Pokhriyal v Secretary of State for the Home Department Hussain v Same

JurisdictionEngland & Wales
JudgeLord Justice Jackson,Lord Justice Longmore,Lord Justice Vos
Judgment Date05 December 2013
Neutral Citation[2013] EWCA Civ 1568
Docket NumberCase No: C5/2012/3343
CourtCourt of Appeal (Civil Division)
Date05 December 2013
Between:
Himanshu Pokhriyal
Appellant
and
The Secretary of State for the Home Department
Respondent
And Between:
Amjad Hussain
Appellant
and
The Secretary of State for the Home Department
Respondent

[2013] EWCA Civ 1568

Before:

Lord Justice Longmore

Lord Justice Jackson

and

Lord Justice Vos

Case No: C5/2012/3343

C5/2012/3374

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

IA095112012

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Zane Malik and Mr Darryl Balroop (instructed by Messrs Mayfair) for the Appellants

Mr Robert Palmer (instructed by The Treasury Solicitor) for the Respondent

Hearing date: Thursday 14th November

Lord Justice Jackson
1

This judgment is in six parts, namely:

Part 1. Introduction,

Part 2. The facts,

Part 3. The appeals to the Court of Appeal,

Part 4. The construction of paragraph 120B of Appendix A to the Immigration Rules,

Part 5. HP's appeal,

Part 6. AH's appeal.

2

These are appeals by two foreign students whose leave to remain in this country has expired. They challenge the Secretary of State's decisions, upheld by the First-tier Tribunal and the Upper Tribunal, that their proposed further courses do not constitute academic progress from their previous studies.

3

The first appellant is Himanshu Pokhriyal ("HP"). The second appellant is Amjad Hussain ("AH"). Although there is no order for anonymity, it is easier to refer to both appellants by their initials.

4

Both appellants came to the UK as Tier 4 (general) students under the Points Based System ("PBS"). The rules governing the PBS are set out in the Immigration Rules and the appendices to those rules. These provisions have now achieved a degree of complexity which even the Byzantine Emperors would have envied. I shall set out the rules as they were prior to 6 th April 2012.

5

Paragraph 245ZX of the Immigration Rules provided:

"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.

(c) The applicant must have a minimum of 30 points under paragraphs 113 to 120 of Appendix A."

6

Appendix A to the Immigration Rules set out, amongst much else, the attributes which Tier 4 (general) students must possess. Paragraph 115 of Appendix A provided that such a student scores 30 points for obtaining a confirmation of acceptance for studies ("CAS"). Paragraph 115A of Appendix A required the student to provide a valid CAS reference number, but not the CAS, to UKBA. It is the college concerned which prepares the CAS and submits it electronically to UKBA.

7

Paragraphs 116 and 117 of Appendix A set out the various requirements with which a CAS and its reference number must comply in order to be valid.

8

Paragraph 120B of Appendix A provided:

"Points will only be awarded for a valid Confirmation of Acceptance for Studies assigned on or after 4 July 2011 (even if all the requirements in paragraphs 116 to 120A above are met) if the Sponsor has confirmed that the course for which the Confirmation of Acceptance for Studies has been assigned represents academic progress from previous study undertaken during the last period of leave as a Tier 4 (General) Student or as a Student, except where:

(i) the applicant is re-sitting examinations or repeating modules in accordance with paragraph 119 above, or

(ii) the applicant is making a first application to move to a new institution to complete a course commenced elsewhere."

9

In this judgment I shall refer to a foreign student who has previously been given leave to remain in the UK as a student as an "existing student". I shall use the phrase "academic progress" to mean academic progress from the previous study undertaken.

10

The Secretary of State for the Home Department has overall responsibility for administering the immigration system. Section 3 (2) of the Immigration Act 1971 ("the 1971 Act") provides:

"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances;

…"

11

From time to time the Secretary of State issues instructions to immigration officials to guide them in their application of the rules. The Secretary of State issues such instructions pursuant to paragraph 1 (3) of Schedule 2 of the 1971 Act. They are known as Immigration Directorate's Instructions ("IDIs"). The Secretary of State also from time to time issues guidance statements for the assistance of those who are operating under the rules.

