In a case that could have far-reaching implications across a wide range of immigration categories, including under Tiers 1, 2, 4 and 5 of the Points Based System, the Court of Appeal has recently considered the Home Office’s practice in relation to conditions of stay.
The basic relevant facts of the case, Anwar v Secretary of State for the Home Department [2017] EWCA Civ 2134, are that a student with leave to remain under Tier 4 had studied concurrently at two education providers, one of which had assigned the Confirmation of Acceptance of Studies (CAS) that had resulted in the grant of leave. When the student filed an application for further leave to remain, this was refused on the grounds that he had breached the conditions of stay. Being found to have breached the conditions of stay is not only a trigger for refusal in many cases but is also, of course, a criminal offence. As such, an allegation that a person has breached the conditions of stay is an extremely serious matter and the Court of Appeal recognised this.
The Secretary of State had argued that the student’s conditions of stay restricted concurrent periods of study and that the refusal was lawful.
Lord Justice Singh found that the Secretary of State had not succeeded ‘in attaching the intended condition to the Appellant’s leave to remain because they did not give him notice in writing as required by section 4(1) of the 1971 Act’ and that ‘for there to be an operative condition which restricts a person to study at only one particular institution, that condition must be communicated clearly to the person affected in the individual case’.
He stated that:
‘It is clear from those documents that the BRP itself did not set out the conditions attached to the Appellant’s leave to remain. It might conceivably be possible to work out from the CAS number which appears on the BRP that it referred to Grafton College of Management Sciences. However, while other conditions (that the Appellant was not to work more than 20 hours per week and was not to have recourse to public funds) did appear on the face of the BRP, there was no condition which explained that the only college he was permitted to attend was Grafton College.
If one turns to the leaflet, it is common ground that that was received by the Appellant. However, it makes it clear in its heading that it consists of notes “for information purposes only”. It then sets out a number of frequently asked questions with guidance in response to those questions. Under Question 2, which is headed “Can I change sponsor?”, the following guidance is given:
“Having been granted leave to remain as a Tier 4 (General) Student Migrant, you are restricted to studying at the sponsor institution which issued your confirmation of acceptance for studies and supplementary study. If you wish to change your place of study to a different sponsor institution, you should make a fresh application for leave to remain using the appropriate application form and paying the appropriate fee, no more than 3 months prior to the start date of your new course of study”.
There are two difficulties for the Secretary of State in so for as she seeks to rely on that leaflet. The first is that it does not have, nor does it purport to have, the status of an official document notifying a person of something as important as the conditions attached to his leave to remain in this country. No doubt it is useful for what it is, an information leaflet, but it is no more than that. Secondly, the leaflet does not spell out in terms that the only institution where the Appellant could study was Grafton College. This is made clear by the sentence “If you wish to change your place of study to a different sponsor institution …”. The Appellant never wanted to change his place of study. What he wanted to do, and did do, was to enrol with another college in order to study there in addition to his studies at Grafton College. It was never made clear to him that he was prohibited from doing so.
In my view, it is highly unsatisfactory that this should not be made clear to a person, not least because he may be liable for a criminal offence under section 24 of the 1971 Act if he breaches a condition attached to his leave to enter or remain’.
The complex conditions of stay that a person who has been granted leave to enter or remain in the UK must abide by are often not set out at all to the migrant, or are set out in generic leaflets and other documents. For example, those who receive leave to remain under Tier 2 are usually provided with a leaflet that explains a variety of conditions relating to the type of work they can and cannot do, information on supplementary employment, changing jobs, changing sponsor etc. According to this case, those conditions may not have been adequately communicated to the Tier 2 migrant such that failure to adhere to them may not be a breach. Each case will need to be examined on its merits but there could be many individuals who have been unlawfully penalised for breaching a condition of stay that had not been properly communicated to them in the first place.
We can provide legal advice to individuals and employers if it is alleged that there has been a breach of the conditions of stay.
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