Upper Tribunal (Immigration and asylum chamber), 2009-11-11, [2009] UKAIT 55 (AA (paras 131A-1:switching))
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton, Deputy President, Senior Immigration Judge Grubb |
| Status | Reported |
| Date | 11 November 2009 |
| Published date | 17 December 2009 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | paras 131A-1:switching |
| Hearing Date | 22 September 2009 |
| Appeal Number | [2009] UKAIT 55 |
ASYLUM AND IMMIGRATION TRIBUNAL
AA (paras 131A-I: switching) Nigeria [2009] UKAIT 00055
THE IMMIGRATION ACTS
Heard at: Procession House Date of Hearing: 22 September 2009
Before:
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Grubb
Between
AA
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the Appellant: Mr E Ifere, IEI Solicitors
For the Respondent: Mr P Deller, Home Office Presenting Officer
Paragraphs 131A-I of HC395 do not prohibit “switching”. In particular, (1) the reference to a particular immigration category is a reference to the category the applicant had or has before the present application, not to the category that will persist if the present application is successful; (2) there is no requirement that current leave be in the same category as the leave that will result from the application’s being successful.
DETERMINATION AND REASONS
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The appellant is a national of Nigeria. She appealed to the Tribunal against the decision of the respondent on 4 March 2009 refusing to vary her leave in order to enable her to remain as a work permit holder. An Immigration Judge dismissed her appeal. The appellant sought and retained an order for reconsideration. Thus the matter comes before us.
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The appellant entered the United Kingdom on 13 October 2000 in possession of entry clearance as a student valid until 31 October 2003. On 7 November 2003 she was granted leave to remain as a student until 31 December 2006. On 18 January 2007 she was granted leave to remain as what is described as a “dependant student”. Mr Deller was unable to explain what that meant, but it appears that leave was granted outside the rules to the appellant on the basis of a relationship she then had with another person who may or not have been a student. In conjunction with the termination of that relationship, the appellant obtained a job offer and a work permit, and applied for leave to remain as a work permit holder.
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The original application was made during the course of existing leave, but was apparently treated as invalid because of some difficulty about tendering the fee. Questions relating to whether that application was valid were, however, apparently resolved in the particular circumstances of this case. We say that because the respondent clearly treated a subsequent application as a variation of the original one, against the refusal of which a right of appeal lay.
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The relevant immigration rules for an extension of stay for work permit employment are in paragraphs 131-135 of the Statement of Changes in Immigration Rules HC395. Paragraphs 131 and 131A-131I set out different provisions for those seeking to remain for work permit employment after entry in various categories. Para 131 is the general provision relating to those who enter the United Kingdom as work permit holders. Paragraphs 131A-I relate to other specific categories. The wording of paras 131A-I is far from clear, and we think it must have misled the Immigration Judge. There are two points of importance in this appeal, and by way of example we set out the wording of para 131A; the wording of the other paragraphs is, so far as relevant, identical.
“131A The requirements for an extension of stay to take employment (unless the applicant is otherwise eligible for an extension of stay for employment under these Rules) for a student are that the applicant:
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entered the United Kingdom or was given leave to remain as a student in accordance with paragraphs 57 to 62 of these Rules; and
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has obtained a degree qualification on a recognised degree course at either a United Kingdom publicly funded further or higher education institution or a bona fide United Kingdom private education institution which maintains satisfactory records of enrolment and attendance; and
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holds a valid Home Office immigration employment document for employment; and
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has a written consent of his official sponsor to such employment if he is a member of a government or international scholarship agency sponsorship and that sponsorship is either ongoing or has recently come to an end at the time of the requested extension; and
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meets each of the requirements of paragraph 128(ii) to (vi).”
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