Upper Tribunal (Immigration and Asylum Chamber)



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83. In order to score 15 points for this attribute, the specified evidence the applicant must provide is:

a) original document from the institution at which the applicant studied towards his/ her eligible qualification or Foundation Programme as a postgraduate doctor of dentist (where the applicant is applying within 12 months of this period).

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;

• start and end dates of the applicant’s period/s of study and/or research for this qualification at the United Kingdom institution; and date of award (as defined in paragraph 79 of these guidance notes).

84. If the applicant has already provided an original letter in support of points claimed for the other attributes, then the same letter is acceptable as evidence in support of this attribute, providing it contains all the required information.”



F. The respondent’s Casework Instruction (“CI”) of 23 May 2012:- Tier 1 (Post-Study Work) closure: applicants applying before 6 April 2012 prior [to] their qualification being awarded
16. On 23 May 2012 the respondent produced a casework instruction which, unlike the July 2010 email, was published. The relevant provisions for our purposes are as follows:-
“1. This instruction outlines how caseworkers should handle applications where the applicant has submitted a Tier 1 (Post-study Work) application prior to 6 April 2012 without final confirmation that they have been awarded an eligible qualification. More specific refusal wording is provided along with a document for caseworker to add to bundles on any full right of appeal case.
Background
2. Tier 1 (Post-Study Work) closed to new applicants on 6 April 2012. An announcement detailing the intention to close the scheme was published in March 2011 and the exact date of closure was formally announced in the Statement of Change published on 15 March 2012.
3. No formal transitional arrangements have been included in the Immigration Rules, as Tier 4 students have alternative methods of taking up employment within the UK, i.e. under Tier 2, Tier 5 (Government Authorised Exchange) for those undertaking professional qualifications, or the new Tier 1 (Graduate Entrepreneur) scheme for those who have developed a world class business idea.
4. You were previously advised that if applicants were awarded their eligible qualification after submitting their application, but before you had made a decision on the case, you were able to accept the evidence allowing the case to be approved. This was a pragmatic interpretation of the Immigration Rules, as any migrant refused on this basis was able to reapply immediately using identical evidence and the case could be approved.
5. However, as the route is now closed and the Immigration rules are now being applied strictly (sic).
Case Consideration
6. Applicants may still apply for Tier 1 (Post-Study Work) before completing or being given final notification of their eligible award. The date of award is defined as the date the migrant was first given notification in writing that they had passed their qualification.
7. You should consider any application where the date of award is on or after 6 April 2012 strictly in line with the published Immigration Rules. In practice this means you should refuse applications as the migrant has not been awarded their qualification within the 12 months directly prior to date of application.
8. The relevant refusal paragraph appeared in Table 10 of Appendix A but is now archived in Appendix F of the Immigration Rules.
9. The following scenarios explain the action you should take on Tier 1 (Post-Study Work) applications:
No evidence of qualification provided
10. Where an applicant has not provided evidence to show that they have been awarded a qualification, you should only request evidence of this award under the Evidential Flexibility policy in the following circumstances:
a. the applicant has given an indication in their application that they should have received confirmation of their award on or before 5 April 2012;
b. the applicant has not given any indication of when they are likely to obtain their qualification.
11. If you are requesting information under Evidential Flexibility, you would also be able to request other missing information at that time (e.g. maintenance).
12. When requesting further information, you should make it clear to the applicant that the qualification must have been awarded prior to the closure of the scheme otherwise it cannot be accepted.
13. You should not request further evidence of a qualification if the migrant has indicated that it would be awarded on or after 6 April 2012, even if that date has passed when you are assess the case (sic).
Evidence of qualification provided after application submitted
14. Where an applicant has submitted an application without evidence of an eligible award, but subsequently sent this evidence into the UK Border Agency, you must check the date of award to determine whether it can be accepted.
15. Where the date of award is on or before 5 April 2012, you can use this evidence to award points for ‘date of award’ (assuming other Tier 1 (Post-Study Work) requirements are met).
16. Where the date of award is on or after 6 April 2012, points will not be awarded for date of award, as we will apply the Immigration Rules as written; therefore the applicant did not obtain their qualification in the 12 months directly prior to date of application.”
17. As we have said, Mr Iqbal characterised the 2012 CI as the “strict approach”. The appellants contend that this approach, adopted by the respondent in their cases, was unlawful. Again, we will deal with the detailed arguments in due course.

