Upper Tribunal (Immigration and asylum chamber), 2019-10-29, IA/01859/2016
| Jurisdiction | UK Non-devolved |
| Date | 29 October 2019 |
| Published date | 20 January 2020 |
| Hearing Date | 16 July 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/01859/2016 |
Appeal Number: IA/01859/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01859/2016
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 16 July 2019 |
On 29 October 2019 |
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Before
MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE BLUNDELL
Between
FOYAJ AHAMMAD
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Simret, a legal representative from Londonium Solicitors
For the Respondent: Mr Bramble, Senior Presenting Officer
DECISION AND REASONS
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The appellant is a Bangladeshi national who was born on 23 October 1986. He appeals against a decision which was issued by the First-tier Tribunal on 2 July 2018, dismissing his appeal against the respondent’s refusal of his application for leave to remain outside the Immigration Rules.
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The appellant entered the UK in February 2011. He held entry clearance as a student, under Tier 4 of the Points Based System (“PBS”). Two applications for further leave to remain in that capacity were granted, resulting in leave which was valid until 28 February 2015. On 27 February 2015, the appellant applied for further leave as a student. That application was accompanied by a document described as a “Letter of Acceptance for Studies” from a college called St Peter’s College of London, situated on the third floor of an address on Commercial Road. The letter stated that the appellant had been made a ‘conditional offer’ for a course in Tourism and Hospitality Management. The course was due to run from 2 March 2015 to 2 March 2016 and the offer was said to be subject to “Proof of Maintenance Funds”.
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A month later, the appellant varied that application so that it became one for leave outside the Immigration Rules. The reasons for that change of tack were explained in a letter dated 26 March 2015 from his then solicitors. It was said that the appellant had realised that the letter from St Peter’s College did not satisfy the sponsorship requirements of Tier 4 of the PBS. Because it was not possible to get a Confirmation of Acceptance for Studies (“CAS”) without leave to remain, the appellant sought a short period of leave which would enable him to secure a new sponsor and a CAS and apply for leave to remain under the PBS. Although he had submitted the letter from St Peter’s College, his intention was to study for a qualification in Business Management. The letter requested leave outside the Rules and stated that the appellant would be retaining his original passport in order to ‘look for CAS letter’, although he was content to send the passport to the respondent if requested to do so.
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The application was refused on 5 October 2015. The respondent refused the application under paragraphs 322(1) and 322(5) of the Immigration Rules. The former ground of refusal was based on the fact that leave was sought for a purpose not covered by the Rules. The latter ground was based on the respondent’s conclusion that the appellant had used a proxy to take a TOEIC English Language test at New College of Finance on 17 April 2012. This decision carried no right of appeal and, having received a negative response to a Letter Before Action, the appellant issued a claim for judicial review in the Upper Tribunal (JR/14082/2015). We need not mention the grounds upon which that application was made. It suffices for present purposes to record that it was settled by consent on 17 February 2016, with the respondent agreeing to serve a decision which attracted a right of appeal to the First-tier Tribunal.
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Very shortly thereafter, on 20 February 2016, the respondent issued the decision under appeal. She refused to grant the appellant leave to remain to enable him to find another sponsoring college because she considered that such a decision would place him at unfair advantage as compared to others in a similar position, and because it was open to him to return to Bangladesh and make an application for entry clearance as a student. In addition, she maintained that the appellant’s presence in the UK was not conducive to the public good because he had used a proxy to take an English language test in 2012.
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The appellant appealed to the First-tier Tribunal. Judge Bowler found that the respondent had not discharged the legal burden upon her of establishing that the appellant had cheated in his English Language Test. She found that he was unable to meet the Immigration Rules for leave to remain as a student or for leave to remain on Private Life grounds. In assessing Article 8 ECHR, Judge Bowler accepted that the appellant had a protected private life in the UK but she concluded, by reference to Part 5A of the Nationality, Immigration and Asylum Act 2002, that the interference proposed by the respondent was a proportionate one. She dismissed the appeal for these reasons.
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Permission to appeal was sought from the First-tier Tribunal. Two grounds were advanced. By the first, it was submitted that the judge had ‘failed to appreciate the fact the decision of the respondent was confined to Immigration paragraph 322(1) and not related to Article 8 rights or Immigration Paragraph 276ADE’. By the second, it was submitted that the judge had ‘failed to consider the fact that the respondent’s decision denying opportunity to find a new sponsor was unfair: fettering discretion’. Permission to appeal was refused by Judge Boyes on 2 October 2018.
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The application was renewed on the papers before Upper Tribunal Judge Hanson. The first ground was as originally pleaded before the FtT. The second ground was that the respondent’s decision was procedurally unfair because the appellant should have been given additional time in which to secure a new Tier 4 sponsor. Judge Hanson refused permission, concluding that it was not arguable that the judge should have confined his enquiry as suggested in ground one and that it was not arguable that any procedural unfairness had arisen out of the manner in which the appellant had been treated by the respondent.
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The appellant then made an application to the Administrative Court under CPR 54.7A. The grounds were settled not by the appellant’s solicitors but by leading counsel. It was submitted that the appellant only needed a short period of time with leave to remain in order to obtain a ‘formal CAS’ and that the issue of law was ‘the extent to which a so-called “near miss” under the Immigration Rules can be relevant to the decision-making under A8 of the ECHR.’ It was submitted that the judge’s assessment of proportionality was clearly flawed in that:
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The judge had failed to consider, in accordance with Rhuppiah [2018] UKSC 58; [2018] 1 WLR 5536, whether the ‘little weight’ provisions in Part 5 NIAA 2002 should have been overridden by the particularly strong features of the appellant’s private life.
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The judge had characterised the appellant’s private life unfairly in concluding that he was not in the middle of a course of study.
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The judge had overlooked the fact that the failure to comply with the Immigration Rules was ‘miniscule’, since the appellant had not been unable to satisfy a ‘substantive qualifying criteria’ and had submitted a document (from St Peter’s College) which showed that he met ‘the policy of the Immigration Rules’.
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He had failed to weigh in the balance the fact that the appellant had not been engaged in fraudulent activity in obtaining his English language test.
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In an order which was sent to the parties on 22 March 2019, Mostyn J granted the appellant permission to apply for judicial review. He observed:
“The claimant argues that following his acquittal of dishonesty he was, in effect, in a Catch 22: he could not obtain a CAS without LTR, but could not gain LTR without a CAS. This dilemma was not considered either by the first-tier tribunal or by either judge refusing permission to appeal. It seems to me that this omission renders the refusal of permission to appeal arguably incorrect and that there is an important principle which should be considered.”
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There having been no request for a substantive hearing in the High Court, Judge Hanson’s decision was quashed by order of Master Gidden on 1 May 2019. So it was that the application for permission to appeal came before the Vice President on 22 May 2019. He granted permission in light of the decision of the High Court, reminding the parties that the Upper Tribunal’s task would be that set out in s12 of the Tribunals, Courts and Enforcement Act 2007.
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Shortly in advance of the hearing, Mr Simret had produced a skeleton argument in which he adopted the submissions made by leading counsel in support of the application for judicial review. Before us, he stated that he was not pursuing the first of the grounds which had been advanced before Judge Hanson. The sole point he wished to pursue was that material matters had been overlooked by the judge in assessing the proportionality of the respondent’s decision. Although the judge had done ‘very well’ in certain respects, Mr Simret submitted that he had failed to consider whether the appellant should have been...
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