(Immigration and Asylum Chamber) Appeal Number: IA/18483/2010
THE IMMIGRATION ACTS
Heard at Field House
On 8 July 2013
On 19 July 2013
UPPER TRIBUNAL JUDGE ESHUN
For the Appellant: Mr T Bonavero, Counsel, instructed by Oracle Solicitors
For the Respondent: Miss J Isherwood, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant is a citizen of Mauritius born on 8 April 1986.
2. The appellant appeals against Immigration Judge Widdup’s decision promulgated on 23 August 2010 to dismiss her appeal against the respondent's decision made on 19 March 2010 to refuse to grant her leave to remain under the provisions of the Tier 1 (Post-Study Work) scheme then in existence. The Immigration Judge was not satisfied that the appellant was entitled to further leave to remain as a Tier 1 (Post-Study Work) Migrant as she was unable to show that Liverpool College of Management and Sciences (LCMS) was at the date of the respondent's decision a recognized or listed body or that it held a sponsor licence under Tier 4 of the Points-Based System.
3. In granting permission to the appellant to appeal on 19 October 2010, Senior Immigration Judge Latter said that the point the appellant sought to make was that the LCMS had previously been a listed body but after she had completed her studies and been awarded her degree from the University of London at some stage it became delisted. The appellant conceded that she was not aware of what happened to LCMS after she left it but in substance argued that subsequent events should not disqualify her from qualifying for leave to remain as a post-study work migrant. SIJ Latter doubted whether there was any substance in this argument as the Rules required the college to qualify in one of those capacities as at the date of decision.
4. He granted permission however, in the light of the comments made by the Court of Appeal in Pankina and the Tribunal in CDS, as it was arguable that the appellant in the light of her circumstances may have had a claim on human rights grounds which the judge should have considered.
5. The appellant’s appeal came before Senior Immigration Judge Waumsley on 7 February 2011. On the issue on which the respondent refused the appellant's application, SIJ Waumsley at paragraph 28 stated that he was satisfied that the interpretation contended for by the appellant's representative was the correct one, namely that the appellant was entitled to satisfy the requirements of the relevant paragraph by showing that the UK institution at which she studied was a “recognised or listed body” at the time when she was studying there. She was not required to show that it was still a recognised or listed body at a later date, i.e. when she made her application for leave to remain as a Tier 1 (Post-Study Work) Migrant. Indeed that interpretation was confirmed in a subsequent decision by the Upper Tribunal in the case of Adubiri-Gyimah and Others (Post-study work - listed institution) Ghana  UKUT 123 (IAC). This finding in the appellant’s favour does not bring the appellant’s appeal to an end.
6. At the hearing before SIJ Waumsley the HOPO adopted a further ground on which he submitted that the appellant's application under the Immigration Rules was bound to fail in any event, namely that she had failed to disclose a material fact, i.e. her real intention when applying for leave to remain as a Tier 1 (Post-study Work) Migrant was not to undertake post-study work, but to continue with her studies at Birkbeck College. The HOPO based that submission on the appellant’s own words as set out in her grounds of appeal dated 3 April 2010 and as confirmed by her during the course of the hearing before the Immigration Judge.
7. After hearing evidence briefly from the appellant, SIJ Waumsley said he was satisfied that when the appellant applied for leave to remain as a Tier 1 (Post-Study Work) Migrant, her real intention in doing so was to enable her to continue her studies at Birkbeck College, not to enable her to undertake post-study work. Her application was in reality just a device to evade the requirements of the Immigration Rules which she could not satisfy as a student, and her failure to disclose her true intention to the respondent amounted to a failure to disclose a material fact to the respondent within the meaning of paragraph 322(1A) of the Immigration Rules. This was a mandatory ground for refusal. For that reason he dismissed the appellant's appeal.
8. The appellant appealed that decision to the Court of Appeal. On 18 December 2012 Sullivan LJ on reading the Notice of Consent dated 22 May 2012 signed by the solicitors for the appellant and the respondent, treated the application for permission to appeal as allowed without determining the merits of the appeal for the reasons set out in the Statement of Reasons. He remitted the matter to the Upper Tribunal for determination.
9. It was for this reason that the appellant’s appeal came before me today for hearing.
10. The following paragraphs from the Statement of Reasons are pertinent to this appeal. They are:
“9. The appellant made an application for permission to appeal to the Court of Appeal. This was refused by Lord Justice Toulson on 5 August 2011 on the basis that it was not unfair of the Senior Immigration Judge to permit the SSHD to raise the issue of material misrepresentation since it arose from the appellant's own grounds of appeal.
10. The appellant renewed to an oral hearing and permission was granted by Lord Justice Sullivan on the basis that the appellant's case was unusual in that the particular ground of objection was raised at such a late stage and as a result the appellant was not afforded a fair opportunity to present the full picture.
11. The respondent accepts that there is merit in the appellant's argument that there may have been potential procedural unfairness in the method in which the Upper Tribunal dealt with the unusual circumstances of a further ground being raised at a very late stage.
12. In the particular factual circumstances of this case, the Secretary of State agrees that the appeal should be allowed and the case should be remitted to the Upper Tribunal of the Immigration and Asylum Chamber.”
11. Mr Bonavero sought to argue that it was down to the respondent to raise again the issue of dishonesty, that is whether the appellant’s real intention was to study when she made her application for leave to remain as a Tier 1 (Post-Study Worker. I ruled against him because I took the view that Lord Justice Toulson had ruled that it was not unfair of the Senior Immigration Judge to permit the SSHD to raise the issue of material misrepresentation since it arose from the appellant's own grounds of appeal. There was therefore no need for Miss Isherwood to raise the issue again. What was at issue was that the appellant was not afforded a fair opportunity to present the full picture and that led to a procedural unfairness.
12. It became the only live issue which needed a decision.
13. I heard evidence briefly from the appellant. She adopted her statement of 4 July 2013. When questioned by Miss Isherwood she confirmed that it was her intention at the time of the application to study part-time at Birkbeck College and work full-time. Her part-time studies would be undertaken in the evening. Indeed I am aware that Birkbeck College engages in part-time evening courses only.
14. On the evidence before me I found that there was no dishonesty by the appellant. She had throughout her application and grounds of appeal stated precisely what her intention was - it was to study an evening course at Birkbeck College whilst at the same time undertaking daytime employment. That employment would amount to post-study work. I found that there was no dishonest intention by the appellant
15. The appellant’s appeal is allowed.
Upper Tribunal Judge Eshun