Appellant (17): Mr M Jamali, Solicitor, Farani Javid Taylor Solicitors LLP
Appellant (18): Ms D Qureshi, Counsel, instructed by Legend Solicitors
Appellant (19): Mr A Jafar, Counsel, instructed by Lee Valley Solicitors
Appellant (20): Appeared in person (for part of the hearing)
For the Respondent: Mr M Gullick, Counsel, and Mr I Jarvis, Senior Home Office Presenting Officer
(1) It is not legally possible for the First-tier Tribunal or the Upper Tribunal to decline to follow the judgment in Raju and others v Secretary of State for the Home Department  EWCA Civ 754 on the basis that the Secretary of State’s Tier 1 (Post-Study Work) policy of July 2010 (concerning the approach to be taken to “late” submission of certain educational awards) continued to apply in respect of decisions taken by the Secretary of State on or after 6 April 2012, when the Immigration Rules were changed by abolishing the Tier 1 PSW route. (2) The Secretary of State was under no duty to determine Post Study Work applications made before that date by reference to that policy, the rationale for which disappeared on 6 April. In particular: (a) a person making such an application had no vested right or legitimate expectation to have his or her application so determined; (b) it was not legally unfair of the Secretary of State to proceed as she did; (c) the de minimis principle cannot be invoked to counter the failure of applications that were unaccompanied by requisite evidence regarding the award; (d) the Secretary of State’s May 2012 Casework Instruction did not gloss or modify the Immigration Rules but merely told caseworkers to apply those Rules; (e) evidential flexibility has no bearing on the matter; (f) an application was not varied by the submission of evidence of the conferring of an award on or after 6 April 2012; but even if it were, the application would fail on the basis that it would have to have been decided under the Rules in force at the date of the variation; and (g) an application under the Immigration Rules falls to be determined by reference to policies in force at the date of decision, not those in force at the date of application.
(3) The date of “obtaining the relevant qualification” for the purposes of Table 10 of Appendix A to the Immigration Rules as in force immediately before 6 April 2012 is the date on which the University or other institution responsible for conferring the award (not the institution where the applicant physically studied, if different) actually conferred that award, whether in person or in absentia. (4) As held in Khatel and others (s85A; effect of continuing application)  UKUT 00044 (IAC), section 85A of the Nationality, Immigration and Asylum Act 2002 precludes a tribunal, in a points-based appeal, from considering evidence as to compliance with points-based Rules, where that evidence was not before the Secretary of State when she took her decision; but the section does not prevent a tribunal from considering evidence that was before the Secretary of State when she took the decision, whether or not that evidence reached her only after the date of application for the purposes of paragraph 34F of the Immigration Rules.
DECISION A. Introduction 1. With one exception, all of the immigrants listed above, whom for convenience we will call the appellants, secured decisions in their favour in the Upper Tribunal in respect of their appeals against decisions of the Secretary of State (“the respondent”) to refuse to vary leave to remain in the United Kingdom, because that Tribunal followed the approach adopted by Blake J, President and Upper Tribunal Judge Coker in Khatel and Others (s85A; effect of continuing application)  UKUT 00044 (IAC). In the case of Mr Nasim (appellant (1)) a Judge of the First-tier Tribunal allowed the appellant’s appeal, applying Khatel.
2. The respondent applied for permission to appeal to the Court of Appeal against the determinations of the Upper Tribunal. At the time she did so, permission to appeal to the Court of Appeal had been granted by the Upper Tribunal in respect of Khatel. The respondent’s grounds of application in the cases with which we are concerned in most cases reiterated the critique of Khatel contained in the grounds of application submitted in that case. The same is true of Mr Nasim, in whose case the respondent sought and obtained permission to appeal to the Upper Tribunal.
3. Around 200 applications for permission to appeal to the Court of Appeal were made by the respondent in respect of determinations of the Upper Tribunal, allowing appeals (or dismissing the respondent’s appeals) on the basis of Khatel. It appears that a significant number of applications for permission to appeal to the Upper Tribunal were made by the respondent against decisions of the First-tier Tribunal, applying Khatel.
