THE IMMIGRATION ACTS. On 11 September 2014 On 30 September Before UPPER TRIBUNAL JUDGE ESHUN. Between

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1 IAC-AH-VP/DP-V1 Upper Tribunal (Immigration and Asylum Chamber) THE IMMIGRATION ACTS Heard at Field House Determination Promulgated On 11 September 2014 On 30 September 2014 Before UPPER TRIBUNAL JUDGE ESHUN Between MR MOHAMED THASRIEF MEERA LEBBIE MOHAMED MOWJOOD Appellant and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation: For the Appellant: Mr S Karim, Counsel For the Respondent: Mr T Melvin, HOPO DETERMINATION AND REASONS 1. The appellant is a citizen of Sri Lanka born on 16 November On 23 April 2013 First-tier Tribunal Judge Rowlands dismissed his appeal against the decision of the respondent dated 27 December 2012 to refuse to vary his leave to remain in the United Kingdom as a Tier 4 Student Migrant. On 14 May 2013 First-tier Tribunal Judge Nicholson refused the appellant permission to appeal the judge s decision. On 20 June 2013 an Upper Tribunal Judge also refused the appellant permission to appeal. On 24 January 2014 Upper Tribunal Judge Southern following an order of the High Court on 23 October 2013, granted the appellant permission to appeal on ground 1 only and refusing permission on all the other grounds. On 21 CROWN COPYRIGHT 2014

2 March 2013 Deputy Upper Tribunal Judge Appleyard in light of the High Court order of the Honourable Mrs Justice Andrews set aside the First-tier Tribunal s determination in so far as it relates to paragraph 245ZX(ha) of the Immigration Rules HC 395 (as amended) ground. The judge s remaining findings were to stand. 2. Mr Karim submitted a skeleton argument for the appellant, a supplementary bundle which included a Section 120 statement and a consolidated bundle and an authority s bundle five days before the hearing. 3. On the day of the hearing Mr Melvin submitted a skeleton argument on behalf of the respondent. 4. In his skeleton argument Mr Karim identified the two issues; the first dealt with the appeal under 245ZX of the Immigration Rules and more importantly dealing with the interpretation of 245ZX(ha) of the Rules. The second was a Section 120 claim made by the appellant on the basis that he has now qualified for indefinite leave to remain under 276B of the Immigration Rules. 5. I decided to deal with the Section 120 notice first. Mr Karim relied on the Upper Tribunal s decision in MU ( Statement of Additional Grounds long residence discretion) Bangladesh [2010] UKUT 442 (IAC) in particular the first head note which states: As held in AS (Afghanistan) and NV (Sri Lanka) [2010] EWCA Civ 1076, there is no time limit on serving a Statement of Additional Grounds in response to a Section 120 notice. Thus, an appellant may accrue ten years lawful leave (including leave extended by Section 3C of the 1971 Act) while his appeal is pending. The Tribunal may then be asked to decide whether the appellant qualifies for indefinite leave under the long residence Rule. 6. Mr Karim also relied on the Supreme Court s decision in Patel and Others [2013] UKSC 72. At page 5 under the heading Alam/Anwar it states: (iv) Whether the conclusion of the majority in AS Afghanistan v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385, that an appeal to the FTT covers not only any ground before the Secretary of State when she made the decision under appeal but also any grounds raised in response to a one stop notice issued under Section 120 of the 2002 Act, even if they had not been the subject of any decision by the Secretary of State and did not relate to the decision under appeal, is correct. (v) Whether the statements and evidence filed by Mr Alam and Mr Anwar to the FTT to additional grounds under Section 120 of the 2002 Act which the FTT was obliged to consider and determine, notwithstanding the bar in Section 85A of that Act. 7. At paragraph 41 the Supreme Court said: 2

