Bhandari & Anor v Secretary of State for the Home Department

The Appellant is a citizen of Nepal and was born on 11 January 1986. Her dependent, her husband, Prakashchandra Sodari, is also a citizen of Nepal and was born on 18 July 1980.

On 22 October 2009, the Appellant was granted leave to enter the UK as a Tier 4 (General) student until 21 May 2011 in order to study for an MBA course with Tasmac London College (which awarded MBAs on behalf of the University of Wales).

In February 2011, the Appellant obtained a Confirmation of Acceptance for Studies ("CAS") to study for an ACCA course at the London School of Theology.

On 15 March 2011, the Appellant was granted further leave to remain until 28 June 2014.

In September 2011, the London School of Theology's licence was revoked when the Appellant was halfway through the ACCA course.

On 26 October 2012, the Appellant made a further application for leave to remain accompanied by a CAS, purportedly issued by King's College London ("KCL"), and for which she paid {9,500.

The CAS provided was false. The Appellant reported the fraud to the police and subsequently helped the authorities with their investigations.

On 18 November 2013, the Appellant submitted another CAS, issued by Grenville College, and applied to vary her application to study at KCL, which was still pending.

In April 2014, the SSHD revoked the sponsorship licence of Grenville College. The Appellant was not informed of this until 13 March 2015 when the SSHD wrote to her, inviting her to obtain and submit a new CAS within 60 days.

On 12 May 2015, the Appellant's solicitors wrote to the SSHD stating that she had been a victim of fraud and that the Secretary of State should "re-issue 60 days letter with explanation letter of special circumstances". The reason given for this was:

The statement attached explained that:

Inadvertently, I have become victim of bad timing. No reasonable Secretary of State would issue 60 days letter to find new sponsor, when it is well known that the sessions only start either in Easter or September.

Furthermore, every college & university ask us to provide letter from the Home Office for delay in deciding our application i.e. fraud investigation by the Home Office officials. Along with 60 days letter, the Home Office should have issued us letter explaining the circumstances."

On 26 May 2015, the SSHD refused the Appellant's application on the basis that there was no valid CAS and, consequently, she was not entitled to any points under Appendix A or Appendix B to the Immigration Rules. The SSHD also stated that if the Appellant wanted to rely on her private or family life, she should make a formal application on that basis. The SSHD's decision attracted a right of appeal to the FIT under section 82 of the Nationality, Immigration and Asylum Act 2002 and the Appellant duly exercised that right.

The FIT heard the Appellant's appeal on 23 September 2015 and dismissed it in a determination promulgated on 8 October 2015. The FIT concluded that the SSHD's decision was in accordance with the Immigration Rules and rejected the argument that there was any unfairness. The FIT also concluded that the Appellant's removal from the United Kingdom would not be incompatible with Article 8.

The FIT granted the Appellant permission to appeal to the UT on 12 April 2016. The UT heard the appeal on 23 May 2016 and dismissed it in a determination promulgated on 25 May 2016. The UT concluded that the FIT made no material error of law in dismissing the Appellant's appeal. The UT refused the Appellant permission to appeal to this Court on 19 July 2016.

The Appellant filed the Appellant's Notice with this Court on 18 August 2016. Gross LJ, on 20 February 2017, refused permission to appeal on the papers.

At the subsequent oral renewal hearing on 30 November 2017, Longmore LJ granted permission to appeal.

So far as relevant to the appeal, the relevant arguments put to the FIT and the determination made by the FIT Judge are as set out at as follows:

The Appellant has made little progress in her education in this country. She started studying for an MBA but had not completed it as the college went bankrupt. She then switched courses and started studying an ACCA course at the London College of Theology. That licence was revoked and she then went to the Educational Consultant and he gave her a CAS letter to study law at Kings College London. This was the CAS, which was fake. The CAS she presented for this present application is for a Diploma in Health Care Management at Grenville College and the college had its licence revoked. She said in evidence that she had registered with the ACCA and had

As the Appellant did not have a valid CAS, when her application was considered and then failed to obtain one during the 60 days period, the Respondent having acted appropriately in issuing the 60 day letter, she has not satisfied me that she meets the requirements to be awarded 30 points under Appendix A. Her application therefore falls to be refused under Paragraph 245ZX (c). '

On the appeal to the UT the Appellant's case was as summarised at [13] of the UT decision:

The essential reasons given by the UT for dismissing the appeal were as follows:

The first-named appellant had experienced a number of problems with her education in the United Kingdom a fact recognised by the Judge in her decision. She noted the appellant arrived in October 2009 to undertake an MBA course. The college she attended at went bankrupt so switched course and commenced an ACCA course at the London College of Theology. Their licence was revoked and she then went to a

At the hearing I clarified with Mr Uppal whether the appellant had submitted any rejection letters or requests for further information from any college or university and he indicated that no college had set out their position in writing. There was therefore no evidence before the Judge other than the appellant's own evidence.

Mr Uppal's argument today is that the respondent should have given reasons for the delay in dealing with the appellant's application and that by failing to do so the respondent treated the appellant unfairly. Mr Uppal did not provide me with anything that supported his argument that reasons for delay had to be spelt out in the refusal letter.

The delay in dealing with this appeal would not have altered the fact there was no CAS certificate. Putting a paragraph in the letter may have told the appellant that the respondent was aware of the delay but ultimately this application was refused because the appellants failed to provide the CAS within the extended period allowed. Nothing was adduced to the Judge nor myself suggesting the respondent's decision is unlawful because delay was not explained.

