Upper Tribunal finds student unfairly refused leave to remain because college's licence was withdrawn
17 April 2011
The Upper Tribunal’s recent decision in Thakur (PBS decision - common law fairness) Bangladesh [2011] UKUT 00151 (IAC) comes as a welcome injection of common sense into the increasing complexity of Tier 4 of the Points Based System.
As was noted here, the current Tier 4 regime has very recently been extensively recast by statement of changes in the Immigration Rules HC 908. The changes, which are subject to transitional arrangements, will by the end of 2012 completely alter the structure of sponsorship for students.
At the moment a "Tier 4 licensed Sponsor” is an "education provider” (basically a college) which has been given a licence by the United Kingdom Border Agency (UKBA). To get such a licence and to keep it, colleges must be "accredited” by an accreditation body approved by the UKBA, and also comply with a range of duties set out in the Agency’s published Tier 4 Sponsorship Licensing Guidance. In this way the college effectively becomes responsible for ensuring that its students are complying with the conditions of their grant of leave to enter or remain – a role which in days now long gone was what Immigration Officers did themselves.
A licensed Tier 4 Sponsor can issue Certificates of Acceptance for Studies (CAS) to people who wish to study at that particular college. If the UKBA decides that the college is failing in its obligations it can suspend or remove the college’s licence.
The UKBA also confers "Highly Trusted Sponsor” status on Tier 4 Sponsors if they meet the requirements for this, which are set out in the Agency’s published Tier 4 Sponsorship Licensing Guidance. Among other things Highly Trusted Sponsors can provide courses at a lower academic standard than regular Tier 4 Sponsors can, as well as courses which include work placements for students.
Having a CAS issued by a licensed Tier 4 Sponsor who still has that licence when the application is determined by the UKBA is a condition for entry clearance or for leave to remain. Furthermore it is a condition of a person’s leave to remain that they are studying with a licensed Sponsor – and so if the Sponsor loses its licence all of its students find themselves in breach of that condition.
In the majority of cases those students will of course be entirely innocent of anything which led to their Sponsor losing its licence. Successive editions of the UKBA’s Tier 4 Policy Guidance (for students rather than Sponsors) addresses this scenario and says that when this happens students in the UK will have their leave limited to 60 days.
The desirability of this is clear. It provides a safety net for students and a period of leave to remain within which they can find a different college which does have a licence and continue their studies there instead.
In Thakur (PBS decision - common law fairness) Bangladesh the Asylum and Immigration Chamber of the Upper Tribunal considered the case of a student who had applied for further leave to remain as a Tier 4 (General) Student in December of 2009. He had leave to remain under the pre Points Based System "Student” Immigration Rules, and had enrolled in a college which had issued him with the necessary CAS.
By section 3C of the Immigration Act 1971 Mr Thakur’s leave to remain as a student was extended by the fact of his having made an application for further leave to remain until that application was determined by the UKBA.
However, by the time the UKBA determined his application (July 2010) it had withdrawn the student’s college’s Tier 4 licence and had removed that college from its published register of Tier 4 licensed Sponsors. The withdrawal of the licence had been preceded by its suspension – but the Guidance made clear that students were not to be told when their college’s licence was suspended. Since, as is noted above, the college’s retention of its Tier 4 licence at the time an application is determined is a condition of leave to remain as a Tier 4 (General) Student – his application was refused, and he had no leave to remain in the UK. Moreover because the licence had only been withdrawn in June 2010, Mr Thakur had had barely a month to try to find another college in order to get it to sponsor him and thereby to continue his studies.
The student appealed to the First Tier Tribunal, which allowed his appeal on the basis that the UKBA had failed to have regard to its own policy guidance under which it appeared that the student should have been given 60 days leave to remain. The Tribunal was considering the Secretary of State for the Home Department’s appeal against that decision.
The decision in Thakur (PBS decision - common law fairness) Bangladesh comes a little after that of the Upper Tribunal in JA (Revocation of Registration - Secretary of State’s policy) India [2011] UKUT 52 (IAC). In JA the Tribunal had considered the section of the October 2009 Tier 4 Policy Guidance and had concluded that it did not mean that people who didn’t have six months or more of leave to remain when the relevant college’s licence was withdrawn would get 60 days' leave. Instead it applied only to people who had lots of leave to remain (i.e. more than 6 months). Far from giving leave to remain to students affected by the withdrawal of the college’s licence the policy guidance instead reduced such leave to 60 days. 60 days would, the rationale went, be enough time for such an affected student to obtain a new Tier 4 Sponsor.
In Thakur the Tribunal rejected the submission that in this respect the determination in JA was wrongly decided. It agreed that students whose only leave was that extended by section 3C of the Immigration Act 1971 couldn’t get 60 days' leave to remain under the policy guidance if their college’s licence was revoked.
The Tribunal was nonetheless concerned by the fact that Mr Thakur had effectively had no or inadequate notice of the decision to revoke his college’s licence. By reasoning that a student who didn’t get 60 days' leave wouldn’t be given adequate notice (this being the function of the 60 days) it followed that Mr Thakur had been treated unfairly.
The public law principle of fairness enshrined in Lord Mustill’s speech in R v Home Secretary ex Doody [1994] 1AC 531 had to be observed in any administrative decision. Since in Mr Thakur’s case the principle hadn’t been applied, the decision to refuse his application was not in accordance with the law, and the First Tier Tribunal’s decision was therefore upheld by the Upper Tribunal.
While the Upper Tribunal has been careful to point out that what is or isn’t fair will vary according to the circumstances of each case – it’s difficult to resist the conclusion that the Tribunal has identified a fundamental flaw in the Tier 4 regime.
This is that students whose leave to remain in the UK is jeopardised by things (like the withdrawal of their Sponsor’s licence) over which they personally have no control and for which they cannot be held responsible are not treated fairly by the regime.
The changing face of accreditation and therefore of Sponsorship under Tier 4 may mean that in the future the incidence of such unfair treatment may be reduced – but the current regime has been in place for nearly two years and there are many instances of appeals by people in Mr Thakur’s circumstances coming before both the First Tier Tribunal and the Administrative Court.