3 41 The broader approach of the majority seems to gain some support for the scheme of Section 3C, under which (as is common ground) the initial application for leave to remain, if made in time, can later be varied to include wholly unrelated grounds without turning it into a new application or prejudicing the temporary right to remain given by the Section. Thus the identity of the application depends on the substance of what is applied for, rather than on the particular grounds or Rules under which the application is initially made. The same approach can be applied to the decision on that application, the identity or substance of which in the context of an appeal is not dependent on the particular grounds first relied on. 8. At paragraph 66 the Supreme Court held as follows: 66 Where the Secretary of State chooses to give a Section 120(2) notice, the aim is to flush out any new: (a) (b) (c) reasons for wishing to enter or remain and/or grounds for being permitted to enter or remain and/or grounds for not being removed or required to leave the UK. The statement in response need not repeat reasons or grounds set out in the existing application or decision which is the occasion for giving the notice equivalent Section 120(3). 9. In light of the above decided cases, I ruled that the appellant could raise at the hearing before me additional grounds by way of a Section 120 notice and that I was not barred from considering his additional grounds, even though I will be the primary decision maker. 10. I took the view however that I was not going to consider the merits of the application and that I would remit the application to the Secretary of State to consider whether the appellant met the requirements for indefinite leave to remain on the ground of long residence in the United Kingdom. 11. For that reason this part of the appeal is remitted to the Secretary of State. 12. Mr Karim then said that my decision to remit the Section 120 notice application to the Secretary of State rendered the appellant s appeal academic. Mr Melvin on the other hand wanted the Tribunal to make a decision on the issues upon which the appeal was remitted to the Upper Tribunal by the High Court. Consequently, I heard submissions from the parties. 13. Permission was granted by Mrs Justice Andrews on ground 1 only. In her observation she states as follows: C contends that the FTT erred in law in taking into account periods that were spent when C was not studying owing to disruptions in the college or during summer vacations. The UT arguably fell into error in refusing leave on this point. The case raises an important issue of principle on the construction of paragraph 245ZX(ha) of the Immigration Rules, a relatively new Rule on which there is no authority, and in light of the language of the 3

4 Rule, the appeal on that ground stands the real prospect of success. However the requirements of Cart are not satisfied as regards the remaining grounds. The FTT was entitled to decide that the ACCA course was at degree level for the purpose of the relevant Rule and there is no obvious error of law or other legally compelling reason for allowing an appeal on the Article 8 point. 14. The issue before me is the construction of paragraph 245ZX(ha). This Rule states as follows: If the course is at degree level or above, the grant of leave to remain the applicant is seeking must not lead to the applicant having spent more than five years in the UK as a Tier 4 (General) Migrant, or as a student, studying courses at degree level or above unless: 15. It was not argued on behalf of the appellant that any of the exceptions identified under this Rule applied to him. 16. The facts of this case that I can glean from the documents before me are that the appellant first entered the UK in 2004 with leave to study at the University of Gloucester until He did not attend the university and had taken short level 3 and level 4 courses in information technology. In 2007 he applied for further leave to study a BSc in technology and e- commerce at British Institute of Technology and e-commerce (BITE) and was granted leave until 31 October For about one and a half years of the period between September 2007 and 31 October 2010, he was not in fact studying. He found the course difficult. There were problems with the college. BITE s college s licence was also suspended for 6 months and as such he did not complete the course. 17. It appears from Mr Melvin s skeleton argument that the appellant s application to study on an ACCA course at Axon College was first refused on 29 April 2010 because he could not show that he had an established presence in the UK because the financial requirements were stricter. His appeal was allowed by a First-tier Judge on 1 April It would appear also that as a result of his appeal being allowed the Secretary of State extended the appellant s leave as a Tier 4 (General) Student until 30 January 2014 to undertake an ACCA-NQF level 7 course at Axon College. Axon College had its licence revoked on 24 April 2012 and on 8 June the appellant s leave was curtailed to expire on 7 August According to the appellant s grounds of appeal, he made a further Tier 4 application on 6 August 2012 that he made an in time application to study a CIMA NQF level 7 course from 20 August 2012 until 20 August 2015 at Shakespeare College. Having gone through the papers with a fine tooth comb, it is the refusal of this application that is the basis of this appeal. Indeed the respondent s reasons for refusal letter dated 28 December 2012 confirms that the appellant made an application on 6 August 2012 for leave to remain as a Tier 4 (General) Student Migrant and that this application is to study CIMA-NQF Level 7 from 20 August 2012 to 20 August 2015 at Shakespeare College. 4

