Upper Tribunal (Immigration and asylum chamber), 2018-04-13, IA/01208/2016
| Jurisdiction | UK Non-devolved |
| Date | 13 April 2018 |
| Published date | 30 April 2018 |
| Hearing Date | 14 March 2018 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/01208/2016 |
Appeal Number: IA/01208/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01208/2016
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 14 March 2018 |
On 13 April 2018 |
|
Ex tempore judgment |
|
|
|
|
Before
UPPER TRIBUNAL JUDGE KOPIECZEK
Between
MR VIJAY BHATTI
(NO ANONYMITY ORDER IS MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: No appearance and not represented
For the Respondent: Ms Z Ahmad, Senior Home Office Presenting Officer
DECISION AND REASONS
-
The appellant is a citizen of India born in 1992. He arrived in the UK on 12 October 2010 with entry clearance as a Tier 4 Migrant. On 21 July 2014 he made an application for further leave to remain in that capacity, but the application was refused in a decision dated 23 February 2016.
-
The respondent’s decision refusing the application can be simply explained. The appellant needed a Confirmation of Acceptance for Studies ("CAS") but he did not have one. The respondent’s decision refers to no CAS reference number having been provided which is synonymous with no CAS having been obtained. Accordingly, the appellant was unable to meet a fundamental aspect of the Rules and his application was refused. The maintenance requirement of the Rules under Appendix C was not assessed corresponding with the fact that the appellant was unable to meet the main requirement of the Rules.
-
The appellant appealed against the respondent’s decision and his appeal came before First-tier Tribunal Judge Devittie at a hearing on 3 October 2017. Judge Devittie dismissed the appeal under the Immigration Rules on the basis that the appellant had failed to submit a CAS. He did not however, go on to consider Article 8 of the ECHR, a matter to which I shall return momentarily. For the avoidance of doubt, it seems to me to be clear that the appellant did then have a right of appeal which he would not have now because the changed appeals regime was not in force at the time of the appellant’s application in 2014. Nothing turns therefore, on any issue of validity or jurisdiction.
-
Judge Devittie set out verbatim the respondent’s decision. He also set out the appellant’s grounds of appeal which are to the effect that the respondent could/should have asked him to provide further documents, and asserting that the decision is not in accordance with the law. Argument in relation to the common law duty of fairness was raised. At [4] of his decision Judge Devittie said as follows:
“In considering this appeal I bear in mind that it is for the appellant to show on a balance of probabilities that he satisfies the requirements of the immigration rules. It is common ground that the appellant failed to submit a CAS, as required under the immigration rules, with his application. He has not advanced any basis upon which this Tribunal may be minded, for reasons of fairness, to grant him further time within which to obtain a CAS. In my opinion this appeal is wholly devoid of merit and must be dismissed.”
-
In the appellant’s grounds of appeal to the Upper Tribunal, which I summarise, it is asserted that Judge Devittie did not look into the reasons as to why no CAS was provided, those reasons being that the respondent had closed all the colleges. It said in the grounds for permission that he made several attempts to obtain a CAS but then their licences were revoked by the respondent. It was unfair of the respondent not to give him more time to find a Tier 4 sponsor, it is argued. It is further asserted that it was beyond his control that all the Tier 4 sponsor colleges were closed by the respondent and the respondent should have contacted him to request a CAS prior to refusing the application.
-
It is next argued that Judge Devittie failed to consider his private life in the UK as he has “strong friendship with my friends who have become like family members to me. Also I did provide sufficient evidence to confirm my relationship with my friends.” He points out that he has been in the UK for over seven years but argues that Judge Devittie failed to take that into account. Reference is made in the grounds to what is described as a “fundamental abuse of power by the Home Office”. The appellant further asserts that his friends in the UK support him mentally, emotionally and financially. He has family in India but they are not able to support him like his friends in the UK do. He states that he understands his civic duties and he has never been in trouble with the authorities.
-
The appellant did not appear for the hearing before me today, and indeed did not appear before the First-tier Tribunal. I am satisfied that he was given notice of the hearing to the address which is in fact the same address that he had at the time of the hearing before the First-tier Tribunal. Therefore, I decided to proceed in his absence pursuant to Rule 38 of the Tribunal Procedure (Upper Tribunal) Procedure Rules 2008.
-
In submissions on behalf of the respondent before me Ms Ahmad referred to the relevant paragraph of the Immigration Rules that applied at the time of the decision before the First-tier Tribunal. It was submitted that even today there is no CAS provided by the appellant. The proposition on behalf of the respondent was that even now, when he could have provided a CAS, perhaps because s.3C leave under the Immigration Act 1971 would have allowed him to obtain a CAS from another college, he had not done so. In any event, on the basis of the authorities to which I was referred, there was no unfairness.
-
In relation to Article 8, the appellant was unable to show compelling reasons as to why any consideration of Article 8 outside the Rules should prevail in terms of the appeal being allowed under Article 8.
-
I am not satisfied that there is any error of law in the decision of Judge Devittie, or at least any that is material. The simple fact of the matter is that the appellant was required by reason of paragraphs 245ZX(c), and 115A of Appendix A, to provide a valid CAS in order to succeed in his application for further leave to remain. That was a fundamental requirement of his application which he failed to meet. The contention that there was unfairness in the respondent’s decision is devoid of any merit.
-
Ms Ahmad helpfully referred me to three decisions under the name of Patel. The first is a decision of the Upper Tribunal, Patel (revocation of sponsor licence – fairness) India [2011] UKUT 00211 (IAC). That was a case which dealt with circumstances where a sponsor’s licence was revoked. The guidance given in that case is to the effect that where a sponsor licence has been revoked by the Secretary of State during an application for variation of leave and the appellant is both unaware of the revocation and not party to any reason why the licence has been revoked, the Secretary of State should afford an appellant a reasonable opportunity to vary the application by identifying a new sponsor before the application is determined. It then goes on to refer to the period of 60 days. That, I think, subsequently found its way into policy on behalf of the Secretary of State to afford an applicant who had initially on an application provided a valid CAS reference number, but thereafter the sponsor licence was revoked, a period of 60 days in which to find a new sponsor. That is however, far removed from the circumstances of this appellant. He provided no valid CAS reference number at all in support of his application and his application therefore was bound to be refused.
-
Ms Ahmad also referred me to a decision of the Court of Appeal in Patel & Anor v Secretary of State for the Home Department [2018] EWCA Civ 229. I was...
To continue reading
Request your trial