4. Since it was known that permission to appeal in Khatel had been granted (with arrangements made for the Court of Appeal to expedite the hearing in that court), it was considered appropriate to consider the respondent’s permission applications once the judgments of the Court of Appeal became known. On 25 June 2013, the Court of Appeal allowed the respondent’s appeal against the Upper Tribunal’s determinations in Khatel and the cases of three other immigrants: Raju and Others v SSHD  EWCA Civ 754.
5. As a result, the Tribunal gave directions in the cases before it where the respondent had applied for permission to appeal to the Court of Appeal. The Tribunal did so pursuant to rule 45(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008:-
“45.—(1) On receiving an application for permission to appeal the Upper Tribunal may review the decision in accordance with rule 46 (review of a decision), but may only do so if—
(b) since the Upper Tribunal’s decision, a court has made a decision which is binding on the Upper Tribunal and which, had it been made before the Upper Tribunal’s decision, could have had a material effect on the decision.”
6. The Upper Tribunal’s directions indicated that it proposed, in the light of Raju, to review the determinations of the Upper Tribunal, set them aside and re-make the decisions in the appeals by dismissing them. The directions made plain that the appellants would be (or continue to be) successful in their appeals against removal decisions made in respect of them, in purported pursuance of section 47 of the Immigration, Asylum and Nationality Act 2006. This was because those decisions were unlawful (Secretary of State for the Home Department v Ahmadi  EWCA Civ 512).
7. In a large number of cases, including those with which we are concerned, the appellants objected. Various different reasons for doing so were advanced; but the common theme was that the appellants contended they should, in whatever manner, still be entitled to succeed in their appeals against the decisions to refuse to vary leave, notwithstanding the judgment in Raju.
8. The present cases have been selected on the basis that they provide a suitable vehicle for considering the arguments advanced regarding the effect of the judgments in Raju. Further directions were issued to the appellants and the respondent on 15 August 2013 and a case management hearing was held on 30 August. The Tribunal would like to commend the parties, their solicitors/representatives and Counsel for their efforts in ensuring that the Tribunal was able on 8 October 2013 to receive comprehensive submissions on the relevant issues.
B. Closing the Tier 1 (Post-Study Work) route 9. The cases before us concern the legal consequences of the respondent’s decision in 2011 to close the Tier 1 (Post-Study Work) route, which allowed graduates from abroad who had also studied in the United Kingdom two years in which to seek employment after their United Kingdom courses ended. The Government’s concern about this route had, in fact, been articulated by the Secretary of State for the Home Department in Parliament on 23 November 2010 when she said:-
“The old Tier One – supposedly the route for the best and brightest – has not attracted highly-skilled workers. At least 30% of Tier One migrants work in low-skilled occupations such as stacking shelves, driving taxis or working as security guards, and some don’t have a job at all. So we will close the Tier One general route.
Instead, I want to use Tier One to attract more investors, entrepreneurs and people of exceptional talent.”
10. A public announcement on 22 March 2011 confirmed the “closure of the Post-Study Work route, which allowed students two years to seek employment after their course ended. Only those graduates who have an offer of a skilled job from a sponsoring employer, in Tier 2 of the points-based system, will be able to stay to work”. The changes were described as being due “from April 2012”. Also on 22 March, the Secretary of State told Parliament:-
“We want the best international graduates to stay and contribute to the UK economy. However, the arrangements that we have been left with for students who graduate in the UK are far too generous. They are able to stay for two years, whether or not they find a job and regardless of the skill level of that job. In 2010, when one in ten UK graduates were unemployed, 39,000 non-EU students with 8,000 dependents took advantage of that generosity.
We will therefore close the current Post-Study Work route from April next year.”
C. The relevant rules as in force immediately before 6 April 2012 11. The relevant rule was paragraph 245FD:-
“To qualify for leave to remain as a Tier 1 (Post-Study Work) Migrant, an Applicant must meet the requirements listed below. Subject to paragraph 245FE(a)(i), if the Applicant meets these requirements, leave to remain will be granted. If the Applicant does not meet these requirements, the application will be refused.
