MM and SA (Pankina: Near-Miss) Pakistan

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeSenior Immigration Judge P R Lane
Judgment Date20 December 2010
Neutral Citation[2010] UKUT 481 (IAC)
Date20 December 2010

[2010] UKUT 481 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Lord Bannatyne

SENIOR IMMIGRATION JUDGE P R Lane

Between
Secretary of State for the Home Department
Appellant
and
MM
SA
Respondents
Representation:

For the Appellant: Mrs T. Sharland, Specialist Appeal Team

For the Respondents: Ms S. Iqbal, Counsel, instructed by BR Law Associates

MM and SA ( Pankina: near-miss) Pakistan

Judicial decision-makers should be careful to identify and reject arguments based on an alleged near-miss, which, on proper analysis, are an attempt to import extraneous qualifications into the immigration rules. The Article 8 proportionality balancing exercise is unlikely to be properly conducted if the judge has, in effect, substituted his or her own view of what the rules should say.

The requirement in paragraph 116 of Appendix A to the rules, that a Confirmation for Acceptance of Studies must be issued not more than 6 months before the application for leave is made, is not met by a letter issued after the application has been made.

DETERMINATION AND REASONS
1

The Secretary of State appeals, with permission granted by the First-tier Tribunal, against the determination of Immigration Judge Duff who, following a hearing at North Shields on 30 June 2010, allowed the appeals of the respondents against the Secretary of State's decisions to refuse to vary their leave to remain in the United Kingdom.

2

The respondents are nationals of Pakistan, born respectively on 20 July 1979 and 18 October 1978. The first respondent applied for a variation of her leave as a Tier 4 (General) Student Migrant under the points-based system of the Immigration Rules. The second respondent applied as the dependant of the first respondent. It was and is common ground that the appeal of the second respondent is entirely dependent upon that of the first respondent.

3

The relevant provisions of the Immigration Rules are as follows:-

245ZX Requirements for leave to remain

To qualify for leave to remain as a Tier 4 (General) Student under this Rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the applicant will be refused.

Requirements:

(b) the applicant must have or have last been granted, entry clearance, leave to enter or leave to remain:

(i) as a Tier 4 (General) Student,

(c) the applicant must have a minimum of 30 points under paragraphs 113 to 120 of Appendix A,

Appendix A

Attributes for Tier 4 (General) Students

113. An applicant applying for entry clearance or leave to remain as a Tier 4 (General) Student must score 30 points for attributes.

114. Available points are shown in Table 16 below.

115. Notes to accompany Table 16 appear below that table.

Table 16

Criterion

Points awarded

Confirmation of acceptance for studies

30

Notes

116. A Confirmation of Acceptance for Studies will only be considered to be valid if:

  • (a) it was issued no more than 6 months before the application is made,

  • (b) the application for entry clearance or leave to remain is made no more than 3 months before the start date of the course of study as stated on the Confirmation of Acceptance for Studies,

  • (d) it was issued by an institution with a Tier 4 (General) Student Sponsor Licence,

  • (e) the institution must still hold such a licence at the time the application for entry clearance or leave to remain is determined,

  • …”

4

The first respondent wished to vary her leave to remain in order to study for an Advanced Diploma in Business Management at the London School of Business and Computing in London, N1. The course was due to begin on 12 October 2009. The Confirmation of Acceptance for Studies comprised a letter dated 30 September 2009 from LSBC.

5

The Secretary of State's decision in respect of the first respondent's refusal is dated 15 March 2010. For the 30 points required for attributes in relation to the Confirmation of Acceptance for Studies, the appellant was awarded no points. The letter explained as follows:-

“The Tier 4 Sponsor Register was checked on 02 March 2010 but London School of Business and Computing, Business Design Center, 52 Upper Street, Islington, London, N1 0QH was not listed as of this date. In view of these facts the Secretary of State is not satisfied that you have a valid visa letter.”

