Secretary of State for the Home Department v Ata Uddin Thakur

A Tier 4 student whose sponsor loses its licence has no automatic entitlement under published policy to 60 days’ further leave where the student has no extant leave capable of being limited. Leave continued only by section 3C does not attract that policy.

However, the Secretary of State must act fairly. Fairness is context-specific. Where a student was unaware of the suspension and revocation of the sponsor’s licence, and had no adequate opportunity before the refusal either to secure another college place or to make representations, refusal without that opportunity is not in accordance with the law.

The Secretary of State appealed against an Immigration Judge’s decision allowing Mr Thakur’s appeal, to the limited extent that refusal of further leave as a Tier 4 student was not in accordance with the law.

Mr Thakur had applied shortly before his student leave expired. His college’s sponsor licence was suspended and later revoked. He continued studying until the college closed, and then sought a place at another licensed college. The central issues were whether the Tier 4 policy entitled him to 60 days’ leave, and whether the refusal was nevertheless unfair because he lacked a proper opportunity to find an alternative college or make representations.

1. The Secretary of State’s appeal was dismissed. The Immigration Judge’s conclusion that the refusal was not in accordance with the law was correct, although not for the reason that the policy required a grant of 60 days’ leave.
2. The Tribunal followed JA (Revocation of Registration – Secretary of State’s policy) India [2011] UKUT 52 (IAC). The policy operated by limiting existing permission to stay. Mr Thakur’s leave had expired, and leave extended by section 3C of the Immigration Act 1971 was not current leave capable of limitation under that policy. He therefore had no policy entitlement to 60 days’ leave.
3. That conclusion did not end the matter. Applying the common law duty of fairness described in R (on the application of Q and others) v Secretary of State for the Home Department [2003] EWCA Civ 364 and R v Home Secretary ex p Doody [1994] 1 AC 531, the Tribunal held that fairness depends on the decision’s context and the affected person’s circumstances.
4. The evidence accepted below showed that Mr Thakur was not told of the suspension or revocation, continued studying until the college closed at the end of June 2010, and had only a short period before refusal on 15 July 2010. He had neither 60 days nor another reasonable period in which to find an alternative licensed college or make representations. Refusal without that opportunity was unfair and thus not in accordance with the law.
5. The subsequent conditional college offer did not itself establish compliance with the Immigration Rules. Following the Tribunal’s decision, however, Mr Thakur could provide evidence to the Secretary of State that he met the points-based system requirements.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed. The Tribunal upheld the result reached by the Immigration Judge, but substituted common-law unfairness for the judge’s policy-based reasoning.
• First-tier Tribunal: Immigration Judge Youngerwood allowed Mr Thakur’s appeal to the limited extent that the refusal was not in accordance with the law. The determination is unreported.