Upper Tribunal (Immigration and asylum chamber), 2014-11-05, IA/02707/2009 & Others
| Jurisdiction | UK Non-devolved |
| Date | 05 November 2014 |
| Published date | 24 February 2015 |
| Hearing Date | 24 September 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/02707/2009 & Others |
Appeal Numbers: IA/02707/2009, IA/03425/2009, IA/06333/2006, IA/06336/2009 & IA/06340/2009
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers:
(1) IA/02707/2009
(2) IA/03425/2009
(3) IA/06333/2009
(4) ia/06336/2009
(5) ia/06340/2009
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 22 September 2014 & 24 September 2014 |
On 5 November 2014 |
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Before
UPPER TRIBUNAL JUDGE PERKINS
Between
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1 |
CHARITH WIJESUNDERARA WEERATHNA |
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2 |
ANURUDDHA RUKMAL RATNAWEERA |
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3 |
NISHANTHA SIYAMBALAPITIYA |
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4 |
PRABHA KUMARI SIYAMBALAPITIYA |
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5 |
VIDARSHI KUMARI SIYAMBALAPITIYA |
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Appellants
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Ms C Bayati, Counsel, instructed by Polpitiya & Co Solicitors
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
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I have not made an order pursuant to Rule 14 of The Tribunal Procedure (Upper Tribunal) Rules 2008 restricting reporting in this case. It does not involve issues of international protection and although there were arguments concerning the welfare of children these did not raise the kind of deeply personal or potentially embarrassing issues that I think should be excluded from the public domain.
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As I explained when I gave directions on 10 July 2012, these appellants are represented by the same solicitor and their appeals raise points arising from their contact with the Cambridge College of Learning. In simple terms it is the respondent’s case that the first three appellant were involved in a scam and got caught.
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Stripped of the necessary legal niceties, it is essentially the respondent’s case that the first, second and third appellants supported an application for leave to remain as a Tier 1 (Post-Study Work) Migrant with a certificate from Cambridge College of Learning. This purported to be proof of success on a course entitled “Post Graduate Qualification in Business Management” but it was a false certificate handed to them by the college without their doing any work. According to the respondent the Cambridge College of Learning had never offered such a course and the certificates were false documents raised to show that the appellants had attained a certain academic standard when they had done noting of the kind. The appellants did not meet the requirements of paragraph 245Z(c) of HC 395 because they did not have a relevant qualification and the applications were refused, additionally, under paragraph 322(1A) because the appellants had used a false document to pretend that they were qualified.
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The fourth and fifth appellants are the dependants of the third appellant.
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The first appellant appeals a decision dated 16 January 2009. On 27 January 2011 the Court of Appeal remitted his case to the Upper Tribunal to conduct a de novo hearing.
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Then second appellant appeals a decision of the respondent dated 22 January 2009. In his case a decision of the First-tier Tribunal was set aside by the Upper Tribunal after a hearing on 20 July 2011 and was ordered to be re-made. The Tribunal’s reasons for finding an error of law are set out in an appendix to this decision.
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The third and fourth appellants are married to each other and the fifth appellant is their daughter. On 9 January 2012 the Court of Appeal remitted their cases to be heard by the Upper Tribunal at the same time as it heard the appeal in the case of the second appellant.
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The third, fourth and fifth appellants appeal decisions of the respondent on 12 February 2009.
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The fourth appellant appellant’s application was refused with reference to paragraph 319C(b) of the HC 395 because she was not the partner of a person being given leave to remain as a Tier 1 migrant and the fifth appellant’s application was refused because with reference to paragraph 319H(b) because she was not the child of such a person.
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Where the respondent has chosen to rely on paragraph 322(1A) of HC 395 the respondent must prove that false documents have been submitted in respect of the application. Otherwise the applicant must prove that his or her circumstances satisfied the requirements of the rules. Although the appeals raise common issues, each appeal has been decided on its own merits. These appeals do not raise issues of international protection. The standard of proof is the balance of probabilities. Each of the appellants relies on article 8 of the European Convention on Human Rights. Essentially this involves a balancing exercise where proper purpose of maintaining immigration control has to be weighed against the interference with peoples’ private and family lies inherent on removal. The respondent must show that any interference is proportionate.
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Although there are many papers in this case the appellants’ solicitors have organised two bundles, the first comprising three volumes and the second a single supplementary bundle served close to the hearing. Most of what I needed to read was within these bundles and it has assisted me considerably to be given properly prepared, indexed and paginated bundles.
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When I outline the evidence I do, in places, comment on the quality of that evidence and indicate my findings. I confirm that I reached no conclusion without first considering the evidence as a whole and any contrary impression that anyone gets because, for example, of the order in which I consider points, is wrong. This is not an empty, formal self-direction. I have, for example, made comments on the challenge to the reliability of the evidence of Ms Ullah near to the beginning of the decision because I consider it the best way of explaining my decision but I certainly did not begin my analysis of facts by make those findings.
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It is, I think, uncontroversial to say that the Cambridge College of Learning came to an undistinguished end. Certainly in the summer of 2008 the United Kingdom Border Agency was concerned by the number of applications received from people seeking to remain in the United Kingdom as Tier 1 (Post-Study Work) Migrants who supported their applications with certificates from the Cambridge College of Learning. The Border Agency satisfied itself that the supporting certificates were false documents issued to misrepresent the bearer’s qualifications. These concerns eventually resulted in a test case coming before the Tribunal in June 2009. Three Senior Immigration Judges (Storey, P R Lane and Pinkerton) sat on the case and were assisted by Mr Ian Macdonald QC for the appellants and Mr G Clarke, counsel, instructed by Treasury Solicitors for the respondent.
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The decision was reported as NA and Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031 and the head note of that decision is in the following terms:
“Cambridge College of Learning (CCoL) never ran a postgraduate diploma in business management course or a postgraduate diploma on IT course. Accordingly for a person applying for leave to remain under a Tier 1 (Post-Study Work) Scheme to rely on a certificate of an award of such a diploma following the course will amount to a false representation and so will fall foul of paragraph 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.”
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Unsurprisingly that decision did not end litigation arising from alleged students of the Cambridge College of Learning and two more decisions of the Tribunal were reported. In Khan and Tabassum (CCoL: postgraduate certificate) Bangladesh [2011] UKUT 00249 (IAC) the Upper Tribunal (Senior Immigration Judge P R Lane) said in the head note:
“(1) those who assert they were awarded postgraduate certificates in business management (and IT) by Cambridge College of Learning, after completing relevant courses they will have to surmount the important and obvious problem that, if such certificate courses had been run and examined by CCoL, and certificates awarded to successful candidates, the witnesses who gave evidence to the Tribunal in NA and Others (Cambridge College of Learning) Pakistan [2009] UKIAT 00031 and who were found credible, would have said so. There was no credible evidence before the AIT in that case to suggest that any postgraduate courses in business management or IT were taught or examined by CCoL. It follows that, whilst the evidence in each case must be individually assessed, NA and Others is indicative of there being no such thing as a genuinely issued CCoL postgraduate certificate in those subjects and it...
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