TN (Bangladesh) v Secretary of State for the Home Department

This is an adjourned application for permission to appeal. I state at once that the application for permission to appeal is granted, for reasons which will emerge in the course of my judgment, so I treat this as an appeal.

It is the appeal of TN from a decision of Senior Immigration Judge Gill promulgated on 10 September 2008. TN came to this country from Bangladesh as a student. He was born on 8 October 1975. He came here on 17 February 2003 with student entry clearance valid from 30 December 2002 to 30 September 2003. He received further grants of leave to remain as a student: on 29 October 2003, 1 November 2004, 25 November 2005 and 27 November 2006. That last extension expired on 31 January 2008.

On that date (at any rate that is the date on the application; it has also been referred to as an application of 1 February 2008) TN applied for further leave to remain as a student. In his application form, known as an FLR (S), (standing, no doubt, for “further leave to remain as a student”) he relied on his enrolment at a college known as Cambridge College of Advanced Studies, where he was enrolled on a full-time BSc Computer Science course running into its second and third years. That application was made on a complicated form which goes through all the various matters about which, under the applicable rules of the Immigration Rules (in particular Rule 62, referring back to Rule 60) an applicant student such as TN has to satisfy the Secretary of State. That application form, when made, was, on the material before us, in good order save that on 12 February 2008, as I will explain further, TN found out that CCAS (as I shall refer to the Cambridge College of Advanced Studies) had fallen off the Register of Education and Training Providers, inclusion on which is a condition for a college such as CCAS to comply with if a student enrolled at such a college is to satisfy the requirements of the Immigration Rules.

On finding out straightaway on 12 February of CCAS’s default, TN sought to enrol himself at a new college, where he could continue his studies, which was on the Register, so as to bring himself back within the Rules. He explains this in the form by which he was subsequently to appeal from the Secretary of State’s decision. I will come to that. At any rate, subject to the admissibility for present purposes of the evidence involved, it is not disputed by the Secretary of State that TN did promptly re-enrol himself at a new college, this being called Abbey College, London, based in Ilford in Essex. There are letters before the court, albeit dated September 2008, which refer to his enrolment on 18 February 2008. However, that still lay in the background and what -- unfortunately for the progress of this litigation – TN did not do at that time is to write immediately to the Secretary of State by reference to his application explaining his new enrolment. At any rate, on 6 March 2008 the Secretary of State wrote to TN giving her reasons for refusing his application.

The first reason was that CCAS was not an institute included on the Register of Education and Training Providers. The letter went on to refer to an enrolment letter supporting his application confirming that he had been accepted for a course of study at the Regal Academic College of London and it said that the Secretary of State had taken that into account. Nevertheless the application was refused on the ground that the enrolment letter in relation to CCAS was in relation to an institute which was not included on the Register in question.

On 22 March 2008 TN filed his Notice of Appeal to the AIT from that decision of the Secretary of State. At that time TN, who appears today before us as a litigant in person, had the assistance of a solicitor, Miss Yaqub, who appears to have been employed by an organisation known as Britannia Crown, who signed TN’s Notice of Appeal. In that Notice of Appeal TN explained the grounds of his appeal as follows :

“[TN] submitted an application for further leave to remain as a student. He had applied as a full-time student at Cambridge College of Advanced Studies expressing his intention to complete a BSc in Computer Science. When the application was submitted Cambridge College was on the Register of Education and Training Providers.

On 12 February 2008 the administration department of Cambridge College of Advanced Studies informed [TN] that due to various errors they had been removed off the Providers register and that he should take all the necessary steps to make alternative academic arrangements for himself. Cambridge College had agreed to reimburse part of the fee [TN] had paid so that he could enrol into another college.

[TN] contacted Abbey College London to find out what courses they were running and when these were due to start. The College informed him that a place was available on a three year degree starting March 2008. The course fees would be £3500 per annum.

[TN] discussed the matter with his family whom all agreed that he should continue with his studies and that the problems that had occurred should not hinder his education in any way. [TN] immediately paid the enrolment fee to Abbey College London and accepted the conditional offer they had made.

