 2014 |
On 15 December 2014 |
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Before
Deputy Upper Tribunal Judge Pickup
Between
Hemal Arvindbhai Suthar
[No anonymity direction made]
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the appellant: Mr S Karim, instructed by MA Consultants
For the respondent: Mr C Avery, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
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The appellant, Hemal Arvindbhai Suthar, date of birth 14.5.89, is a citizen of India.
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This is his appeal against the determination of First-tier Tribunal Judge Dean promulgated 2.9.14, dismissing his appeal against the decision of the respondent, dated 6.11.13 to refuse his application for leave to remain as a Tier 4 student. The Judge heard the appeal on 20.8.14.
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First-tier Tribunal Judge Hollingworth granted permission to appeal on 17.10.14.
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Thus the matter came before me on 11.12.14 as an appeal in the Upper Tribunal.
Error of Law
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In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such that the determination of Judge Dean should be set aside.
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The relevant background to the appeal can be summarised as follows. The appellant was last granted leave following his application on 11.1.12 for entry clearance as a Tier 4 (General) Student migrant, with leave to study at South Thames College (STC). His leave was limited to 7.6.13. However, the appellant did not study at STC but on 14.3.12 began a course of study with London College of Business Management (LCBM).
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His application for further leave to remain drew to the attention of the Secretary of State that he had changed colleges without permission and as of 7.6.13 was studying at LCBM. Section 50 of the Borders Citizenship and Immigration Act 2009 prohibits a student from study other than at the institution that the Confirmation of Acceptance for Studies (CAS) records as his sponsor. If he decides to switch colleges, he is required to make a fresh application for leave to remain. Having failed to do so, the application was refused under paragraph 322(3) with reference to paragraph 245ZW(c)(iv), on the basis of failure to comply with a condition of his leave.
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Judge Dean found that the appellant had failed to comply with a condition of his leave and and dismissed the appeal.
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In granting permission to appeal, Judge Hollingworth found, “An arguable error of law has arisen in relation to the application of the doctrine of fairness. An arguable error of law also arises in the context of proof of the conditions actually imposed in the light of the Judge’s references to the position at paragraphs 11 and 13 of the determination.”
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The grounds of application for permission to appeal assert that section 50 only provides that conditions restricting studies may be imposed and thus it is for the Secretary of State to prove that there was such a condition on the appellant’s licence. Given reliance on the discretionary ground under paragraph 322(3) to refuse the application and the assertion that the appellant had breached a condition of his licence, it is for the Secretary of State to demonstrate not only that there was a breach but that the discretion had been exercised to rely on paragraph 322(3). Thus it is submitted that the judge was in error to state that the burden of proof was on the appellant.
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It is further submitted that the judge was in error to rely on the Tier 4 Guidance, which did not have the force of law, following Alvi and Pankina. Finally, it is asserted that the judge failed to take into account the principle of fairness arising from LCBM allowing him to study at their college when he was in alleged breach of leave, especially when they issued a letter stating that no visa was required.
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The Rule 24 response, dated 20.11.14, asserts that the refusal was in accordance with the Rules, the appellant having changed colleges without permission and that he should have made a fresh application. The case of Afzaal [2014] EWCH 2215 (Admin), in particular at §40 to §47, makes it clear that such restrictions are routinely and normally imposed.
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Mr Karim drew my attention to the case of Bhimani (Student: Switching Institution: Requirements) [2014] UKUT 00516 (IAC), where Upper Tribunal Judge Allen held that where a student chooses to study at another institution holding a different sponsor licence number from that of the institution where he was granted leave to remain to study, he is required to make a fresh application.
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The situation of the appellant in that case was very similar to the appellant. It was when applying for further leave to remain that the appellant provided an academic transcript showing he had been studying at a different college to the one for which he had been granted leave for study. The application in Bhimani was also refused under paragraph 322(3). The First-tier Tribunal Judge in that case found there was no evidence that a condition restricting institution of study had been attached to the appellant’s leave and therefore concluded that the decision was not in accordance with the law and had to be set aside. The judge also found, in the alternative, that the language used in the refusal decision did not demonstrate that the decision-maker appreciated that there was a discretion and it had not been shown that the discretion had been exercised. The appeal was allowed.
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On appeal to the Upper Tribunal, Judge Allen held that when granted leave conditions may be imposed under section 3(3)(a) of the Immigration Act 1971. The effect of paragraph 245ZW(c)(iv)(1) is that leave granted to a Tier 4 (General) Student will be granted subject to conditions, including the requirement that the student is not allowed to study except at the institution which the CAS records as their sponsor. The judge pointed out that the entry clearance reference is the CAS number and this should be read as the endorsement of a condition to which leave is subject, i.e. study at the college in respect of which the CAS is the reference. Judge Allen thus concluded that the Secretary of State made a lawful refusal of the application, subject to the issue of the exercise of discretion under paragraph 322(3). On the facts of that case, Judge Allen concluded that this had not been done, and that there had been a failure by the Secretary of State to appreciate that, having properly considered that the appellant was in breach of condition, she had a discretion to exercise but failed to exercise it. For the reasons set out below, I reach a different conclusion on that issue on the facts of the appeal before me.
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In Afzaal R (on the application of) v SSHD [2014] EWHC 2215 (Admin), the High Court in Judicial Review Proceedings considered the issues raised there that there was no valid condition imposed on the leave to enter so as to prevent study at a different institution, and that the Secretary of State had failed to exercise her discretion when refusing the application. Paragraph 245ZW sets out that entry clearance will be granted subject to a series of listed conditions, one of which is in effect a restriction on study other than at the institution named in the CAS. The court concluded that the vignette included a condition restricting study to the particular sponsor listed in the CAS and thus the appellant was in breach of condition. The...
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