12

Having set out the legislative background, I must now turn to the facts.

HP

13

HP is an Indian national, born in 1986 and now aged 27. HP came to the UK for the purpose of studying in September 2008. He was granted leave to enter as a Tier 4 (general) student under the PBS. He was subsequently given leave to remain in that capacity until 4 th January 2012.

14

Initially HP studied for a postgraduate diploma at the London School of Business Management. HP subsequently transferred to other colleges, where he studied business administration and business management. These courses were classified as NVQ level 7.

15

In late 2011 HP decided that he needed to obtain a qualification in IT, in order to improve his career prospects. He applied for and secured a place at St Stephen's College to study for a diploma in IT. This was a two and a half year course, classified as NVQ level 5.

16

HP applied to the Secretary of State for an extension of his leave to remain in the UK, so that he could undertake the IT course. In support of that application St Stephen's College issued a CAS, which it sent to UKBA.

17

In the box on the CAS marked "evidence provided" the college described the previous courses which HP had undertaken. The college then added this:

"ACADEMIC PROGRESSION: Student has studied a PGD for general academic purposes but as he wants to go into the IT industry, a qualification in IT combined with the PGD would offer him better opportunities. Student wishes to follow a career in IT in India and in particular with the Tata Group. He believes that his previous studies in the UK combined with an IT qualification would provide him with additional opportunities in following his chosen career path."

18

By a letter dated 9 th February 2012 the Secretary of State refused HP's application on the ground that HP's new course did not constitute "academic progress" within the meaning of paragraph 120B of Appendix A to the Immigration Rules. Accordingly HP failed to achieve the required 30 points under paragraph 245ZX (c) of the Immigration Rules.

19

HP appealed unsuccessfully against that decision first to the First-tier Tribunal, then to the Upper Tribunal. He now appeals to the Court of Appeal.

AH

20

AH is a Pakistani national, born in 1984 and now aged 29. AH came to the UK for the purpose of studying in October 2010. He obtained leave to enter and remain until 4 th February 2012 as a Tier 4 (general) student under the PBS.

21

Initially AH studied at Charles Edward College for a postgraduate diploma in business management. This course was classified as NVQ level 7. Whilst at Charles Edward College he duly attended the classes and took the examinations which were set. He passed in three subjects and failed in three subjects.

22

Unfortunately the licence of Charles Edward College was revoked by the Secretary of State. It appears that by then AH had completed his course, with the three passes and the three failures previously mentioned.

23

AH then applied for and secured a place at Cranford College to study for a post-graduate diploma in strategic management and leadership. This was a course at NVQ level 7.

24

AH applied to the Secretary of State for an extension of his leave to remain in the UK, so that he could undertake the course at Cranford College. In support of that application Cranford College issued a CAS, which it sent to UKBA. In that CAS the college summarised AH's past academic achievements, but did not address the question whether the new course represented academic progress.

25

By a letter dated 4 th April 2012 the Secretary of State refused AH's application on the ground that Cranford College had not confirmed that the new course constituted "academic progress" within the meaning of paragraph 120B of Appendix A to the Immigration Rules. Accordingly AH failed to achieve the required 30 points under paragraph 245ZX (c) of the Immigration Rules.

26

On 8 th June 2012 Cranford College sent a letter to UKBA as follows:

"This is to confirm that Mr Amjad Hussain, DOB: 31/01/1984 applied for PGD in Strategic Management and Leadership at Cranford College. The College assessed the student previous qualification and it was found that he was unable to complete his previous course of studies in level 7 at Charles Edward College because his previous College licence had been revoked by the UKBA. However, Charles Edward College had confirmed his progression and attendance in their letter of November 2011.

Cranford College assessed the progression of the student on the basis of the letter he presented from his previous...

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