Frustrated non- EEA students Of London metropolitan university

Decision of UKBA to revoke the sponsor license for tier 4 from London metropolitan university can leave 2000 undergraduate students without degrees and visa.
Student feel betrayed by the agencies and colleges. It's uncertain when can ukba strike to any institution and shut down the way non EEA student pursue their studies with great hopes.
Underneath are some listed by bbc


I am a third year student at London Met, doing a bachelor degree of computer science. I have one semester (term) to go.


Ashiqur Rahman: The Home Office should reconsider
I have already spent £25,000 on tuition fees, which cover the whole course, not to mention the living expenses.

I checked with a few other universities about a possibility to transfer there, but they told me that I can do it in my second but not in my third year.

That means that I have to spend extra money and unnecessarily prolong my studies.

I don't know if I can afford to pay so much extra money. My dad is getting retired now and he is the one who is paying for my education.

I had admission offers from Australian and Canadian universities, but I chose a British degree because they are most valued in the world.

This is a complete waste of my time and money. Who will take me and what is to happen of my future?

I think the Home Office should reconsider, they should let current students finish their degrees and apply the rule only to new students.

Bibek Pokharel, Nepal

I've done one semester (term) at the London Met and I have two more to go. I've already paid nearly £9,375 in tuition fees.

I come from a poor country with one dream - to get a degree from a British university. My poor family saved money for this, I also managed to save some money to make that possible.

Some of my Nepalese friends who are studying at this university received loans that they will need to repay. This is causing all of us a huge amount of distress.

I don't know what to do. I can't simply switch to another university where I'll have to start from scratch. I simply don't have the money to do that.

If the university refunds me the tuition fees, then maybe I'll be able to do that.

Until then - no money and no degree - that's the cause of my frustration!

Donna Marie Winstanley, Hong Kong


Donna Marie Winstanley came to the UK to improve her chances of getting a job
I am a third year international relations student who loves London and I am just sitting at home in shock.

I'm just surprised because I phoned the university yesterday to ask about how much next year's fees would be and I specifically questioned what was happening with the international students. I was told that only new students would be affected; but now reading around, that information doesn't seem to be right.

If you have studied in London, you are more likely to get a better job in Asia.

I was hoping to get a job at a non-governmental organisation when I had finished, but now I have no idea what is going on.

I've already paid around £16,000 in fees and was preparing to pay just over £8,000 for this year's fees.

I don't want to leave.

Naloeva Ziza, Nalchik, Russia

I am due to complete my masters degree in human resource management at London Metropolitan University.

All I have left is my dissertation to do. It's almost finished but now I can't even submit it.

My government paid for my education - I think so far the cost has been about £9,000.

I need to complete my education so that I can then at least start looking for a job. Now I have no idea what I'm going to do.

I'm in Russia so I can't even go down to the university's buildings to try to find out what is happening.

Henri Dimushi, Tirana, Albania


Henri Dimushi has no way to collect his belongings in the UK
I saw the news on London Metropolitan University's website, and then I saw the story on the BBC News website and I was shocked.

I emailed the university to find out what is going on, but I haven't heard back from them.

My friends and I have spent thousands of pounds on accommodation and flight tickets. We do not know how we are going to get our money back if we do not find another university through clearing.

Last year I did an international foundation course at Queen Mary University of London and I still have belongings stored in London. But now I'm unable to re-enter the UK even to take back my stuff.

I feel betrayed by London Met and the UK Border Agency for preventing me and students like me from starting or continuing our future studies.

I don't know what the university's solution will be but I hope it will be a good one.

Danish Ashraf, Riyadh, Saudi Arabia


The university has lost its right to teach and recruit foreign students
I am studying Business Law and Management at London Metropolitan University and have just completed my first year.

Now my parents and I are extremely worried about what is going to happen after hearing the news.

I don't know if any other university will accept me for the second year and I feel it's pointless doing my first year again.

I spent around £10,000-£11,000 on my first year and I had no idea this was going to happen.

They didn't mention anything in our final weeks - they just said we may be moving campuses next term. The university has not contacted me at all.

It is already very expensive to study in the UK.

Abhimanyu Agarwal, Calcutta, India

This issue has created problems for many thousands of students worldwide and put their careers, jobs, life, money and everything else at stake.

I had already booked my flight to come over and study in London in September.

We were given assurances that the university was working closely with the UKBA to resolve the issue.

I'm lucky I didn't make any further payments but I had already spent nearly £1,000 just trying to get my documentation ready.

I have no idea what to do.

A UK degree is renowned and accepted worldwide - that's why I applied. Many universities elsewhere won't accept me at such a late stage.

But the UKBA's decision is not a good sign - the UK changed their immigration rules considerably last year which lead to many of people deciding not to study in the UK.

This decision sends a message to the international community that international students are not welcome.

London metropolitan university Tier 4 license revoked students should not travel

London Metropolitan University’s licence to sponsor students is withdrawn


30 August 2012

The UK Border Agency has revoked (withdrawn) London Metropolitan University's licence to sponsor students from outside the European Union.

