Khan and Tabassum (CCOL: Postgraduate certificates)
| Jurisdiction | UK Non-devolved |
| Judge | P R Lane |
| Judgment Date | 08 June 2011 |
| Neutral Citation | [2011] UKUT 249 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 08 June 2011 |
[2011] UKUT 249 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
SENIOR IMMIGRATION JUDGE P R Lane
For the Appellant: Mr R. Hopkin, Senior Home Office Presenting Officer
For the Respondents: Mr A. Sayem of Immigration 4u
Khan and Tabassum (CCOL: Postgraduate certificates) Bangladesh
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(1) Those who assert they were awarded postgraduate certificates in business management (and IT) by Cambridge College of Learning, after completing relevant courses there, will have to surmount the important and obvious problem that, if such certificate courses had been run and examined by CCOL, and certificates awarded to successful candidates, the witnesses who gave evidence to the Tribunal in NA and Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031 and who were found credible, would have said so. There was no credible evidence before the AIT in that case to suggest that any postgraduate courses in business management or IT were taught and examined by CCOL. It follows that, whilst the evidence in each case must be individually assessed, NA and Others is indicative of there being no such thing as a genuinely issued CCOL postgraduate certificate in those subjects and it is therefore necessary for a claimant seeking to rely on such a certificate to adduce cogent evidence in support.
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(2) For the correct way to approach the use of the determination in NA and Others, see paragraphs 32 to 40 of the Upper Tribunal's determination in TR (CCOL cases) Pakistan [2011] UKUT 33 (IAC).
The respondents are citizens of Bangladesh, born respectively on 1 January 1980 and 10 August 1989. They are husband and wife. The first respondent entered the United Kingdom in June 2003 as a student, receiving further leave to remain in that capacity on 4 March 2005 (until 31 December 2007) and 31 January 2008 (until 31 October 2008). On 8 September 2008 the first respondent was granted leave to remain as a Tier 1 (Post-Study) Migrant until 4 September 2010. The second respondent entered the United Kingdom on 23 February 2009, as a dependent spouse of the first respondent, and was granted leave to enter until 4 September 2010.
On 3 September 2010 both respondents applied for leave to remain in the United Kingdom as, respectively, a Tier 1 (General) Migrant and a partner of such a migrant. On 8 October 2010, the Secretary of State refused the respondents' applications. In the case of the first respondent, she did so because she was satisfied that, despite having stated in his current application that he had never used deception in an attempt to gain leave in the United Kingdom, the first respondent had not told the truth because, in his previous application, he had submitted in support a postgraduate certificate in business management from the Cambridge College of Learning. The Secretary of State stated that it has “been confirmed that this institution never offered a legitimate Postgraduate qualification”. Accordingly, the first respondent's application was refused under paragraph 322(1A) of the Immigration Rules, as regards the present application, and paragraph 322(2), as regards the previous one. So far as paragraph 322(2) was concerned, the Secretary of State deemed refusal to be appropriate and was not prepared to exercise discretion in the first respondent's favour.
Additionally, the Secretary of State considered that the first respondent had failed to score the requisite 30 points for earnings under Appendix A (attributes) to the Immigration Rules, scoring only 20 points, according to the information provided by the first respondent.
The second respondent's application was refused, in line with the decision taken in respect of the first respondent.
The respondents appealed to the First-tier Tribunal and their cases were heard at Taylor House on 1 December 2010 by an Immigration Judge. The grounds of appeal in respect of the first respondent contended that he should have been awarded 10 points under paragraph 245C and Appendix A, based on previous earnings, making a total of 30 points. Although there had been a failure to provide documentation listed in paragraph 142 of the policy guidance, 30 points should have been awarded on the basis of the materials that the first respondent had supplied to the respondent.
So far as false representations were concerned, the grounds said this:–
“It has been stated, in particular, the Appellant submitted a false certificate of Postgraduate Diploma in Business Management qualification from Cambridge College of Learning to obtain a grant of leave as a Tier 1 (PSW) Migrant. The Appellant, however, confirms that he genuinely obtained his PGD qualification and will be able to provide necessary evidences to meet the relevant immigration rules. He did not deceive the UK BA in any way. He will be able to prove the authenticity of his PGD award before the Tribunal”.
