Upper Tribunal
(Immigration and Asylum
Chamber)
Patel (Tier 4 – no ’60-day
extension’) India [2011] UKUT 00187 (IAC)
THE IMMIGRATION ACTS
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Heard at Field
House
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Determination Promulgated
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On 16 March 2011
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Before
Mr Justice Edwards-Stuart
Senior Immigration Judge
Gleeson
Between
Jiginashaben
nitinkumar patel
Appellant
and
THE SECRETARY OF STATE FOR THE HOME
DEPARTMENT
Respondent
Representation:
For the
Appellant: Mr Soloman, instructed by APP Immigration Advocates LPP
For the
Respondent: Ms Ong, Home Office Presenting Officer
(1)
Where a
sponsor’s Tier 4 licence is withdrawn, the UKBA Policy Guidance as at November
2009 (page 52) operates to restrict the remaining leave granted to 60 days
where a student has more than six months’ of the original leave remaining. It
has no effect on periods of less than six months.
(2)
The
policy does not operate to extend leave and in particular, it does not provide
a 60 day extension of leave to remain in a case where that leave to remain has
already expired.
(3)
The 60
day restriction, if applicable, rums from the time when the Secretary of State
notifies the student of the imposition of the restriction following the
withdrawal of the licence.
DETERMINATION AND REASONS
- This is an appeal, with the
permission of the Senior Immigration Judge, against a Determination of
Immigration Judge Buchanan promulgated on 11 November 2010 dismissing the
appellant's appeal against the refusal of leave to remain as a Tier 4
(General) Student Migrant on 9 September 2010.
- The appellant is a citizen of India. She was born on 30 July 1973. She came to the United Kingdom in September 2008. She
then undertook and completed a Diploma in Business Administration and had
applied to take an Advanced Diploma in Business Management from BC College of North West London.
- Unfortunately, after she
applied the college was withdrawn from the list of Tier 4 licensed
providers.
- At the hearing before the
First-tier Tribunal counsel for the appellant, who was not counsel who
appeared before us, suggested that the appeal could be conducted on the
basis of submissions only. However, during the course of the hearing a
point arose which needed clarification and the Immigration Judge put the
relevant question to the appellant. She did not understand the question
and it then emerged that her command of English was apparently limited. It
transpired that her counsel had throughout taken instructions from the
appellant's husband and was not aware of her poor command of English.
- Whilst, on the facts as we have
just summarised them, there is no reason to believe that counsel was
deliberately trying to mislead the tribunal by concealing the appellant's
lack of English, we wish to make it perfectly clear that we regard it as
quite unacceptable for any advocate to submit that an appeal could be
dealt with by way of submissions only in order to avoid revealing to the
tribunal the fact that his or her client has a very poor command of
English.
The facts
- The appellant's case was that
she had completed her Diploma in Business Administration and had been
issued with an appropriate certificate on 18 September 2009. Having been
granted a place on the course for the Advanced Diploma in Business
Management from BC College, on 18 November 2009 she submitted an
application to the respondent for an extension of her leave to remain
under the Tier 4 system, her existing visa being due to expire on the 30
November 2009.
- But sadly, in December 2009,
the appellant discovered that she had breast cancer, for which she had to
undergo treatment. This prevented her from starting the proposed course of
study at BC College. In January 2010 she contacted the college and
explained why she had not been able to start the course. However, later
that month she discovered that the college was no longer recognised as a
Tier 4 provider. She said that she then tried to contact the respondent in
order to find out about the progress of her application, but was simply
told that it was pending.
- On 9 September 2010 she was
told that her application was refused because BC College was not a Tier 4
sponsor. She said that she had tried to enrol on other courses but could
not do so because the respondent had retained her passport. However, she
did eventually obtain a conditional place on a recognised course provided
by Khalsa College and she produced a letter of confirmation of the offer
dated 3 November 2010. This was for an Associate Degree in Business
Management that was due to start on 27 November 2010. This letter of
confirmation was written two days before the hearing before the tribunal.
The Determination of the First-tier
Tribunal
- At paragraph 19 of his
determination the Immigration Judge noted that:
“Both parties accepted at the hearing that
this application was not going to succeed under the Rules and although there
may well be scope for the appellant to make a fresh application within 60 days
after the notice of refusal, and although [counsel for the appellant] made it
clear that she would be doing so immediately after the hearing, the issues
raised relate only to Article 8 ECHR."
- The grounds of appeal, prepared
by counsel who appeared before the Immigration Judge, asserted that this
was not the case. It was said that the submission to the Immigration Judge
was that the tribunal could allow the appeal on the basis that the
respondent had failed to follow her own policy.
- In relation to Article 8, it
was submitted on behalf of the appellant that she "had been robbed
of her expectations to be able to study". The Immigration Judge
said that he was not satisfied that the appellant had taken any real steps
either to pursue the respondent for a decision on her application for the
extension of her leave to remain or to investigate the availability of
alternative courses during the intervening period.