[TN] has since started the course and is very much determined to put all the problems behind him and continue with his education.

[TN] aspires to complete his degree and return to his native country where he will join the corporate sector.”

In those grounds nothing was said about the Regal Academic College of London (“Regal”) which had been referred to in the Reasons for Refusal letter of the Secretary of State. It is now accepted on behalf of the Secretary of State that that reference to Regal was erroneous. TN has never had anything to do with Regal and has not submitted an enrolment letter in respect of it.

When that appeal came before Immigration Judge McDade on 21 May 2008, it came before him on paper. This was by agreement. In the second paragraph of Immigration Judge McDade's determination it is said that the application in question was for entry clearance for settlement in the United Kingdom as a spouse of a person present and settled in the United Kingdom. That is just another example of the errors which have befuddled these proceedings. At any rate, in paragraph 3 of Immigration Judge McDade’s determination reference was made to the correct Immigration Rules, which of course set out the requirements for an extension of stay as a student. One of those requirements, in Rule 60(iii), is as follows:

“has produced evidence of his enrolment on a course which meets the requirements of paragraph 57.”

Immigration Judge McDade allowed TN’s appeal on the ground that it was accepted that an enrolment letter had been submitted for acceptance at Regal and the Secretary of State had given no consideration to this supplementary information or considered whether Regal was an institute on the Register. So the matter had to go back to the Secretary of State for her to reconsider TN’s application on the false assumption that it was supported by an enrolment at Regal. Unfortunately, the matter being dealt with on paper, Immigration Judge McDade totally overlooked the grounds of appeal, which said nothing about Regal, which were premised on enrolment at Abbey, and so the Secretary of State’s error in referring to Regal in her Reasons for Refusal letter was duplicated and compounded.

On 5 June 2008 it was the Secretary of State who in turn asked for reconsideration on the ground that Immigration Judge McDade had erred in paying any attention to Regal because, it was said, TN had only raised his wish to study at Regal in his grounds of appeal after the Secretary of State’s decision. It was therefore submitted that Immigration Judge McDade was not entitled to take account of TN’s subsequent desire to study at a different educational institution, since this was not the basis upon which the application was made and subsequently refused by the Secretary of State.

These grounds further compounded the error in two respects. First, they continued to be addressed to the question of enrolment in Regal rather than in Abbey, which was the material which had been put before Immigration Judge McDade in the grounds of appeal, and secondly, it was assumed that the reliance upon enrolment in Regal was a matter which had only arisen post-decision. That was not the case. The reference to Regal, of course, arises in the original Reasons for Refusal letter of the Secretary of State itself.

This application for reconsideration subsequently came (following an order for reconsideration given by Senior Immigration Judge Chalkley on 19 June 2008) before Senior Immigration Judge Gill on 29 August 2008. TN knew about that hearing, of which he had been given notice, but he had been informed by Miss Yaqub, his former solicitor, that there was no need for him to attend. However, the Secretary of State was represented by a senior Home Office presenting officer, a Mr Sheikh.

First of all, Senior Immigration Judge Gill was satisfied that Immigration Judge McDade had himself made an error of law in allowing the appeal and referring the matter back to the Secretary of State without himself considering whether Regal had been included on the Register. If he had done so, he would have found out, said Senior Immigration Judge Gill, that it was not. Therefore, Senior Immigration Judge Gill said, she had to proceed to determine the appeal herself. She then allowed the appeal in the following terms:

“7.

I have checked the Register on the website of the DfES. I am satisfied that RACL is not included on the Register. This is sufficient to dispose of this appeal.

8.

