Asif Rasheed (Appellant) Secretary of State for the Home Department (Respondent) Muhammad Mughal (Appellant) Secretary of State for the Home Department (Respondent) Rizwan Bashir (Appellant) Secretary of State for the Home Department (Respondent) Adil Mehmood (Appellant) Secretary of State for the Home Department (Respondent) Muhammad Ahmad (Appellant) Secretary of State for the Home Department (Respondent) Rehan Anwar (Appellant) Secretary of State for the Home Department (Respondent) Muhammad Rizwan (Appellant) Secretary of State for the Home Department (Respondent) Kazi Hossain (Appellant) Secretary of State for the Home Department (Respondent) Sajid Abdul (Appellant) Secretary of State for the Home Department (Respondent) Ahsan Khalid (Appellant) Secretary of State for the Home Departm
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Sir Stanley Burnton |
| Judgment Date | 20 November 2014 |
| Neutral Citation | [2014] EWCA Civ 1493 |
| Docket Number | Case Nos: C5/2014/0400, 0941, 0976, 1478, 0527(A), 0527(B), 1558, 0957(A), 0957(B), 1511 & 1659 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 November 2014 |
[2014] EWCA Civ 1493
Lord Justice Moore-Bick
Vice-President of the Court of Appeal, Civil Division
and
Sir Stanley Burnton
Case Nos: C5/2014/0400, 0941, 0976, 1478, 0527(A), 0527(B), 1558, 0957(A), 0957(B), 1511 & 1659
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
Upper Tribunal Judge Allen &
Upper Tribunal Judge Peter Lane
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Mashood Iqbal for the appellants Mughal, Ahmad, Anwar, Rizwan, Hossain, Abdul, Khalid, Dharmisthaben Pandya and Kartikkumar Pandya
Mr. Zane Malik for the appellants Rasheed and Bashir
Mr. Michael Biggs for the appellant Mehmood
The respondent did not appear and was not represented
Hearing date: 29 th October 2014
These renewed applications for permission to appeal have been listed for hearing together because they all raise one or more of a number of common grounds. Most of them arise out of a much larger group of cases, 22 in all, which for that reason were heard together by the Upper Tribunal; a few were the subject of determinations by the Upper Tribunal in more conventional proceedings.
Background
Until 6 th April 2012 students who had completed further education courses in this country could apply for leave to remain for up to 2 years in order to enter employment as Tier-1 (Post-study Work) migrants. It was hoped that the scheme would attract high quality graduates to this country, but in March 2011 the government concluded that it had not succeeded in doing so and announced that it had decided in principle to close that particular route to entry from April the following year. In the event the new rules took effect from 6 th April 2012.
Under the Immigration Rules as they had been before 6 th April 2012 persons wishing to apply for entry as Tier-1 (Post-study Work) migrants were required to apply under the Points-Based System. The points that would be awarded in respect of different aspects of an application were set out in Table 10 of Appendix A to the Immigration Rules. 75 points were required to qualify for leave to remain, of which 20 points could be awarded for a qualifying degree or other award and 15 points for an application made within 12 months of obtaining the qualification in question. An applicant would need to be awarded points under both heads in order to obtain the full 75 points required for a successful application.
It was clear from Table 10 that a person could not make an effective application until he had been formally awarded the qualification on which it was based. Despite that, it had become common for applications to be made by students who had completed their courses before they had been formally awarded their degrees or other qualifications and it appears that at some stage there had been some doubt about how to deal with such applications. In July 2010 caseworkers were sent an instruction by email in which it was pointed out that applications should not be made before qualifications had been formally confirmed and that those whose leave to remain had expired before that date should make their applications from abroad. However, they were also advised that if, by the time they came to make a decision, the qualification had been confirmed, they should not refuse the application. This became known as the "pragmatic" policy. It was justified by the fact that, until this route of entry was closed in April 2012, a person whose application was refused on that ground alone, but who had had since been awarded the relevant qualification, could immediately make a further application and could expect to be given leave to remain.
In Khatel and Others (s.85A; effect of continuing application) v Secretary of State for the Home Department [2013] 00044 (IAC) the Upper Tribunal endorsed that view on the basis that an application was a continuing process which was not completed until a decision had been reached. However, that decision was overturned by this court on appeal under the name of Raju v Secretary of State for the Home Department [2013] EWCA Civ 754. The court held that in order to qualify for 15 points under the fourth section of Table 10 the application had to be made within a period of 12 months following the date on which the degree or other qualification on which it was based had been awarded. It followed that an applicant was not entitled to be awarded any points under that section if he had made his application before he had received his qualification.
Following the closure of the Tier-1 (Post-study Work) migrant scheme, in May 2012 the Secretary of State produced a fresh casework instruction on the handling of applications made before 6 th April 2012 in cases where the relevant qualification had not then been confirmed or formally awarded. Caseworkers were instructed that in such cases the rules were to be applied strictly.
The present applicants are all foreign nationals who have been studying here and who applied for variations of their existing leave to remain as Tier-1 (Post-study Work) migrants, having completed their various courses at graduate level. The applicants made their applications on various dates before 6 th April 2012, in each case before the award of the qualification on which the application was based had been confirmed. Although in each case the award of the relevant qualification had been confirmed before a decision had been made, the Secretary of State refused their applications. She considered that they could not claim the necessary 15 points because at the time of their applications the qualifications on which they were based had not been awarded.
The proceedings before the Upper Tribunal
A large number of appellants whose applications to vary their leave to remain had been refused by the Secretary of State raised similar arguments in support of their appeals to the Upper Tribunal. The tribunal therefore directed that 22 appeals, including most of the present applicants, be heard together in order to determine the main issues that had been raised in such cases. The decision in Raju v SSHD, however, meant that the appeals were bound to fail unless it could be circumvented in some way.
Before the Upper Tribunal the appellants between them put forward a number of arguments, none of which had been raised or considered by this court in Raju. They can be summarised as follows:
(i) that it was unlawful for the Secretary of State to depart from the pragmatic policy in their cases;
(ii) that they had been misled by the existence of the pragmatic policy and by the way in which the application form was worded into making premature applications and consequently had a legitimate expectation that the pragmatic policy would be applied in their cases and their applications granted;
(iii) that the Secretary of State should have accepted evidence of the award when it was eventually obtained under section 85A of the Immigration, Nationality and Asylum Act 2002;
(iv) that the delay in obtaining formal confirmation of their qualifications should be ignored pursuant to the maxim de minimis non curat lex;
(v) that the Secretary of State should have accepted the formal confirmation of the award of their qualifications when it became available in accordance with the evidential flexibility policy;
(vi) that the production of the formal confirmation of the award (or in one case the decision to rely on a different qualification) should be treated as a variation of the original application which was to be decided in accordance with the Immigration Rules as they existed before 6 th April 2012 pursuant to the transitional provisions in the new rules;
(vii) that there had been a breach of the common law requirement of fairness in the determination of their applications.
The Upper Tribunal considered and rejected all these arguments and accordingly dismissed the appeals. The applicants therefore now seek permission to appeal to this court against that decision. It is accepted that in order for permission to be granted any such appeal would have to have a real prospect of success and would also have...
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