QI (Pakistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Longmore,Lord Justice Etherton |
| Judgment Date | 18 April 2011 |
| Neutral Citation | [2011] EWCA Civ 614 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 April 2011 |
| Docket Number | Case No: C5 / 2010 / 2777 |
[2011] EWCA Civ 614
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Longmore
and
Lord Justice Etherton
Case No: C5 / 2010 / 2777
Mr Zane Malik (instructed by Messrs Malik Law) appeared on behalf of the Appellant.
Mr Jason Beer QC (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
This is an appeal by QI against a decision of the Upper Tribunal (Immigration and Asylum Chamber) promulgated on 5 July 2010. Permission to appeal has been granted on a consideration on the papers having been refused by the tribunal.
The appellant is a citizen of Pakistan now aged 22 years. On 28 May 2008 he was granted leave to enter the United Kingdom as a student until 30 May 2009. On 29 May 2009 he applied for further leave to remain as a tier 4 (general) student, a category recognised in the immigration rules at rule 245ZT and following.
He wished to study for the ACAA at the London School of Business and Finance. A letter from the school showed that the course was due to commence on 20 July 2009. Rule 245ZX, under the heading "Requirements for leave to remain", provides:
"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."
A series of requirements is set out and includes at paragraph (l):
"The applicant must not be applying for leave to remain for the purpose of studies which would commence more than one month after the applicant's current entry clearance or leave to remain granted under these Rules expires."
On 10 August 2009 the Secretary of State for the Home Department refused the application under paragraph 245ZX(l) of the Rules and under another paragraph which is not now material. The decision letter stated:
"In view of the fact that there is a gap of more than one month between the end of your current leave (which expires on 30 May 2009) and the start of your new course as detailed in your visa letter [dated] 20 July 2009 the Secretary of State is not satisfied that you meet the requirements of 245ZX(l) of the rules and your application is refused"
A further issue was raised which is not now material.
QI appealed against the Secretary of State's decision under Section 82(1) of the Nationality Immigration and Asylum Act 2002 ("the 2002 Act"). The right of appeal against an immigration decision conferred by section 82 includes a right of appeal against a refusal to vary a person's leave to remain in the United Kingdom.
The appeal was dismissed by the tribunal on 13 October 2009 and the reason given in the Secretary of State's letter was endorsed. On 19 November 2009 an order for reconsideration was made. As indicated, the appeal was dismissed on 5 July 2010. Senior Immigration Judge Storey stated at paragraph 10:
"I consider the appellant's submissions on this point are ill founded. Whilst I would accept that the rule is badly drafted it is inescapably clear that 'current leave to remain' must refer to an appellant's substantive period of permitted leave, in the appellant's case the leave he had from 28 May 20080 to 30 May 2009. Were the above expressly to denote Section 3C leave [I will refer to that Section in a moment] then time would never start to run and the requirement would be meaningless. Further at the time the appellant made his application his leave could only have been his substantive leave. His section 3C leave could not have come into being until after he received a decision. That is because a section 3C leave does not arise until 'leave expires without the application for variation having been decided'. (Section 3C(c). Accordingly the IJ cannot be faulted for concluding that the appellant's proposed course was not due to commence until more than one month after his leave to remain expired.
…. the other observation concerns the fact that not only Mr Khan for the appellant but Mr Premble for the respondent [Mr Premble is a Home Office presenting officer] took the view that paragraph 245 ZXL should be considered as having no application to the appellant because he had a Section 3C leave and so time in his case had not started to run. The fact that the respondent as well as the appellant makes such a construction is something I take into account but I am not bound to regard it as correct and it was not made as a concession in the appellant's case. The tribunal is obliged to interpret and apply the law as contained in the Immigration Rules. For reasons already given I consider that … the IJ correctly concluded that the appellant was caught by paragraph 245ZX(l) and that he was right to find that the appellant could not show that his proposed course would commence within one month of expiry of his current leave to remain."
The tribunal reached the same conclusion on the effect of the rule in HM and Others v SSHD [2010] 446 UKUT (IAC). That case was heard on 23 July 2010, that is after the decision in the present case. The tribunal consisted of Blake J, President, Mr CMG Ockelton VP and Senior Immigration Judge Allen. In the present case the same concession was not made on behalf of the Secretary of State, although a presenting officer, who we are told is an experienced presenting officer, appeared for the Secretary of State. The tribunal stated at paragraph 23:
"We agree with the reasoning of the tribunal in QI on this point. The proper interpretation of the phrase 'current … leave to remain' at paragraph 245ZQ(l) [that should be ZX(1)] is that it is a reference to a substantive period of leave. In the instant case the leave was from 22 June 2008 to 30 June 2009 and that was the only leave the appellant had at the time when she made her application. Her leave under Section 3C would not come into being until after she had received a decision since such leave only arises when, as it is put in Section 3C(1)(c), the leave expires without the application for variation having been decided. Accordingly we consider that the Immigration Judge erred in this regard and although in our interpretation of the immigration rules she and her dependants, the second and third appellants, meet the financial requirements (paragraph 245 ZX(d) of having the necessary funds available, the appeal must be dismissed on the basis that they do not satisfy the requirements of paragraph 245ZX(l)."
I refer to subsequent procedures in the present case because of its relevance to the submission made by Mr Beer QC on behalf of the Secretary of State that I ought not to be giving this judgment. In the application to the Senior Immigration Judge for permission to appeal to this court, reliance was placed on the approach of the Secretary of State's representative before the tribunal. It was submitted on the appellant's behalf:
"The SSHD made it clear before the tribunal that paragraph 245ZX(l) should be considered as having no application to the appellant because he had a Section 3C leave. Thus the tribunal's interpretation is not only inconsistent with the natural reading of the rule but also with what the SSHD had intended, which was made clear by the SSHD's representative. The interpretation is therefore unsustainable."
Senior Immigration Judge Storey reacted robustly and appropriately:
"It is somewhat misleading for the grounds to suggest that the SSHD made it clear before the tribunal and the position was that 1) the respondent had not made a concession on the application of paragraph 245ZX(l) in the appellant's case and that 2) all that had happened was that the Home Office presenting officer had made a submission urging that the tribunal apply the same approach to the construction as that urged by the appellant [that part of the reason may be...
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