Jiginashaben Nitinkumar Patel v The Secretary of State for the Home Department

Where a Tier 4 sponsor’s licence is withdrawn, the November 2009 UKBA Policy Guidance limits an innocent student’s existing leave to remain to 60 days only where the student has more than six months of that leave remaining. It does not affect leave of less than six months and does not grant a further 60 days where leave has expired.

Any applicable 60-day restriction runs from notification by the Secretary of State that the restriction has been imposed. The policy applies to a student actually undertaking the relevant course, not merely awaiting permission to begin it.

The appellant, an Indian national, applied before the expiry of her leave to remain for an extension as a Tier 4 (General) Student Migrant. Her proposed college later lost its Tier 4 licence. Her application was refused because the college was no longer a Tier 4 sponsor.

An Immigration Judge dismissed her appeal. With permission, she appealed to the Upper Tribunal. She contended that the respondent’s policy entitled her to a 60-day period after refusal in which to find another sponsor. She also relied on article 8 of the European Convention on Human Rights.

The central issue was whether the policy concerning withdrawal of a sponsor’s licence extended a student’s expired leave, or merely restricted subsisting leave.

1. Appeal dismissed. The Immigration Judge made no error of law in dismissing the appeal.

2. The policy guidance was clear. For an innocent student whose sponsor’s Tier 4 licence is withdrawn, it operates as a restriction of existing leave to remain. If more than six months of leave remains, it may be limited to 60 days. If less than six months remains, it is not further restricted. The policy does not create an additional period of leave.

3. The appellant’s leave had expired before the relevant withdrawal of the college’s licence. There was therefore no remaining leave capable of restriction. The asserted 60-day extension could not assist her. The Tribunal’s construction was supported by SSHD v JA [2011] UKUT 52 (IAC) and SSHD v MM & SA [2010] UKUT 481 (IAC).

4. In any event, the policy referred to a student already studying. It was confined to a student actually enrolled on the relevant course at the sponsor institution when its licence was withdrawn. The appellant had never begun that course.

5. If the restriction applies, it runs from notification by the Secretary of State that it has been imposed. It cannot take effect upon an uncommunicated withdrawal of the sponsor’s licence.

6. The refusal was not a disproportionate interference with article 8 rights. The appellant had not made a serious attempt to find an alternative course after learning that the college was no longer licensed, and her limited English raised a real doubt about her ability to undertake the proposed advanced course.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the determination of the Immigration Judge.

• First-tier Tribunal: Immigration Judge Buchanan, determination promulgated on 11 November 2010, dismissed the appeal against refusal of leave to remain as a Tier 4 student.