Students: Appeal Rights Arise From Statute, Not By Fiat

London Metropolitan UniversityR (Ahmed) v The Secretary of State for the Home Department [2015] EWHC 23 (Admin) (15 January 2015)

Subsequent to imposing an entry clearance ban on Mehmooda Begum for her brother’s “deception”, in this Tier 4 (General) case involving London Metropolitan University, sitting as a deputy judge, the vice president of the upper tribunal, Mr CMG Ockelton was unimpressed with everyone including Walker J who extended time and granted permission on the ground that it was arguable that the claimant, Khandaker Shaheen Ahmed, had been treated unfairly. The court was unhappy with the claimant because of his reluctance to provide a full account of the facts and also by an “arithmetical slip” at the hearing by his counsel. Ahmed entered the UK at the age of 23. He arrived as a student and renewed his leave from time to time and his last grant of leave, which expired on 8 October 2012, was as a student at the unfortunate London Metropolitan University (LMU).

Ahmed was accused of not attending his classes in LMU. Although he refuted this, evidence of his absences, in the form of a report from LMU, was included in the Home Office’s acknowledgment of service. Fourteen months afterwards, Ahmed’s evidence to rebut the allegation was that he was undertaking the first semester of his third year. He had not paid his fees and the court was not satisfied that he was interested in his studies.

As is well-known, LMU was removed from the list of approved sponsors and lost the ability to sponsor foreign students. Ahmed was not notified of this development and read about it in the media. On 5 November 2012, he made an application to remain in the UK, after overstaying for 28 days, on the basis that he wished to study at St John College. However, his application was incomplete and his course began one day after (on 6 November 2012) his 28 days of lawful overstaying expired. St John College lost its “highly trusted sponsor” status while Ahmed’s pending application was being considered by the Home Office: the invalidation of his sponsor’s licence voided his confirmation of acceptance for studies and he was refused leave on 19 February 2013. Aggrieved, he sought judicial review of the refusal.

Ahmed’s wish list included a decision entitling him to an in-country right of appeal and an opportunity to find another sponsor in 60 days. To remedy things, he wanted the decision of 19 February 2013 to be quashed and be given a period of 60 days to find a Tier 4 sponsor and submit a fresh application for consideration. He claimed that it was unfair to punish him for the revocation of the sponsor licences of LMU and St John College because these events were beyond his control. Citing Patel [2011] UKUT 00211 (IAC), he also contended that he had a further expectation from the Home Office because the guidance to LMU students was only issued on 11 October 2012 after his leave had already expired.

Ahmed’s claim was devoid of any merit and keeping one of his own decisions (also as deputy judge) from 2010 in mind, CMG Ockelton gave short shrift to the proposition that a right of appeal should be “granted” in this case. As the court said:

6. … Rights of appeal arise from statute, not from the Secretary of State’s fiat: that is clear from the decision of this court in Merriman-Johnson v SSHD [2010] EWHC 1598 (Admin), which the claimant cites. It is fair to say that this particular ground was not argued at the substantive hearing.

Indeed, it was hard for the court to see why Ahmed had been treated unfairly. He overstayed and his application which was rightly refused under the rules, as he did not meet the requirements of paragraph 245ZX(l), because of the period of 29 days before the commencement of the new course. Accordingly, he did not have a right of appeal and even if St John College’s sponsorship licence had remained intact, he would still fail in his application and would not have a right of appeal. In relation to fairness, the court made the following observation:

9. Of course the Secretary of State has an obligation to be fair. But she does that by publishing rules and policies, and by determining cases in accordance with them. There is an unfortunate tendency for claimants to equate “what is fair” with “what I want”. At least four different interests are likely to need to be balanced in an assessment of fairness: the claimant’s position and conduct, the Secretary of State’s position and conduct, the general public interest, and the position of other actual and potential applicants. The claimant’s case is based solely on some theory that his own conduct in remaining without leave entitles him to a benefit that no rule and no policy gives him.

The court also emphasised that Ahmed could not demand 60 days to sort his affairs out because that turned on section 3C of the Immigration Act 1971 which only arose where an in-time application is made and so in the instant case there was “simply no basis at all for suggesting or … demanding a grant of 60 days leave to a person who has allowed his leave to expire without making a proper application.”

Accordingly, Ahmed failed on the rules, there was not unfairness and had overstayed for two years but had chosen not to make any further efforts to apply for leave to remain. His case failed even if it was taken at its highest and Mr Ockelton concluded by saying that “it ought not to be taken at its highest. It is a claim which on any basis fails.”

Mr Ockelton may be right in all that he has said, but it is also equally clear that the Home Office picked on LMU because it was a not a posh school like London School of Economics (LSE) or University College London. LSE, of course, disgracefully took millions of pounds from Qaddafi and touted his son Saif Qaddafi, the proud holder of a LSE doctorate, as some high flying intellectual. We can only wonder what the acclaimed playwright George Bernard Shaw, one of LSE’s co-founders, would have made of all that? Lord Woolf’s investigation revealed that LSE’s multifarious connections with the Gaddafi regime  “grew like Topsy” so we can rest assured that George Bernard Shaw would be utterly shocked and disappointed, if not turning in his grave. As for my own degree from the “Libyan School of Economics”, well, frankly I am really ashamed of it these days.

It is noteworthy that even Mr Ockelton’s judgment is more reasonable in comparison to Cranston J’s strident decision in Han [2014] EWHC 4606 (Admin) where he held that an “unfortunate” Chinese claimant, who was set to study the MSc in Events Management at Bournemouth University (but had been “badly let down” by her representatives, and was also only a day late) would nevertheless face the full wrath of “the technical rules”.

As one of my Indian friends, an immigrant who teaches at the School of Oriental and African Studies, says:

Foreign students are no longer coming to study with us. Times are also hard for us as teachers because we have to regularly grass up our students to the Home Office if they don’t turn up for lectures and seminars!

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Cases, Immigration Rules, Judicial Review, PBS, Students, Tier 4 and tagged , . Bookmark the permalink.

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