- In addition, the Immigration
Judge said that there must also be a very real concern as to whether the
appellant really did have the ability to take the proposed course, bearing
in mind the very limited command of English that she had exhibited at the
hearing.
Discussion
- Mr Solomon, who represented the
appellant before us, made it clear that he did rely on the "so-called
“60 day extension". He submitted that the policy of the respondent
was to grant a minimum of 60 days from the date of notification of refusal
in a case where the course provider’s licence had been withdrawn in order
to enable the student to find an alternative course. He said that in this
case that policy had not been followed.
- Mr Solomon referred us to the
Policy Guidance document for the Tier 4 of the Points Based System, in the
version that was in force from 5 October 2009 onwards. The relevant
guidance is at page 52 of the document.
- This deals with the situation
where a sponsor’s Tier 4 licence is withdrawn. In this situation the
document says that "all confirmations of acceptance for studies
and visa letters will become invalid". There is a table
which sets out what will happen if the licence is withdrawn at various
stages of the application process. The first two situations set out in the
table cover the position before a student has travelled to the United Kingdom. The third situation arises where the student is "already in the United Kingdom studying". In this situation "What will happen"
is described as follows:
“We will limit the student’s
permission to stay to:
60 days if the student was not involved in
the reason why the Tier 4 sponsor had their licence withdrawn (we will not
limit the student’s permission to stay if he/she has less than six months left.
The student may want to apply for permission to stay with another Tier 4
sponsor during this time).
Immediately if we think the student was
involved in the reasons why the Tier 4 sponsor's licence was withdrawn."
- We consider that the language
of this is perfectly clear: it is imposing a restriction on the
innocent student’s permission to stay (or, more accurately, leave to
remain) in cases where the student has more than 6 months left of his/her leave
to remain. In that case the student’s leave to remain is limited or
restricted to 60 days.
- What it does not mean is that
where a student’s leave to remain has only a few days remaining, or has
actually expired, a further 60 days leave to remain will be granted. That
would amount to an extension, not a limitation.
- In reaching this conclusion we
derive support from two decided cases. The first case is SSHD v JA
[2011] UKUT 52 (IAC), a decision of Irwin J and SIJ Gill. In relation
to the part of the table that we have quoted above, they said this, at
paragraph 12:
“As a matter of language, if there is no
question of any contribution to the circumstances leading to the withdrawal of
the sponsor's licence, the policy is clear. If the existing leave to remain is
longer than six months it could be limited to 60 days. If the existing leave to
remain is less than six months, it will not be further limited. In neither case
on the face of the language does the policy contemplate a direct extension to
the student’s leave to remain."
- The second case is SSHD v MM
& SA [2010] UKUT 481 (IAC), a decision of Lord Bannatyne
and SIJ Peter Lane. They said, at paragraph 18:
“It is clear from the guidance that the
limitation to 60 days is not to be treated as an indication that the Secretary
of State will, in the case of licence withdrawal, grant of the student a
further 60 days’ leave. On the contrary, the guidance makes it plain that the
60 day period is a restriction and that where a student has less than six
months’ leave, the remaining period will be left unaffected."
- Since the appellant's leave to
remain had expired on 30 November 2009, at the time when the college's
licence was withdrawn she had no remaining leave to remain that could be
restricted. Accordingly the so-called "60 day extension" had no
application to her case. That is sufficient to dispose of the appeal on
this ground.
- But even if we are wrong in
this conclusion, the appellant would not have been a student who could
have benefited from any anticipated extension of her leave to remain
because she was not "studying" at the relevant time. Although Mr
Solomon submitted that this included someone who was in the United Kingdom
as a student awaiting permission to take a course, we consider that the
application of the policy is confined to those students who are actually
in a course of study at the Tier 4 sponsor's establishment for which leave
to remain has been requested or given when the sponsor's licence is
withdrawn. In the present case the appellant had never started the course
in question because of her ill-health. By the time that she might have
been in a position to start a course, she discovered that the college was
no longer recognised as a Tier 4 institution.
- However, there is one point on
which the table is not clear. That is the point in time from which the 60
day restriction, if applicable, would take effect. Like Irwin J and SIJ
Gill in JA, we consider that this cannot be at the time when the
sponsor's license is withdrawn, because otherwise a student could find
herself the subject of a restriction on her leave to remain without even
being aware of it. It seems to us that the 60 day restriction, if
applicable, can only run from the time when the Secretary of State
notifies the student of the imposition of the restriction following the
withdrawal of the licence.
- However, we note that this
could have rather capricious effects. For example, if the Secretary of
State took the decision in the case of a particular student when she had,
say, 6½ months left, that student’s leave to remain would then be limited
to 60 days. But if the Secretary of State delayed a further three weeks
before notifying the student of the withdrawal of the licence, it would
make no difference at all: the student would then have less than 6 months
left of her leave to remain, and so no restriction would fall to be
imposed.
