NO (Post-Study Work – award needed by date of application)

JurisdictionEngland & Wales
CourtAsylum and Immigration Tribunal
JudgeSenior Immigration Judge Spencer
Judgment Date08 September 2009
Neutral Citation[2009] UKAIT 54
Date08 September 2009

[2009] UKAIT 54

Asylum and Immigration Tribunal

THE IMMIGRATION ACTS

Before

SENIOR IMMIGRATION JUDGE Spencer

Between
NO
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:

For the appellant: Mr J S Ogolo, solicitor, Joves Solicitors

For the respondent: Mr J Saunders, Home Office presenting officer

NO (Post-Study Work — award needed by date of application) Nigeria

This determination supplements the determination of the Tribunal in KAN (Post-Study Work – degree award required) India [2009] UKAIT 00022 . 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 by the date of the application.

DETERMINATION AND REASONS
1

The appellant is a citizen of Nigeria, born on 13 th April 1978. His appeal against the decision of the respondent, made on 3 rd November 2008, refusing his application to remain in the United Kingdom 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 P A Grant-Hutchison, in a determination promulgated on 23 rd June 2009.

2

The background to this appeal is that on 16 th June 2006 the appellant was granted leave to enter the United Kingdom until 31 st October 2008 as a student. On 2 nd October 2008 he applied for leave to remain in the United Kingdom as a Tier 1 (Post-Study Work) Migrant. As Mr Saunders pointed out during the hearing before me, the qualification in respect of which the appellant claimed 20 points in his application was a United Kingdom recognised degree at post-graduate level. In answer to question G2 in the appellant's application form, it was stated to be a Master's Degree in Energy Futures – Oil and Gas, awarded by the School of Engineering (at the University of Aberdeen). The appellant claimed 20 points in respect of having studied at a United Kingdom institution, that is to say the University of Aberdeen. He claimed 20 points in respect of having leave to remain as a student during his period of study and 15 points on the basis that the eligible qualification was obtained in the twelve month period immediately before submitting the application. Section K1 of the application form stated that the applicant must have made the application for entry clearance or leave to remain as a Tier 1 (Post-Study Work) Migrant within 12 months of obtaining the relevant qualification. It went on to say:

“Please tick the box to confirm that the applicant obtained his/her eligible qualification in the 12 month period immediately before submitting this application.”

The appellant ticked the box.

3

In support of his application the appellant submitted a letter from Dr Thangavel Thevar, the coordinator of the MSc (Energy Futures) programme in the School of Engineering at the University of Aberdeen, which confirmed that the appellant was currently a full-time MSc (Energy Futures – Oil and Gas) student in the School of Engineering, University of Aberdeen. The letter read as follows:

“This letter is to confirm that Mr. O is currently a full time Msc (Energy Futures-Oil and Gas) student in School of Engineering, University of Aberdeen. The programme runs from 18 th September 2007 to 30 th September 2008.

Mr. O has satisfied all requirements for the award of a Post-Graduate diploma. He is currently working on his dissertation which is due for submission on 30 th September 2008. Subject to his successful completion of the dissertation, he will be awarded a Master's degree in November 2008.”

4

During the hearing before me Mr Ogolo suggested that the appellant had earned the necessary points in respect of the award of a post-graduate diploma but it is perfectly plain from the appellant's application form that he did not make the application based upon the award of a postgraduate diploma and Mr Ogolo was not able to point to any evidence before the immigration judge, or me for that matter, that a post-graduate diploma had in fact been awarded to the appellant, so as to comply with the requirements of the immigration rules.

5

It is clear from the letter of refusal, dated 3 rd November 2008, that the Secretary of State refused the application because the appellant had failed to provide a certificate or letter confirming that he had been awarded the Master's degree he claimed. This meant that he failed to obtain 20 points for his qualification and failed to obtain 15 points for having obtained the award within twelve months of his application.

6

In the respondent's bundle before the immigration judge there was a certificate from the University of Aberdeen showing that the degree of Master of Science in Energy Futures (Oil and Gas) was conferred upon the appellant on 28 th November 2008. The appellant attended the hearing and I am prepared to accept that he showed to the immigration judge the original certificate which he had with him at the hearing before me. In paragraph 11 of his determination the immigration judge said this:

“Ultimately the only matter that was in dispute between the parties was whether or not the Appellant could claim 15 points for having obtained an appropriate qualification. Whereas I can perfectly understand why the Appellant applied when he did, as a matter of fact he did not, as is required, obtain his degree in the twelve months prior to application. Indeed the letter from the University of Aberdeen only states that he will obtain his degree if his dissertation is successfully completed. I am prepared to accept that the Appellant did indeed obtain his degree but that has little effect on the respondent's decision as it was obtained out with the relevant period.”

7

In paragraph 13 he said that for the reasons stated above he did not accept the reasons given by the respondent in the refusal to allow entry clearance (sic) to the appellant. He said the appellant had not discharged the burden of proof and the reasons given by the respondent did justify the refusal.

8

The appellant applied for reconsideration of the appeal on three grounds. The first was that there was an inherent contradiction in the statement by the immigration judge in paragraph 13 of his determination, that he did not accept the reasons given by the respondent in the refusal to allow entry clearance to the appellant and his statement that the appellant had not discharged the burden of proof and the reasons given by the respondent...

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