The withdrawal of London Metropolitan University's licence means that it is removed from the register of licensed sponsors, and students from outside the European Union are no longer allowed to study at the university.

We understand that international students at London Metropolitan University may be concerned.

London Metropolitan University students who are already in the UK with a current, valid UK visa do not need to do anything immediately.

A government-led taskforce is being created, which will include the Higher Education Funding Council for England (HEFCE), Universities UK, the Department for Business, Innovation and Skills (BIS), the UK Border Agency and the National Union of Students. This will work with London Metropolitan to support those affected and enable appropriately qualified genuine students to find another institution where they can continue their studies in the UK. The taskforce will start work immediately.

If an existing London Metropolitan University student with a current, valid visa is on holiday outside the UK, they can return to the UK.

New students who were planning to travel to the UK to start studying with London Metropolitan University should not travel.

A UK Border Agency spokesperson said:
'These are problems with 1 university, not the whole sector. British universities are among the best in the world - and Britain remains a top-class destination for top-class international students.

'We are doing everything possible, working with the taskforce established by BIS, to assist students that have been affected.'

Tier4,sponsor license,home office,bia,ukba,London metropolitan university,sponsor list uk institutions,
Uk student visa from india,

UK Tier 1 Investor Visa

Dear Applicants,


This category is for people wishing to come to the UK as passive portfolio investors.

The UK Immigrant Investor Program allows international investors to obtain an Investor Visa in the UK with an investment of 1,000,000 pounds. The total processing time is approximately 8 to 12 weeks

Qualification Requirements

a) Has money of his/her own under his/her control in the UK amounting to no less than £1 million,
or
b) Owns personal assets (taking into account any liabilities, i.e. personal net worth) to the value exceeding £2 million, and has money under his/her control in the UK amounting to no less than £1 million (which may include money loaned to him/her by a financial institution regulated by the UK Financial Services Authority);

Intends to invest for 5 years at least £750,000 in the UK Government bonds, share capital or loan capital in active and trading UK registered companies, other than those principally engaged in property investment (deposits with a bank, building society or other enterprise whose normal course of business includes the acceptance of deposits are not considered as qualifying investments);

Intends to make the UK his/her main home by spending preferably 9 months or more per year in the UK.

Tier 1 Entrepreneur Documentation Format from the Bank

Dear Applicants,

 For a successful Tier 1 Entrepreneur visa, from any category that you are allowed to switch in-country or outside country needs a proper format in order to qualify. The ECO or Caseworker is very particular in terms of the words being used by the Third party sponsor, bank or financial institution's letter and affidavit declaration. The affidavit in case of third party sponsor must get it notary public. It will be deemed invalid otherwise.


Another affidavit on Rs. 20 stamp paper can be titled as 'Affidivat of Identity Confirmation' In case of third party sponsor 

It should include the full name, D.o.B. Address, Contact no, and Most Importantly SIGNATURE of the third party. 

The the matter of the affidavit must be " The above mentioned person are correct and are checked against say e.g. ID card, Passport, Birth Certificate etc "

Based on this, the Affidivit of Support is a legal and valid document



The matter in red is very important!

It should be scribed in the exact format. The highlighted yellow is to be filled in appropriately.

Why pay a substantial amount in GBP for representations, when the route of Tier 1 entrepreneur is so simple to apply through.
You can leave a comment if there is any understanding required from my end.

Wish you all the BEST!

=======================================================

   

Letter for AFI, this should be submitted as an original document, and not a copy, on the letter-

headed paper (official stationary) of the financial institution, full name signature position and contact details of the branch manager issuing the letter along with the stamp.

CONFIDENTIAL

Date: 22.08.2012

To,

The Caseworker,

For the attention of the UK Border Agency

Dear Sir,

In regards to the application of Mr/Mrs/Ms [Applicant Name] for Entrepreneur status in the United Kingdom:

I have the consent of [name] to share these findings with the Agency. I will confirm the contents

of this letter to the Agency at their request.

[third Party OR applicant :name/s (account holder/s] has Indian Rupees, Rs. 1,76,00,000.00 (Above £200,000.00) available for investment in the United Kingdom on deposit with this financial institution.

These funds available declared, are movable and disposal in the UK.

This institution is regulated by RBI (Reserve Bank Of India)

As on today’s date, 22.08.2012 the applicant has the following amount of money IN THEIR OWN NAME Or Third Party names available for investment in a business in the United Kingdom Rs. 1,76,00,000.00 [£200,000] if applicable.

Or, the applicant has agreed to form an entrepreneurial team with [name] and has the following amount of money IN THEIR OWN NAMES available for investment in a business in the United Kingdom [£ ] if applicable.  If these funds are already in the United Kingdom, please give the date of entry to the United Kingdom [date of entry of money into the United Kingdom dd/mm/yyyy]

The applicant/s has/have the following amount of money available for investment in a business in

the United Kingdom, held in this institution under the names of [please enter details in the tableprovided if applicable].

