KAN (Post-Study Work – degree award required)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge Spencer |
| Judgment Date | 27 April 2009 |
| Neutral Citation | [2009] UKAIT 22 |
| Court | Asylum and Immigration Tribunal |
| Date | 27 April 2009 |
[2009] UKAIT 22
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
SENIOR IMMIGRATION JUDGE Spencer
For the Appellant: Ms N Bustani, counsel instructed by Paul John & Co, Solicitors
For the respondent: Mr A Sheikh, Home Office Presenting Officer
KAN (Post-Study Work — degree award required) India
The requirement of paragraph 245Z and paragraphs 51 to 55 of Appendix A of HC 395 as amended is that in order to be entitled to points the applicant must have been awarded the requisite qualification in respect of which points are claimed. It is not sufficient to show that the qualification will be awarded. The language used in the Tier 1 (Post-Study Work) of the Points Based System – Policy Guidance in indicating what documents are required as evidence of the award, supports this view.
The appellant is a citizen of India, born on 6 th March 1983. Her appeal against the decision of the respondent, made on 9 h January 2009, refusing her application for leave to remain as a Tier 1 (Post-Study Work) Migrant under paragraph 245Z of HC 395 as amended was dismissed under the immigration rules and on human rights grounds under article 8 of the ECHR after a hearing by Immigration Judge Monro, in a determination promulgated on 12 th March 2009.
On 25 th March 2009 Senior Immigration Judge Warr ordered reconsideration for the following reasons:
“The immigration judge felt constrained to dismiss the appeal on a technical issue but the appellant arguably submits that the appellant might have succeeded on the guidance referred to.
In the premises it is appropriate to order reconsideration on the grounds as pleaded.”
In paragraph 1 of her determination the immigration judge recited that on 26 th February 2006 the appellant was granted leave to enter the United Kingdom as a student until 31 st January 2007. On 14 th February 2007 she was granted leave to remain in the United Kingdom as a student until 30 th April 2008. On 28 th April 2008 she was granted leave to remain in the United Kingdom until 31 st December 2008. On 20 October 2008 she made the application, the refusal of which was the subject matter of the appeal.
In paragraph 5 of her determination she said that she had heard evidence from the appellant and found her to be a credible witness. The appellant had completed her studies in July 2008 and in October she received written confirmation that “the certificate” would be awarded in March 2009. She said she had not yet received the certificate. In paragraph 11 of her determination the immigration judge said that London South Bank University had confirmed in a letter of 27 th October 2008 that the appellant “has completed the requirements for award of the Postgraduate Diploma in Corporate Governance which will be awarded at the next Examination Board scheduled to be held in March 2009”. She explained that in another letter dated 21 st January 2009 the university had stated:
“[KAN] is registered as a student on the MSc/PgDip in Corporate Governance Course at this university, which commenced on 26 th September 2005. Under our corroboration arrangements with Loyola College Chennai she completed semester one at that institution and came to the UK in February 2006 for completion of the rest of the course. [KAN's] attendance record has been excellent (over 95%) and she is a student in good financial standing with no arrears of fee payments. In the academic year 2007/8 (i.e. the academic year ending July 2008) she successfully completed the Postgraduate Diploma in Corporate Governance which will be awarded after the next Examination Board scheduled to be held in March 2009.”
In paragraph 12 of her determination the immigration judge said that the wording of the two letters from the university was plain. She said there was no doubt that the award would be made but the wording of Appendix A of HC 395 was also clear. She said the student must have written confirmation that the qualification had been awarded, not that it would be awarded, even if there was little or no doubt that this would be the case. She found the appellant did not meet the requirement of the rules at the date of application and that the decision made by the Secretary of State was in accordance with the law and rules applicable to the case.
At the hearing before me Ms Bustani confirmed that no certificate that the appellant had been awarded her degree was in existence at the date of the hearing.
In the grounds for review the appellant relied upon the Tier 1 (Post-Study Work) of the Points Based System — Policy Guidance issued by the respondent for the proposition that if an applicant was unable to provide a certificate of award she could rely upon a letter from the body awarding the qualification stating that the certificate of award would be issued. The grounds asserted that the immigration judge had failed to properly apply the guidance to the appellant's case and thereupon made a material error of law.
In her submissions to me Ms Bustani submitted that the combination of the fact that the appellant had succeeded in her course together with the letter from the London South Bank University, dated 21 st January 2009, saying that the appellant had successfully completed the Postgraduate Diploma in Corporate Governance which would be awarded at the next Examination Board scheduled to be held in March 2009, in the light of the respondent's guidance meant that the appellant had complied with the immigration rules. She submitted that a purposive interpretation ought to be given to the immigration rules.
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