5 18. On this evidence I find that the judge erred in law in deciding this case on the basis of the ACCA course. 19. Mr. Karim in his skeleton argument at paragraph 5 relied on the definition of degree level studies in the Immigration Rules, paragraph 6: degree level study means a course which lead to a recognised United Kingdom degree at bachelor s level or above, or an equivalent qualification at level 6 or above of the revised National Qualifications Framework, or levels 9 or above of the Scottish Credit and Qualifications Framework. 20. Mr. Melvin relied on the respondent s Guidance on Tier 4 (General) maximum time allowed to study at degree level or above. The Guidance is valid from 5 September Under the heading Applications made on or after 6 April 2012, it states: For applications made on or after 6 April 2012, paragraph 245ZX(ha) of the Immigration Rules restricts Tier 4 (General) students to a maximum of five years at degree level or above. Any period studying at degree level or above in the student route in place before 31 March 2009 also counts toward the maximum five years permitted at this level. Degree level courses are defined as those at: National Qualification Framework (NQF) level 6 Qualifications and Credit Framework (QCF) level 6 Scottish Credit and Qualification Framework level I find applying the definition of degree level study in the Immigration Rules and the definition in the respondent s Guidance that the CIMA-NQF Level 7 course the appellant was seeking further leave to study was at degree level or above. Consequently, the appellant is caught by paragraph 245ZX(ha). 23. My understanding of paragraph 245 is that it is about the grant of leave. This is confirmed in the respondent s Guidance on Tier 4 (page 59). The Guidance states that Immigration Rules paragraphs 245ZX(h)-(hb) are based on the grant of leave. 24. In this case the appellant was previously granted leave to study BSc Technology & Ecommerce from 24 September 2007 to 27 August 2010 at the British Institute of Technology. He was last granted leave to study ACCA-NQF Level 7 from 18 October 18 October 2010 to 24 April 2012 at Axon College. I find that his current application to study CIMA-NQF Level 7 from 20 August 2012 to 20 August 2015 at Shakespeare College if granted, will lead to the appellant having spent more than five years in the UK at a Tier 4 student migrant. 25. The respondent s Guidance on Tier 4 states at page 59 5

6 When calculating the period, you must not take into account: Interruptions to study you must include the fore course period in the calculation unless there are compelling and compassionate circumstances (for example, serious illness or disability). This is because the Immigration Rules paragraphs 245ZX(h) - (hb) are based on the grant of leave. Additional periods of leave granted before and after course dates, and It also states that to calculate how long a Tier 4 (General) applicant has studied at degree level or above, the caseworker must base his calculation on course start and end dates given in case notes, on visa letters and/or Confirmation(s) of Acceptance for Studies (CAS) used in: relevant previous decisions to grant leave to the student as either a Tier 4 (General) Student or as a student, and the CAS submitted with the current application. 27. Mr Melvin relied on the submissions in his skeleton argument that from 2007 the appellant was granted leave for three years to undertake a degree level course which he did not do. The fact is that at no time during this period of leave did the appellant write/contact the Secretary of State in order to request a change of course/college. The Secretary of State when granting leave confers with the college as to the dates of the course and the leave is granted on that basis. It would be perverse and the system would be unmanageable if only the attendant days count towards the five year Rule. The idea of discounting summer vacation/spring vacation, non-term times, weekends for the purposes of calculating the length of course has no merit. 28. He added that on the issue of college s licence being suspended, it is the Secretary of State s policy that ahead of revocation of its licence, the college is deemed to be still functioning and students still studying. 29. He added that the fact that Axon College was closed down was not a compelling or a compassionate circumstance. 30. Mr Karim on the other hand submitted that on the construction of paragraph 245ZX(ha), the periods that the appellant was not studying must not be taken into account when calculating the five year period of study. In this instance the appellant s college was closed down and that was a compelling and compassionate circumstance. 31. I find from the evidence the appellant gave to the judge and recorded at paragraph 4 of the determination is that from September 2007 and 31 October 2010, he did not study for one and a half years. His explanation was that he found the course difficult. There were problems with the college (BITE). They were not providing adequate teaching and the college s licence was also suspended for 6 months. I do not find that these 6

7 explanations amount to compelling and compassionate circumstances. I accept Mr. Melvin s argument that it is the Secretary of State s policy that ahead of revocation of its licence, a college is deemed to be still functioning and students still studying. Nevertheless if the appellant was finding the course difficult, he should have enrolled on a course that was not so difficult. If the college was not providing adequate teaching, he should have a better college. He did not do any of this and did not inform the respondent about his difficulties. Rather, he did nothing for one and a half years. The fact that he did not study for one and a half years, I find, undermines his claim to be a genuine student. 32. For the reasons given above I find that the appellant s appeal cannot succeed. 33. I dismiss the appellant s appeal. Signed Date Upper Tribunal Judge Eshun 7