Name of third party contributor: Mr. XXXXXXXX

Relationship to applicant  OR Each Applicant (In case of Entrepreneur Team, delete as appropriate): Son in law

Amount of money from the third party available to the applicant or both applicants : Rs. 1,76,00,000.00 ( £1= Rs88) Source www.oanda.com

If these funds are already in the United Kingdom, the date of entry to the United Kingdom must be given : If applicable, delete appropriate

x-------------------x------------------------x----------------------x-------------------------x

----------------------

keywords

#AIT, appeals, appeals in uk, british high commission Mumbai, british national, Changes to the applications from Overstayers, deadline passed, Entry Clearance officer, Out of time appeal, 10 year ban, 10 year UK visa ban, 18600, ADS Visa, AIT, appeals, appeals in uk, british high commission, british high commission Mumbai, british national, Changes to the application from Overstayers, Changes to the applications from Overstayers, China, deadline passed, Dependant visa, dependent visas, Documentation for UK VISA, ECO, Entry Clearance officer, Family Visitor, Family Visitor Visa VAF1B, first tier court, home office, Hong Kong, HSMP, HSMP extension, indefinite leave to remain, Limited right of appeal, Out of time appeal, Overstayed in the UK, Overstayer, PBS, Point based system, Post study work, PR, PSW Visa, Rehabilitation of offenders act 1974, Rehabilitation Period, spent criminal conviction, Sponsor Ship form for UK visa, spouse visa outside EEA, Student Visa, TB screening test, tier 1, Tier 1 Covering letter format, tier 1 entrepreneur, tier 2, tier 4, travelling to the UK., UK spouse visa, Uk student visa, UK Student visa Changes, UK visa, Uk visa appeals, UK visa from Hong Kong, uk visas,UK Visit Visa, ukba, unspent conviction, VAF1A, visa extension, Visa forms, Wife visa, work permit uk

London Immigration Solicitors, London Immigration Lawyers, Immigration Solicitors London, Immigration Solicitors in London, Immigration Lawyers London, Immigration Lawyers, Immigration Solicitors, Tier 1 Visa, High Net Worth UK Immigration Lawyers, High Net Worth Lawyers in London, Law Firms London, Top UK Law Firm, Visa Law Firm London, Investor Visa, Entrepreneur Visa,marriage visas and settlement, permanent residence, Tier 1 investor and entrepreneur visa, Tier 2 skilled worker, intra company transfer, fast track and documents checking service,Business Visa UK, UK Business Visa, Business Visa assessment, Business Visa application, Business Visa immigration, Business Visa migration, Business Visa apply, ukvisas, immigration, work permit,  uk visa, appeal, tier 1 investor, tier 2 general, tier 1 entrepreneur, uk visa refused,UK company, business consultancy, investment opportunities, property development, UK, GB, Britain, secretaries, ltd, UK company registration, UK bank account, offshore, immigration lawyer,smartmove2uk, immigration experts, immigration solicitor, immigration company, law firm, immigration law, immigration laws, immigration rules, uk immigration, uk visa, point-based system, pbs, tier 1, hsmp, higly skilled migrant, tier 2, work permit uk, england visa, tier 4, uk student visa, tier 5, investor visa, tier 1 investor, tier1 investor, uk investor visa, business visa, entrepreneur visa, sole representative visa, uk citizenship, naturalization uk, british citizenship, british passport, passport uk, uk visa refusal, appeal, spouse visa uk, uk visa requirments, uk visa documents, immigration advice, immigration advisor, immigration adviser, law firm uk, law firm london, UK visa from India, english letter from the college for Tier 1, degree taught in english,

UK retirement visa, bringing my parents to the UK, permanent residence for parents, dependant visa for the UK, www.google.co.in, www.google.co.uk

Tier 1 Entrepreneur English letter Format from the university

Dear Applicants,

The format for the English letter must be as under;

Date:

To whomsoever it may concern

This is to infer that Mr. XXX Full first middle and last name as in the degree certificate and passport, has been a student with us from June 2001 to August 2004. Mr. Smith, has successfully completed his Bachelor of Commerce in Finance & Auditing, a three year full-time degree course.

The degree certificate (Convocation certificate) was awarded in October 2005. (check for the date in the Degree certificate)

Moreover, we confirm the the entire degree program was taught in English.

Yours truly,


name of the principal
sign
stamp
------------------------x--------------------------x-------------------------x------------------


