Rauf v The Secretary of State for the Home Department

Under paragraph 323A(a)(ii) of the Immigration Rules, curtailment of a Tier 4 migrant’s leave is mandatory where the migrant fails to commence study with the sponsor or the sponsor withdraws or excludes the migrant.

Procedural fairness may require an opportunity to find a new sponsor where the Secretary of State’s own change of position places an innocent applicant at risk without an opportunity to protect their position. That principle does not apply where the university independently withdraws its offer and the Secretary of State is not implicated. Procedural fairness concerns fair process, not parity of outcome.

An erroneous concession may be withdrawn where the issues can fairly be resolved and withdrawal causes no material prejudice.

Mr Rauf, a Bangladeshi Tier 4 student, appealed against the Upper Tribunal’s decision of 2 April 2016 allowing the Secretary of State’s appeal from the First-tier Tribunal. His university withdrew its offer before his MBA course began, and the Secretary of State curtailed his leave under paragraph 323A(a)(ii)(1) of the Immigration Rules. The First-tier Tribunal had allowed his appeal, following an erroneous concession that he should receive 60 days to find a new sponsor.

The appeal concerned whether the Upper Tribunal was entitled to permit withdrawal of that concession and whether the Secretary of State’s decision was procedurally unfair by analogy with Patel. The central issue was whether the university’s withdrawal, following an announced investigation into English-language qualifications, engaged any fairness obligation requiring a further opportunity to secure a sponsor.

The appeal was dismissed. The Court of Appeal unanimously agreed with the judgment of Sir Ernest Ryder, Senior President.

1. Paragraph 323A(a)(ii) of the Immigration Rules used mandatory language. For a Tier 4 migrant, leave was to be curtailed where the migrant failed to commence studying with the sponsor or the sponsor excluded or withdrew the migrant from the course. The two limbs had the same effect. The University of Sunderland’s withdrawal of the offer explained why Mr Rauf did not commence the course, and the Secretary of State was entitled to curtail his leave immediately.
2. The fairness principle in Patel (revocation of sponsor licence – fairness) (India) [2011] UKUT 00211 did not apply. That case concerned a change of position brought about by the Secretary of State, where an innocent applicant was unaware of the change and lacked an opportunity to protect their position. Here, the change was made by the university. The Secretary of State was not responsible for the university’s decision, and Mr Rauf had about seven months to find another sponsor and vary his leave.
3. Procedural fairness did not create a right to an equivalent substantive outcome or require comparison with persons facing different circumstances. No residual unfairness arising directly from the Secretary of State’s conduct was identified.
4. The Upper Tribunal was entitled to permit withdrawal of the erroneous concession. The relevant question was whether the essential issues could fairly be resolved after withdrawal, or whether prejudice or damage to the public interest made withdrawal impermissible. The principle was drawn from NR (Jamaica) v SSHD [2009] EWCA Civ 856, as summarised in CD (Jamaica) v Secretary of State for the Home Department [2010] EWCA Civ 768. There was no prejudice: the maximum benefit claimed was 60 days, while Mr Rauf had already had approximately seven months.

1. Court of Appeal (Civil Division) — On 24 July 2019, the court dismissed the appeal: [2019] EWCA Civ 1276.
2. Upper Tribunal (Immigration and Asylum Chamber) — On 2 April 2016, Judge Rimington allowed the Secretary of State’s appeal from the First-tier Tribunal, permitted withdrawal of the erroneous concession and re-made the decision.
3. First-tier Tribunal — On 22 February 2016, Judge Courtney allowed Mr Rauf’s appeal against curtailment and directed that a decision on his leave should not be made for 60 days to allow him to find a new sponsor.