(a) The Applicant must not fall for refusal under the general grounds of refusal, and must not be an illegal entrant.
(b) The Applicant must not previously have been granted entry clearance or leave to remain as a Tier 1 (Post-Study Work) Migrant.
(c) The Applicant must have a minimum of 75 points under paragraph 66-72 of Appendix A.”
12. Paragraphs 66 to 72 of Appendix A were as follows:-
“ATTRIBUTES FOR TIER 1 (POST-STUDY WORK) MIGRANTS
66. An Applicant for entry clearance or leave to remain as a Tier 1 (Post-Study Work) Migrant must score 75 points for attributes.
67. Available points are shown in Table 10.
68. Notes to accompany the table appear below the table.
The Applicant has been awarded:
(a) a UK recognised bachelor or postgraduate degree, or
(b) a UK postgraduate certificate in education or Professional Graduate Diploma of Education, or
(c) a Higher National Diploma (‘HND’) from a Scottish institution
(a) The Applicant studied for his award at a UK institution that is a UK recognised or listed body, or which holds a sponsor licence under Tier 4 of the Points Based System, or
(b) If the Applicant is claiming points for having been awarded a Higher National diploma from a Scottish Institution, he studied for that diploma at a Scottish publicly funded institution of further or higher education, or a Scottish bona fide private education institution which maintains satisfactory records of enrolment and attendance.
The Scottish institution must:
(i) be on the list of Education and Training Providers list on the Department of Business, Innovation and Skills website, or
(ii) hold a Sponsor licence under Tier 4 of the Points Based System.
The Applicant’s period of UK study and/or research towards his eligible award were undertaken whilst he had entry clearance, leave to enter or leave to remain in the UK that was not subject to a restriction preventing him from undertaking a course of study and/or research.
The Applicant made the application for entry clearance or leave to remain as a Tier 1 (Post-Study Work) Migrant within 12 months of obtaining the relevant qualification or within 12 months of completing a United Kingdom Foundation Programme Office affiliated Foundation Programme as a postgraduate doctor or dentist.
The Applicant is applying for leave to remain and has, or was last granted, leave as a Participant in the International Graduates Scheme (or its predecessor, the Science and engineering Graduates Scheme) or as a Participant in the Fresh Talent: Working in Scotland Scheme.
69. Specified documents must be provided as evidence of the qualification and, where relevant, completion of the United Kingdom Foundation Programme Office affiliated Foundation Programme as a postgraduate doctor or dentist.
70. A qualification will have been deemed to have been ‘obtained’ on the date on which the Applicant was first notified in writing, by the awarding institution, that the qualification had been awarded.”
D. The July 2010 policy 13. Crucial to the appellants’ case is the policy, communicated to the respondent’s caseworkers by an email of 15 July 2010, but not published more widely. The email began by stating that “we have recently received queries about how to handle Post-Study Work applications submitted before the date of award; apparently a number of such applications have been submitted”. The email continued as follows:-
“The following advice addresses this issue:
1. The Applicants should not be submitting applications before they have confirmation of their award. If they are not going to obtain this until after their extant leave expires, they should be making their applications from overseas. Neither should caseworkers be putting cases on hold where the application has been submitted prior to the date of award.
2. If, by the time we come to make a decision on a Post Study Work application, we have received confirmation, on the appropriate specified document, that the qualification has been awarded, but the date of award post-dates the date the application was originally made, we should follow policy’s advice (attached below) and, on the basis of common-sense decision making, should not refuse simply because the date of award is after the date of application. (So, if the date of award is after the date of application but before the date of decision, this will be acceptable provided we have the specified documents to confirm).
