Material · The appellant made her first appeal

Material
Facts

·        
The
appellant arrived In the United Kingdom on 5th
November 2011 at age 20, her intention being to study for a diploma in
business management.

·        
She
enrolled to Bliss College in March 2012
and Bliss College lost its status to as a sponsor for students and its
authorization from the Secretary of State to issue CAS letter which recognized
under PBS.

·        
Then
the appellant enrolled with St. Stephens College to get an authorized CAS in a
standard form with her unique reference number in the year of 2012 after enrolling to Bliss College.

·        
8th September 2012 the appellant made a combined
application for leave to remain United Kingdom as a Tier 4 (General) Student
Migrant and for a Biometric Residence Permit.

·        
Between
8th September 2012 the
day she gave her application to the State Department (Respondent) and on 5th January 2013 her decision
was given by the respondent. During the period of 8th September 2012 and 5th   January 2013 St. Stephens had withdrawn
the CAS letter of the appellant

·        
The
appellant made her first appeal on 23rd
January 2013 after the Secretary of State’s decision which was given on the
5th of January 2013 her
appeal was made to the FTT with grounds for appeal.

·        
The
appeal was heard by the FTT Judge on the
2nd of July 2013.

·        
The
appeal was promulgated on 30th
July 2013.

·        
After
the promulgation the appellant went on to appeal to the Upper Tier Tribunal on 4th October 2013.

·        
The
UTT decision was promulgated on 8th
October 2013.

 

 

Question of Law

Ø General Public duty of fairness

·        
Whether
the public law duty to act fairly gives rise to the fact to a requirement that
the Secretary of State should have given notice of the withdrawal of the CAS
letter to the appellant.

·        
 And should have the Secretary of State
postponed making their decision and allowing appellant with a chance to correct
error in her application and given her some opportunity of attempting to meet
the objection.

Decision

It’s a
majority Judgment (Lord Justice Sales –Par 43) (Lord Justice Briggs –Par 53)
and Judge dissenting decision (Lord Justice Floyd –Par 52).

 

Detailed Reasoning for the Decision

Lord Justice Sales: 
detailed reason for his judgment was based on the point that there was
no breach of the appellant’s public law duty to act fairly in considering the
appellants application for leave to remain. And LJ Sales goes on to point that
the State (Respondent) is no way responsible for the general unfairness which
the appellant had to undergo. The reason why LJ Sales came to this conclusion
is stated as follows.

·        
First
of LJ Sales explains as to why the respondent is liable for the unfairness
occurred to the appellant by showing that it was because of the appellants
College St Stephens actions and omissions which made the appellants CAS letter
withdrawn during the period of 8th September 2012 and 5th
January 2013 which in fact lead to the appellants application to be rejected by
the respondent due to lack of points to allow the appellant to leave to remain
for United Kingdom for her studies. LJ Sales compares the appellants situation
with the case of Alam v Secretary of
State for the Home Department in accordance to Alams case LJ Sales states was it the Respondents obligation in
relation to the public law duty to act fairly gives rise to the fact to a
requirement that the Secretary of State should have given notice of the
withdrawal of the CAS letter to the appellant. And should have the Secretary of
State postponed making their decision and allowing appellant with a chance to
correct error in her application and given her some opportunity of attempting
to meet the objection. LJ Sales states in his view that the respondent did not
inform the appellant about the error of withdrawal so that the appellant could
have rectified the mistake. Here LJ Sales shows that the respondent could have
informed the appellant about the administrative error of the CAS letter then LJ
Sales disagrees with his above point by stating that the duty to act fairly
varies according to the particular case in which I falls to be applied by
backing his statement with the case of R v Secretary of State for the Home Department,
ex p. Doody where LJ Mustill explains as to what
fairness means in different cases and how statutes the circumstance and the
context of the case is taken into consideration when applying the public law
duty to act fairly . LJ Mustill also states that    where an Act of Parliament confers an
administrative power there is a presumption that it will be exercised in a
manner which is fair in all the circumstances and the standards of fairness are
not open for changes and principle of fairness is to be applied as a blind rule
and should not be repeated and statutory interpretation of the statute is
considered as an essential feature since the decision is upon the interpretation
of the language and the shape of the legal and administrative system the
concluding point made by LJ Mustill in his judgment where the principle of the
statement can be related to the appellants scenario , when the original
application was dismissed the appellant should have being given a chance to
give submissions before or later and the respondent should have informed the
decision is dismissed and the reasons for the dismissal. LJ Sales goes to show
that fairness needs to be consistent in relation to the case of Lloyd v McMahon and also shows that the
fairness expeditious aspect need to be upheld according to clear objective
criteria when applications are taken in 
by the PBS. LJ Sales goes on to states that imposing an obligation on
the respondent to postpone making a decision would be inappropriate reason
being that the CAS letter was withdrawn for a valid reason but the withdrawal
method was unclear to LJ Sales and their wasn’t an issue in late payment of
tuition fees by the Appellant when the CAS letter was withdrawn and LJ Sales
view was that in part of the respondent there was no unfairness towards the
appellant and simply the unfairness is occurred because of the  administrative error of St Stephens college.
And shows that the burden of proof of the case is on the applicant since their
seems to be no validity with her grounds to find the respondent liable for the
appellants unfairness occurred. LJ Sales shows the role of the respondent is
just merely to check the database when the decision is given to the check
whether CAS letter is within the database and it is not there role to check as
to why and how the letter was withdrawn. LJ Sales states that the appellant can
go on to sue the College for the Unfairness they have made the appellant face
and yet again showing that the respondent is no way seem to be liable in the
view of LJ Sales. LJ Sales also draws the comparison with Doodys case and the
appellants scenario that when it comes down to the right of a  prisoner and rights of a liberty of person
the liberty of a person is considered more important and a comparison should be
made according LJ Sales when it comes to a situation of whose to leave for
remain and a normal livelihood the differentiation of the application of public
law duty of fairness is to be used in decision. LJ Sales goes onto show
fairness point in the case of Naved where the UTT stated that “fairness
requires the Secretary of State to give an applicant an opportunity to address
grounds for refusal , of which he did not know and could not have known failing
which the resulting decision may be set-aside on appeal as contrary to law”
according to this statement by UTT in Naved’s case and the same principal could
have being formulated in the appellants case and notice of the problem with her
CAS letter should have being given LJ Sales distinguishes the current case with
Naved and shows how the two cases are materially different and why the
principle formulated about fairness is not applicable to the appellants case  and highlights the point that in Naved case
the treatment had been “conspicuously unfair” and being inconsistent to compare
to the appellants scenario and the reasons set above LJ Sales considers the
appeal to be dismissed.

