Thakur (PBS decision -� common law fairness) Bangladesh

Factual and Procedural Background

The case concerns an appeal by the Secretary of State against a determination by an Immigration Judge that allowed an appeal by the Respondent against a decision refusing further leave to remain as a Tier 4 (General) Student Migrant. The Respondent, a citizen of Bangladesh, arrived in the UK with leave to remain as a student until 31 December 2009. He applied for further leave on 29 December 2009 while enrolled at a college that subsequently had its Tier 4 sponsor licence suspended in January 2010 and revoked later, ceasing operations in July 2010. The Respondent was not informed of the licence revocation and continued attending the college until it closed. He then sought to enrol at another licensed college but faced difficulties due to lack of endorsed leave in his passport. The original refusal decision was made on 15 July 2010, based on the college no longer being a licensed Tier 4 sponsor. The Immigration Judge found that the refusal was not in accordance with the law due to failure to comply with the common law duty of fairness, as the Respondent did not have an adequate opportunity to find another college or make further representations before the decision was made. The Secretary of State appealed this determination.

Legal Issues Presented

1. Whether the Secretary of State’s decision to refuse further leave to remain as a Tier 4 (General) Student Migrant was lawful, considering the common law duty to act fairly in the decision-making process.
2. Whether the policy guidance on granting 60 days further leave in cases of sponsor licence withdrawal applied to the Respondent’s circumstances.
3. Whether the Respondent had an adequate opportunity to find an alternative sponsor college or make representations before the refusal decision.
4. The applicability of Section 85(4) of the Nationality, Immigration and Asylum Act 2002 to the Respondent’s conditional offer from another licensed college.

Arguments of the Parties

Appellant's Arguments

• The policy guidance cited by the Immigration Judge did not mandate a grant of 60 days leave in the Respondent’s circumstances because he did not have extant leave that could be limited to 60 days or more than six months.
• The Immigration Judge failed to correctly identify and apply the relevant policy guidance.
• Reliance on the Tribunal determination in JA (Revocation of Registration - Secretary of State's policy) India [2011] UKUT 52 (IAC), which held that the policy did not apply to appellants without extant leave.
• Accepted that there could be exceptional cases where appellants might not have had an adequate opportunity to find an alternative college, but argued the policy did not cover the Respondent.

Respondent's Arguments

• The Secretary of State failed to consider and apply the appropriate Tier 4 policy guidance, which should have led to a grant of 60 days leave to remain.
• The Respondent was entitled to rely on Section 85(4) of the Nationality, Immigration and Asylum Act 2002, as he had obtained a conditional offer from a licensed sponsor college.
• Argued that the Tribunal determination in JA was wrongly decided.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court examined the relevant Tier 4 policy guidance, which provides that where a sponsor's licence is withdrawn, students not involved in the reasons for withdrawal will normally be granted 60 days further leave to find another sponsor. However, this policy is framed in terms of limiting existing leave and does not apply to appellants without extant leave beyond statutory extensions under s.3C of the Immigration Act 1971.

The Tribunal in JA had previously held that appellants without extant leave are not entitled to the 60-day period and that the policy does not create a legitimate expectation of such leave. The Court in the present case agreed with that reasoning and did not depart from the JA decision.

Nonetheless, the Court found that the Respondent’s circumstances were materially different from JA because he was not aware of the licence suspension or revocation and continued studying until the college closed. He was not given notice by either the college or the Secretary of State and thus had no adequate opportunity to find an alternative sponsor or make representations before the refusal decision.

This failure to provide an adequate opportunity violated the common law duty of fairness as articulated in R (Q and others) v Secretary of State for the Home Department and the principles set out by Lord Mustill in ex p Doody. The Court emphasized that fairness is context-dependent and must be applied flexibly rather than rigidly.

Therefore, although the 60-day policy grace period did not apply, the refusal decision was unlawful because it was made without affording the Respondent a fair opportunity to respond to the changed circumstances after the college’s licence was revoked and the college ceased operating.

Holding and Implications

The appeal by the Secretary of State is dismissed.

The Court held that the Secretary of State’s refusal to grant further leave to remain was not in accordance with the law due to failure to comply with the common law duty of fairness. The Respondent was not given an adequate opportunity either to make representations following the revocation of his college’s sponsor licence or to find an alternative licensed college before the decision was made. This decision does not establish a new precedent but clarifies that fairness requires consideration of the individual circumstances of the applicant beyond the rigid application of policy guidance. The Respondent will have the opportunity to produce evidence to show compliance with the points-based system requirements following this ruling.