Nasim and Others (Raju: reasons not to follow?)

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgePeter Lane,Allen
Judgment Date08 October 2013
Neutral Citation[2013] UKUT 610 (IAC)
Date08 October 2013

[2013] UKUT 610 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

UPPER TRIBUNAL JUDGE Allen

UPPER TRIBUNAL JUDGE Peter Lane

Between
(1) Mr Muhammad Nasim
(2) Mr Tahir Mahmood
(3) Mr Muhammad Taimoor Ahmad
(4) Mr Ahsan Khalid
(5) Mr Ahsan Naeem
(6) Mr Rizwan Bashir
(7) Mr Muhammad Arif Mughal
(8) Mr Muhammad Zulgarnain Arif
(9) Miss Noor UL Huda Arif Mughal
(10) Miss Maham Arif
(11) Mr Safia Arif
(12) Mr Muhammad Afif Arif
(13) Mr Danisha Ejaz Qureshi
(14) Mr Ja'Afar Dori Gambo
(15) Mr Rehan Anwar
(16) Mr Asif Rasheed
(17) Mr Kazi Mosharrof Hossain
(18) Mr Androo Haji Rafeek
(19) Mr Qummer Aziz
(20) Mr Abhilash Mukundhakshan
(21) Miss Sandeep Kaur
(22) Mr Sajid Abdul
Appellants
and
The Secretary of State for the Home Department
Respondent
Representation:

Appellants (1), (3), (13), (15), (21), (22): Mr M Iqbal, Counsel, instructed by Law Wise Solicitor / Farani Javid Taylor Solicitors LLP

Appellant (2): Mr A Baddar, Solicitor, Farani Javid Taylor Solicitors LLP

Appellant (4): Mr A Mehta, Solicitor, Kingswood Solicitors

Appellant (5): Mr C Timson, Counsel, instructed by Primax Solicitors

Appellants (6) to (12): Ms J Heybroek, Solicitor, Morgan Mark Solicitors

Appellants (14) and (16): Mr Z Malik, Counsel, instructed by Coventry Law Centre / Malik Law Chambers Solicitors

Appellant (17): Mr M Jamali, Solicitor, Farani Javid Taylor Solicitors LLP

Appellant (18): Ms D Qureshi, Counsel, instructed by Legend Solicitors

Appellant (19): Mr A Jafar, Counsel, instructed by Lee Valley Solicitors

Appellant (20): Appeared in person (for part of the hearing)

For the Respondent: Mr M Gullick, Counsel, and Mr I Jarvis, Senior Home Office Presenting Officer

Nasim and others ( Raju: reasons not to follow?)

(1) It is not legally possible for the First-tier Tribunal or the Upper Tribunal to decline to follow the judgment in Raju and others v Secretary of State for the Home Department [2013] EWCA Civ 754 on the basis that the Secretary of State's Tier 1 (Post-Study Work) policy of July 2010 (concerning the approach to be taken to “late” submission of certain educational awards) continued to apply in respect of decisions taken by the Secretary of State on or after 6 April 2012, when the Immigration Rules were changed by abolishing the Tier 1 PSW route.

(2) The Secretary of State was under no duty to determine Post Study Work applications made before that date by reference to that policy, the rationale for which disappeared on 6 April. In particular:

(a) a person making such an application had no vested right or legitimate expectation to have his or her application so determined;

(b) it was not legally unfair of the Secretary of State to proceed as she did;

(c) the de minimis principle cannot be invoked to counter the failure of applications that were unaccompanied by requisite evidence regarding the award;

(d) the Secretary of State's May 2012 Casework Instruction did not gloss or modify the Immigration Rules but merely told caseworkers to apply those Rules;

(e) evidential flexibility has no bearing on the matter;

(f) an application was not varied by the submission of evidence of the conferring of an award on or after 6 April 2012; but even if it were, the application would fail on the basis that it would have to have been decided under the Rules in force at the date of the variation; and

(g) an application under the Immigration Rules falls to be determined by reference to policies in force at the date of decision, not those in force at the date of application.

(3) The date of “obtaining the relevant qualification” for the purposes of Table 10 of Appendix A to the Immigration Rules as in force immediately before 6 April 2012 is the date on which the University or other institution responsible for conferring the award (not the institution where the applicant physically studied, if different) actually conferred that award, whether in person or in absentia.

(4) As held in Khatel and others (s85A; effect of continuing application) [2013] UKUT 00044 (IAC), section 85A of the Nationality, Immigration and Asylum Act 2002 precludes a tribunal, in a points-based appeal, from considering evidence as to compliance with points-based Rules, where that evidence was not before the Secretary of State when she took her decision; but the section does not prevent a tribunal from considering evidence that was before the Secretary of State when she took the decision, whether or not that evidence reached her only after the date of application for the purposes of paragraph 34F of the Immigration Rules.

