Kose, R (on the application of) v Secretary of State for the Home Department

Withdrawal of sponsorship and a Certificate of Acceptance for Studies may constitute a material change of circumstances removing the basis for student leave to enter. The change may arise from the sponsor’s decision rather than from any decision of the Secretary of State. The deeming provision in Schedule 2 paragraph 6 of the Immigration Act 1971 does not operate where an earlier refusal is cancelled and temporary admission is granted within the statutory period. A fresh application for Tier 4 entry clearance must be made from outside the United Kingdom under paragraph 28 of the Immigration Rules.

The claimant, a Turkish national, held entry clearance as a Tier 4 student sponsored by an English-language school. On arrival, the school withdrew his sponsorship and Certificate of Acceptance for Studies after a telephone assessment of his English. An immigration officer cancelled his leave to enter.

The First-tier Tribunal accepted that the claimant had made no false representations but held that, without the Certificate of Acceptance for Studies, he had no right to enter as a student. The original refusal was withdrawn and replaced by a further refusal based on the change of circumstances. The claimant renewed an application for permission to seek judicial review, challenging the cancellation as unfair and unlawful and arguing that he had acquired deemed six-month leave.

1. Permission refused. The claimant had no arguable case that the defendant acted unlawfully.
2. Under Schedule 2 paragraph 2A of the Immigration Act 1971 and paragraphs 321 and 321A(1) of the Immigration Rules, the relevant question was whether circumstances had materially changed since leave was granted so that the basis for admission had been removed.
3. The grant of sponsorship and the Certificate of Acceptance for Studies formed the starting point. Their subsequent withdrawal was a material event which wholly undermined the foundation of the claimant’s leave. It was immaterial that the change resulted from the school’s decision rather than a decision by the Secretary of State. The approach was consistent with SSHD v Boahen [2010] EWCA Civ 585 and OR (Student: ability to follow course) Bangladesh [2011] UKUT 00166 (IAC).
4. The withdrawal of the January refusal and its replacement in April did not create deemed leave under Schedule 2 paragraph 6 of the Immigration Act 1971. The April notice was a cancellation of the earlier refusal under paragraph 6(3), and temporary admission was granted by the accompanying notices. That amounted to limited leave within paragraph 6, so the deeming provision was not triggered.
5. Paragraph 28 of the Immigration Rules was mandatory. Any fresh application for Tier 4 general student entry clearance had to be made while the applicant was outside the United Kingdom.

• First-tier Tribunal (Immigration and Asylum Chamber): The claimant’s appeal was allowed only to the extent that he had made no false representations; the Tribunal nevertheless held that withdrawal of the Certificate of Acceptance for Studies removed his right to enter as a student.
• High Court (Administrative Court): Permission to apply for judicial review was refused on renewal. Permission had previously been refused on the papers by a Deputy High Court Judge.