Furthermore, I am not satisfied, on the balance of probabilities, that the appellant has shown that he is a genuine student who intends to follow his proposed course of studies and that he intends [to] leave the United Kingdom at the end of his studies. I make this finding for the following reasons. In his application dated 28 January 2008, the appellant stated that he intends to study at the Cambridge College of Advanced Studies (“CCAS”). This college is not included in the Register. Before the decision was made on 6 March 2008, he had submitted an enrolment letter which showed that he had been accepted to study at RACL. That institution is also not included on the Register. In his grounds of appeal dated 7 April 2008, he said that he had approached Abbey College London, that he had paid the enrolment fee to Abbey College London and that they had issued a conditional offer. In his grounds of appeal, he did not mention RACL. Although Abbey College London is included on the Register, no evidence of enrolment with that college has been provided. The fact that the appellant has moved from college to college within such a short space of time goes against him.

9.

Accordingly I am not satisfied that the appellant meets the requirements of the Immigration Rules for extension leave as a student.”

It is plain from that reasoning that from beginning to end Senior Immigration Judge Gill suffered under the mistaken impression that TN had in some way based his application to the Secretary of State upon enrolment with Regal. The actual decision (para 7) is based upon the single fact that Regal itself was not included on the Register: for Senior Immigration Judge Gill said: “This is sufficient to dispose of the appeal”. But in any event she went on to consider the reference to Abbey, which she, unlike Immigration Judge McDade, had observed had been relied on in TN’s original grounds of appeal. However, in the absence of any documentary evidence of enrolment with that college and in the light of the suggestion that TN was moving from one college to the other, she considered that his credibility as a genuine student could not survive examination. As she said at the beginning of paragraph 8, she was not satisfied that TN had shown that he was a genuine student who intended to follow his proposed course of studies. Accordingly, she reversed Immigration Judge McDade’s decision, and that left in place the original decision of the Secretary of State.

That determination of Senior Immigration Judge Gill was in TN’s hands within a few days. When he read about there having been no evidence of enrolment with Abbey, he proceeded -- with Miss Yaqub’s assistance, he tells us today -- to obtain a letter from Abbey of his enrolment. There are in fact three letters before the court now, the original one, dated 15 September 2008, having been written to TN himself to confirm that “You are enrolled” on the course, which is then identified and identified as having commenced on 18 February 2008. The letter also pointed out that the course fee of £3,500 had been agreed and paid and it also gave further details of the coursework and attendance involved. An effectively similar letter dated 16 September, instead of being written to TN himself, was addressed to “Dear Sir/Madam” and confirmed the enrolment of TN on the basis to which I have already referred. There is also a third letter dated 15 October 2008 written to TN which confirms -- in case it was in doubt in the previous letters -- that TN had joined the session on 18 February 2008.

On the basis of the first two of those letters, the third one following on somewhat later, TN applied to this court for permission to appeal from the decision of Senior Immigration Judge Gill, and also applied to admit the new evidence provided by the September letters from Abbey. That application was originally made to the AIT and refused on 30 September. The application was made very promptly on 17 September 2008. The application was refused by Senior Immigration Judge Gill herself on the basis that the letter did not state the date on which TN enrolled with the college. That, no doubt, is the reason for the subsequent letter in October. It also said that the letter postdated the date on which her determination had been promulgated.

The matter then came before this court on paper. In fact it was I who dealt with the matter. The matter was adjourned on notice with an appeal to follow if permission were granted on the basis that the fresh evidence appeared to show credible evidence of enrolment in a college which Senior Immigration Judge Gill had already found to be in good standing on the Register: but the relevance of Regal in the proceedings and the appearance of Abbey was puzzling. Why was TN still, apparently, as a mere reading of the documents suggested he was, relying on Regal rather than Abbey? I said that these matters, together with the underlying paperwork, would need to be explained to the court at the adjourned hearing. TN himself has not done the work of explanation but I am grateful to Mr Robert Kellar, instructed by the Secretary of State today, for having undertaken that spadework. As he has explained to us, he was able to obtain, ultimately, from the Secretary of State the original FLR (S) form which TN had completed at the end of January 2008 with its accompanying documents, and that showed that TN had not relied upon enrolment at Regal. On Mr Kellar’s further inquiries of the Secretary of State as to whether there was any other explanation or documentation supporting the reference to Regal in the Secretary of State’s original Reasons for Refusal letter, the answer came back that there was nothing to support that reference to Regal. It was accepted therefore by the Secretary of State, as Mr Kellar has candidly explained to us, that the reference to Regal was an error which can no longer be explained.