Although I sympathise with the appellant's predicament I am not persuaded the Judge approached their appeal incorrectly.

If no extension had been given, then the position would have been different. However, the fact the appellant was unable to provide a CAS within the sixty-day period and failed to put forward any evidence that the delay prejudiced her obtaining a CAS draws me to the conclusion that the Judge did not err in this appeal."

As set out in the grounds of appeal, the only ground now pursued is that "the decision of the UTJ to dismiss the appeal was wrong in law as it was perverse in that no reasonable tribunal could have reached such a decision" because "it was always the Appellant's case that she could not obtain the CAS certificate because of the fault of the Respondent" and "it was challenged that the 60 days letter dated 13 March 2015 was itself defective".

As explained by the Appellant's counsel, Mr Tabori, the essence of the ground advanced is that the SSHD created circumstances that prevented the Appellant obtaining a CAS (by delay in dealing with her application) and then unfairly failed to ameliorate those circumstances (by explaining the delay as requested) before refusing the Appellant's application.

In his written and oral submissions Mr Tabori developed this ground as follows:

It is established policy that where a sponsor's licence is revoked while a student's application for leave to remain is still under consideration their CAS will become invalid, but the refusal of their application will be delayed to give them 60 days to provide a new CAS — "the 60 day letter policy".

The 60 day letter policy reflects "common law fairness" as stated in the decision in Patel (Revocation of Sponsor Licence: Fairness: India), Re [2011] UKUT 211 (IAC) (Blake J). As stated at [22]:

What the duty of fairness requires and what amounts to a "reasonable opportunity" depends on the applicant's circumstances and the particular decision-making context see, for example, Thakur (PBS Decision: Common Law Fairness: Bangladesh), Re [2011] UKIJT 151 (IAC).

In the present case it was the SSHD's delay in dealing with the Appellant's application that led to the refusal of her requests for a new CAS. Having created that obstacle the duty of fairness required the SSHD to remove it by providing an explanation of the delay and thereby preventing it from being an obstacle.

As to the legal basis of this argument, regard must be had to the reservations as to the correctness of the reasoning in Patel expressed by this Court in the recent decision of Pathan and Islam v Secretary of State for the Home Department [2018] EWCA Civ 21()3 in which an unsuccessful attempt was made to extend Patel to Tier 2 cases — see, in particular, [58] and [781.

As Singh LJ explained in Pathan, it is important to distinguish between procedural fairness and substantive fairness — "Common law fairness" as referred to in Patel is to be taken as being a reference to procedural fairness [58].

In light, moreover, of the decision of the Supreme Court decision in R (Gallaher Group Ltd) v Competition and Markets Authority [20181 UKSC 25, [2018] 2 WLR 1583 it is "very doubtful" that there is any free-standing doctrine of substantive fairness [67]. As stated by Lord Carnwath JSC in Gallaher at [41]:

The "principle of treating applicants equally" as referred to in Patel is equally not a free-standing doctrine. As Singh LJ explained at [69]:

In so far as Mr Tabori's argument depends on apparent statements of principle made in Patel it accordingly rests on shaky legal foundations. The more fundamental difficulties facing his argument are, however, factual and, in particular, the lack of findings to support it and the adverse findings undermining it.

Fundamental to the argument advanced is the assertion that the SSHD's delay was the reason for the refusal of a new CAS. As to that:

As the FIT found at [19]:

As the UT found at [19] and [251, there was no evidence from any college or university to support the Appellant's case as to the reasons for the rejection of her applications, and this lack of evidence supported the conclusion reached by the FIT.

As to her own evidence, in her statement she said that she was not able to enrol at a "good" educational institution and that she was not willing "to risk further money by choosing 'A' rated sponsor". This recognises that this was an option but one which was not taken up by the Appellant as a matter of choice.

Further, the Appellant's chequered educational history would in itself be a reason for refusing a CAS, as set out by the FTI' at paragraph 19 of its determination. As the UT stated at [17]:

In summary, the FIT concluded that it had not been established on the evidence that SSHD's delay was the cause of the Appellant's inability to obtain a CAS and the UT upheld that conclusion and found that it involved no error of law.

Mr Tabori sought to contend otherwise by developing an argument based on the need to demonstrate academic progression to sponsors, the terms of the Tier 4 Guidance 5.20 and the fact that none of the exemptions set out in 5.21 applied to the Appellant. This was, not, however, evidence which had previously been relied upon and, even if it was open to the Appellant to place reliance upon it, there are no findings to support the argument now advanced.

For all these reasons, I agree with the conclusion of Gross I-J who observed as follows when refusing permission on the papers:

If the Appellant is unable to establish that the SSHD created circumstances that prevented her obtaining a CAS then the foundation of her argument that the SSHD unfairly failed to ameliorate those circumstances by explaining the delay falls away. There are in any event considerable difficulties at the second stage of the argument, not least establishing a duty to do more than provide a 60 day letter, identifying what the SSHD allegedly should have done or said, and showing that this would have made a material difference.

Like the UT judge and Gross LJ, I have sympathy for the Appellant, particularly in the light of her being defrauded of and the assistance she has provided to the authorities. In my judgment, there are, however, no grounds upon which this appeal can be allowed.

For the reasons outlined above I would dismiss the appeal.

I too have sympathy for the Appellant. However, I agree with Hamblen LJ that the appeal must be dismissed for the reasons he has given.

I agree.