----------------------

keywords

#AIT, appeals, appeals in uk, british high commission Mumbai, british national, Changes to the applications from Overstayers, deadline passed, Entry Clearance officer, Out of time appeal, 10 year ban, 10 year UK visa ban, 18600, ADS Visa, AIT, appeals, appeals in uk, british high commission, british high commission Mumbai, british national, Changes to the application from Overstayers, Changes to the applications from Overstayers, China, deadline passed, Dependant visa, dependent visas, Documentation for UK VISA, ECO, Entry Clearance officer, Family Visitor, Family Visitor Visa VAF1B, first tier court, home office, Hong Kong, HSMP, HSMP extension, indefinite leave to remain, Limited right of appeal, Out of time appeal, Overstayed in the UK, Overstayer, PBS, Point based system, Post study work, PR, PSW Visa, Rehabilitation of offenders act 1974, Rehabilitation Period, spent criminal conviction, Sponsor Ship form for UK visa, spouse visa outside EEA, Student Visa, TB screening test, tier 1, Tier 1 Covering letter format, tier 1 entrepreneur, tier 2, tier 4, travelling to the UK., UK spouse visa, Uk student visa, UK Student visa Changes, UK visa, Uk visa appeals, UK visa from Hong Kong, uk visas,UK Visit Visa, ukba, unspent conviction, VAF1A, visa extension, Visa forms, Wife visa, work permit uk
London Immigration Solicitors, London Immigration Lawyers, Immigration Solicitors London, Immigration Solicitors in London, Immigration Lawyers London, Immigration Lawyers, Immigration Solicitors, Tier 1 Visa, High Net Worth UK Immigration Lawyers, High Net Worth Lawyers in London, Law Firms London, Top UK Law Firm, Visa Law Firm London, Investor Visa, Entrepreneur Visa,marriage visas and settlement, permanent residence, Tier 1 investor and entrepreneur visa, Tier 2 skilled worker, intra company transfer, fast track and documents checking service,Business Visa UK, UK Business Visa, Business Visa assessment, Business Visa application, Business Visa immigration, Business Visa migration, Business Visa apply, ukvisas, immigration, work permit,  uk visa, appeal, tier 1 investor, tier 2 general, tier 1 entrepreneur, uk visa refused,UK company, business consultancy, investment opportunities, property development, UK, GB, Britain, secretaries, ltd, UK company registration, UK bank account, offshore, immigration lawyer,smartmove2uk, immigration experts, immigration solicitor, immigration company, law firm, immigration law, immigration laws, immigration rules, uk immigration, uk visa, point-based system, pbs, tier 1, hsmp, higly skilled migrant, tier 2, work permit uk, england visa, tier 4, uk student visa, tier 5, investor visa, tier 1 investor, tier1 investor, uk investor visa, business visa, entrepreneur visa, sole representative visa, uk citizenship, naturalization uk, british citizenship, british passport, passport uk, uk visa refusal, appeal, spouse visa uk, uk visa requirments, uk visa documents, immigration advice, immigration advisor, immigration adviser, law firm uk, law firm london, UK visa from India, English letter format, for tier 1 english letter, degree taught in english,UK retirement visa, bringing my parents to the UK, permanent residence for parents, dependant visa for the UK, www.google.co.in, www.google.co.uk

Tier 4 visa, Entry Clearance Correction Scheme

Tier 4 visa, Entry Clearance Correction Scheme

Entry Clearance Correction Scheme (ECCS)

The ECCS scheme is operated by the UK Border Agency. The University is part of this scheme, which allows corrections on student visas granted in home countries where visas have been granted for the wrong length of time.

To find out if your Tier 4 student visa has been granted for the correct length of time please check if it matches one of these rules…

If your course duration is:

12 months or more – your visa should cover the full length of your course plus an additional 4 months

More that 6 months but less then 12 months – Your visa should cover the full length of your course plus an additional 2 months

Less than 6 months and it is NOT a Pre-sessional course – Your visa should cover the full length of the course plus an additional 7 days

Less than 6 months and it IS a Pre-sessional course – Your visa should cover the full length of your course plus an additional 1 month.

If you do not have a Tier 4 visa

Was your current student visa granted at the start of your current course?

If yes, did you apply for your current student visa before March 2009?

If this applies to you the length of the visa you were granted should match one of the following rules…

Postgraduate Students - Should be granted for the full length of the course plus an additional 4 months

Non-postgraduate Students coming for courses of 1 academic year or more that finish in the summer - Should be granted until 31 October following the end of your course

Non-postgraduate students coming for courses of one academic year or more, that do not follow the standard Autumn to Summer pattern - Should be granted the length of the course, plus 4 months

Students coming for courses of more than 6 months but less than one academic year - Should be given the length of their course, with the condition "Work (and any changes) must be authorised" rather than "No work".

If you think your visa is eligible for a correction please look into the matter and take the benefit out of this scheme. Will help you to save few pounds on your unnecessary extensions in-country.

320(7A) & 320 (7B) overturned at AIT (Appeals) UK

Hon Immigration judge played an important role by allowing an appeal which was refused with 320 7A and 320 (7B) with a 10 year ban and automatic refusal by the entry clearance officer.

Out of many reason's considered Judge stressed very hard in knowing the state of mind (using deception and making false representation, direct or indirect) when answering a particular question whilst filling out the form.

