Neutral Citation Number: [2008] EWCA Civ 82
Case No: C5/2007/1876/AITRF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL 
IJ WOOLF

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/02/2008
Before:

LORD JUSTICE WALL
LORD JUSTICE HOOPER 
and
SIR PETER GIBSON    
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Between 

	OA (Nigeria)	Appellant	
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	The Secretary of State for the Home Department	Respondent	
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(Transcript of the Handed Down Judgment of
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Mr Paul Richmond (instructed by Afro Asian Advisory Service) for the Appellant
Mr Steven Kovats (instructed by Treasury Solicitors) for the Respondent 

Hearing date: 14 January 2008
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Judgment
Lord Justice Hooper: 
1.	The appellant appeals against a decision of the Asylum and Immigration Tribunal (“AIT”) dismissing on re-consideration her human rights appeal against the refusal of the Secretary of State for the Home Department to grant her leave to remain as a student. There is one discrete ground of appeal. It is submitted that the decision of Immigration Judge Woolf allowing the appellant’s appeal contained no error of law and thus there should have been no re-consideration.
2.	The appellant, a citizen of Nigeria was born in July 1985. At the age of 16 she arrived in the United Kingdom in possession of a student visa of 1 year’s duration for the purposes of studying an NVQ in accounting at Lambeth College in Brixton. She completed that course and applied for an extension to continue her studies so as to be able to complete the Association of Accounting Technicians (Intermediate) course also at Lambeth College.  Her extension was granted until November 2003. This course was comparable with NVQ Level 3. She completed the course in June 2003. 
3.	In October 2003, a month before her leave expired, she sought advice from a Mr Baptiste whose details she had found via the Home Office website homepage which had a link to the OISC- an independent body set up with Government assistance to regulate those giving immigration advice. Mr Baptiste advised her that she could apply for indefinite leave to remain in the United Kingdom on the basis that she came to the United Kingdom as a minor aged 16 and because her siblings are British citizens and reside in the United Kingdom. Mr Baptiste advised her that she could apply as a dependant of her brother who sponsored her student application. Mr Baptiste demanded a fee of £3,500 for assisting with the application but agreed to reduce that fee to £2,500. He demanded and was paid a down payment of £1,250 before the application was made and he demanded the balance when the appellant’s passport was returned to her. 
4.	In the first week of December 2003 Mr Baptiste telephoned her to say the passport had been returned and that she had been granted indefinite leave to remain. She subsequently paid the balance in February 2004 and was given the passport complete with the stamp granting indefinite leave to remain. 
5.	Meanwhile, having completed the intermediate AAT course she continued her studies to complete the Technician stage. To do that she had to enrol at the Andy Davidson College. She completed the Technician stage in June 2005. 
6.	In the meantime in May 2004 she had wanted to take a holiday abroad. She telephoned the Home Office in order to seek confirmation that she could travel to Italy on her passport. When she provided the reference to the Home Office letter which Mr Baptiste had given her, she was told it did not exist. When she gave her personal details she was told that the last application that had been received from her was that to extend her student visa until November 2003. She tried to contact Mr Baptiste without success, she contacted the Home Office and was advised to write to them giving all the details. Subsequently she wrote to the OISC, attended an interview and was advised to obtain a new representative. 
7.	In May 2004 she wrote to the Home Office enclosing copies of the documents that Mr Baptiste supplied and of the stamp in her passport. The representative followed this up with a letter dated 6 August 2004 enclosing her original passport and the letter that Mr Baptiste had given her.  In that letter the appellant’s representatives asked the Home Office to confirm that the Home Office stamp in the passport and the confirmation that she had indefinite leave to remain was genuine. No reply was received.  
8.	On July 21 2005 her representatives wrote a letter which included the application form for an extension of leave to remain.