DECISION
A. Introduction
1

With one exception, all of the immigrants listed above, whom for convenience we will call the appellants, secured decisions in their favour in the Upper Tribunal in respect of their appeals against decisions of the Secretary of State (“the respondent”) to refuse to vary leave to remain in the United Kingdom, because that Tribunal followed the approach adopted by Blake J, President and Upper Tribunal Judge Coker in Khatel and Others (s85A; effect of continuing application) [2013] UKUT 00044 (IAC). In the case of Mr Nasim (appellant (1)) a Judge of the First-tier Tribunal allowed the appellant's appeal, applying Khatel.

2

The respondent applied for permission to appeal to the Court of Appeal against the determinations of the Upper Tribunal. At the time she did so, permission to appeal to the Court of Appeal had been granted by the Upper Tribunal in respect of Khatel. The respondent's grounds of application in the cases with which we are concerned in most cases reiterated the critique of Khatel contained in the grounds of application submitted in that case. The same is true of Mr Nasim, in whose case the respondent sought and obtained permission to appeal to the Upper Tribunal.

3

Around 200 applications for permission to appeal to the Court of Appeal were made by the respondent in respect of determinations of the Upper Tribunal, allowing appeals (or dismissing the respondent's appeals) on the basis of Khatel. It appears that a significant number of applications for permission to appeal to the Upper Tribunal were made by the respondent against decisions of the First-tier Tribunal, applying Khatel.

4

Since it was known that permission to appeal in Khatel had been granted (with arrangements made for the Court of Appeal to expedite the hearing in that court), it was considered appropriate to consider the respondent's permission applications once the judgments of the Court of Appeal became known. On 25 June 2013, the Court of Appeal allowed the respondent's appeal against the Upper Tribunal's determinations in Khatel and the cases of three other immigrants: Raju and Others v SSHD [2013] EWCA Civ 754.

5

As a result, the Tribunal gave directions in the cases before it where the respondent had applied for permission to appeal to the Court of Appeal. The Tribunal did so pursuant to rule 45(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008:-

45.—(1) On receiving an application for permission to appeal the Upper Tribunal may review the decision in accordance with rule 46 (review of a decision), but may only do so if—

(b) since the Upper Tribunal's decision, a court has made a decision which is binding on the Upper Tribunal and which, had it been made before the Upper Tribunal's decision, could have had a material effect on the decision.”

6

The Upper Tribunal's directions indicated that it proposed, in the light of Raju, to review the determinations of the Upper Tribunal, set them aside and re-make the decisions in the appeals by dismissing them. The directions made plain that the appellants would be (or continue to be) successful in their appeals against removal decisions made in respect of them, in purported pursuance of section 47 of the Immigration, Asylum and Nationality Act 2006. This was because those decisions were unlawful ( Secretary of State for the Home Department v Ahmadi [2013] EWCA Civ 512).

7

In a large number of cases, including those with which we are concerned, the appellants objected. Various different reasons for doing so were advanced; but the common theme was that the appellants contended they should, in whatever manner, still be entitled to succeed in their appeals against the decisions to refuse to vary leave, notwithstanding the judgment in Raju.

8

The present cases have been selected on the basis that they provide a suitable vehicle for considering the arguments advanced regarding the effect of the judgments in Raju. Further directions were issued to the appellants and the respondent on 15 August 2013 and a case management hearing was held on 30 August. The Tribunal would like to commend the parties, their solicitors/representatives and Counsel for their efforts in ensuring that the Tribunal was able on 8 October 2013 to receive comprehensive submissions on the relevant issues.

B. Closing the Tier 1 (Post-Study Work) route
9

The cases before us concern the legal consequences of the respondent's decision in 2011 to close the Tier 1 (Post-Study Work) route, which allowed graduates from abroad who had also studied in the United Kingdom two years in which to seek employment after their United Kingdom courses ended. The Government's concern about this route had, in fact, been articulated by the Secretary of State for the Home Department in Parliament on 23 November 2010 when she said:-

“The old Tier One – supposedly the route for the best and brightest – has not attracted highly-skilled workers. At least 30% of Tier One migrants work in low-skilled occupations such as stacking shelves, driving taxis or working as security guards, and some don't have a job at all. So we will close the Tier One general route.

Instead, I want to use Tier One to attract more investors, entrepreneurs and people of exceptional talent.”

10

A public announcement on 22 March 2011 confirmed the “closure of...

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