@everyone,
I will want you to read through this post and please let me know if this appeal is granted, if yes, what is the next step?
i am running out of time, 4 more day to apply for review of the appeal if need be. I want urgent response please.
please take a good look at the last sentence, does it means he can't go for his Visa because of that statement
?
please i need urgent response!
God bless u
DETERMINATION AND REASONS
1.The appellant is a citizen of Nigeria, born in 1983.He appeals against a decision of the Entry Clearance Officer, Abuja on 22nd September 2006 under paragraph 57 of HC 395 to refuse entry clearance as a student.
2.It is stated in the notice of appeal that no oral hearing is sought, but that the case be dealt with on the basis of the information on file. I exercised my discretion to deal with the case under rule 15 of the asylum and immigration tribunal (procedure) Rules 2005 without a hearing.
3.The refusal letter reads as follows:
“You have applied for entry clearance to enable you to study in the UK and have completed an additional questionnaire to assist your application. I have carefully considered your application on the basis of your passport, application form, supplementary questionnaire and the papers you have provided. You have declared that the information you have given is complete and truth to the best of your knowledge.
However, I am not satisfied, on the balance of probabilities, that you meet the requirements of paragraph 57, and in particular:
That you intend to follow your proposed course of study.
That you are able to follow your course of study.
That you intend to leave the United Kingdom at the end of your proposed study.
Because:
Your offer letter states that your course commenced on 18/09/2006. This date has now lapsed. I am mindful that you applied within time, however I do not find it credible that a genuine student will apply only 10 days before the start of his course. When it is common knowledge that this is the busiest time of year for students. In the absence of any further evidence that you will be accepted beyond the 18/09/2006, I am not satisfied that you still remain acceptable on you chosen course”
4. The standard of proof is the balance of probabilities. Under section 85(5) of the Nationality, immigration and asylum Act 2002 in an appeal against refusal of entry clearance, the tribunal may consider only the circumstances appertaining at the time of the decision to refuse.
5.Paragraph 57 of HC 395 states the requirement to be met by person seeking entry clearance as a student.
Paragraph 57 (i) requires that He “has been accepted for a course of study……”
Paragraph 57 (ii) requires that He “ sis able and intends to follow (his course )”
Paragraph 57 (vi) requires that He “intends to leave the United Kingdom at the end of his Studies.”
6.In a further letter(8th November 2006) following the receipt of the notice of the appeal expanding on the 57 (ii) and (vi) grounds , the ECO stated that the appellant had “failed to provide any reason or explanation for the late submission of his Visa application.” Further, the Eco was still not satisfied that the appellant would be accepted on the course. The ECO concluded that he was not satisfied that “such apparent lack of planning and preparation demonstrated a genuine interest in, and commitment to, the proposed course of study.”
7.In considering, first, the comments that the appellant sought entry clearance only 10 days before the start of the course, I not the relevant dates on the documentation. There is a letter dated 10th of August 2006 from the University making an Unconditional offer to study English for University studies Level 3 course at Oxford Brookes University beginning on 18th September 2006. He states in the grounds of the appeal that He got the admission letter late because he changed address. The appellant also states in the grounds of appeal and it is confirmed by the documentation that he applied online to the High commission for entry clearance on the 31st August 2006. A manual application is dated 8th September 2006.
8.In submission dated 21st January 2007 he states, correctly, that most schools in the UK normally start their academic year by September. He adds that most will not send the full admission package until “July or August ending, and such is “one of the reasons why many students from Nigeria put in their application at that time.” That the ECO in the refusal notice states that the time the appellant sought his Visa “is the busiest time of year for students” would appear to support the Appellant’s claim in that Regard.
9.On the evidence before me, the appellant satisfies me that he had good reasons for seeking entry clearance so close to the course start date. As such I do not find merit in the ECO’s comment in his letter of 8th November 2006 that the late application showed a lack of planning and preparation and thereby a lack of interest in and commitment to, the proposed course.
10.As the ECO’s conclusions on intention are based on what I find to be his incorrect comments on the Appellant’s late application, the fall away. I see nothing, and the ECO says nothing, on any other aspects of the evidence from which it could be inferred that the appellant does not intends to follow the course or leave at the end of it. Nor is there any evidence from which it could be inferred that the appellant is not able to follow the course. He satisfies 57 (ii) and (vi).
11. The remaining issue is whether there was evidence that the appellant would be accepted beyond the 18th September 2006 start date. The Eco refers in the letter (8th November 2006) following notice of appeal to an email from the university stating that the last date the appellant could be accepted on the programme was 6th October 2006. It is pointed out that the email is dated 25th September “one full week” (in fact three days) after the refusal decision. Therefore “the ECO could not have had sight or knowledge in making his decision.”
12. Such may have been so but it does not make that evidence inadmissible. S85 (5) of the 2002 act does not mean that evidence that was not before the ECO cannot be produced at the appeal: it can. What it does mean is that only evidence that relates to the circumstances existing at the date of the decision will be considered. The email comes within that category. It concerns a valid application for entry to the same course beginning at the start of the academic year in September for which the University has a deferral policy. The email evidence, which I find to be admissible, shows that the appellant has been accepted for the course. He satisfies paragraph 57 (i).
13. I make two final points. In his grounds of appeal and elsewhere the appellant criticizes the ECO for failing to make checks with the University before making the decision. The appellant should be aware, as the ECO pointed out that the onus in establishing that the relevant provisions of the immigration rules are satisfied lies solely with the applicant.
14.More seriously, in his grounds of appeal the appellant wrote “the decision is unlawful because it racially discrimates against me….He has produced no evidence whatsoever in support of that allegation and I reject it under S84(1)(b) of the 2002 Act.
15.For the reasons stated the appellant satisfies paragraph 57 (i), (ii) and (vi).
16.I have dealt with specific areas of concern, which led the ECO to refusal the visa under paragraph 57. I have not dealt with other sub-paragraphs because the ECO has not raised them nor has the Appellant been forewarned to address them.
On that basis I allow the appeal.
DECISION
The Appeal is allowed under the immigration rules.
The appeal is dismissed under S84 (1)(b) (race discrimination).
Signed.
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