AQ (Pakistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE TOULSON,LORD JUSTICE SULLIVAN |
| Judgment Date | 20 July 2011 |
| Neutral Citation | [2011] EWCA Civ 833 |
| Docket Number | Case No: C5/2011/0287 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 July 2011 |
[2011] EWCA Civ 833
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Toulson
and
Lord Justice Sullivan
Case No: C5/2011/0287
Zane Malik (instructed by Malik Law Chambers) for the Appellant
Alan Payne (instructed by Treasury Solicitor) for the Respondent
Hearing dates : 21 June 2011
This is an appeal against a decision of the Upper Tribunal (Immigration & Asylum Chamber) ("the Tribunal") which, by a determination promulgated on 21 May 2010, dismissed the appeal of AQ (Pakistan) ("the appellant") against a decision of an Immigration Judge dated 31 March 2009. The Immigration Judge had dismissed an appeal under section 82 of the Nationality & Asylum Act 2002 ("the 2002 Act") against the decision of the Secretary of State for the Home Department ("the Secretary of State") refusing to vary leave to remain in the United Kingdom pursuant to Rule 245Z of the Immigration Rules (post-study work).
To qualify for leave to remain as a Tier 1 (Post-Study Work) Migrant, an applicant must meet requirements, including having a minimum number of points specified in appendices to the Rules. The Tribunal held that the Immigration Judge had not erred in law in dismissing that appeal.
Rule 245Z provides, in so far as is material:
"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 245ZA (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.
Requirements:
…
(c) The applicant must have a minimum of 75 points under paragraph 5 to 58 of Appendix A.
…"
The issue can be put succinctly. Can the points entitlement arising from a Masters degree count towards the minimum if the degree is awarded after the Secretary of State's decision but before the decision of the Tribunal?
The appellant is a citizen of Pakistan and came to the United Kingdom in September 2006. On 17 March 2008, his leave to remain as a student was extended until 31 October 2008. On 7 October 2008 he made application for further leave to remain as a Tier 1 (Post-Study Work) Migrant. Application had to be made before the leave came to an end on 31 October ( JH (Zimbabwe) v Secretary of State [2009] EWCA Civ 78, per Richards LJ at paragraph 35). The appellant produced evidence that his final year project was expected to be completed by 31 October 2008.
By a letter dated 28 November 2008, the Secretary of State refused the application on the ground that the appellant had failed to obtain the requisite number of points under Appendix A. He had yet to complete his Masters degree which had not been awarded to him. In the letter refusing the application, the appellant was told of his right of appeal under section 82(1) of the 2002 Act. Section 84(1) identifies the grounds on which an appeal can be brought. The appellant was also given a One-Stop Warning ("OSW") under section 120(2) of the Act. The sub-section provides:
"The Secretary of State or an immigration officer may by notice in writing require the person to state—
(a) his reasons for wishing to enter or remain in the United Kingdom,
(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and
(c) any grounds on which he should not be removed from or required to leave the United Kingdom."
Section 120(3) provides:
"A statement under subsection (2) need not repeat reasons or grounds set out in his previous application."
The appellant exercised his right of appeal. Section 82 of the 2002 Act provides, in so far as is material:
"(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.
(2) In this Part "immigration decision" means—
…
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain."
Section 84(1) of the 2002 Act provides, in so far as is material:
"An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—
(a) that the decision is not in accordance with immigration rules;
…"
The appellant responded to the section 120 Notice. Under the heading "Statement of additional grounds" he relied on evidence that he had on 3 December 2008, that is after the Secretary of State's decision, been awarded a degree in MSc Computer System & Networking by City University.
The Tribunal's duties, when considering a section 82(1) appeal and the appellant has made a statement under section 120, are set out in section 85 of the 2002 Act:
"(2) If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.
(3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.
(4) On an appeal under section 82(1)…against a decision the Tribunal may consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.
(5) But in relation to an appeal under section 82(1) against refusal of entry clearance or refusal of a certificate of entitlement under section 10—
(a) subsection (4) shall not apply, and
(b) the Tribunal may consider only the circumstances appertaining at the time of the decision to refuse."
Section 86(2) and (3) provide:
"The Tribunal must determine—
(a) any matter raised as a ground of appeal (whether or not by virtue of section 85(1)), and
(b) any matter which section 85 requires it to consider.
(3) The Tribunal must allow the appeal in so far as it thinks that—
(a) a decision against which the appeal is brought…was not in accordance with the law (including immigration rules)…"
The Immigration Judge dismissed the appeal on the ground that the degree had not been awarded at the time of the Secretary of State's decision. The decision was said to be in accordance with the rules and was not unlawful. The Immigration Judge stated that he was bound to dismiss the appeal, adding, at paragraph 10, that the circumstances were exceptional in that, at the date of the hearing before him, the appellant would qualify for the appropriate visa.
A reconsideration was ordered on 23 April 2009 and the Tribunal (CMG Ockelton, Vice President, and Senior Immigration Judge Storey) stated, at paragraph 12:
"The plain meaning of the words '…has been awarded' in para 55 of Appendix A is clear. For a qualification to be accepted as having been ' obtained', the award must already have been made. Put another way, the award must already be an historic fact."
The Tribunal added, at paragraph 14:
"Under para 245Z(c), it is stipulated that in order to score the necessary points under 'Attributes', an applicant must have been awarded the qualification and be able to show that this was the state of affairs as at the date of application. The decision in respect of both requirements is one that has to look back at the position as at the date of application. The decision-maker is not asked to consider the substantive position of the applicant at the date of decision, or, in the case of an Immigration Judge, at the date of hearing."
The Tribunal concluded, at paragraph 15:
"On the evidence in this case the appellant's university only awarded him his degree on a date well after the date of application and decision. Accordingly, the IJ was right to conclude that the decision of the respondent refusing his application was in accordance with the law."
When granting permission to appeal to this court on 7 January 2011, SIJ Storey stated:
"However, the Tribunal did not address the AS (Afghanistan) case and it is perhaps difficult to say that the decision of the majority in AS (Afghanistan), which is binding on the Tribunal, did not require a different approach than was taken: see in particular [79] and [111–113] of AS (Afghanistan). It would appear that so long as there is a decision outstanding on whether to grant variation of leave to remain the reasoning of the majority in AS (Afghanistan) would permit an existing appellant to lodge a fresh application and have it treated as a further ground of appeal against what is effectively the substance of that decision. The fact that that appears to make a nonsense of the Rules requiring applications to be made in a particular form and fees to be paid for them, to short-circuit consideration by the respondent of a new application, to defeat the apparent intention of Immigration Rules specifying historic tests and also to turn the Tribunal into a primary decision-maker appears to matter not. However, even if the grounds for the foregoing reasons might be said to take AS (Afghanistan) further than their lordships intended, they are certainly arguable."
As appears, the decision of this court in AS (Afghanistan) [2009] EWCA Civ 1076, [2010] 2 All ER 21 was not addressed by the Tribunal. The appellant now relies on that decision.
It is accepted on behalf of the appellant that the consistent practice of the Tribunal, in the absence of AS, was to require the accumulation of points to be established at the date of the application for an extension...
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