Appeal allowed (appeal successful)

http://www.bailii.org/uk/cases/UKUT/IAC/2011/00351_ukut_iac_2011_fa_pakistan.html

-------------------
keywords

#ait, tribunal, first tier court, deception, 320(7A), 320 (7B), 10 year UK visa ban, 10 year ban, Limited right of appeal, tier 4, Tier 1, visitor Visa UK, overstayers, Criminal convictions, disclosure of material facts, British Embassy, Kathmandu, bombay, delhi Nepal, Foreign & Commonwealth Office, FCO, Foreign Office, visas, entry clearance, travel, sponsor, form, guidance, fees

Tier 4 refused due to college sponsor license suspension

Allowing the appeal  means the  appellant  has  won his appeal and is eligible  for the extension of his Student Visa.One should  use the outcome of this  appeal  if been refused by the home office due to the  eviction the of the institution from the sponsor list AFTER the application  for extension was made.

Patel (revocation of sponsor licence – fairness) India [2011] UKUT 00211 (IAC)

	Upper Tribunal (Immigration and Asylum Chamber)

---

Upper Tribunal

(Immigration and Asylum Chamber)

Patel (revocation of sponsor licence – fairness) India [2011] UKUT 00211 (IAC)

THE IMMIGRATION ACTS

Heard at Field House	Determination Promulgated
On  17 May 2011	On 6 June 2011

Before

MR JUSTICE BLAKE, THE PRESIDENT

MR BATISTE, A JUDGE OF THE UPPER TRIBUNAL

Between

ASHVIN KUMAR SOMABHAI PATEL

SHILPABEN ASHVIN KUMAR PATEL

Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mrs T White, Counsel instructed by Ali Sinclair Solicitors

For the Respondent: Mr S Kandola, Senior Home Office Presenting Officer

(1)     Immigration Judges have jurisdiction to determine whether decisions on variation of leave applications are in accordance with the law, where issues of fairness arise.

(2)     Where a sponsor licence has been revoked by the Secretary of state during an application for variation of leave and the applicant is both unaware of the revocation and not party to any reason why the licence has been revoked, the Secretary of State should afford an applicant a reasonable opportunity to vary the application by identifying a new sponsor before the application is determined.

(3)     It would be unfair to refuse an application without opportunity being given to vary it under s.3C(5) Immigration Act 1971.  

(4)     Leave to remain granted by s.3C Immigration Act 1971 is relevant leave for the purposes of the Immigration Rules and the cases of QI (para 245ZX(1) considered) Pakistan [2010] UKUT 217 (IAC) and HM and others (PBS – legitimate expectation – paragraph 245ZX(I) [2010] UKUT 446 (IAC) have been overruled by QI (Pakistan) v SSHD [2011] EWCA Civ 614, 18 April 2011.

(5)     Where the Tribunal allows an appeal on the grounds that the decision was not taken fairly and therefore not in accordance with the law, it may be sufficient to direct that any fresh decision is not to be made for a period of sixty days from the date of the reasoned decision being transmitted to the parties, in order to give the appellant a reasonable opportunity to vary his application.

(6)     By analogy with the present UKBA policy on curtailment of leave where a sponsor licence is revoked a 60 day period to amend the application would provide such a fair opportunity.

DETERMINATION AND REASONS

Introduction

1.          The appellants are citizens of India and are husband and wife. The second appellant’s appeal depends upon the outcome of the first appellant’s who will be referred to as “the appellant”. The appellant arrived in the United Kingdom on 8 September 2007 and was granted leave to enter as a student until 30 November 2009. During his period of leave he successfully studied for an Information Technology Diploma at South Bank College between November 2007 and April 2009. He then wanted to continue his stay for the purpose of obtaining a post-graduate diploma in Information Technology. He had been accepted on an eighteen month course for that purpose by the Lyceum Academy. On 18 November 2009, the appellant applied for further leave to remain under the points based system with a sponsorship letter from the Lyceum Academy. At that date the Academy was a sponsor approved by the Home Office. The appellant heard nothing more about his application until he received a notice of decision dated 5 March 2010 refusing his application on the basis that the Lyceum Academy had been removed from the list of approved sponsors and he therefore had no sponsorship letter capable of earning him points under the points based system. According to the appellant’s evidence the Academy had been removed from the list of sponsors that day or shortly before and he was wholly unaware of this until he received his refusal letter.

2.          The appellant appealed to the First-tier Judge. In August 2010 the Immigration Judge allowed the appeal on the basis that the respondent had not applied to the appellant its policy as the Judge understood it to be. He directed that the application should be reconsidered in the light of the policy. He did consider an alternative case that the refusal was a violation of Article 8 of the ECHR but dismissed that case on its merits. The judge understood that the Home Office policy was that where a point based system application was to be rejected because the sponsor was no longer an approved sponsor a period of sixty days leave to remain was granted to enable an appellant to make an application with an alternative approved sponsor. That was a misunderstanding of the UKBA policy that was restricted to cases where it proposed to curtail leave of more than six months; in those circumstances and where the appellant was unconnected with the reasons for the loss of the sponsor licence UKBA would exercise its powers of curtailment to reduce the leave to two months that would enable the holder of the leave to make a variation application with a new sponsor.