Lord Justice Floyd:    detailed reason for his judgment was based on the  fact with the issue raised by the appeal is
whether the public law duty to act fairly gives rise to a requirement that the
Secretary of State should have notified the applicant the fact that her CAS has
been withdrawn. LJ Floyd view was that the respondent was in breach of the
public law duty to act fairly requirement the reason as to how LJ Floyd came to
this conclusion is stated below

·        
LJ
Floyd shows the importance of the PBS system and states PBS has a strong public
interest and a efficiently running scheme which needs  to work in a sufficient and fair manner
disagreeing to LJ Sales statement that PBS needs to balance out its function
and shows how he came to a different conclusion to that of LJ Sales. In Secretary of State for
the Home Department v Rodriguez   case the
applicant failed to what the PBS required by failing supply the relevant
documents for the application so the Secretary of State was not held
responsible for the missing material when the decision was given since the
applicant didn’t comply with requirement of the application and a chance to
correct the mistake was irrelevant in Rodriguez case. LJ Floyd distinguishes
this case to the appellant case and shows in a situation where the appellant
made  a mistake during application
issuing process then the respondent is not responsible at all under the public
law duty to act fairly requirement but in appellant scenario there wasn’t any
mishandlement in issuing the relevant document in the application process and
mishandlement did occur after the state took in the application with relevant
document for evaluation process and under the public  law duty to act fairly requirement the
respondent could have given a notice of the CAS letter withdrawal. On the other hand in Thakur  the duty of fairness was
dependent on the context and the applicant’s circumstances, and nevertheless
the applicant knew or not applicant should be treated as having known of the
loss of the license of the college the applicant enrolled in the course of the
application being evaluated and points out that the applicant should have been
given the opportunity of making representation before the application was
rejected on the ground of the college losing its authority. LJ Floyd point in
highlighting Thakur’s case is to show that during the course of the application
if some important document is withdrawn, or college losing its authority to
issue CAS letter the applicant should have been notified of the rejection and
the ground for rejection and shows that this principle should have been
formulated in the appellant’s case. LJ Floyd shows the underlying unfairness
was that the applicant was not afforded an opportunity to deal with the change
of circumstances LJ Floyd’s view was that the principle must be where the
respondent becomes aware of a material change of application then it must be
refused. According to those circumstances LJ Floyd consider that the duty of
fairness was engaged and the respondent’s decision taken without affording the
applicant an opportunity to investigate the new fact herself or to make
representations was unlawful. Therefore LJ Floyd allowed the appeal.

Lord Justice Briggs:   the detail reason for his judgment was whether the Secretary
of State’s participation in the circumstances of the withdrawal of the CAS was
in breach of the appellant’s common law duty to act fairly. The reason as to
how LJ Briggs came to this conclusion is stated below.

·        
LJ
Briggs shows how conceptually different types of fairness analysis lead to same
conclusion like in the case of  Thakur
and Naved but the present case in LJ Briggs view does not lead to the same
conclusion. And the outcome for the appellant was viewed from her perspective
thoroughly unfair. The primary perpetrator of that unfair outcome was the college
because it withdrew her CAS letter in error and also failed to take a
reasonable step to inform the appellant about the withdrawal.

·        
A
cancellation by mistake and with a failure to inform the applicant student
would in LJ Briggs view would reasonable be regarded to those who charged with
the operation to evaluate the appellants application with the PBS scheme as a
rare occurrence. In LJ Briggs judgment he proposed two principles that the
courts should hard and fast the essential fact sensitive flexibility of the
duty to act fairly raising an argument to LJ Floyds conculsion to allow the
appeal on the grounds that mistake by others is the reason for violating the
public law duty. And the second principle proposed was whether to consider the
fairness principle and leave the applicant to rely on it and to be
successful  in the present case would
question the simplicity, predictability of the PBS process  and particularly in the present case the
mistake of the withdrawal or lack of communication of the withdrawal which lead
to unfair outcome to the appellant wasn’t the respondent fault simply being the
fault of St Stephens College the appellant may have a remedy filing action
against the college but not against the Secretary of State according to those
circumstance above LJ Briggs dismisses the appeal.

 

Ratio Decidendi

The reason for the Judges to come to this conclusion of
judgment was on the basis of the Secretary of State was not in breach by the
public law duty to  act fairly
requirement and the respondent was held not responsible for the unfairness the
appellant faced according LJ Sales and LJ Briggs it was the responsibility of
the appellants College St Stephen. The dissenting judgment was given by LJ
Floyd and the reason being the respondent was aware of a material change of
circumstances and the Secretary of State should have notified the applicant the
fact that her CAS has been withdrawn. LJ Floyd view was that the respondent was
in breach of the public law duty to act fairly requirement