The judge made no reference to the case of Patel (Revocation of sponsor licence - fairness) India [2011] UKUT 211 . This authority from the Upper Tribunal indicates that, in circumstances where, through no fault or involvement of an appellant, a college at which he is studying or proposes to study loses its sponsorship licence after he applies for further leave to study there, then, pursuant to principles of common law fairness, the Secretary of State ought to grant that person a period of 60 days leave to enable him to find another college at which to study. Failure to do so renders the decision unlawful through unfairness.
Grounds of appeal and hearing before the Upper Tribunal
The grounds of appeal to the Upper Tribunal contend that the judge failed to consider or apply the authority of Patel . I took account of submissions from Mr Clarke representing the Secretary of State. Mr Clarke submitted that the wording and structure of the Secretary of State's Tier 4 policy guidance did not envisage multiple grants of variations of leave of 60 days on subsequent occasions. He submitted there was no case law suggesting the respondent was obliged to give repeated grant of leave to individuals in the appellant's position. Mr Clarke invited me to find that there must be consistency in both the nature of applications and decision-making and that fairness plays both ways. It was, he submitted, not proportionate to enable an individual in such circumstances to have a further grant of leave so they could find another college.
Discussion
I have considered the Tier 4 Sponsor policy guidance provided by Mr Clarke at the hearing (v16.0, valid from 26 November 2013). I can detect nothing in the wording of the guidance that would prevent an applicant in the appellant's circumstances from being granted a subsequent period of leave following an initial grant of 60 days to give him the opportunity to apply to another college. I do not accept that there would be uncertainty in a situation where individuals are able to make further applications after the second college to which they lawfully applied loses its licence. I am satisfied this is likely to be a relatively rare occurrence. Nor can I ascertain any disproportionally to the respondent in granting a further period of leave.
I am also satisfied, having regard to the authority of Patel , that there is no reason why the principles enunciated in that case ought not to be applied to the current situation. The appellant is entirely blameless as to the reasons why Northam College lost its licence. I am satisfied there is no reason why the appellant should be deprived of the opportunity of applying to a second college simply because he has already been granted a period of 60 days leave following the withdrawal of his first college's licence.
I am therefore satisfied that the judge's failure to apply the principles enunciated in the case of Patel does disclose a material error of law. I allow the appeal on the basis that the Secretary of State's decision is not in accordance with the law. The effect of this is that the application remains outstanding and it will be remitted back to the Secretary of State to enable her to make a lawful decision.
Notice of Decision
The determination of the First-tier Tribunal does disclose a material error of law. The appeal is allowed to the extent that the appellant's application remains outstanding until a lawful decision is made.
I direct that any fresh decision is not to be made for a period of sixty days from the date of the reasoned decision being transmitted to the parties, in order to give the appellant a reasonably opportunity to vary his application
No anonymity direction is made.
September 2015
Signed Date
Upper Tribunal Judge Blum
TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make a whole fee award for the following reason. The respondent acted unfairly in failing to give the appellant an opportunity to vary his application following the withdrawal of his college's sponsorship licence.
September 2015
Signed Date
Upper Tribunal Judge Blum