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Tier 4 Students - unfairness

16 September 2019

The Tier 4 student scheme encapsulates two separate schemes: a sponsor licensing scheme for educational institutions and a visa scheme for students. For the student to be able to carry out their studies both of these must work properly, and if they do not the student may find themselves in difficulties.

In some cases students have received unfair treatment, and there may or may not be redress for this. And in at least some cases the facts are obscure.

Mr Rauf is a Bangladeshi national and he was in the UK on a Tier 4 Student visa. He wanted to extend his student leave, and the University of Sunderland had offered him an MBA course.

So all well and good until, suddenly, the university withdrew the offer.

They sent him an email, which said:

"On June 24 [2014] the Minister for Security and Immigration, James Brokenshire, told the House of Commons that an investigation is on-going into the alleged abuse of the UK Student Visa System. It is within this context that the University has decided to put on hold its recruitment to London Campus until we have assurance of the validity of the English language qualifications presented by new applicants. Regrettably I therefore inform you that the University of Sunderland is withdrawing its offer to you to commence study at its London campus in August 2014."

Did this put the university in breach of contract? Well, possibly so, depending on the facts. Was there any realistic possibility that Mr Rauf had been involved in any dishonesty regarding his English language qualification? No: because of his academic qualifications he did not need any additional English language qualification.

If you think this sounds unfair and illogical you are right, and Mr Rauf thought so as well. As a result of this event the Home Office then wrote to him in early 2015 and told him that his student leave was being curtailed because he had failed to commence studying with his sponsoring university. Well, this was true as far as it went, but of course he had only failed to commence his studies because the university would not allow him to because they were worried about his English language qualification that he did not have because he did not need it.

There was now a rather Kafkaesque atmosphere, and Mr Rauf determinedly appealed to the First-Tier Immigration Tribunal. The FTT saw things his way and he won the appeal, in early 2016. But then the Home Office, evidently equally determined, appealed to the Upper Immigration Tribunal.

Before the Upper Tribunal things got slightly complicated because it transpired that at the First-Tier Tribunal the Home Office lawyer had confused the situation by stating - incorrectly - that Mr Rauf should have been given 60 days leave when his visa was curtailed so that he could find a new course. The judge at the FTT had - similarly incorrectly - gone along with this. So the Upper Tribunal said that the FTT’s decision was in this respect wrong.

And the Upper Tribunal also considered the general question of unfairness. Clearly Mr Rauf felt hard done by but did his treatment amount to unfairness within the appropriate legal meaning?

The Upper Tribunal thought not but Mr Rauf was not satisfied and he further appealed, and thus the case arrived for consideration before the Court of Appeal some time in 2019.

Unfortunately for Mr Rauf the Court of Appeal did not think so either. Sir Ernest Ryder, who gave the court’s substantial decision, was kind enough to say that "I have considerable sympathy for the position Mr Rauf has found himself in…".

However, the court decided that he could not succeed in this appeal. Any unfairness had not been carried out by the Home Office. They did not specifically say so, but the implication was that if there was any unfairness it had been carried out by the university.

The court pointed out that a speech by an immigration minister is only a speech. It is not a statement of the law. Mr Rauf’s lawyer bravely tried to assert that the Home Office had caused the university’s action by permitting or promoting the minister’s speech but - and perhaps not entirely surprisingly - this argument did not work. To put it short, if the Home Office had not done anything unfair they were off the hook and Mr Rauf could not succeed.

And the court observed - regarding the issue about whether or not the Home Office should have given Mr Rauf 60 days to find a new course - that he had in any case had plenty of time to find a new course if he had taken the opportunity.

This kind of issue - relying on a speech by a Government minister in support of your case - is generally a bit tricky. And cases based on unfairness, although in some instances capable of success, need to be closely focused. If you are faced with matters of these kinds you definitely need a good lawyer on your side.




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