Sandeep Kaur v The Secretary of State for the Home Department [2013] UKUT 344 (IAC)

[2013] UKUT 00344 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
Date 2 July 2013
THE IMMIGRATION ACTS
Before
THE PRESIDENT, THE HON MR JUSTICE BLAKEDEPUTY UPPER TRIBUNAL JUDGE McWILLIAM
Between
Sandeep kaurAppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentMr C Murphy, instructed by Kanth and Co for AppellantMr P Deller, Senior Home Office Presenting Officer for Respondent(1) The respondent has produced a policy, which is intended to give effect to the principles of common law fairness identified in Patel (relocation of sponsor licence – fairness)[2011] UKUT 00211 (IAC).
Between
In essence, the policy provides that, in cases of potential discretionary refusal under paragraph 322 of the immigration rules, caseworkers should follow the ‘Patel’ process. Where this is not done, the resulting decision will not be in accordance with the law.DETERMINATION AND REASONS
[1]The appellant is a citizen of India and was born on 4 July 1983.[2]The appellant was granted leave to enter the UK as a Tier 4 (General) Student Migrant on 10 November 2010 until 20 August 2012 to study at Oxbridge College. She entered the UK in November 2012.[3]On 22 May 2012 the appellant made an application for leave to remain in the UK as a Tier 4 (General) Student Migrant in order to study at Scott’s College in London. The respondent refused the application in a decision of 21 December 2012. The reasons for the refusal by the respondent are twofold. The appellant breached a condition of her leave (to study at Oxbridge College) because she had studied at St John’s College. Paragraph 245ZW and ZX of the Immigration Rules required an applicant to meet the conditions attached to the previous leave to enter. In addition Scott’s College was not an approved sponsor.[4]The appellant appealed against the decision of the respondent and her appeal was determined on the papers (at the appellant’s request) and dismissed by Judge of the First-tier Tribunal Sacks in a decision promulgated on 21 March 2013. Permission to appeal was granted by Judge of the First-tier Tribunal Ievins on 18 April 2013.[5]The matter came before us on 21 May 2013 when we found that there was a material error of law in the decision of the First-tier Tribunal and set it aside pursuant to section 12 (2) (a) of the Tribunals, Courts and Enforcement Act 2007. The judge was wrong to have failed to address the grounds of appeal and the issue raised by the appellant, which was that the course she had studied at St John’s was supplementary to the course of study at Oxbridge and consequently, was authorised within the meaning of paragraph 245W(c)(iv)(3). We decided that there may have been unfairness in the Patel sense (Patel (revocation of sponsor licence-fairness) India [2011] UKUT 211 (IAC)). To assist us to re-make the decision, we made directions and the hearing was adjourned until 2 July 2013.

The Background

[6]The background to the appeal is that the appellant commenced studying at Oxbridge after her arrival in the UK, but the college was suspended from the register of Tier 4 in April 2011. She wished to complete her education and was admitted to St John’s to study the same course. The course at St John’s commenced in April 2011 and finished in December 2011. Oxbridge was restored to the register in June 2011, but was suspended again in November 2011. Oxbridge subsequently closed and the students who had studied there did not receive qualifications. The appellant successfully completed the course at St John’s and was awarded a qualification. She then applied to study at Scott’s, which, at the date of the application, was an approved sponsor. The appellant was not permitted to start the course because of her outstanding application. In October 2012 the appellant discovered that Scott’s had closed. She was unable to obtain a new CAS because her passport was with the Home Office. She wrote to UKBA informing them of the situation and she asked them to provide her with a letter to enable her to obtain a new CAS, but the Home Office went on to refuse her application without responding to her request.

