Upper Tribunal (Immigration and asylum chamber), 2018-07-06, IA/00086/2017
| Jurisdiction | UK Non-devolved |
| Date | 06 July 2018 |
| Published date | 20 July 2018 |
| Hearing Date | 02 July 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/00086/2017 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00086/2017
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision and Reasons Promulgated |
|
|
On 2 July 2018 |
On 6 July 2018 |
|
|
|
|
|
Before
DEPUTY UPPER TRIBUNAL JUDGE DOYLE
Between
DANDY ASUNCION GOTANGOGAN
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms Willocks-Briscoe, Senior Home Office Presenting Officer
For the Respondent: Ms E King (counsel), instructed by Davidson & Co, solicitors
DECISION AND REASONS
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. The Secretary of State for the Home Department brings this appeal but in order to avoid confusion the parties are referred to as they were in the First-tier Tribunal. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Courtney, promulgated on 6 December 2017 which allowed the Appellant’s appeal and directed the respondent to make a fresh decision not sooner than 150 days after promulgation of the First-tier Tribunal’s decision. The Judge explained that the purpose of her decision was to enable the appellant to obtain a fresh sponsorship letter & then vary his application to include study at the college which issued the new sponsorship letter.
Background
3. The Appellant was born on 17 April 1979 and is a national of the Philippines. On 10 February 2017 the respondent refused the appellant’s application for leave to remain as a student.
The Judge’s Decision
4. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Courtney (“the Judge”) allowed the appeal against the Respondent’s decision. Grounds of appeal were lodged and on 15 March 2018 Judge Holmes gave permission to appeal stating (inter alia)
“The appeal appears to have been allowed on the basis that the procedure adopted by the respondent was unfair - even though the respondent applied her 60 day policy, and then having done so gave the appellant a further 60 day period. Thus, arguably, the respondent went beyond what she was required under her own policy to do; Patel (revocation sponsor licence -fairness) India [2011 UKUT 211, and Kaur (Patel fairness; respondent’s policy) India [2013] UKUT 344. Arguably it was not open to the Judge to proceed as she did; Marghia (procedural fairness) [2014] UKUT 366, and Raza [2016] EWCA Civ 36.”
The Hearing
5. (a) For the respondent, Ms Willocks-Briscoe moved the grounds of appeal. She told me that the Judge has allowed this appeal are grounds of public law fairness. She took me to [13] of the decision where the Judge records that the appellant was given 60 days from 1 November 2016 to obtain a new CAS and that period was extended to 24 January 2017. She told me that finding clearly indicated that the appellant had been allowed 60 days in accordance with the respondent’s policy, yet at [20] of the decision the Judge contradicts the findings at [13] by saying that the appellant has not had an opportunity to enrol at another college.
(b) Ms Willocks-Briscoe told me that the Judge fails to set out adequate reasons, and does not identify the manner in which the decision is not in accordance with the law she reminded me that the appellant does not meet the immigration rules. She relied on Marghia (procedural fairness) (2014) UKUT 366 (IAC), Raza [2016] EWCA Civ 36 and Kaur v SSHD [2018] EWCA Civ 1303.
(c) Ms Willocks- Briscoe asked me to allow the appeal and set the decision aside. She asked me to substitute my own decision. Dismissing the appellant’s appeal.
6. (a) Ms King, for the appellant, relied on the rule 24 response dated 28 June 2018. She told me that the decision does not contain an error of law and that the Judge correctly identified the duty to act fairly. She relied on Thakur (PBS decision -common law fairness) Bangladesh [2011] UKUT 00151 and Patel (revocation of sponsor licence- fairness) India [2011] UKUT 00211. She took me through the history of the appellant’s application and appeals. She told me that delay is a relevant consideration, which had been taken into account by the Judge.
(b) Ms King argued that the caselaw relied on by the respondent can be distinguished from the facts and circumstances of the appellant’s case. She told me that it was the Secretary of State withdrew the college licence, which was the foundation for the appellant’s difficulties. Ms King told me that the Judge looked holistically at all of the evidence in this case before reaching sustainable decision which are well within the range of reasonable decisions available to the Judge. She told me that the Judge clearly reaches the conclusion that the only way to return the appellant to the situation he would have been in but for procedural unfairness was to grant a lengthy period of leave to enable him to secure a CAS.
Analysis
7. The appellant’s application was submitted on 2 August 2010. His application was originally refused on 25 August 2010. The appellant appealed that decision and in a determination promulgated on 11 November 2010 his appeal was allowed. The respondent appealed against the First-tier Tribunal’s determination of 11 November 2010 successfully. The appellant was granted permission to appeal to the Court of Appeal, and by consent this case was remitted to the Upper Tribunal. On 19 October 2012 the Upper Tribunal allowed the appeal to the extent
“… that the appellant should have a period of 60 days, which will start from the date of service on him by the Home Office of a copy of this determination, during which period he may submit to the respondent a further application for leave to remain in order to study Health and Social Care to National Vocational Qualification level 4 at a college which holds a highly trusted sponsor’s licence.”
8. Four years later, on 1 November 2016, the respondent served the Upper Tribunal decision of 19 October 2012 on the appellant, and told the appellant that he has until 31 December 2016 to submit documentary evidence confirming that he had been accepted onto a course of study with a licensed tier 4 sponsor. The appellant sought the assistance of an MP, who sent an email to the respondent asking for an extension of the 60 day period. The respondent extended the period to 24 January 2017.
9. At the start of the hearing I asked whether there is been a change in circumstances since the decision promulgated on 6 December 2017 has been received. I was told that the appellant has not applied to any educational institutions because the respondent has appealed the decision of 6 December 2017, and the appellant does not want to pay a significant deposit to a college while his future is uncertain.
10. At [13] of the decision the Judge finds that on 1 November 2016 the appellant was given 60 days to obtain a new CAS for a course of study. At [15] the...
To continue reading
Request your trial