Upper Tribunal (Immigration and asylum chamber), 2017-11-24, JR/09786/2016
| Jurisdiction | UK Non-devolved |
| Date | 24 November 2017 |
| Published date | 11 December 2019 |
| Hearing Date | 30 October 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/09786/2016 |
JR/9786/2016
IN THE UPPER TRIBUNAL
Field House
London
Heard on: 30 October 2017
Between
THE QUEEN (on the application of)
NAHID AHMED
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
Upper Tribunal Judge Southern
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For the Applicant: Mr R. Pennington-Benton, instructed by Connaughts Solicitors
For the Respondent: Mr Z. Malik, instructed by the Government Legal Department
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APPLICATION FOR JUDICIAL REVIEW
JUDGMENT
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This application for judicial review raises a narrow but according to counsel for both parties, important, issue of construction of a not infrequently encountered provision of the Immigration Rules.
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Paragraph 245ZX(ha) of the Immigration Rules provides in respect of an application for further leave to remain as a student, subject to certain exceptions that do not apply in this case:
If the course is at degree level or above, the grant of leave to remain the applicant is seeking must not lead to the applicant having been granted more than 5 years in the UK as a Tier 4 (General) Migrant, or as a student, to study at degree level or above unless:
…
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The question that arises to be addressed is whether, when calculating that period of 5 years, any period during which a previous grant of leave as a Tier 4 student has been extended by operation of s3C Immigration Act 1971 is to be included as a period he has leave as a student or whether it is to be disregarded.
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The importance of this is illustrated by the circumstances of this particular applicant. Although the parties are not in precise agreement as to the dates of his various periods of leave and study, it is not necessary to calculate precisely those periods of leave or extended leave. That is because it is agreed between the parties that if the period of 3C leave is to count towards the period of leave granted for study at or above degree level then the application made by the applicant for a further period of 12 months to study at the Global Banking School was correctly refused but if, as a matter of law, leave extended by s3C does not count, even though the applicant was studying during part of that period of leave extended by s3C the very course that he sought further leave to pursue, then the decision to refuse was unlawful and must be quashed.
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The chronology of relevant events may be summarised as follows:
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The applicant, who is a citizen of Bangladesh, arrived in the United Kingdom with entry clearance as a Tier 4 student and was admitted with leave to remain between 20 January 2011 until 30 April 2014. While present with this leave he was enrolled on a course at degree level at London Metrocity College between 29 March 2011 and 28 November 2013.
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Having completed that course, but still having leave granted to pursue it, he made an application for further leave to pursue a one-year degree level course at the University of Sunderland (at their campus in London E14).
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That application was refused, but the applicant lodged an appeal and enrolled with the University of Sunderland and completed that course between 28 April 2014 and 20 January 2015, as a result of which he was awarded a BSc in International Tourism and Hospitality Management.
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Although his appeal against refusal of leave was successful, being allowed on 27 August 2015, by then he had already completed the course that was subject of the appeal against refusal to grant leave to remain. Despite this, as his appeal had been allowed, the respondent granted the remainder of the leave initially sought, so that on 11 January 2016 the applicant was granted a further 4 months of leave until 11 May 2016.
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Before the expiry of that short period of leave he submitted a further application for leave to remain as a student, once again at or above degree level, this time to pursue a 1-year long course at the Global School of Banking (although, as we shall see, in fact the course lasted 10 months) and he has been granted permission to bring a judicial review of a decision of the respondent, made on 8 June 2016, to refuse that application and against a decision of 13 July 2016 to maintain that refusal on administrative review.
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It can be seen from this brief summary that by the time the applicant made this latest application for an additional years’ leave as a student he had had the benefit of three periods of leave:
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The original grant of leave 20.1.2011-30.4.2014, a period of 39 months;
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A period of 3C leave 1.5.2014-11 January 2016, a period of 20 months;
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The grant of leave following his successful appeal 11.1.2016-11 May 2016, a period of 4 months.
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Thus, the total period he had been present in the United Kingdom on the basis of being a Tier 4 student was 63 months, if the period of 3C leave is included as leave as a Tier 4 Student. Had the period of further leave he sought for the purpose of the course at Global Banking School been granted, that would have amounted to 75 months, plainly more than the maximum period allowed for study at or above degree level of 5 years. Put another way, as did Mr Malik in his submissions, even if one included of the period during which the applicant held leave extended by s3C only that part of it that he was actually studying at University of Sunderland, that being 10 months, he would still have spent more than 5 years in the United Kingdom as a Tier 4 Student, studying courses at degree level or above.
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For that reason, the application was refused.
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In seeking Administrative Review, the applicant argued that the period during which he was present pursuant to leave extended by statutory effect of s3C Immigration Act 1971 between 25 March 2014, when he made an application for further leave to remain, and 11 January 2016 when leave was granted following a successful appeal, should not count for the purposes of applying the provisions of 245ZX(ha).
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This was not accepted by the respondent. In maintaining the refusal, the respondent referred to the Tier 4 Policy Guidance published in April 2016 (with emphasis as added by the respondent):
Calculating periods of leave counting towards time limits
106. To calculate the maximum amount of time that you have spent studying at a specified level, we will consider how much leave you have already received to study courses as a Tier 4 (General) migrant or a Student, and add the length of leave that you will receive if your current application is granted.
…
109. We will also count any previous periods of leave you have held under Tier 4 (General) and/or the Student route, where you have subsequently left the UK. This period will be counted from the date the leave began until the date it expired. If you extend your Tier 4 / Student leave, or received an period of continuing leave in accordance with section 3c of the Immigration Act 1971, this will be included. If your leave was curtailed, we will take the date the curtailed leave expired.
Applying this policy guidance, the position before the respondent was clear. The period of 3C leave was to count for the purposes of 245ZX(ha) which m eant, as a matter of simple arithmetic, the application was one that could not succeed. The respondent considered representations made in the application for Administrative review founded upon R (Alvi) v SSHD [2012] UKSC 33, but said only that:
“However, the policy guidance we use is published and approved by the Home Office, we do not believe this case law is relevant to your substantiate (sic) your claims nor do we believe that the policy guidance has been misapplied in your case.”
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Mr Pennington-Benton, on behalf of the applicant, had set out in his skeleton argument two strands of challenge to the refusal to grant leave. The second of those was a submission founded upon “conspicuous unfairness in an individual case”. Realistically, and as had been anticipated by the judge who granted permission to bring this application for judicial review, he did not pursue that argument as a separate issue in his oral submissions, although it still informs the arguments he does pursue. He was plainly right not to do so. This applicant has suffered no unfairness, having been able to continue his studies notwithstanding the impugned decision. And, as we shall see, that was possible because the legal framework in play is designed precisely to accommodate such an outcome so that studies do not necessarily have to be put on hold while the applicant awaits a decision on an application to...
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