3.          The respondent did not appeal the IJ’s decision but on 16 September 2010 wrote refusing to grant an extension of stay because the IJ had misunderstood the policy. It recognised that there was a right of appeal against this fresh decision because by reason of the IJ’s allowing of the appeal the leave to remain that had been extended by operation of s. 3C of the Immigration Act 1971 as amended continued.

4.          On 9 February 2011 a second Immigration Judge of the First-tier Tribunal considered this appeal. He recognised that it was now clear that the first judge had misunderstood the policy in reaching the decision the previous August. This error was established in no fewer than three decisions of the Upper Tribunal namely MM and SA (Pankina: near–miss) Pakistan [2010] UKUT 481 (IAC); JA (Revocation of registration - Secretary of State’s policy) India [2011] UKUT 52 (IAC); and Patel (Tier 4 – No sixty day extension) India [2011] UKUT 187 (IAC). The law is now certain on what the respondent’s policy was.

5.          Nevertheless the appellant’s application for permission to appeal to the Upper Tribunal was granted on the basis that the second Immigration Judge had not considered the alternative Article 8 claim and had confined his consideration to the applicable Immigration Rules relating to the point based system.

6.          In the skeleton argument prepared for the purposes of this appeal, Mrs White drew attention to the important decision of the Upper Tribunal in the case of Thakur (PBS decision - common law fairness) Bangladesh [2011] UKUT 151 (IAC) promulgated on 23 March 2011. That was a case where the Tribunal proceeded on the basis that the appellant was unaware that his college had lost it sponsor’s license and he had “no adequate opportunity of finding an alternative college”. It drew attention to and relied upon the case of R (on the application of Q) v Secretary of State for the Home Department [2003] EWCA Civ 364 where the Court of Appeal applied the common law principle of fairness to immigration decision making (see paragraphs 69 to 70).

7.          The Tribunal agreed with the previous UT decisions clarifying what the sixty day policy was but concluded that those decisions either did not or did not need to address the question of fairness, on the particular facts before them. In both JA and Patel the Tribunal expressed some concern as to the potential for arbitrariness of the application of the sixty day policy in revocation cases but without having some similar opportunity of enrolling at another college and substituting that college in the immigration application in refusal cases.

8.          The Tribunal in Thakur observed as follows at [19]:

“In the present case the appellant had neither sixty days nor a reasonable period to find an alternative course by the date of decision. We were told at the hearing that the practical problem which appellants are faced with when seeking further leave to remain under the points based scheme when they were previously granted leave to remain under the student rules is that they have difficulty in persuading colleges to offer them places as there is concern about whether they have extant leave to remain, colleges not being aware that appellants in these circumstances have leave under section 3C.”

The Tribunal concluded that the respondent’s decision was not in accordance with the law because of the failure to comply with common law requirements of fairness.

9.          Mr Kandola accepted that the principle in Thakur applied in this case. He did not seek to oppose the appeal. We nevertheless concluded that we should hear submissions about what the content of the duty of fairness was in this class of case and how the duty could be fulfilled in the course of this appeal. Having received further submissions from the parties we indicated that his appeal would be allowed with reasons to be given later. We now give those reasons.

Jurisdiction

10.       Under s. 82 of the Nationality Immigration and Asylum Act 2002 there is a general right of appeal in respect of immigration decisions as they are defined. By s. 84 the grounds of appeal may include:

a) that the decision is not in accordance with the immigration rules;

b)  that the decision is unlawful by reason of the Race Relations Act;

c) that the decision is unlawful by reason of the Human Rights Act;

d)  that the decision breaches the appellant’s rights under the EE Community Treaties in respect of entry or residence United Kingdom;

e) that the decision is otherwise not in accordance with the law;

f) that the person taking the decision should have exercised differently discretion conferred by the immigration rules;

g)  removal would be contrary to obligations under the Refugee Convention or the Human Rights Act 1998.

11.       By s. 86:

“(2) The Tribunal must determine:

a)     any matter raised as ground of appeal and;

b)     any matter which section 85 requires it to consider;

(3)  the Tribunal must allow the appeal insofar as it thinks that:

a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including Immigration Rules) or;

b) a discretion exercise in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently”.

12.       The “law” referred to in ss. 84 and 86 includes the general requirements of public law fairness that may apply in the context of immigration decision making.

The requirement to act fairly

13.       Although the requirements of fairness always depend upon the context and the specific facts of the case, it is clear from Thakur and the authorities there cited that people making applications for an extension of stay are entitled to be treated fairly by the Secretary of State in determination of those applications

14.       We also note the discussion of procedural fairness in De Smith’s Judicial Review (Sixth Edition 2007) at paragraphs 7-003 to 7-009. We accept the author’s proposition that the law has advanced from imposing a public law requirement of fairness in particular situations, to the general proposition that wherever a public function is being performed there is an inference that the function is required to be performed fairly, in the absence of an express indication to the contrary.

15.       We further note that in the case of the R (on the application of) New London College Limited and Secretary of State for the Home Department[2011] EWHC 856 (Admin) Wyn Williams J concluded that there was a duty on the defendant to act fairly when considering whether to revoke status of approved sponsor at a college.