9.	Part of the letter reads as follows:
We sent our client’s passport to yourselves on 6 August 2004 with a cover letter explaining that her previous representative had provided her with a letter stating that she had indefinite leave to remain in the United Kingdom and a corresponding stamp in her passport. We asked whether you could confirm that the stamp was genuine. Nearly a year has now passed and our client is anxious to receive confirmation that she is entitled to stay in the United Kingdom. Our client has therefore decided that if the indefinite leave to remain stamp in her passport is not genuine then she would like to apply for an extension of her leave to remain as a student. If the stamp in our client’s passport is genuine please could you return all of our client’s documents and refund the fee payment for this application.
We hope you will find the above information and the documents enclosed in support of the application satisfactory to consider the application favourably. However, if you require any further information we would be happy to assist you.
10.	In the meantime, having completed her Technician stage in June 2005, the appellant registered at the Andy Davidson College on 15 August 2005 with the ACCA. She obtained exemptions from the first stage of the ACCA because of her previous studies and therefore started on the second stage of the ACCA course. The programme leads towards a degree in applied accounting awarded by Oxford Brookes University after completion of the second stage.
11.	I turn to the form which her representative completed on the appellant’s behalf in July 2005. She had merely signed it. 
12.	In the form the particulars of her past educational achievements were accurately given. The box asking the appellant whether she intended to continue her studies was filled in properly. However, unfortunately, the box which required her to name the course which she intended to follow was filled in with the name of the course she had just completed. An accompanying letter from the college dated March 21 2005 made it clear that she had was up to date with her fees and that her attendance had been 87%. The letter also stated that she is expected to progress on successful completion of the level 4 course to take the ACCA course.  Mr Kovats points out that she failed to say that she had enrolled in the course. It was pointed out to him that enrolment would and did take place in August 2005, to which he replied that the appellant should have sent a further letter.   
13.	On 22 September 2006, 14 months after the making of the application for leave to remain as a student, the respondent rejected the application stating:-
“It is noted that your client wished to remain to start study at the Andy Davidson College. However, it is noted that your course was due for completion in June 2005 and we have no evidence that you have since re-enrolled. Therefore your application has ceased to have any basis.”
14.	I suggested to Mr Kovats that it would have been obvious to the officer that the appellant intended to enrol in the ACCA course and, given the passage of time if for no other reason, the officer could have made enquiries of the appellant’s representatives. Mr Kovats replied that it was the duty of the appellant to make sure that the necessary forms were properly completed and that officers did not have the time to ask the kind of question which I suggested the officer should have asked.
15.	The author of the refusal letter then considered whether it would be a breach of the appellant’s Convention rights to refuse her leave and decided that it was not.  No reference had been made to Convention rights in the letter of July 21.
16.	The letter stated in part:
In addition to considering your client’s family life, her rights under Article 8 to private life have also been considered. Whilst it may be accepted that during your client’s time in the United Kingdom she may have established a private life, it is believed that any interference can be justified in the circumstances of her case.
17.	Because the appellant was in fact an overstayer by September 2005 (the stamp in the passport not being genuine) she would not have been entitled to an in country appeal on the grounds set out in paragraph 14 above. However, the refusal to grant leave to remain as a student on Convention grounds entitled the appellant to appeal.  As Mr Kovats has explained to us and as counsel for the appellant accepts, because the appellant had a human rights appeal, she also had the right to appeal that part of the decision set out in paragraph 14 above.  She could have argued that the decision contained in paragraph 14 above was not in accordance with the immigration rules.
18.	 It is most unfortunate that neither the appellant’s representative nor the Home Office Presenting Officer nor any of the Immigration judges who have looked at this case realised that there was a simple and straightforward way of resolving whether she was entitled leave to remain as a student.  Although Mr Kovats points out that by the time of the appeal before IJ Woolf an issue might have arisen about her progress, I have little doubt that IJ Woolf, if she had been asked to consider an immigration rules appeal, would have granted it.  Unfortunately, as Mr Kovats, says, what in truth was a simple application to remain as a student proceeded in the guise of a human rights claim
19.	I turn therefore to the human rights claim.
20.	Before IJ Woolf in November 2006 the appellant said that she could not continue her education in Nigeria because she had progressed in her studies in the United Kingdom by gaining the exemptions from Stage 1 of the ACCA. This answer seems to imply that if she had returned to Nigeria she would not have been able to rely on that exemption. She said that she had failed her exams in June 2006 because of the emotional turmoil which she had been going through as a result of the problems with her passport and having been misled. She had now passed them. She had however, attended all the lectures and that was supported by her attendance records. She also supported the contention that she had failed because of her emotional state by producing a record of a meeting with her personal tutor.