G. Khatel and others (s85A; effect of continuing the application) [2013] UKUT 00044 (IAC)
18. In Khatel the Upper Tribunal, considering the position of appellants, whose applications for Tier 1 Post-Study Work leave had been made shortly before 6 April 2012, but whose notifications of award had been made only after that date, relied upon the judgments in AQ (Pakistan) v SSHD [2011] EWCA Civ 833 for the proposition (based on a concession by Counsel for the Secretary of State in AQ) that an application “is treated as continuing until the date of decision” [22]. Before the Upper Tribunal, the respondent’s stance was that that position had changed on the coming into force of section 85A of the Nationality, Immigration and Asylum Act 2002, the relevant provisions of which are as follows:-
“…
(3) Exception 2 applies to an appeal under section 82(1) if –

(a) the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d),


(b) the immigration decision concerned an application of a kind identified in Immigration Rules as requiring to be considered under a “Points Based System”, and
(c) the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f).
(4) Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it –
(a) was submitted in support of, and at the time of making, the application to which the immigration decision related …”
19. On the basis of AQ (Pakistan), the Upper Tribunal held that, since the application must be treated as continuing until the date of decision, the appellants before them were entitled to succeed, since notification of their awards, as required by the respondent, had been submitted to her before she decided their applications.

H. Secretary of State for the Home Department v Raju and Others [2013] EWCA Civ 754
20. Before the Court of Appeal, the Secretary of State (represented by Mr Gullick, who appears for her in the present cases) adopted a markedly different stance. Instead of relying on section 85A, which she conceded did not preclude consideration by the Tribunal of evidence adduced after the date of application (but before the date of decision), the Secretary of State rested her case on the submission that the Immigration Rules required the applicant to have made the application for leave to remain “within twelve months of obtaining the relevant qualification” (Appendix A, Table 10, fourth section); and that paragraph 34G of the Rules provided:-
“For the purposes of these rules, the date on which an application or claim (or a variation in accordance with paragraph 34E) is made is as follows:
(i) when the application form is sent by post, the date of posting,
(ii) when the application form is submitted in person, the date on which it is accepted by a public enquiry office of the United Kingdom Border Agency of the Home Office,
(iii) where the application form is sent by courier, the date on which it is delivered to the United Kingdom Border Agency of the Home Officer, or
(iv) where the application is made via the online application process, on the date on which the online application is submitted.”
21. Thus, the fourth section of Table 10 (see [12] above), read with paragraph 34G, created a substantive requirement, with which the appellants in Khatel could not comply. Accordingly, the fact that they had adduced evidence, prior to the date of decision, that they had by then been notified of their awards, was of no avail.