Article 8

16.       We recognise that the point on which permission to appeal was granted was the application of Article 8 ECHR to a points based refusal. We recognise that whilst there is no human right to an extension of stay under the points based system, bona fide applicants who have been permitted to enter the United Kingdom to pursue a course which may lead either to qualification or some other benefit in the United Kingdom may well develop a private life during such a stay which should not be arbitrarily interfered with and requires justification, although this is far from saying that Article 8 will fill any gap in the failure to comply with Immigration Rules (see CDS (PBS: “available”: Article 8) Brazil [2010] UKUT 305 (IAC) and MM and SA [2010] UKUT 481 (IAC).

17.       We are prepared to accept that the appellants have established a private life in the United Kingdom by reason of their lawful presence here for four and three years respectively. Normally the requirement of consistent application of immigration policy will justify interference with such private life because of the importance of the principle that the Secretary of State’s treats applicants fairly and consistently. However any structured analysis of the Article 8 claim in this case would require consideration of whether the interference in question was in accordance with the law. At that point the Article 8 analysis reflects the Tribunal’s general jurisdiction to determine whether decisions are in accordance with the law.

Error of law

18.       For reasons which we will briefly explain we conclude that this decision was not made in accordance with the law, because the appellant’s application was not treated fairly. The IJ appears to have given no consideration to this matter although submissions relying on Article 8 were advanced before him. We conclude that there was material error of law in his approach to this case. We set aside the decision and remake it.

Remaking the decision

19.       The salient facts in the present case are as follows:-

1) The appellant was lawfully present in the United Kingdom with leave to remain as a student and was a bona fide student.

2)          He made a bona fide application for an extension of stay as a student at a college which was an approved sponsor at the time of the application;

3)          Unbeknown to the appellant the college was removed from the list of approved sponsors by the Home Office during the time it was considering the application;

4)          Removal of the college from the list of sponsors was taken at about the same time as the decision to refuse the application, there was therefore no opportunity for the appellant to be informed of the consequences on his application of the respondent’s action.

20.       A refusal of leave to remain is a very serious step for the appellants. Subject to a successful appeal their leave to remain expires and their continued presence in the United Kingdom is unlawful and susceptible to summary removal. Further, there are now statutory restrictions on what material can be submitted post decision in certain classes of case: see s.85A NIAA 2002 inserted by s.19 Borders Act 2007 as from 23 May 2010; Commencement Order. Although we accept that such a person is free to make a subsequent application for leave that application cannot by definition comply with the Immigration Rules since the applicant has no leave to remain. We recognise that a broad construction of what is a variation of an existing application for leave to remain is required to be taken see JH (Zimbabwe and the Secretary of State for the Home Department) [2009] EWCA Civ 78 at paragraphs 35 and 36.  However, we consider it unlikely that a fresh application made after a refusal of the existing could be said to amount a variation of the refused application, albeit that leave is extended whilst an appeal can be brought (s. 3C (2)(b)). Variation of an extant application is all that is permissible by s. 3C (5) of the Immigration Act 1971 by way of exception to the rule prohibiting applications for variations of s.3C leave: see s.3C (4).

21.       If this is correct it follows that  not only will any fresh application made after a refusal not be one that can be considered in accordance with the Immigration Rules, it is also not one that can be the subject of an appeal to this Tribunal because it is made by someone who has no leave to remain. Moreover, the evidence in this and other cases that have come before the Tribunal on the same point indicates that responsible sponsors are unwilling to give unconditional sponsorship letters to students who would otherwise qualify for  admission for the course under offer if they have no leave to remain. We accept that in some cases sponsors may be unwilling to issue such documentation on a misapprehension of whether a person has leave pursuant to s. 3C of the Immigration Act 1971. We take this opportunity to emphasise that a person with s. 3C leave who has an in-time application for an extension of leave under consideration may vary that application by substituting a new college sponsor and sponsorship letters need therefore not be contingent on the outcome of the application.

22.       Where the applicant is both innocent of any practice that led to loss of the sponsorship status and ignorant of the fact of such loss of status, it seems to us that common law fairness and the principle of treating applicants equally mean that each should have an equal opportunity to vary their application by affording them a reasonable time with which to find a substitute college on which to base their application for an extension of stay to obtain the relevant qualification. In the curtailment cases, express Home Office policy is to afford sixty days for such application to be made.

23.       Although we accept that there is no such policy for refusal cases, fairness requires that such cases be treated in broadly the same way. The applicant must be given an equal opportunity before refusal of application to amend it in the way we have described. This was clearly not done in this case. The Home Office knew that it had suspended the college in January 2010 but no one else did. The applicant could not have known that subsequently the college’s status as an approved sponsor was revoked before his application for an extension of stay was decided.

24.       It is obviously unfair for the Secretary of State to revoke the college’s status after the application has been made when it was an approved sponsor and not to inform the applicant of such revocation and not afford him an opportunity to vary the application.