3. If however, by the time we come to make a decision on the application we do not have confirmation of the award, included on an appropriate specified document, caseworkers should do the following:
• Indication that the date of award is pending. If the documentation provided makes it clear that the date of award (as defined in the Post Study Work policy guidance) will be some time in the future (i.e. The date of award will be after we are due to make the decision), then the application should be refused as normal. We should not be putting such cases on hold. The applicant cannot be considered in such cases to have an eligible award and no points can therefore be awarded for the Qualification. As specified in the published guidance, where an applicant under Tier 1 (Post-Study Work) is not awarded points for an eligible qualification, we are also unable to award points for any other point scoring area for Attributes;
• No indication of the date of award or that it is pending. If all other required documentation and information has been provided, but there is no indication, in the specified documentation provided, of what the date of award is, then caseworkers may adopt the usual approach, accommodated by the Evidential Flexibility arrangements, towards seeking this additional information. Once we have confirmation of the date of award, caseworkers should continue as normal, and follow the advice above, depending on whether the date we are due to make the decision is before or after the date of award.”
14. In essence, it is the appellants’ case that their applications, made before 6 April 2012 but not decided until after that date, should not only have been decided in accordance with the Rules applicable immediately before 6 April (which the transitional provisions for the new Rules required) but also fell to be decided in line with the July 2010 policy. The result of such an approach would have been (the appellants contend) that because in their cases the qualifications in question had been awarded before the date of decision, their applications should have been successful, notwithstanding that the date of award was after the date of application. The appellants advanced various arguments for why the July 2010 policy governed their cases, including “vested rights” and “legitimate expectation”. We shall deal with these arguments in due course. Mr Iqbal categorised the July 2010 policy as the “pragmatic approach”, as opposed to the “strict approach” of the post 5 April Casework Instruction, to which we will shortly make reference (see  below).
E. The respondent’s Tier 1 (Post-Study Work) policy guidance (April 2012) 15. In his submissions, Mr Jafar laid emphasis upon the following paragraphs of the respondent’s Tier 1 (Post-Study Work) published policy guidance, as in force immediately before 6 April 2012:-
“Qualification 53. An applicant can claim 20 points if he/she has been awarded one of the following qualifications:
• A United Kingdom recognised degree at Bachelor, Master or PhD level; or
Documents required 61. Paragraph 245 AA (and 54 of Appendix A) of the Immigration Rules state that we will only award points when an applicant provides the specified evidence that he/she meets the requirements for this category.
62. In order to score 20 points for this attribute, the specified evidence the applicant must provide is:
i) the original certificate of award. This must be the applicant’s original certificate (not a copy) and must clearly show the:
• applicant’s name;
• title of the qualification; and
• name of awarding body
We will not accept provisional certificates.
If the certificate has yet to be issued, the applicant will be unable to provide the original certificate of award. In these circumstances, the applicant must provide:
ii) an original letter from the institution at which the applicant studied towards his/her eligible qualification.The letter must be an original letter (not a copy), on the official letter-headed paper of the United Kingdom institution at which the applicant studied. It must have been issued by an authorised official and must confirm the:
• applicant’s name;
• title of the qualification;
• Date of the award (as defined in paragraph 79 of these guidance notes);
• explain the reason why the applicant is unable to provide their original certificate of award; and
• confirm that the certificate will be issued.
Date of eligible qualification/Completion date of United Kingdom Foundation Programme.
78. An applicant can claim 15 points if the eligible qualification was obtained within the 12 months immediately before his/her application for entry clearance or leave to remain under Tier 1 (Post-Study Work) or if his/her application for entry clearance or leave to remain is being made within 12 months of completing a United Kingdom Foundation Programme Office affiliated Foundation Programme as a postgraduate doctor or dentist.
79. The date of award is taken as the date on which the applicant was first notified, in writing, by the awarding institution, that the qualification has been awarded. This notification may have been made in writing, directly to the applicant, or by the institution publishing details of the award, either in writing (for example, via an institution notice board) or electronically (for example, on the institution’s website). Where the notification was not in the form of direct correspondence to the applicant, we will require direct confirmation of the date of award from the institution in writing.
80. We do not accept the date of award as the date of graduation.
81. Providing the date of award of the eligible qualification is no more than 12 months before the date of application, 15 points will be awarded for this attribute.
82. Applicants may submit an application for leave to remain before the completion of his/her Foundation Programme provided that he/she will complete the Foundation Programme, no more than 30 days after submitting this application