Secretary of State for the Home Department v Mayank Vinodchandra Bhimani

A Tier 4 student’s leave may be subject to a condition restricting study to the institution recorded as the student’s sponsor. The Immigration Rules may impose that condition under section 3(2) of the Immigration Act 1971. A biometric residence permit identifying the relevant CAS number can constitute the required endorsement of the condition.

Accordingly, a student who changes to an institution with a different sponsor licence number must make a fresh application for leave. However, refusal under paragraph 322(3) of HC 395 requires the Secretary of State to recognise and exercise the discretion conferred by that paragraph. A failure to do so makes the decision unlawful notwithstanding the student’s breach of the study condition.

The student had been granted leave to study with Access College, London. When applying for further leave, he relied on a transcript showing that he had instead studied at One-Tech Training.

The Secretary of State refused the application under paragraph 322(3) of HC 395, on the basis that he had breached a condition restricting study to his sponsoring institution. The First-tier Tribunal allowed his appeal, holding that no valid study condition had been imposed and that the Secretary of State had not exercised the paragraph 322(3) discretion.

The Secretary of State appealed. The central issues were whether the student’s leave was validly subject to the sponsor-specific study condition and whether the refusal disclosed a lawful exercise of discretion.

1. The Secretary of State’s appeal was allowed in part. The First-tier Tribunal’s decision was set aside. The Upper Tribunal held that the refusal was founded on a valid restriction on the student’s study, but that the Secretary of State had failed to exercise the discretion required by paragraph 322(3) of HC 395.

2. Section 3(1)(c) of the Immigration Act 1971, as amended by section 50 of the Borders, Citizenship and Immigration Act 2009, permits limited leave to be subject to a condition restricting study. Section 3(2) permits the Immigration Rules to prescribe conditions attached in different circumstances. Paragraph 245ZW(c)(iv)(1) of HC 395 therefore validly imposed, on a Tier 4 student, the condition that study be undertaken at the institution recorded as the sponsor.

3. Section 4(1) did not require a separate individual written notice which displaced that Rules-based condition. It operates subject to what is otherwise allowed by or under the Act, including section 3(2). Further, the biometric residence permit recorded the CAS number of Access College. Properly interpreted, that was an endorsement satisfying article 3(3)(a) of the Immigration (Leave to Enter and Remain) Order 2000. The student had therefore breached his leave conditions by studying at One-Tech Training without a fresh application.

4. Nevertheless, the decision letter did not show that the Secretary of State appreciated or exercised the discretion under paragraph 322(3). Applying the guidance in Ukus [2012] UKUT 00307 (IAC), that omission rendered the refusal unlawful. The appeal was allowed only to the extent that the Secretary of State must make a fresh decision following a proper exercise of that discretion.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed in part. The First-tier Tribunal’s decision was set aside. The refusal was lawful in principle because the student had breached a valid study condition, but the matter remained for the Secretary of State to decide after properly exercising the paragraph 322(3) discretion.

• First-tier Tribunal: Allowed the student’s appeal on the grounds that no valid condition restricted study to the sponsoring institution and that the paragraph 322(3) discretion had not been exercised. No citation was stated.