(Immigration and Asylum Chamber) Appeal Number: IA/01884/2013
THE IMMIGRATION ACTS
Heard at Field House
on 8th July 2013
UPPER TRIBUNAL JUDGE SPENCER
For the appellant: not present or represented
For the respondent: Mr L Tarlow, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant is a citizen of Pakistan, born on 22nd January 1972. His appeal against the decision of the respondent, made on 27th December 2012, refusing his application for further leave to remain in the United Kingdom as a Tier 4 (General) Student Migrant and to remove him from the United Kingdom under section 47 of the Immigration, Asylum and Nationality Act 2006 was dismissed, save that the appeal was allowed in respect of the decision to remove the appellant, on the grounds that the respondent’s decision was not in accordance with the law.
2. The appellant did not attend the hearing. I satisfied myself that he had been given proper notice of the hearing and had not provided any reason for his absence. In these circumstances I considered that it was in the interests of justice to proceed with the hearing in the appellant’s absence.
3. The appellant’s application was refused on the grounds that the Confirmation of Acceptance for Studies Checking Service was checked on 27th December 2012 and it confirmed that the CAS the appellant had submitted with his application had been withdrawn by the sponsor and therefore no points had been awarded.
4. In his grounds of appeal the appellant complained that the CAS was unfairly withdrawn by his sponsor even though he had paid the sum of £2,500. He said that his college had withdrawn his CAS and that of many other students. When they contacted the college they could get no answer. He said he was gathering the refusal letters of all students and would send them to the Tribunal shortly. In the event he did not do so.
5. In paragraph 14 of his determination the First-tier Tribunal judge said that he found that the parties agreed that the CAS number was withdrawn as at the date of decision, 27th December 2012. He found that the appellant was not entitled to 30 points as claimed for the reasons set out in the respondent’s letter of refusal. He also found that the appellant was not entitled to 10 points as claimed for maintenance (funds) as he had not provided a valid CAS with his application and therefore the respondent was unable to assess his remaining course fees and monthly maintenance (funds) requirement. He therefore found that the appeal under the immigration rules fell to be dismissed. He went on to dismiss the appeal on human rights grounds under article 8 of the ECHR.
6. Mr Tarlow was obliged to concede that the First-tier Tribunal judge had not considered the appellant’s grounds of appeal, namely that he was not a party to the decision to withdraw the CAS and was not aware of the action by the sponsor so that he should be given 60 days’ time to find a new CAS on the basis of fairness.
7. I am satisfied that this failure by the First-tier Tribunal judge amounted to an error of law. The difficulty facing the appellant, however, is that he did not seek an oral hearing of the appeal before the First-tier Tribunal at which he could have given evidence about not knowing that the CAS had been withdrawn and he did not attend the hearing before the Upper Tribunal, with the result that I have no more evidence before me than had the First-tier Tribunal judge.
8. No reasonable First-tier Tribunal judge could have allowed the appeal on the basis of unsupported assertions made by the appellant in his grounds of appeal. For the appellant to establish that the respondent had acted unfairly he would have needed to show that he was unaware of the withdrawal of his CAS and had no reasonable means of knowing that it had been withdrawn until the decision of the respondent on his application. In the same way that an allegation of dishonesty on the part of an applicant, made by the respondent, would have been incapable of establishing the truth of what was asserted in the absence of evidence (see RP (proof of forgery) Nigeria  UKAIT 00086), so the lack of evidence in support of the assertions made in the grounds of appeal would have proved fatal to the success of the appellant’s appeal, had the First-tier Tribunal judge considered the grounds of appeal. Therefore the error of law made by the First-tier Tribunal judge was immaterial to the outcome of the appeal, as the appeal had no chance of success.
9. In these circumstances I dismiss the appeal to the Upper Tribunal, so that the decision of the First-tier Tribunal shall stand.
P A Spencer
Judge of the Upper Tribunal