21.	IJ Woolf allowing her appeal set out the principles in Razgar [2004] UKHL 27. She continued:
22. It is regrettable that the respondent had insufficient particulars given to him in the application form. At the date of [application] the appellant was then in between courses although I am satisfied with her evidence that she was pursuing studies with the aim of getting onto the ACCA course. It is true there is little to indicate that the appellant could not continue her studies in Nigeria. What is in issue however is whether it is right in all the circumstances to exercise the full force of the law and remove her.
23. I have taken into account that only in very rare cases could it be found that a non-national’s private life in the United Kingdom could be found to engage Article 8.
24. The consequences for the appellant are that she will have her studies in the United Kingdom interrupted. She makes no assertion that her relationship with her siblings here is the basis for her Human Rights claim. In relation to the first question as set out in Razgar her private life will suffer an interference. She may not complete her studies at the college where she has begun her course in the United Kingdom. She has been pursuing a course of study in the United Kingdom in preparation for the ACCA examinations since 2002.
25. The second question is whether the consequences of the decision are of sufficient gravity. Apart from the consequences of not being able to complete her studies in the UK, the loss of time spent on the course here, getting use to the curriculum and teaching and having attempted the Part 2 examinations the appellant will suffer a delay before being able to enrol on a new course. She has invested money, time and effort in the ACCA in the United Kingdom and not had a full return on that investment. More importantly perhaps she will have been made to bear the consequences for her dishonest representative’s conduct which in all the circumstances, and taking into account public policy considerations in relation to the monitoring and control of members of the OISC is bordering on the unconscionable.
26. I find therefore, that the consequences are of sufficient gravity to engage Article 8.
...
29. Taking all of the above factors into account the appellant has satisfied me that the decision to remove her amounts to a disproportionate interference with her right to respect for her private life at this stage of her studies and that there are truly exceptional circumstances worthy of consideration in her case. In summary those are that:
She was left without leave to remain in the United Kingdom by reason of the fraudulent conduct of Mr Baptiste;
She acted with all due expedition once she became aware of this and was awaiting a response from the Home Office in relation to her notification of the problems with the fraudulent stamp in her passport;
She assisted in the investigation of Mr Baptiste conducted by the OISC 
Her subsequent application for leave to remain in June 2005 was delayed because she was awaiting instruction from the Home Office and the outcome of the OISC investigation.
She has made satisfactory progress on her course despite failure at the first attempt in relation to 3 papers at Part 2 of the ACCA. In the ordinary course of events and with these extenuating circumstances she should be granted the extension she seeks but with the caveat, that any future applications for an extension any failure to pass the appropriate examinations may have more significance and lead to a refusal under the immigration rules as advised in the IDI’s
22.	I turn first to the error of law identified by IJ Freestone. He wrote:
The immigration judge set out the issues that needed to be addressed under the guidelines given by Lord Bingham in Razgar [2004] UKHL 27 and in paragraph 24 found that the answer to the first question was in the affirmative and that “the consequences for the appellant are that she will have her studies in the United Kingdom interrupted” despite finding in paragraph 22 that “it is true there is little to indicate that the appellant could not continue her studies in Nigeria”.
I am satisfied that this is a material error of law. The first question posed by Lord Bingham in Razgar was:
“Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life?”
