R Islam & Others v Secretary of State for the Home Department

There are before the court seven linked renewed applications by those refused refused leave to remain as Tier 1 (Post-Study Work) migrants. They seek leave to appeal determinations of the Upper Tribunal dismissing appeals or refusing permission to appeal, and of judges of the Administrative Court refusing permission to apply for judicial review of decisions by the Secretary of State.

The applicants had all undertaken studies at teaching institutions for degrees that were validated and awarded by universities. In most cases, the applications were made after the completion of the course at the teaching institution. In all cases, they were made before the relevant university had validated and awarded the degree.

On 15 March 2012, it was announced that the Tier 1 (Post-Study Work) category would be removed from the system as from 6 April 2012. Applications made before that date, which complied with the rules, remained eligible for consideration.

The removal of the Tier 1 (Post-Study Work) category led to many premature applications by students before they had been formally awarded their degree. They did this because, as has been evident from the submissions this morning, they had invested in post-graduate training in this country and were motivated to do so, in part, by having the opportunity to remain in the UK to gain post-study work experience and enhance their qualifications.

The matter has been the subject of a number of significant decisions of this court. On 25 June 2013, in Raju, Khatel & Others v the Secretary of State [2013] EWCA Civ 754, reported at [2014] 1 WLR 168, this court held that on a true construction of the Immigration Rules, an applicant for Tier 1 (Post-Study Work) migrant status was required to have, in fact, obtained the relevant qualification before making an application in order to obtain the necessary points, and that an application was not to be regarded as "continuing" until it was determined. Thereafter, the applicants sought to rely principally on two related grounds.

The first is what was described by Lord Justice Moore-Bick, in Rasheed v the Secretary of State [2014] EWCA Civ 1493, as a "pragmatic policy" by the Secretary of State. That policy was that applications made before the qualification had been awarded, but where it had been awarded before the Secretary of State's decision and the decision was made before the removal of the Tier 1 (Post-Study Work) migrant category, would be considered valid.

The second, more broadly based grounds are, in general terms, legitimate expectation and fairness grounds. Those grounds were advanced both in cases where the Secretary of State's decision was made before the post-study work category was removed and in cases where it was made after that date. It was argued that those who made such applications had a legitimate expectation that the strict requirement in paragraph 245(FD(c) of the Immigration Rules and the requirements in Appendix A would not apply. That, together with the terms of the relevant policy guideline, and the terms of the application form which envisaged applications with letters from colleges, rather than the degrees themselves, enabled applicants to rely on a letter from the teaching institution, which stated that the student had completed the programme and was expected to receive the degree certificate. The consequence, it was argued, was that the application of the rules to such cases meant that the decisions were procedurally and substantively unfair.

Such submissions have been rejected by this court. Permission to appeal on these grounds was refused in Rasheed, which I have mentioned. In a judgment handed down on 13 March 2015 in Hossain & Others v the Secretary of State [2015] EWCA Civ 207, this court considered the substantive arguments and dismissed the appeals. In Hossain, it was held that an individual could not rely on the part of the application form stating that he or she completed his or her eligible qualification in the 12-month period immediately before submitting this application, to ground a legitimate expectation argument that it was not necessary for the awarding institution to have awarded the degree at that date.

These cases are all a manifestation of the consequences of the introduction of the points-based system for entry and remaining, whether as a migrant or a student; as a legislative move from a discretionary system to a rule-based system, in which there is much less flexibility and less scope for the operation of discretion. The purpose was said to be to restore public trust in the immigration system and to achieve predictable consistency and that a rule-based system was more likely to promote this than one containing more discretion.

But as is stated in paragraphs 29 and 30 of the decision in Hossain, a rule-based system leads to increased strictness. It has led to acceptance by the courts that, for example, there is no concept of a "near miss". There is complexity and some formalism.

In the decision of the Supreme Court in Mandalia v Secretary of State [2015] UKSC 59, handed down earlier today, Lord Wilson, giving the only considered judgment, stated:

"The sharp edges of the rules have cut out hard cases which have found their way to the courts and which have inevitably attracted, at any rate, the sympathy of the judges and sometimes, I speak for myself, nascent reservations about the suitability of the system which have not been easy to suppress, but suppressed they must be."

His Lordship stated that they must be suppressed because Parliament has endorsed the Secretary of State's considered opinion that the points-based system is the optimum mechanism for achieving management of our immigration process.

About 40 cases have been stayed behind Rasheed and Hossain. After the decision in Hossain's case, the stays were lifted and in 32 of them, the applications were pursued. In all but nine of those cases, the application was not only refused, but also certified as totally without merit. The applications before us today are seven of those nine applications. In all but two of them, those are Khairul Islam and Mundith Hathadura, the applicants are not represented and appear in person.

In the case of one applicant, Nauman Bashir, during the hearing we granted his application for an adjournment to enable him to instruct a legal representative to draft grounds. We did so because of acute personal circumstances which he, in a letter to the court, delivered only this morning during the hearing, stated had prevented him from instructing a legal representative. We directed that such grounds should be filed at the court by 4 pm on 21 October, after which the case would be listed for hearing, reserved to me.

In none of the cases before us do the applicants' written submissions explain why it is arguable that the circumstances of their cases differ from those in Hossain, and on what ground that decision, which binds this court, might be distinguished. In a number of the cases, the applicants rely on the expectation that they would be assisted by the decision on the former evidential flexibility policy, which applied between 7 February and 6 September 2012, then pending in the Supreme Court in the appeal from Rodriguez [2014] EWCA Civ 2. That decision is the Mandalia decision handed down this morning. The appeal was allowed and I shall consider whether, in the light of it, these applicants or some of them have arguable grounds of appeal.

In three of the applications, the cases of Bashir — now adjourned — Maqbool and Aziz, the original grounds or the grounds of appeal to this court were drafted by Mr Iqbal Maqsood of counsel. In Bashir's case, those grounds extend to a 21-page document. While the statements of facts and grounds in those cases deal with the facts, they do so in very general terms. For example, in Mr Bashir's case, they do not even identify the teaching and awarding institutions or the communications from them. The legal grounds are set out at length, albeit in a somewhat abstract way.

Not all applicants raised all the grounds, but it is convenient to summarise the range of grounds advanced in these applications by reference to those framed by Mr Maqsood on behalf of those he represented.

(1) The applicants are entitled to rely on evidence which is furnished post-application, but pre-decision. In these cases, the award of the relevant degree from the awarding institution was so furnished.

(2) The abandonment of what I have referred to as the "pragmatic" or "flexible" policy in May 2012 was unlawful, because it was retrospective.

(3) The abandonment was also a secret change of policy, because it was not publicised in...