R Abdullah Bashir Ahmed v Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr. Justice Singh,THE HONOURABLE MR. JUSTICE SINGH |
| Judgment Date | 02 November 2011 |
| Neutral Citation | [2011] EWHC 2855 (Admin) |
| Docket Number | Case No: CO/7309/2010 |
| Date | 02 November 2011 |
| Court | Queen's Bench Division (Administrative Court) |
[2011] EWHC 2855 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr. Justice Singh
Case No: CO/7309/2010
Zane Malik (instructed by Malik Law Chambers Solicitors) for the Claimant
Tom Poole (instructed by Treasury Solicitor) for the Defendant
Hearing date: 21st October 2011
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
Introduction:
This is a claim for judicial review of the Secretary of State's decision dated 25 May 2010 to refuse the Claimant's application for leave to remain in the United Kingdom as a Tier 4 (General) student migrant.
On 12 October 2010 HH Judge Curran QC (sitting as a Deputy Judge of the High Court) granted permission to apply for judicial review on limited grounds, namely the first two grounds set out in his claim form. Those two grounds, which I will describe later, have been advanced before me; no application was made to pursue the other grounds before me.
Factual background
The Claimant is a citizen of Pakistan and was born on 12 August 1984. On 11 October 2006 he was granted leave to enter the UK as a student until 31 October 2009. On 21 October 2009 he made an application for further leave to remain as a Tier 4 (General) student migrant. This was refused by the Secretary of State on 17 February 2010. Subsequently, the time limit for bringing an appeal to the Asylum and Immigration Tribunal expired and the Claimant's application to appeal out of time was refused by that tribunal.
On 29 April 2010 the Claimant made a fresh application for leave to remain as a Tier 4 (General) student migrant. In support of his application he submitted a letter dated 23 February 2010 from London South Bank University, which confirmed that he was enrolled as a full-time student for the academic year 2009–10 and set out details about him and the course. The letter described itself in terms as a "visa letter."
On 25 May 2010 the Secretary of State refused that application. It is that refusal which is the subject of the present challenge by way of judicial review.
The letter of 25 May 2010 informed the Claimant that:
"Due to a change in the immigration rules, all applications for leave to remain as a Tier 4 (General) student migrant made on or after 22 February 2010 must include a valid Confirmation of Acceptance for Studies (CAS) reference number. Since that date, visa letters have not been accepted for the award of points under Appendix A of the immigration rules.
As your application was made on 29 April 2010 and no evidence has been provided to establish that you have been assigned a CAS, the Secretary of State is therefore not satisfied that you have met the requirements to be awarded 30 points under Appendix A of the immigration rules."
Further in the same letter under the heading "Attributes – Confirmation of Acceptance for Studies (CAS)", there appeared a box in which it was outlined that the Claimant had claimed 30 points in respect of this matter but that zero points had been awarded for it. The text in the box stated:
"You have claimed 30 points under Appendix A of the immigration rules. For applications made on or after 22 February 2010 it became mandatory that applications as a Tier 4 (General) Student Migrant are accompanied by a Confirmation of Acceptance for Studies (CAS). You have provided a photocopied visa letter from London South Bank University and no evidence has been provided to establish that you have been assigned a CAS.
It has therefore been decided that you have not met the requirements and no points have been awarded for your CAS."
At this juncture it is important to refer to a policy document entitled 'Tier 4 of the Points Based System – Policy Guidance' issued by the UK Border Agency, which is an agency of the Home Office (version 04/10). The title page of that document states that this guidance is to be used for all Tier 4 applications made on or after 6 April 2010. The relevant part of the guidance appears under the heading Replacement of Visa Letters and states:
"20. On 22 February 2010 visa letters were fully replaced by Confirmations of Acceptance for Studies. A confirmation of acceptance for studies is an electronic reference number. The student's Tier 4 sponsor will need all the same information that was contained in a visa letter to assign a confirmation of acceptance for studies."
Then under the heading "The Confirmation of Acceptance for Studies" the guidance states:
"21. The Confirmation of Acceptance for Studies (CAS) is not an actual certificate or paper document but is a virtual document similar to a database record. Each confirmation of acceptance for studies has a unique reference number and contains information about the course of study for which it has been issued and the students personal details. The information that the sponsor will include in a confirmation of acceptance for studies can be found on our website…."
There is a similar definition of the term "Confirmation of Acceptance for Studies" in Annex 1, which contains a glossary of terms used in the policy guidance.
Legislative Framework
Two provisions of the Immigration Act 1971 are relevant for present purposes.
Section 1 (4) provides:
"The rules laid down by the Secretary of State 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 not having the right of abode may include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming….for purposes of study…"
Section 3(2) of 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…..
If a statement laid before either House of Parliament under this sub-section is disapproved by a resolution of that House passed within the period of 40 days beginning with the date of laying…then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of 40 days beginning with the date of the resolution…."
At the material time the relevant provisions of the immigration rules were as follows.
Paragraph 245AA, headed "Documentary evidence", provided in sub-paragraph (a):
"Where part 6A or Appendices A to C or E of these rules state that specified documents must be provided, that means documents specified by the Secretary of State in the Points Based System Policy Guidance as being specified documents for the route under which the applicant is applying. If the specified documents are not provided, the applicant will not meet the requirement for which the specified documents are required as evidence."
From paragraph 245ZT there begins the section of the rules (or "route") dealing with Tier 4 (General) student migrants. That paragraph provides that this route is for migrants aged 16 or over who wish to study in the UK.
Paragraph 245ZX provides that, to qualify for leave to remain under this rule, an applicant must meet the requirements listed in that rule and that, if the applicant meets those requirements, leave to remain will be granted but that, if the applicant does not meet those requirements, the applicant will be refused leave. Requirement (c) is that the applicant must have a minimum of 30 points under paragraphs 113 to 120 of Appendix A.
Appendix A is entitled Attributes for Tier 4 (General) students. Paragraph 113 requires an applicant to have 30 points. Paragraph 114 states that available points are shown in table 16. Paragraph 115 provides that notes to accompany table 16 appear below the table. The table itself specifies that the criterion is for Confirmation of Acceptance for Studies and that the number of points to be awarded for that will be 30.
In the notes to table 16 paragraph 116 provides:
"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.
c) The sponsor has not withdrawn the offer since the Confirmation of Acceptance for Studies was issued.
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.
f) It contains such information as is specified as mandatory in guidance provided by the United Kingdom Border Agency."
Paragraph 117 provides:
"A Confirmation of Acceptance for Studies reference number will only be considered to be valid if:
a)...
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