- We are not the first to point
out these apparent anomalies in this part of the scheme, but it may well
be that there was a perfectly good reason for setting up the system in
this way and that we have not been told what it is. However, the point
that we wish to make clear, once and for all, is that the 60 days can only
operate as a restriction of the permission to remain: it applies in
the case of an innocent student who has more than six months left of his
or her leave to remain when notified by the Secretary of State of the
withdrawal of the sponsor institution’s licence. What the policy does not
provide is a 60 day extension of leave to remain in a case where that leave
to remain has already expired.
- In relation to Article 8, Mr
Solomon referred us to the general policy considerations relating to the
admission of foreign nationals as students, which were summarised by
Sedley LJ, sitting with Longmore and Moses LJJ, when giving the judgment
of the Court of Appeal in Goo v SSHD [2008] EWCA Civ 747, at
paragraph 4:
“Before we turn in detail to our reasons,
it is relevant to recall that the admission of foreign nationals to study here
is not an act of grace. Not only does it help to maintain English as the
world's principal language of commerce, law and science; it furnishes a source
of revenue (at rates which, by virtue of an exemption from the Race Relations
Act 1976, substantially exceed those paid by home students) of frequently
critical budgetary importance to the United Kingdom's universities and colleges
as well as to many independent schools. We therefore find it unsurprising that
the legislation and rules, correctly construed, do not place arbitrary or
unnecessary restrictions on what foreign students can study here. It does not
require evidence to remind us that it is not uncommon for a student to realise
that he or she has made an unwise choice, or perhaps is being poorly taught,
and to change courses or institutions with beneficial results. A rule
preventing students from making such a change might well be arbitrary or
unnecessary in the absence of case-specific reasons."
- Mr Solomon then went on to make
a number of general points in relation to this particular appeal:
(a)
The appellant
was not at fault in relation to the withdrawal of the licence.
(b)
At the date of
the appellant's application the college was on the register.
(c)
The policy of
the Secretary of State is not to tell a student in the event that a college is
suspended (as opposed to having had its licence withdrawn).
(d)
Students are
likely to be unclear as to whether or not a college has been withdrawn from the
register.
(e)
A student will
not be able to make a fresh application once he or she has become an unwitting
overstayer as a result of the withdrawal of the sponsor institution's license.
(f)
Any refusal of
leave to remain following the withdrawal of the sponsor institution’s licence
will not be an appealable decision.
(g)
The student’s
future applications may be prejudiced by having had leave to remain refused
without a proper opportunity to find another course.
(h)
The withdrawal
of the sponsor institution's license shall not have the consequence that the
student has to go to the lengths of travelling abroad in order to reapply for
leave to enter.
- In addition, Mr Solomon
submitted that his construction of the "60 day extension" would
accord with the view of the ordinary man, and that students would have a
legitimate expectation that any decision would be based on a reasonable
policy and that this would involve giving students a period of grace
within which to find another institution on being notified by the
Secretary of State that the sponsor institution's licence had been
withdrawn.
- Finally, Mr Solomon repeated
the submission made to the Immigration Judge that the appellant was a
genuine student who was being deprived of the opportunity to continue her
studies in the United Kingdom and that to interfere with this by depriving
her of further leave to remain would constitute a disproportionate
response and therefore a breach of her Article 8 rights.
Conclusions
- Attractively and eloquently as
Mr Solomon presented his submissions, we reject them. We reject the
submissions in relation to the "60 day extension" point for the
reasons that we have already given.
- Where a sponsor’s Tier 4
licence is withdrawn, the UKBA Policy Guidance as at November 2009 (page
52) operates to restrict the remaining leave granted to 60 days where a
student has more than six months’ of the original leave remaining. It has
no effect on periods of less than six months.
- The policy does not operate to
extend leave and in particular, it does not provide a 60 day extension of
leave to remain in a case where that leave to remain has already expired.
- In relation to the claim under
Article 8, we share the concern of the Immigration Judge that it is highly
questionable that the appellant has a sufficient command of English to
make her a serious candidate for an Advanced Diploma in Business
Management. In addition, like the Immigration Judge, we are not satisfied
that the appellant made any serious attempt to find another course once
she discovered in late January 2010 that BC College was no longer a
licensed Tier 4 institution.
- In these circumstances we do
not consider that the refusal of leave to remain is a disproportionate
interference with the appellant's Article 8 rights.
- We should add that we
appreciate and understand that the appellant has genuine problems with her
health, but this does not make her claim any stronger. On the contrary, it
may be another reason why she may not be in a position to undertake a
further course of study. However, this is not a factor to which we have
had any regard when reaching the conclusion set out above.
Disposal
- Accordingly, we find no error
of law in this Determination and so this appeal must be dismissed.
Signed
Mr Justice Edwards-Stuart
Sitting
as a Judge of the Upper Tribunal
