Upper Tribunal (Immigration and asylum chamber), 2020-10-26, IA/00005/2019
| Jurisdiction | UK Non-devolved |
| Date | 26 October 2020 |
| Published date | 09 November 2020 |
| Hearing Date | 15 October 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/00005/2019 |
Appeal Number: IA/00005/2019 (V)
IAC-FH-CK-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00005/2019 (V)
THE IMMIGRATION ACTS
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Heard at Field House by Skype Remote Hearing |
Decision & Reasons Promulgated |
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On 15th October 2020 |
On 26 October 2020 |
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Before
UPPER TRIBUNAL JUDGE RIMINGTON
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
Mr Md Moynul Islam
(aNONYMITY DIRECTION NOT Made)
Respondent
Representation:
For the Appellant: Mr Jarvis, Home Office Presenting Officer
For the Respondent: Mr Syed-Ali, Direct Access
DECISION AND REASONS
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The application for permission to appeal was made by the Secretary of State but nonetheless I refer to the parties hereinafter as they were described before the First-tier Tribunal.
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The respondent appeals against the decision of First-tier Tribunal Judge Lawrence, who in a decision promulgated on 28th January 2020 allowed the appellant’s appeal against the refusal of his student leave, allowing the appeal on human rights grounds.
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The Secretary of State submitted that in allowing the appeal on that basis that the respondent’s decision was unlawful as the First-tier Tribunal Judge had failed to give adequate reasons for his conclusion.
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A short immigration history is, according to the Home Office file, that the appellant’s spouse first entered the United Kingdom on 29th October 2010 with leave to 28th October 2011 and on 10th August 2011 was granted leave to remain as a student until 26th May 2014. Quite when the applicant entered the United Kingdom is not clear. That said, he made an application to remain as a Tier 4 (General) Student on 14th May 2014. The respondent, not being satisfied he was qualified to leave under Part 6A of the Immigration Rules, made a decision on 17th June 2015 to remove him from the UK by way of directions under Section 47 of the Immigration, Asylum and Nationality Act 2006. He had no Confirmation of Acceptance for Studies because the CAS submitted was assigned by the London School of Technology. This had been checked on 30th April 2015 and the college was not listed as a Tier 4 sponsor as at that date. Judge Herbert, however, allowed the appeal on the basis that the appellant’s inability to provide a CAS letter was due to matters outside his control as the respondent was required to return his original documentation so he could supply his CAS to a different college.
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In a letter dated 5th July 2017 (some time after the appeal) the Secretary of State referenced the application dated 14th May 2014 and confirmed that it would suspend consideration of his application for a period of 60 calendar days. It was stated to be open to him to obtain a new CAS for a course of study at a fully licensed Tier 4 educational sponsor and to submit an application to vary the grounds of his original application. The letter stated:
“In order to assist you in obtaining a new CAS we have enclosed with this letter an information leaflet which you can take to any potential new sponsors. This leaflet explains to them that you have an application outstanding and that your previous Tier 4 educational sponsor’s licence has been revoked.”
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The Secretary of State also enclosed the appellant’s passport, stating: “If you decide to obtain a new CAS then your sponsor will need to see your passport.”
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Subsequently on 7th January 2019 the Secretary of State refused the application on the basis that the Secretary of State was not satisfied he had produced a valid CAS because the CAS had been cancelled by the UK Visas & Immigration. Seemingly, the applicant provided no new CAS and the application was decided on the basis of the CAS assigned by the London School of Technology.
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The matter was appealed and in the determination of First-tier Tribunal Judge Lawrence, which is under challenge, the First-tier Tribunal Judge acknowledged the two Home Office letters dated 5th July 2017 stating that the appellant’s leave was to be extended by 60 days in order for him to find a Tier 4 licensed sponsor and instructions referred to that the appellant was requested to follow in order to book a Secure English Language Test and it was stated that he would be able to do so despite his passport having expired.
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Judge Lawrence correctly considered that the appeal was covered by provisions saving the rights to appeal that were available under the version of Part 5A of the Nationality, Immigration and Asylum Act 2002 as in force immediately prior to 20th October 2014 (“the saved provisions”). As such, the grounds of appeal were the “old grounds of appeal” and not merely confined to human rights grounds.
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However, the judge added at paragraph 23 of his decision: “Some three years after Judge Herbert OBE heard the appellant’s appeal, the appellant’s situation appears not to have improved in terms of his stated wish to progress his education in the United Kingdom”. At paragraph 24 the judge stated:
“The appellant does not suggest he is now eligible for a grant of leave to remain under the Immigration Rules and I do not consider that there is any obvious eligibility within the various categories of the Rules. The appellant has not, for example, suggested that there are matters that would constitute very significant obstacles to his reintegration in Bangladesh if he was required to return to that country. I do not find therefore that the decision was not in accordance with the Immigration Rules.”
The judge added at paragraph 25: “There is a lack of detail or independent evidence as to the extent of the efforts the appellant has made to obtain a CAS.” The judge, however, found that the appellant was unable to provide a CAS for reasons outside his control despite being given additional time and that there was an “absence of any suggested or obvious way forward” and concluded that “I consider that the respondent has yet to correct the illegality that was identified by Judge Herbert OBE”.
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The judge on that basis proceeded to allow the appeal because he accepted the appellant’s claim to be unable to provide a CAS for reasons outside of his control and the respondent had yet to correct the illegality identified by Judge Herbert OBE.
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The Secretary of State appealed on the basis that the judge had failed to give adequate reasons when finding on a material matter:
“However, I consider that the respondent has yet to correct the illegality that was identified by Judge Herbert OBE, in that the appellant has yet to be provided with any real opportunity to obtain a new sponsor to continue his studies in the United Kingdom, as he wishes to do, and I therefore consider that the decision under appeal was not in accordance with the law”,
Nor did the judge give adequate reasoning for finding the removal of the appellant from the United Kingdom was contrary to Section 6 of the Human Rights Act. It was pointed out in the grounds of appeal that the respondent’s bundle included two Home Office letters dated 5th July 2017 giving the appellant leave extended by 60 days for him to find a new Tier 4 licensed sponsor with instructions as to how to an English language test.
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It was asserted in the grounds that to find that the Secretary of State had failed to correct the illegality indicated by Judge Herbert was a misdirection which infected the ultimate conclusion, rendering it unsound. The appellant failed to attend the hearing to elaborate his contention...
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