Sandeep Kaur v The Secretary of State for the Home Department

Where a pending Tier 4 application may be refused on a discretionary ground under paragraph 322 of the Immigration Rules, the Secretary of State must follow the published Patel process. That process gives an in-time applicant affected by the loss of a sponsor licence a reasonable opportunity to obtain a new sponsor and vary the application.

A refusal made without following that policy is not in accordance with the law. The unlawful decision ceases to have effect, leaving the application outstanding for a lawful decision.

The appellant, an Indian national with Tier 4 student leave, applied in time to extend her leave to study at a new college. The Secretary of State refused the application on the grounds that she had studied at a different college and that her proposed college was no longer an approved sponsor.

Her paper appeal was dismissed by the First-tier Tribunal. The Upper Tribunal set that decision aside for material error of law and remade the appeal. The central issue was whether the Secretary of State had acted fairly and lawfully by refusing without using the policy implementing the principles in Patel (revocation of sponsor licence-fairness) India [2011] UKUT 211 (IAC).

1. The appeal was allowed. The refusal was not in accordance with the law because the Secretary of State had not followed the applicable policy for an in-time Tier 4 applicant whose proposed sponsor had lost its licence.

2. The policy was intended to give effect to the common-law fairness principles identified in Patel (revocation of sponsor licence-fairness) India [2011] UKUT 211 (IAC). Where a case potentially attracts discretionary refusal under paragraph 322, the caseworker should follow the Patel process. The appellant should therefore have been given a reasonable opportunity to obtain a new sponsor, a new CAS and to vary her application.

3. The Tribunal did not need to decide whether the studies at St John’s College were supplementary studies authorised by paragraph 245W(c)(iv)(3) of the Immigration Rules. That question, including whether paragraph 322(3) was engaged, was for the Secretary of State when making a fresh decision. The Tribunal nevertheless observed that the Tier 4 guidance definition of supplementary study was relatively wide and that the appellant’s unchallenged evidence was that the studies did not interfere with her main studies.

4. No lawful decision had yet been made on the application. It remained for determination by the Secretary of State or another relevant officer. The appellant’s leave continued under Immigration Act 1971, section 3C, and she could vary her application within 60 days.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the First-tier Tribunal decision for material error of law, and remade the decision.

• First-tier Tribunal: Judge Sacks dismissed the appeal on the papers in a decision promulgated on 21 March 2013.

• First-tier Tribunal: Judge Ievins granted permission to appeal on 18 April 2013.