I. The appellants’ submissions on why rule 45 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (if available) should not be applied; or why, if it is applied, the appellants should succeed on the re-making of the decisions in their appeals against refusal to vary leave to remain
(a) General
22. As we have already seen, it is a central theme of the appellants’ submissions that the respondent had a legal duty to determine their applications for variation of leave to remain, by applying the “pragmatic” approach of the July 2010 policy, as set out in the email to caseworkers. We believe it is helpful to state at this stage the basic reason why we consider those submissions to be misconceived. As the Parliamentary history set out above makes plain, by March 2011 the respondent had publicly declared her conclusion, that the Tier 1 (Post-Study Work) route had, in policy terms, been a failure. It had not, in the government’s view, led to the best international graduates staying and contributing to the United Kingdom economy. The Tier 1 (Post-Study Work) arrangements were, according to the Secretary of State, far too generous: “[Students] 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 1 in 10 UK graduates were unemployed, 39,000 non-EU students with 8,000 dependents took advantage of that generosity” (Hansard, 22 March 2012, column 857).
23. The appellants have not begun to show why the Secretary of State was not entitled, as a matter of government policy, to so conclude and, as a result, to close the Tier 1 (Post-Study Work) route with effect from April 2012. As Mr Gullick states: “No students who were already in their final year at the time of the announcement would have been affected, and those who had not yet started or were in an earlier stage of their courses would have time in which to make alternative plans.”
24. So long as the Tier 1 (Post-Study Work) route continued, the July 2010 policy was justified by the fact that, as explained in the May 2012 CI, “any migrant refused on this basis [i.e., that he or she was awarded the relevant qualification after submitting the application] was able to reapply immediately using identical evidence and the case could be approved”. But that rationale disappeared on 6 April 2012, with the closure of the Tier 1 (Post-Study Work) route. There was, accordingly, an entirely legitimate policy reason for the respondent’s decision, as expressed in the 2012 CI, to enforce the pre-6 April relevant Immigration Rules.
25. We therefore accept Mr Gullick’s submission that what the respondent was doing in the May 2012 CI was to avoid speculative applications for leave to remain by students who did not have the relevant awards and so ensure the closure of the route in an orderly manner.

(b) Vested rights
26. The appellants’ argument under this heading is founded on remarks by Lord Neuberger at [52] and [53] of Odelola v Secretary of State for the Home Department [2009] UKHL 25, giving the example of a hypothetical applicant in circumstances where, at the time they made their application, the Rules said that “where an application was not heard within a period of six months of its being made, it could only be refused on grounds of national security; and the rules were then amended so that the period was extended to one year” [52]. Lord Neuberger considered that in such a case, where an application was made more than six months before the period was extended by amendment, the applicant would have a vested right at the time of the amendment.
27. For the present appellants, it is argued that the changes in the Immigration Rules “laid before Parliament on the 15th March 2012 created for these appellants a presumption that the change - not in the Immigration Rules but in Casework Instructions - was not meant to apply” to them. The respondent argues that this submission demonstrates a failure to understand the terms of the Casework Instructions, and makes the point that the Immigration Rules as they were at 5 April 2012 were applied in these cases, and the appellants were unable to meet the terms of those Rules. Mr Gullick also made the point that Lord Neuberger’s opinion in Odelola was agreed with by only one of his colleagues (Lord Hope) and therefore did not form part of the ratio of the judgment in any event.
28. We agree with the respondent on this issue. It is difficult to extract a meaningful proposition from the submission, just quoted. Nothing in the rule changes that came into force on 5 April 2012 says anything about the July 2010 policy, which might rationally be construed as preserving that policy. On the contrary, as we have already noted, the April 2012 rule changes destroyed the rationale for that policy, since there would no longer be any point in waiting for confirmation of an award: once in possession of the award, an applicant could no longer make an application that could succeed under the Immigration Rules.
29. As was said by Lord Brown (with whom Lord Hope and Lord Scott agreed) in Odelola, at [38]:
“The … analogy is with planning law and practice which requires that all applications are determined in accordance with whatever policies are in force at the time the decisions are taken.”
30. The instant appeals are, in any event, not cases where, in the words of Lord Neuberger at [54] of Odelola: “… a right given under the rules had actually come into existence by the time of the amendment”. As we have seen, the change in the Immigration Rules was heralded well in advance and the appellants were unable to satisfy the requirements of the Rules by the date on which they changed.