6

The Immigration Judge's reasoning is set out at paragraphs 2 to 7 of his determination:-

“2. The burden of proving the case lies upon the appellant and the standard of proof is on the balance of probabilities. Pursuant to section 85(4) of the Nationality, Immigration and Asylum Act 2002 I may consider evidence about any matter, which I consider relevant to the substance of the decision, including evidence which concerns matters arising since the date of the Respondent's decision, but the appellant must be able to demonstrate that she qualified as at the date of her application, which was on 27 November 2009.

3. I state the above as it is crucial to the decision in this case. At the beginning of the hearing I raised that matter with Ms Cornford [the Presenting Officer] who suggested that – because this is an in-country appeal – the appropriate date for the appellant to demonstrate that she satisfied the requirements was at the date of the hearing. I made it clear that my understanding of the matter was that the relevant date was the date of the application and that I proposed to decide the matter on that basis and – if I was incorrect – then it would be open to the Respondent [the Secretary of State] to have my decision reviewed.

4. I am fortified in my view of the matter by the decision in SSHD v Pankina and Others [2010] EWCA Civ 718 in which at paragraphs 37 & 38 under the heading ‘The date at which the facts are to be tested’ Lord Justice Sedley states that – in that case – compliance is to be judged as at the date of the application. Although that case was concerned with funds, nonetheless it accords with the only commonsense approach that, as it is to the Home Office a proof of having the appropriate points is to be submitted that it can only be at the time of the submission of that proof i.e. the date of application.

5. On that basis it is clear that the reasoning set out in the refusal letter of 15 March 2010 is flawed since that letter makes it clear that the application was made on 27 November 2009 but then goes on to state that the Tier 4 Sponsor Register was checked on 2 March 2010 but the London School of Business and Computing (from whom the appellant had submitted a visa letter) was not – at that date – listed. The proper test to be applied was whether – as at the date of the application – the college was on the Tier 4 Sponsor Register.

6. Neither Ms Cornford nor the appellant was able to produce a copy of the register as at the date of the application but the appellant gave evidence that it appeared on the register on the Respondent's website at that time and Ms Cornford did not contend that it did not. The appellant stated that it had been suspended at the end of January and then removed from the list.

7. Since it is perfectly clear from the documentation that as soon as soon as the college was removed from the list the appellant took active steps to find another qualifying college and communicated with the Respondent that she was doing so, I am satisfied that it was indeed on that list at the time of the application.

8. The Respondent awarded the appellant the necessary points under the heading of Maintenance and it was on the sole basis that the college had been removed that she was not awarded the 30 points for the visa letter. The true position was that, as at the date of the application, the college that had supplied the visa letter was on the list of approved institutions and the Respondent ought to have awarded 30 points accordingly.”

7

The Immigration Judge's reasoning in these paragraphs is plainly wrong and Ms Iqbal, for the respondents, did not seek to persuade us to the contrary. The Immigration Judge has misunderstood the judgment in Pankina. The effect of that judgment is not such that, as a general matter, compliance with the Immigration Rules is to be assessed by reference to the date of application. The essence of Pankina is that the Secretary of State may not impose requirements by means of guidance that does not form part of the Immigration Rules and lie outside Parliament's scrutiny. In Pankina the purported requirement in the guidance required applicants to have at least £800 of personal savings for at least three months prior to the date of application. Absent that guidance, the only meaningful way of construing paragraph 245Z and paragraph 2 of Appendix C was that those provisions required the £800 savings to be held at the time of the application (paragraph 37).

8

In the present case, the provision upon which the Secretary of State relied, and with which she asserted the first respondent could not comply, was paragraph 116(e) of Appendix A to the Immigration Rules. Appendix A is part of the Immigration Rules, as required to be laid before Parliament in accordance with the procedure set out in the Immigration Act 1971. It is in no sense to be equated with guidance of the kind with which Pankina was concerned.

9

Paragraph 116(e) requires the institution that issued the Confirmation of Acceptance for Studies (or “visa letter”) still to hold the requisite licence “at the time the application for entry clearance or leave to remain is determined” (our emphasis).

10

There is nothing in paragraph 38 of Pankina that supports the approach of the Immigration Judge in the present case. On the contrary, paragraphs 38 and 39 (which need to be read together) are obiter dicta laying to rest the mistaken argument, which had frequently been...

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