The immigration judge noted in paragraph 24 that the appellant’s claim under Article 8 was not based on her relationship with her siblings and that the interference with her private life is the effect of the removal on her studies. The immigration judge found that the answer to the first question was in the affirmative because the appellant’s studies in the United Kingdom would be affected. The correct approach is to ask whether the appellant’s private life (her studies) could be continued in Nigeria. If they could then there would not be any interference. The immigration judge accepted that there was no evidence before her that she would not be able to continue here studies in Nigeria and accordingly I am satisfied that this is a material error of law.
23.	Before considering these reasons for finding an error of law, I turn to what the IJ went on to say:
Ms Kosmowska submitted that the case should be adjourned for a second stage re-consideration to allow the appellant an opportunity to obtain evidence about the difficulties of studying in Nigeria. I refused the application as I was satisfied that there was sufficient evidence before me to decide the appeal.
24.	Mr Kovats during the course of his submissions submitted that there was a lack of evidence about the impact on the appellant’s degree course of having suddenly to stop it and return to Nigeria to make an out of country appeal (which she did not have to do anyway as we now know) or make an application for entry clearance to continue her studies. In my view there was evidence from her about the serious impact on her studies of being required in the middle of an academic year or course to leave the country (as the SSHD was saying she had to) and, in any event, the impact is obvious. There is, I accept, an absence of any evidence about the availability of the ACCA course in Nigeria and how her previous academic achievements in this country might be regarded in Nigeria.  Mr Kovats invited us to send the matter back if we found an error of law in IJ Woolf’s determination and thought that IJ Freestone should have allowed an adjournment. 
25.	Mr Kovats submits that IJ Freestone is right. Mr Richmond takes the opposite view. He submits that whether or not the appellant could continue her education in Nigeria cannot be determinative of the issue whether there has been an interference with the appellant’s private life. I agree with Mr Kovats that the identified private life related to her studies in this country. But those studies had started in 2002 and were going hopefully to lead to a degree, at no cost to the taxpayer.  She explained the many difficulties which she faced if she had to stop her studies, and, as I have said, those difficulties are very obvious. IJ Woolf was entitled in paragraphs 24 and 25 to place considerable weight on the impact on her of her studies coming abruptly to an end. In my view Mr Richmond is right and IJ Woolf did not make the identified error of law.
26.	Mr Kovats submits in a respondent’s notice:
If Mr Freestone SIJ erred in law in finding that removing the appellant to Nigeria would not interfere with her private life, such error of law was immaterial, as he would inevitably have found that the interference was not of sufficient gravity to engage Article 8(1) ECHR.
Further or further alternatively, even if returning the appellant to Nigeria would interfere with her private life sufficiently to engage Article 8(1) ECHR, such removal is clearly a proportionate measure, justified under Article 8 (2).
27.	Mr Kovats submits that no rational tribunal could have found that the appellant had a private life within the meaning of Article 8. However the SSHD in the refusal letter had accepted that the appellant may have had a private life and both IJs Woolf and Freestone assumed that she did. I see no merit in this point.
28.	Mr Kovats submits, in accordance with the respondent’s notice, that no rational tribunal could find the interference of sufficient gravity or sufficiently disproportionate so that interference would not be justified.  In my view, as generous as IJ’s Woolf’s determination may have been, it was not irrational.  As to paragraph 29, Mr Kovats submits that the role of Mr Baptiste was irrelevant to the future, as also her help in investigating him.  But for Mr Baptiste, as Mr Richmond submits, the appellant would have made the necessary applications to remain and would almost certainly have succeeded. She would then have been in a position to make an in country immigration rules appeal (which, ironically, she was in a position to do, but no-one realised that). Mr Kovats questions whether she had acted with due expedition after discovering that there were problems with her status. However, as I have shown, it was the Home Office who failed to confirm when asked more than once whether the stamp was genuine. 
29.	I would add on the issue of proportionality that, given what we now know, it would surely be disproportionate to require her to leave the country to make an out of country immigration rules appeal when she had the right to make such an appeal but the fact of that right was overlooked by all until noticed by Mr Kovats.
30.	I would allow the appeal and restore the order of IJ Woolf.
31.	Sir Peter Gibson:
I agree.
32.	Lord Justice Wall:
I also agree.