(c) Legitimate expectation/proportionality
31. Mr Iqbal sought to rely on the judgment of Sir George Newman in HSMP Forum Limited v SSHD [2008] EWHC 664 (Admin) for the submission that the appellants had a legitimate expectation that their applications would be determined in accordance with the July 2010 policy. At [49], the Judge found that the:-
“… conflict to which this case gives rise requires the Court to establish a balance between the importance of preserving the defendant’s right to exercise her discretionary powers in the field of immigration control and the desirability of requiring her to adhere to the statements or practice announced in connection with the original HSMP.”
32. As the Tribunal held in Ferrer (limited appeal ground; Alvi) [2012] UKUT 304 (IAC), in finding against the Secretary of State on that issue, Sir George Newman:-
“regarded it as particularly important that the Secretary of State had publicly stated that the requirements or conditions to be met by an HSMP in order to achieve settlement in the United Kingdom, would not be changed to that person’s disadvantage, once he or she had arrived here pursuant to the scheme.”
Thus, although
“it would not have been inconsistent with nor inimical to the scheme for it to be expressly stated that admission to it gave no guarantee that the criteria at the extension stages would not change during the migrant’s participation in the scheme”,
Sir George Newman held that the Secretary of State could not “escape from the consequences of having failed to make that clear” [47].
33. In the present cases, the appellants have been unable to identify any statement of the respondent (or her predecessor) which comes anywhere near the statements made in connection with participants in the HSMP scheme. In particular, we have not been shown any statement to the effect that those coming to the United Kingdom as graduate students would have an entitlement to work here after the completion of their United Kingdom studies. Participants in the HSMP scheme were specifically encouraged to sever links with their home countries, on the basis that their future lay in the United Kingdom. The position of a person coming to study in the United Kingdom can immediately be seen to be quite different. We say this, having regard to paragraph 245V of the Rules, revoked on 5 April 2012, which described the purpose of the Tier 1 (Post Study Work) route as being “to encourage international graduates who have studied in the U.K to stay on and do skilled work”. There is no explicit or implicit promise in the phrase “stay on” that those concerned were on an officially recognised avenue towards settlement in the United Kingdom. Contrast the Government’s published 2003 Guidance to highly skilled potential migrants:
“It is important to note that once you have entered under the Programme you are in a category that has an avenue to settlement” (HSMP Forum Ltd at [13]).
The other matter to notice is, of course, that many Tier 1 (Post Study Work) migrants were not, in fact, staying on to do highly skilled or even skilled work.
34. At this point, it is necessary to address a further submission of Mr Iqbal, concerning the Tier 1 (Post-Study Work) application form, which the appellants completed. At G5 of the form, we find the words “Tick the box to show that the applicant has sent his/her original certificate of award to prove his/her qualification (the applicant can only claim for one qualification)”. There are then two boxes. One is set against the words “Original certificate of award”. The other box is set against the following words:-
“If the applicant has been unable to submit their original certificate of award because it has not yet been issued, tick the box to show that the applicant has sent an original letter from the institution giving details of the awarding body, and confirmation that the certificate of award will be issued.”
35. Mr Iqbal submitted that this indicates applicants were led to believe they would be dealt with in line with the July 2010 policy. We reject that submission. Part G of the application form relates to the 20 points available for having a relevant qualification. The appellants were, in fact, awarded those 20 points. It is the 15 points in the “fourth section” of the box in Table 10 which they did not obtain, and which led to the refusal of their applications. Part K of the application form deals with this aspect. The boxes in this Part lie beneath the following rubric:-
“K1. The applicant must have made the application for entry clearance or leave to remain as a Tier 1 (Post-Study Work) Migrant within twelve months of obtaining the relevant qualification or within twelve months of completing a United Kingdom Foundation Programme.”
The appellants cannot, therefore, rely on the box in Part G of the application form, in order to advance their arguments based on legitimate expectation.
36. Before us, there was some discussion about the status of the July 2010 policy, being contained, as we have indicated, in an email which was not made public. Mr Iqbal referred to the judgments of the Supreme Court in Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12 in support of the submission that the respondent was not entitled to operate a “secret” policy, which ran counter to her published policies. We have difficulty with this submission. It amounts to an attack on the very policy upon which the appellants seek to rely. Whether or not the actual email was made public, we accept that, over time, immigration practitioners would have become aware of its effects; namely, that during the currency of the Tier 1 (Post-Study Work) route, applicants were not being refused variations of leave to remain, provided that they had submitted confirmation of awards before the respondent made her decisions on their applications. The issue is, therefore, whether the appellants, and others in their position, can demonstrate an entitlement to have their applications decided by reference to the July 2010 policy.
37. Allied to legitimate expectation is the submission that the respondent’s treatment of the appellants is disproportionate. We find that it is not. To require the respondent to apply the July 2010 policy to all Tier 1 (Post-Study Work) applications made before 6 April 2012 would be to legitimise entirely speculative applications (see [25] above). Whilst it would be possible to construct hypothetical alternative policies, which might have benefited the appellants and others in a similar position, without casting the net more widely, as a matter of public law the respondent was entitled to decide that the July 2010 policy should end on 5 April 2012. To find otherwise would, we consider, be for this Tribunal to trespass upon the respondent’s statutory functions.