It is noteworthy that the grounds of appeal referred to the first respondent (as he now is) being awarded a postgraduate diploma (PGD).
At the hearing before the Immigration Judge, it was recorded that the “matter proceeded by brief oral submissions, in part because Mr Sayen (sic) explained that his client studied for a postgraduate certificate as opposed to a Diploma in business management from February 2008 to July 2008”. The respondent stated in oral evidence that he was “shocked to learn upon receipt of his decision that his certificate from the Cambridge College of Learning is not regarded as genuine” (paragraphs 6 and 7).
The Secretary of State's Presenting Officer relied on the authority of NA and Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031, in order to refute the first respondent's assertion that he studied for and obtained the award of a postgraduate certificate in business management from that institution. At paragraph 9, the Immigration Judge's findings on this issue were as follows:–
“9. The contentious issue of the Cambridge College of Learning is, that, I reiterate [the first respondent] drew a distinction between a postgraduate certificate which he gained that I have already referred to, as opposed to a Diploma. He did this after studying at the University of East London, having hitherto an unblemished immigration history. If the … Secretary of State is alleging fraud, the onus shifts to her to prove it which she manifestly has not done in respect of the Cambridge College. As I am satisfied he did genuinely study for a certificate at the college and gained it, this appeal succeeds in relation to his document not being a forgery and his not having employed deception in this regard.”
At paragraph 8, the Immigration Judge had already found, for reasons not challenged by the Secretary of State, that the first respondent was entitled to the award of 30 points in respect of earnings. At paragraph 10, she allowed the first respondent's appeal. Although she did not deal expressly with the second respondent, apart from mentioning her in the title page, it is to be taken that the Immigration Judge also allowed the appeal of the second respondent.
The Secretary of State sought permission to appeal against the determination of the Immigration Judge. On 18 January 2011, the First-tier Tribunal granted such permission, on the basis of the Secretary of State's grounds, which asserted that the Immigration Judge had failed to give adequate reasons for her finding that the postgraduate certificate in business management from the Cambridge College of Learning was a genuine document. The Secretary of State submitted that the Asylum and Immigration Tribunal had “discussed at length the courses offered by the Cambridge College of Learning 2007-2008. It is submitted that, with reference to NA and Others [2009] UKAIT 00031 (paragraphs 47, 58, 131, 140, 142 and 145) that the Cambridge College of Learning never ran its own postgraduate courses in business management or IT”. The Immigration Judge had accordingly “misdirected herself in trying to make a distinction between a certificate and a diploma when it is clear from NA that no postgraduate courses were on offer from the College”.
On 11 February 2011, the Upper Tribunal gave directions concerning the conduct of the appeal. The respondents (as they now are) were directed to ensure that any necessary oral evidence could be given at the forthcoming hearing, in the event that the decision of the First-tier Tribunal was set aside.
In his submissions to me on 29 March, Mr Sayem claimed that the Immigration Judge had been entitled to find as she did because a postgraduate certificate was not the same as a postgraduate diploma. A certificate was of a lower order than a diploma. There was nothing in NA and Others to the effect that the Cambridge College of Learning had not run postgraduate certificate courses in business management. Furthermore, the case of TR (CCOL Cases) Pakistan [2011] UKUT 33 (IAC) had made it plain that each CCOL case needed to be individually considered.
In NA and Others, the Tribunal heard oral evidence from Messrs Stewart and Malik and Ms Ullah, each of whom had earlier made Criminal Justice Act statements, upon which the Secretary of State has relied in many cases involving individuals, including the first respondent, who had claimed to receive postgraduate qualifications from CCOL. The Tribunal found all three witnesses to be credible.
Mr Stewart led the enforcement visit to CCOL on 2 December 2008 and gave evidence by January 2009 the Secretary of State had received 2,542 applications for post study work from students claiming that they had CCOL PG Dips in either BM management or IT. Mr Malik taught IT at CCOL but was unaware of anyone...
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