TN, in advancing his application and appeal today, has explained to the court the circumstances of these events. He has confirmed the material which I have read from his grounds of appeal to the AIT from the Secretary of State’s refusal letter and the circumstances in which he first failed and then succeeded in producing documentation from Abbey. His explanation is that he was assured by his solicitor, Miss Yaqub, who is also a solicitor for Abbey, that the documentation would be obtained in due course and put before the AIT on his appeal. None of that was done. It was not until he received the decision of Senior Immigration Judge Gill that he realised that documentation to support his enrolment with Abbey did not exist. He was then prompt in obtaining that evidence in the form of the letters to which I have referred. TN has given this explanation from the well of the court. We could have required him to give that evidence on oath, but none of it has been challenged by Mr Kellar in his helpful and realistic submissions, so we have not thought it necessary to ask TN to enter the witness box to support his submissions before us today. In effect what he has told us has not been challenged.

Mr Kellar’s challenge on behalf of the Secretary of State is a different one. He submits that this is new evidence that comes late; that in order to be admitted it has to pass the well-known threefold test laid down in Ladd v Marshall [1954] 1 WLR 1489: that the new evidence could not with reasonable diligence have been obtained for use at the hearing; that the new evidence must be such that if given it would probably have had an important influence on the result of the case though it need not be decisive; and that the new evidence was apparently credible although it need not be incontrovertible.

For these purposes Mr Kellar relies upon the first of those three tests. He raises no query about tests 2 or 3. Indeed, for the reasons that I have explained, he accepts that not only is the new evidence apparently credible but that it is correct and unchallenged. He therefore accepts that it would not only probably have had an important influence on the result of the case if, for instance, it had been before Immigration Judge McDade but that it would indeed have been decisive. None of that is challenged, but he says that it could have been obtained with reasonable diligence and that it is no use TN blaming his solicitor because he put himself in her hands, because it is clear on the authorities, for instance E and R v SSHD [2004] EWCA Civ 49; [2004] QB 1044 at paragraphs 23 and 83, that the error in this respect of an appellant’s legal representatives is held against the appellant himself.

Mr Kellar goes on to say that for the same reason, namely that this evidence could have been obtained earlier by TN, and that it is his fault or his representatives’ fault (which is to say the same thing) that it was not, is itself a reason why any error in respect of the question of the relevance of Abbey on the case before us cannot be counted as for an error of law: see the four conditions set out at paragraph 66 of E and R, in particular condition number 3 that “the appellant (or his advisors) must not have been responsible for the mistake.”

I take a somewhat different view of this matter. The new evidence which TN seeks to put before the court is not needed to show that the decision of Senior Immigration Judge Gill is vitiated by an error of law. It seems to me that Senior Immigration Judge Gill’s decision is vitiated from beginning to end by the Secretary of State’s own error in respect of Regal, quite irrespective of any question about whether any evidence about TN’s enrolment at Abbey could or could not have been obtained earlier. This is clear from the reasoning of Senior Immigration Judge Gill, which I have read earlier into this judgment in full. The dominant ground of her disposal of the appeal was simply the fact that Regal was not included on the Register. That was on the basis that Regal was in any way relevant to the decision. Secondly, she went on to consider the appellant’s credibility as a genuine student but she rejected that, essentially on the basis that reference of changes from Cambridge to Regal to Abbey was more than she could accept.

“The fact that the appellant has moved from college to college within such a short space of time goes against him.”

Therefore, in my judgment, on its own merits, irrespective of any new evidence concerning Abbey, Senior Immigration Judge Gill’s judgment cannot stand. It is vitiated by an error of law which is established, an error of law based upon an error of fact which is established and which is entirely the fault of the Secretary of State. The most that can be said against TN is that, in his grounds of appeal to Immigration Judge McDade, he did not expressly state that he knew nothing about Regal. I would not consider that to be in any way material to the error for which the Secretary of State is responsible and which has led first Immigration Judge McDade and secondly Senior Immigration Judge Gill into error on their determinations respectively.

