ON APPEAL FROM THE UPPER TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOSES
MR JUSTICE BRIGGS
| Joxin Kizhakudan
||Appellant / Claimant
|- and -
|Secretary of State for Home Department
||Respondent / Defendant
Mr Ben Hooper (instructed by Treasury Solicitors) for the Respondent
Hearing date : Friday 27th January 2012
Crown Copyright ©
Lord Justice Rix :
Mr Kizhakudan's appeal litigation
"not in accordance with Immigration Rules being unfair and/or that the decision has been taken wrongly…Kindly note that the Immigration Rules are silent on this matter and it is the duty of the SOSHD to exercise correct scrutiny rather than relying on different policy guidelines…the SOSHD has failed to consider the appellant's circumstances sympathetically by providing him with an opportunity to rectify shortfall by change the college…"
However, there was no reliance on article 8, even though Mr Kizhakudan was told in the Secretary of State's decision letter, in the standard way, of his rights of appeal inter alia on human rights grounds pursuant to the Convention and was there given the conventional "one-stop warning".
"We will limit your permission to stay to:
? 60 days if you were not involved in the reasons why your approved education provider had their licence withdrawn (we will not limit your permission to stay if you have less than six months left. You may want to apply for permission to stay with another approved education provider during this time).
? immediately if we think you were involved in the reasons why your sponsor's licence was withdrawn."
"At the second stage of the proceedings (which required SIJ Waumsley to remake a decision) it was argued on behalf of [Mr Kizhakudan] that this was a de novo hearing and hence it was incumbent on the SIJ to reconsider [his] appeal under the Immigration Rules and under article 8 of the ECHR regardless of whether or not any human rights arguments had been raised before the Immigration Judge at the first tier tribunal. During the course of my submissions specific reference was made to the case of CDS (Brazil)  UKUT 00305 in support…"
The upper tribunal's determination
"8. Ms Panagiotopoulou argued that the Immigration Judge had erred in failing to consider the issue of the respondent's human rights. She conceded that human rights had not been raised in his grounds of appeal, but she informed me that she had been told by Mr Chempasakari, the representative of the respondent's solicitors who had appeared on his behalf at the appeal hearing, that he had raised human rights during the course of the hearing. However, reference to the Immigration Judge's contemporaneous record of proceedings disclosed that Mr Chempasakari's recollection in that regard was incorrect, and that human rights had not in fact been raised by him during the course of the appeal hearing."
Pausing there, I observe that it is no longer in dispute that the article 8 point was not raised before the first-tier tribunal. If Ms Panagiotopoulou understood Mr Chempakasari aright, he had been mistaken to say that he had in fact raised the point. Rather, as his witness statement now says, he had intended to raise the point, had it been necessary.
"9. Nevertheless, Ms Panagiotopulou submitted that the Immigration Judge should have considered the issue of human rights of his own motion. The respondent had been in the United Kingdom pursuing his studies for a little under nine years at the time of the appeal hearing, and had expended a lot of time and money in doing so. Although he had not established any family life in the United Kingdom, he had clearly established a private life…
11. Appeal to this Tribunal lies on a point of law only. It would therefore only be if I were to conclude that the Immigration Judge had made a material error of law in reaching his decision that I would be entitled to interfere with it. The first issue to be considered is therefore whether the Immigration Judge erred in law. I have no hesitation in concluding that he did. Indeed, Ms Panagiotopoulou accepted…that the Immigration Judge had erred in law…
13. Instead, Ms Panagiotopoulou argued before me that it was an error of law on the Immigration Judge's part not to consider whether the appeal should be allowed on human rights grounds instead. I am unpersuaded by her submission. The grounds of appeal contained in the respondent's notice of appeal are detailed. However, they make no reference of any kind to human rights…the respondent has not sought to raise a reply raising a human rights claim. For good measure, I note that there is no reference to human rights in the respondent's appeal statement dated 6 September 2010 which was submitted on his behalf at the appeal hearing.
14. If the respondent wished to rely on human rights grounds before the Immigration Judge, it was incumbent on him or his representative to raise the point. They did not at any stage take advantage of the opportunity to do so. It was plainly not an "obvious" point so far as the respondent or his representative were concerned. I am not persuaded that it was such as "obvious" point that the Immigration Judge could reasonably have been expected to raise and consider it of his own motion. In the circumstances, it was not an error of law on his part not to do so.
15. For these reasons, I am satisfied that if the Immigration Judge had not fallen into error in the way in which he did in misinterpreting the provisions of the appellant's Policy Guidance…he could not properly have done otherwise than to dismiss the appeal. I therefore now substitute a decision to that effect."
"I concede that the determination contains errors of law in that it allowed the appeal under the immigration rules when quite clearly para 245 ZX provides that the visa letter becomes invalid when the sponsor is withdrawn from the register of sponsors. However I raise HR (article 8 – private life issues) following CDS (Brazil)…"
That would seem to support her statement that she urged SIJ Waumsley to take account of article 8, as do her grounds of appeal to this court and SIJ Waumsley's response to them (see below).
"12. However, this is not an end of the matter as in this case, unlike in JA, we are dealing with a situation where an appellant in his particular circumstances has been deprived as at the date of the respondent's decision of an adequate opportunity of finding another college. This brings into play the common law duty of acting fairly in the decision making process…"
citing R (on the application of Q and others) v. Secretary of State for the Home Department  EWCA Civ 364. It reasoned –
"17. We are therefore satisfied that the judge was right to find that the decision was not in accordance with the law, not for the reasons he gave that there was a right to a grant of 60 days further leave under the policy, but because the appellant did not have a proper opportunity either of making representations following the closure of his college or of finding an alternative course with a licensed college before the decision was made on his application."
SIJ Waumsley's refusal of permission to appeal from the upper tribunal
"It is submitted that the SIJ erred in his approach to the 2nd stage of the consideration of the applicant's appeal (that is to say the remaking of the decision); having established that the original IJ's decision could not stand, it was incumbent on the SIJ to reconsider the appeal and arguments afresh and reach his own independent decision on whether the appeal should be allowed or dismissed; that reconsideration should have involved a consideration of claims under Immigration Rules and Human Rights arguments; the SIJ erred materially in his approach to the reconsideration as he did not engage with the arguments relating to article 8 (private life – following the dicta in CDS…) because in his view these matters had not been raised before the IJ at the first appeal. That approach was materially flawed…
It is respectfully submitted thus that there is a lacuna in the current guidance which does not provide for bona fides students who have in good faith applied from within the UK for further leave to remain in the UK with a sponsor whose licence is subsequently withdrawn."
"I am not persuaded that the grounds on which the respondent has applied for permission to appeal raise any arguable point of law which would have a realistic prospect of success on further appeal to the Court of Appeal. At the hearing before me, the respondent attempted belatedly to raise for the first time an entirely new issue which had not been argued before the Immigration Judge, namely that his removal from the United Kingdom would constitute a disproportionate interference with his right to respect for private and family life under Article 8 of the European Convention on Human Rights and Fundamental Freedoms. I declined to allow him to do so, but even had I permitted that issue to be raised for the first time before me, I would have decided it against the respondent in any event. On the undisputed facts of his case, he is plainly what may fairly be characterised as a classic "perpetual student" who had already been in the United Kingdom with limited leave to remain as a student for nearly 9 years and was seeking to extend his stay in that capacity for a further 18 months, no doubt with an eye to the "10 year winning post" required for indefinite leave to remain under paragraph 276B of the Immigration Rules (HC 395) as amended. I would not have permitted him to do so."
Lord Justice Moses :
Mr Justice Briggs :