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No unfairness finding for innocent student caught up in English testing scandal

No unfairness finding for innocent student caught up in English testing scandal

In Rauf v Secretary of State for the Home Department [2019] EWCA Civ 1276, the Home Office cited the incorrect part of the Immigration Rules in curtailing a student visa. The failure of Mr Rauf’s appeal reminds us that it’s extremely difficult to prove unfairness in immigration cases.

Mr Rauf had submitted a successful application for leave to remain ahead of study at the University of Sunderland. About a month before he was due to start, the university withdrew its sponsorship, citing concerns about cheating on English language testing for visas.

Mr Rauf was understandably put out: he didn’t actually need to pass an English test because of his existing academic qualifications. Nevertheless, he received a letter from the Home Office curtailing his visa. This was based on paragraph 323A(a)(ii)(1) of the Immigration Rules: 

In addition to the grounds specified in paragraph 323, the leave to enter or remain of a… Tier 4 Migrant… is to be curtailed if… the migrant fails to commence studying with the Sponsor.

In the First-tier Tribunal, the Home Office conceded that it had erroneously curtailed Mr Rauf’s leave and he should have been given 60 days to find a new sponsor. The Home Office then realised that this concession was wrong: Mr Rauf’s leave should still have been curtailed in accordance with paragraph 323A, but under sub-paragraph (2): “the Sponsor has excluded or withdrawn the migrant, or the migrant has withdrawn, from the course of studies”. It successfully withdrew the concession in the Upper Tribunal.

The Court of Appeal was faced with two questions: 1) was the Upper Tribunal right to allow the erroneous concession to be withdrawn? and 2) was it was fair to do so?

The first question was a straightforward “yes”. Among other things, it didn’t really matter whether the Home Office relied on paragraph 323A(a)(ii)(1) or 323A(a)(ii)(2). The effect would be the same regardless of whether the attributing fact was a failure to commence study or a sponsor withdrawing their offer of a place.

The second question was also resolved as a “yes” because Mr Rauf should have pursued the university. It was the decision to withdraw the offer which was the catalyst for the series of events that followed. The Court of Appeal also distinguished Patel (Revocation of Sponsor Licence: Fairness: India) [2011] UKUT 211 (IAC)

The sponsor chose to withdraw its offer to Mr Rauf. It cannot sensibly be said that a decision by a Minister to carry out an investigation into the abuse of the UK student visa system made the Secretary of State responsible for the University’s decision. There is no residual unfairness, the case does not fall within the spirit of Patel and, in any event, Mr Rauf had 7 months to find another sponsor and protect his position.

As this suggests, the bigger injustice is the inexplicable decision of the University of Sunderland to withdraw Mr Rauf’s offer of a place over the integrity of English language testing when he didn’t need an English language test to begin with.

Norma Boarders

Corporate immigration solicitor specialising in the points based system, audit and compliance.

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