Ashvin Kumar Somabhai Patel & Anor v The Secretary of State for the Home Department

Where an applicant makes a bona fide in-time application supported by an approved sponsor, and the sponsor’s licence is revoked before decision without the applicant’s knowledge or involvement, common-law fairness normally requires the Secretary of State to give a reasonable opportunity to substitute a new sponsor.

A refusal without that opportunity is not in accordance with the law. Allowing the appeal leaves the application outstanding and the applicant’s section 3C leave continuing. The Tribunal may direct that no fresh decision be made for 60 days, allowing a variation under section 3C(5) of the Immigration Act 1971.

The first appellant, an Indian student, made an in-time application for further leave under the points-based system. His proposed college was an approved sponsor when he applied, but its sponsor status was revoked before the Secretary of State refused the application. He did not know of that change and had no opportunity to obtain a new sponsor.

An Immigration Judge initially allowed the appeal on a mistaken understanding of the Secretary of State’s 60-day curtailment policy. Following a fresh refusal, a second Immigration Judge did not address the fairness issue. The Upper Tribunal considered whether the refusal was otherwise not in accordance with the law because common-law fairness required an opportunity to vary the outstanding application.

1. Appeal allowed. The second Immigration Judge made a material error of law by failing to consider whether the refusal was unfair. The Upper Tribunal set aside that decision and remade it.

2. Sections 84 and 86 of the Nationality, Immigration and Asylum Act 2002 empower an Immigration Judge to decide whether an immigration decision is otherwise not in accordance with the law. That includes the applicable common-law requirements of procedural fairness.

3. The appellant was a bona fide student who had made a bona fide in-time application supported by an approved college. The college’s sponsor status was revoked while the application was pending, without his knowledge and without any suggestion that he was responsible. Fairness required the Secretary of State to notify him and give him a reasonable opportunity to find a substitute college and vary the application. The curtailment policy’s 60-day period supplied an appropriate analogy, although that policy did not itself govern refusal cases.

4. The duty does not arise where the applicant was not a bona fide student, participated in conduct leading to revocation, or knew of the loss of sponsor status in time to amend the application.

5. Once an appeal is allowed because the refusal was unlawful, no lawful decision has been made. The application remains outstanding and section 3C leave continues. It may be varied under section 3C(5) of the Immigration Act 1971. The Tribunal cannot quash and remit as the High Court can, but may direct under section 87 of the 2002 Act that no fresh decision be made for 60 days from transmission of the reasoned decision.

6. The Tribunal directed that the outstanding application be determined lawfully after that period, enabling the appellant to obtain a current sponsorship letter and substitute the proposed place of study.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the second Immigration Judge’s decision for material error of law, and remade the decision.

• First-tier Tribunal: a first Immigration Judge allowed the appeal in August 2010, but on a mistaken understanding of the Secretary of State’s 60-day policy. After a fresh refusal, a second Immigration Judge considered the appeal on 9 February 2011 without addressing the fairness issue.