25.       None of this applies where the applicant has not been a bona fide student at the college where he is seeking to extend his stay, or where he has participated in the practices that may have led the college to lose its sponsorship status, or where he has had actual knowledge of the cessation that the termination of the college’s status as a sponsor either before the application for an extension of stay was made or shortly thereafter and when he had adequate opportunity to amend the application by seeking to substitute an approved college for an unapproved one.

26.       We accordingly conclude that the first Immigration Judge was right to reach the conclusion that the appeal should be allowed but gave the wrong reasons for doing so, by misunderstanding the policy relied on, rather than concluding that the decision was not in accordance with the law because it was unfair.

27.       The next question is how immigration judges faced with this problem should deal with similar applications. First, in our judgment they cannot remit a decision for reconsideration because they do not have the powers of the High Court to quash decisions and remit. Their powers are those set out in the statute and these include the power under s.87 of the 2002 Act to give a direction for the purpose of giving effect to its decision. Secondly, they cannot direct that leave to remain as a student be granted if in truth there has been no assessment of the applicant’s ability to comply with the relevant rules as the fresh sponsorship letter tends only to be provisional rather than absolute (see alsoSP (allowed appeal: directions) South Africa [2011] UKUT 188 (IAC). Thirdly, we doubt that in the normal case allowing the appeal under Article 8 and directing that exceptional leave be granted is appropriate where the only problem is that the applicant has not had a fair opportunity to submit an amended application.

28.       We have carefully considered whether an applicant needs a fresh grant of leave to remain in order to make a fresh application as a student with leave to remain within the rules that would bring eligibility under the rules and a right of appeal in the case of dispute. However, we do not think such a course is necessary in this case or generally. Where a judge finds that there was a duty to act fairly that has not been complied with in the particular circumstances of the case, he or she can allow the appeal on the basis that the decision is not in accordance with the law.

29.       In those circumstances no lawful decision has been made on the application and the application remains to be determined by the Secretary of State or the relevant officer and the leave to remain granted pursuant to s. 3C continues uninterrupted. A direction may be given to that effect where necessary specifying the time needed before the application can be determined to allow a fair opportunity to make representations.

30.       Where there has been no lawful refusal of an application, the application for leave to remain can be varied under s. 3C (5) as interpreted inJH (Zimbabwe) above.  We note that the decision of the UT in QI (para 245ZX(1) considered) Pakistan [2010] UKUT 217 (IAC) concluding that s.3C leave was not leave for the purpose of the Immigration Rules has been over-ruled by the CA in QI (Pakistan) v SSHD [2011] EWCA Civ 614 18 April 2011. It follows that subsequent UT decisions applying it (such as HM and others v SSHD [2010] UKUT 446 (IAC)) should no longer be followed. Hereafter, colleges can be informed either by the Home Office or by reference to this decision that such a leave entitles a college to make an offer to a student that can be considered by the Home Office. The offer need not be conditional on the grant of leave, because the student already has leave sufficient for this purpose.

31.       Accordingly in this case we state as follows:

1)          the decision is not in accordance with the law and therefore ceases to have effect;

2)          the application for leave to remain remains outstanding and must be determined in accordance with the law as set out in this judgement;

3)          what is required to give effect to the principle of fairness in this case is for a direction to be given that the fresh decision is not to be made for a period of sixty days from the date of the reason decision being transmitted to the parties to enable the appellant to obtain a fresh sponsorship letter that is current and enable his existing application to be varied to include study at the place set out in the new sponsorship letter.

32.       For the future, having clarified the requirements of fairness and how they are to be met in an individual case, we would expect the UKBA in a case of this kind where the particular circumstances identified at para [22] above are met to inform the applicant that the college is no longer on the approved list of sponsors and that a period of sixty days will be allowed for any variation of the application that the applicant may wish to make before it is determined. If the applicant fails to respond to the invitation there has been no breach of the duty of fairness.

33.       We were informed that UKBA is concerned as to the potential costs of imposing a duty of having to inform the applicant that the college was no longer sponsored. We are unpersuaded that this diminishes the duty to act fairly or the way in which the duty is discharged in the present case. The consequences of unfair decision making are much more costly than the consequences of sending out a simple letter. The present case is a good example. It has been considered by three judges on three separate occasions and with significant case management directions being given in between. Public cost of such measures far exceeds the cost of sending out a routine letter in standard terms that will enable all classes of applicants to be treated equally.

34.       We are equally unpersuaded that merely putting a list of unapproved sponsors on the website will serve as a substitute for notification of a change of circumstances since the application has been made. Of course, such a course may increase transparency and fairness in respect of applicants who can learn the status of their college before they apply and may therefore be a useful move. But it is unrealistic to expect an applicant who has applied to monitor the Home Office website every day just in case there has been a change in the sponsorship status of the college and relying on the college to notify those to whom it has issued sponsorship letters of a change of status may be equally ineffective.

35.       For these reasons we remake the decision by allowing the appeal and giving the directions set out in paragraphs 31 (2) and (3) of this determination.

Signed Date

Mr Justice Blake

President of the Upper Tribunal

(Immigration and Asylum Chamber)