The Secretary of State for the Home Department v JA

Published Tier 4 guidance concerning the withdrawal of an education provider’s licence governs the limitation of existing leave. It does not promise a fresh 60-day grant of leave to a student whose original leave has expired when the Secretary of State decides the application.

The policy may distinguish between students with six months or more of extant leave and those with less. That distinction is neither irrational nor unreasonable. Leave continued only by statute pending an outstanding application does not bring a student within the guidance’s scheme for limiting extant leave.

The Secretary of State appealed against Immigration Judge Dawson’s determination, promulgated on 7 September 2010, allowing JA’s appeal.

JA had applied shortly before the expiry of his student leave. His proposed education providers subsequently lost the required approval or licence. At the date of the Secretary of State’s refusal, his original leave had expired, although it continued pending determination under section 3C of the Immigration Act 1971.

The First-tier Tribunal held that published Tier 4 guidance gave JA a legitimate expectation of 60 further days’ leave to enrol at another college. The central issue was whether that guidance required such a grant where the student’s original leave had already expired.

1. Appeal allowed. The First-tier Tribunal made an error of law. Its decision was set aside, and JA’s appeal against the Secretary of State’s decision was dismissed.

2. Paragraph 27 of the Tier 4 policy guidance concerned a decision to limit existing leave to remain after an education provider’s licence was withdrawn. Where the student was not implicated, leave of more than six months could be limited to 60 days; leave of less than six months would not be further limited. The wording did not contemplate a direct extension or a new 60-day grant of leave.

3. The policy required a positive decision by the Secretary of State; it did not automatically curtail leave upon licence withdrawal. Although the guidance was capable of producing arbitrary outcomes in other circumstances, that did not assist JA.

4. At every potentially relevant date, JA had no extant leave apart from statutory continuation under section 3C of the Immigration Act 1971. That continuation lasted only while his application and any appeal remained unresolved. The guidance was not intended to apply to such statutory leave.

5. It was neither irrational nor unreasonable to distinguish between applicants who applied while at least six months’ leave remained and those who did not. JA therefore had no legitimate expectation of 60 days’ further leave or a grace period from knowledge of the licence withdrawal.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s determination, and re-made the decision by dismissing JA’s appeal.
• First-tier Tribunal: Immigration Judge Dawson, in a determination promulgated on 7 September 2010, allowed JA’s appeal on the basis of a legitimate expectation arising from the Secretary of State’s Tier 4 guidance.