Case Comment: JA (revocation of registration – Secretary of State’s policy) India [2011] UKUT 52 (IAC)

Having glanced at this case, I noticed that I have been to visit the place which used to be called “The London School of Business and Computing” (LSBC) on behalf of a Gambian gentleman (“Mr G” – an overstayer) who phoned me last year with his immigration problem. His student visa was refused as his school’s sponsorship licence was withdrawn after his leave to remain application was submitted. The person in question, Mr G, works illegally in the UK and his passports are in possession of the UKBA.

Since I was in King’s Cross when Mr G called me (and since I had a valid travel card for the day), I decided to go and investigate what was up with the sponsoring school after I received Mr G’s refusal letters via fax.

Having arrived at the school’s former “grounds”, when I asked the security staff in the London Business Design Centre (where the LSBC was supposedly located) about the school they told me to “find another school for yourself”, and I thanked them for their great advice. “The Home Office shut the school down,” chirped the two African security guards in unison.

Since no one really cared about the students who lost out on fees (both to the closed school and UKBA) and whose visas were refused by the UKBA, to get even the said students just chose to defy the UK’s laws and remained here unlawfully to work. This is a slightly dangerous approach to staying in the UK but everyone’s doing it. Most people do eventually come to the attention of the authorities at some point and then they are removed.

Sorry to digress: in the instant case in the Upper Tribunal, the judges Gill SIJ and Irven J really lambasted both the Home Office and the respondent’s representatives for not complying with Carnwath LJ’s practice direction. At paragraph 3 of the determination the Tribunal was livid with the shambolic manner in which both parties had conducted their cases and, therefore, the Tribunal asked for a written explanation from them (within 14 days’ time) for not having produced skeleton arguments, a paginated bundle, and a chronology and bundle contents. Way to go Upper Tribunal, we need to see more of that.

The truth is that immigration judges are overworked and most of them will rarely do any advance reading beyond the grounds of appeal in any given case: they like to think on the spot (or at least they entertain the thought that can) and if one can convince them of a thing through superior advocacy and presentation then they tend to agree with one’s arguments.

It’s a great idea to “hit” them with it. The practical effect of hitting with it is that any representative with quality documents should win their case by dazzling the judges as most other representatives will have a really rubbish bundle (or even no bundle at all!). Just to digress again a bit but I would like to vouch for Tribunal officials and say that they will chase up after missing, late and unsent bundles in immigration appeals (the UKBA could learn from such courtesies and professionalism in a massive way).

The instant case established that if an educational provider loses its licence during the period between a student’s application for extension of leave as a Tier 4 (General) Student and the UKBA’s decision on the application, it is the SSHD’s practice (as presented in her guidance) to limit a student’s existing leave to 60 days, if the student has existing leave of six months or more and if the applicant was not connected to why the education provider lost its licence.

Moreover, the Tribunal clarified that the guidance sets out that the leave of a student who has less than six months will not be limited. However, this guidance does not enable applicants to legitimately expect that the SSHD will grant 60 days’ leave to any student whose original leave had expired by the date of the decision in order to afford him an opportunity to register or enroll with another educational establishment.

It was also determined that it was not irrational or unreasonable for the SSHD to distinguish between students who lodged extension of leave applications many months in advance of the expiry of their leave and those who do not.

At paragraph 17 the Tribunal found that the respondent’s submission that a “grace” period of 60 days, beginning from the students’ knowledge about the revocation of its sponsor’s licence, should be granted “whatever the circumstances” was unsustainable in law. It was also found to be reasonable if the SSHD distinguished between applicants who had six months leave remaining and those who did not.

Therefore, at paragraph 19 the Tribunal said that first instance immigration judge made an error of law by determining that the respondent could legitimately expect to be granted a further 60 days leave allowing him to regularise his status by enrolling at another educational institution.