(d) Fairness
38. The issue of fairness is closely allied to that of legitimate expectation and proportionality. The argument was advanced before the Court of Appeal in Raju, that there was no rationale for, on the one hand, awarding someone 20 points in respect of their qualification, whilst refusing to award that person 15 points because the date of the award was after 5 April 2012. This argument did not find favour with Moses LJ:-
“[12] Whilst I acknowledge that to allow applications which anticipate the award of the necessary qualification does not undermine the purpose of the policy, the wording of the fourth section [of Table 10 in Appendix A] seems to me plain. The fact that an Applicant will achieve a score of 60 points, by obtaining a recognised degree at a qualifying institution during a lawful stay, achieves nothing. Only a score of 75 points attracts the right to be granted leave to remain. There is no room in the points-based scheme for a near miss. Viewed as a whole, qualification under Table 10 requires strict compliance with the requirement to make the application within the period of one to twelve months from the time when the qualification was obtained.
[13] Read in that way, the Rules are analogous to those which require an applicant to satisfy a requirement at the date of his application, such as to require him to have a specified minimum level of personal savings at least three months prior to the date of the application (para 245AA) and to the Rules as to level of funds under the applicant’s control on the date of the application under App C – maintenance (para 1A(g)). …”
39. An alternative “fairness” submission was advanced, to the effect that it was not in the appellants’ control to provide appropriate notification of the relevant awards at any particular time: they were effectively at the mercy of the awarding institution. A corresponding argument was advanced before Holman J in R (on the application of Syed) v Secretary of State for the Home Department [2013] EWHC 984 (Admin). The argument there was that it was unfair for the Secretary of State not to treat a professional level qualification of the Association of Chartered Certified Accountants as a qualification entitling an applicant to leave to remain. At [29] Holman J said:-
“Finally, and with the utmost eloquence, Mr Al Mustakim made submissions as to the ‘fairness’ and ‘proportionality’ of the Rules in their relevant form. He submitted that it is unfair to migrants who obtained the ACCA Qualification and/or not proportionate, that they cannot obtain points. That cannot, however, be used to support an alternative construction of rules or rules and/or Policy Guidance, which are clear. It is not permissible to read into Rules and/or Policy Guidance words which are not there, simply on a submission that it would have been more fair if they had been.”
The same is true of the present cases.
40. The appellants sought to rely upon what the Tribunal said at [55] of Ferrer, where it held that:-
“If, on proper analysis, the respondent’s contention is supported by the plain and ordinary meaning of the Rules, then considerations of fairness cannot produce a different interpretative result. However, where the provisions in question are ambiguous or obscure, which is regrettably often the case where the Rules comprise or have an interaction with points-based rules, then it is legitimate to interpret the provisions by assuming that Parliament is unlikely to have sanctioned Rules which (a) treat a limited class of persons unfairly; and (b) disclose no policy reason for that unfairness.”
41. However, as Moses LJ held in Raju, there is no ambiguity or lack of clarity regarding the “temporal” requirement in the fourth section of Table 10. In any event, there is, as we have held, an entirely valid policy reason for the respondent’s decision to treat the appellants in the way she has.

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