AM Contractor v The Secretary of State for the Home Department

A student seeking leave to commence a new course must satisfy the applicable Confirmation of Acceptance for Studies requirements in the Immigration Rules. A CAS from a B-rated sponsor does not meet the requirement for an A-rated or Highly Trusted Sponsor. A below-degree applicant must also attain Level B1 in every component of the required English-language test.

Advance publication of rule changes may generally provide adequate notice to affected applicants. Fairness remains fact-sensitive. The respondent's knowledge of a prospective sponsor downgrade may be material, but it was irrelevant where the sponsor's rating was already known and the applicant failed the English-language requirement.

The appellant applied on the final day of his existing student leave for further leave as a Tier 4 student. His CAS was issued by Herbert College for a below-degree diploma course.

The Secretary of State refused the application because the college held only a B-rated sponsor licence and the appellant had not achieved Level B1 in reading and writing. The First-tier Tribunal dismissed his appeal. He appealed to the Upper Tribunal, alleging unfairness because the relevant Immigration Rules had changed shortly before his application.

1. Appeal dismissed. The First-tier Tribunal correctly upheld the refusal. The appellant proposed to commence a new course, but his college was neither A-rated nor a Highly Trusted Sponsor. His CAS therefore failed to satisfy Paragraph 116(da) and (e) of Appendix A to the Immigration Rules.
2. The course was below degree level. Paragraph 118(c)(iii) required Level B1 in each of reading, writing, speaking and listening. The appellant did not achieve the required score in reading or writing, so the application was bound to fail.
3. The March 2011 announcement of the changes, followed by their coming into force on 21 April 2011, generally gave affected applicants adequate time to act. On these facts, the appellant and college had at least a month to consider the effect of the new requirements. The appellant instead waited until the final day of his leave to apply.
4. The appellant was able to take the required English-language test before applying. The timing of the rule changes did not prevent compliance; the difficulty was his failure to obtain the required scores. There was accordingly no unfairness.
5. Patel (revocation of sponsor licence – fairness) [2011] UKUT 00211 (IAC) was materially different. Fairness is a question of fact and degree. In a case involving a possible sponsor downgrade, the respondent's treatment of, and knowledge concerning, the institution may be important. That critical feature was absent here.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant's appeal and upheld the First-tier Tribunal's decision.
• First-tier Tribunal: IJ David Clapham dismissed the appeal against the Secretary of State's refusal of Tier 4 student leave, in a decision promulgated on 25 August 2011.