On 9 July 2014 judgment was handed down in Aamir Afzaal v Secretary of State for the Home Department [2014] EWHC 2215 (Admin).
The case will be of interest not only to Tier 4 sponsors and international students, but to all migrants and sponsors because it contains a fairly detailed review of the law relating to the conditions upon which migrants are entitled to stay in the UK. This is often an area that causes confusion and, as can be seen from the case, the consequences of failing to understand and abide by conditions can lead to further leave being refused.
Background
The Claimant entered the UK in 2010 to study at one college. He subsequently transferred his studies to another college where he continued studying until January 2012, having been told, incorrectly, by the second college that he did not need to make a formal application to the then UKBA.
He obtained a CAS on 10 May 2012 to pursue further studies with a third sponsor and applied for further leave to remain. That application was refused on a number of grounds including, for the purposes of this article, the fact that the original entry clearance had prohibited the Claimant from studying at an institution other than the sponsoring body and that he was therefore in breach of that condition of his entry clearance.
The Claimant’s case
The Claimant’s position was, in summary, that he was unaware that his leave was subject to such a condition because there was no reference to it on the entry clearance vignette. The entry clearance vignette simply contained the unique reference number for the sponsor that had issued the original CAS.
Counsel for the Claimant further contented that ‘there was no valid condition imposed on the original entry clearance because no condition had been specifically imposed to prevent study at another institution so that there was no relevant breach.’
The judgment
A detailed review of the relevant legal framework and guidance relating to conditions of leave is set out in paragraphs 15 to 25 of the judgment.
It was concluded that because the entry clearance vignette did contain the unique sponsor reference number for the sponsor, this was sufficient to establish ‘a clear indication on the face of the vignette that the conditions include….limitation to a particular identified sponsor body.’
The fact that there was nothing on the vignette that specifically stated that study was limited to the specific sponsor was not relevant, although Deputy Judge Purchas QC did comment that ‘reference could be made more clearly, not least by the description of the endorsements as conditions rather than under the rubric observations.’
Conclusion
What a migrant can and cannot do during their stay in the UK can often only be determined by careful analysis of the Immigration Rules and the relevant guidance document(s).
Migrants are subject to numerous conditions of stay and these are only going to increase as the provisions of the Immigration Act 2014 are rolled out. Some of these conditions, for instance permitted work hours and the requirement to register with the police (where relevant) are clearer than others, such as the requirement to notify UKVI of changes to personal information and restrictions on accessing NHS treatment.
It is extremely dangerous for both migrants and sponsors to assume that in order to be valid, all of the conditions relating to a person’s stay must be spelt out clearly and in detail on the entry clearance vignette or biometric residence card. This is not the case. If a migrant knowingly or unknowingly breaches any condition of their stay in the UK, regardless of how clearly it is spelt out, this is now extremely likely to eventually lead to a further application for leave being refused.
The Government is also increasingly seeking to hold sponsors to account where migrants they have sponsored breach a condition of their leave and, as per the Minister’s announcement on 24 June 2014, this can lead to enforcement action against the sponsor.
For legal advice relating to any of the issues raised in this article, please contact us.