Submissions

[7]Mr Deller submitted a skeleton argument in which it was acknowledged that the Home Office had not followed its policy designed to deal fairly with applicants whose college of choice loses a sponsor licence whilst the application for leave to remain is outstanding and to give effect to the principles set out in Patel. The policy itself, Annex 2 paragraph 10 of the Tier 4 Guidance, is set out in the version both at the time of the decision and before us at: http://webarchive.nationalarchives.gov.uk/20120507005311/http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/Tier4migrantguidance2.pdf (version applicable at time of application) http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/Tier4migrantguidance.pdf (version current at 2 July 2013) We attach the material part of the policy instructions (itself an appendix to the policy) as annex 1 to this determination.[8]The policy provides for a 60 day period to enable an applicant to find a new college to sponsor the application; states that refusal of the application will follow in the event that it falls for mandatory refusal under paragraph 321A, but goes on to state that, should the application fall to be refused under paragraph 322(2)-(12), case workers should follow the Patel process. Here, if the applicant had breached the terms of her previous leave, it was a case of discretionary refusal under paragraph 322(3), and the policy was incorrectly applied. On this basis it was conceded by the respondent that the decision was not in accordance with the law. It was a moot point whether the applicant had breached the terms of her leave by enrolling at St John’s College when Oxbridge College had its sponsor licence suspended. Mr Deller submitted that rules allow for supplementary study which, though not defined in the rules, is defined in the Tier 4 guidance which, at the date of the application, stated (at [306]) the following:
“Tier 4 (General) students and Tier 4 (Child) students are allowed to do extra courses, for example, evening courses, as well as their main studies. The course can be on any subject, and does not have to relate to the main course of study. Students do not need permission from us to do extra studies, and do not need to tell their Tier 4 sponsors. They must make sure that the extra course does not get in the way of the course that they have permission to stay for.”
[9]The studies at St John’s College did not interfere with the Oxbridge studies. In one sense they were supplementary to the Oxbridge studies when they were first commenced, as the possibility of returning to study at Oxbridge was not excluded and indeed for a time the applicant was studying at both institutions. On the other hand, it could be said that at some point in the history the applicant had effectively substituted St Johns College for Oxbridge College and the respondent submits that this takes the case beyond supplementary study.

Conclusions

[10]We agree that the decision to refuse the applicant an extension of stay was not in accordance with the law, because the policy in place at the time was not followed. If the policy had been followed the applicant should have been afforded a reasonable opportunity to find a new sponsor.[11]Both parties agreed that a lawful decision remains outstanding. It was not necessary for the Tribunal to determine whether the course at St John’s was supplementary to studies at Oxbridge or not. When making a fresh decision, it will be a matter for the Secretary of State to determine whether or not paragraph 322(3) is engaged; however, in our view, the definition in the Tier 4 guidance is relatively wide. At some point, the appellant was studying at both Oxbridge and St John’s. Mr Deller indicated in his skeleton argument that the appellant’s evidence contained in her witness statement of 31 May 2013 was not challenged, namely that her studies at St John’s did not interfere with her main studies at Oxbridge. Paragraph 322 is a discretionary ground of refusal and it is a fact that Oxbridge’s licence was suspended on two occasions and this was clearly not the fault of the appellant who having paid for her studies, was understandably keen to complete them.[12]In this case, no lawful decision has been made on the application which remains to be determined by the Secretary of State or the relevant officer. The appellant’s leave to remain, pursuant to section 3C of the Immigration Act 1971, continues uninterrupted. The appellant is able to vary her application and should do so within 60 days.[13]The appellant, through Mr Murphy, expressed concern that she would not be able to obtain a CAS without her passport and that this was with the Home Office. Mr Deller referred to the internal case working instruction which states that a certified copy of the student’s passport will be given to the appellant because colleges will require evidence of status. We suggested to Mr Murphy that the appellant contacts the respondent forthwith to secure her passport to enable her to vary her application. We do not know when the 60 days period commences and neither party was able to assist in this regard.[14]The decision is not in accordance with the law and therefore ceases to have effect. For this reason we remake the decision and allow the appeal.