Therefore prima facie the decision of Senior Immigration Judge Gill cannot stand. The effect is that one reverts to the decision of Immigration Judge McDade, which takes one back to the Secretary of State’s decision being vitiated and the requirement that the Secretary of State look at the matter again. However, Mr Kellar submits that, entirely vitiated as the reasoning of Senior Immigration Judge Gill is, as it stands her decision can be supported on the ground that her decision is immaterial. All that is necessary, Mr Kellar submits, is the underlying fact that Cambridge was not included in the Register. It is, however, at this stage, when the Secretary of State has to make that submission in respect of a decision whose reasoning is wholly vitiated, that one comes to the question of TN’s new evidence. What is the underlying relevance of the enrolment at Cambridge in the light of the new material which is not challenged (other than in its late appearance) that at a time before the Secretary of State had even given her decision TN had been enrolled at an institute in good standing on the Register? Mr Kellar submits that that is not good enough because at the relevant time that evidence had not been provided within the meaning of Rule 60(iii). However, Mr Kellar accepts that the question ultimately is not whether the necessary evidence was provided to the Secretary of State but whether it could be provided so as to meet the Rules at a time when the appellant comes before the AIT. Because of the extraordinary mistakes which have been made in this litigation that time is now and the question is whether the evidence should be admitted to this court. In my judgment this is one of those rare and exceptional cases where, in the interests of justice, the evidence should be admitted. As my view in such cases, the matter which drives the decision is whether the evidence is challenged in itself and decisive. It is not challenged and it is decisive. The problem is the procedural problem that the evidence could and should have been produced at an earlier time. This is of course a very necessary condition for new evidence, especially in cases where the evidence is in some sense controversial even if it is credible, and that is so that there should be an end to litigation, the absence of which of course is a great vice and contrary to the public interest. In this case, however, we have the exceptional case where the evidence in question is not challenged and is decisive and where the Secretary of State from beginning to end has compounded the difficulties in this litigation and has led to its extension by reason of the error concerning Regal, which starts its life in the original Reasons for Refusal letter.

In the meantime TN has been waiting on events this past year. He has, as he has explained to us, lost the course that he was on with the closure of Abbey and is presently waiting upon the outcome of these proceedings to see where he should go next. That is an understandable position to take in the circumstances.

It seems to me that the interests of justice not only require this court, if my Lords agree, to accept this new evidence, but that it also leads to a result which is fair between the parties. The effect of the vitiation of Senior Immigration Judge Gill’s determination is that, as I explained above, the matter goes back to the Secretary of State for a fresh decision via the now unaffected, even if in itself erroneous decision, of Immigration Judge McDade. So the Secretary of State will have to make a new decision in the new circumstances. Those new circumstances at present are that TN is no longer enrolled as a student. If that remains the position then he will not, as I understand it, be entitled to further leave to remain here on the basis that he is a student, a genuine student. However, now that TN has the decision of this court he is in a position to know whether to ask his family to support him financially with the wherewithal to enrol in a new establishment so that he can complete his studies in computer science. If he is unwilling to do that, then the Secretary of State will have an easy task to decide that an application for leave to remain as a student cannot be granted. If, however, he is able to satisfy the Secretary of State, when she comes to consider her decision anew, that he is a genuine student enrolled in good standing with an institute in good standing and is otherwise able to satisfy her about the conditions which he needs to satisfy her about in respect of an FLR (S) application for the purposes of rules 62 and 60 of the Immigration Rules, then he has a good chance that his application will be appropriately received by the Secretary of State. It seems to me that both the admission of the undisputed evidence in this case -- exceptionally, in the interests of justice -- and the consequences of this litigation as I have explained them are ultimately fair between the parties and in the interests of justice as I understand them.

Therefore for those reasons I would admit the evidence and allow the appeal..

I agree.

I also agree.