R Raza Shahid Syed and Another v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Patten,Lady Justice Gloster |
| Judgment Date | 04 March 2014 |
| Neutral Citation | [2014] EWCA Civ 196 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: C4/2013/1242, and C4/2013/1312 |
| Date | 04 March 2014 |
[2014] EWCA Civ 196
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Holman
AND ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Lord Bannatyne and Upper Tribunal Judge Spencer
IA/33670/2010 and IA/33672/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lord Justice Patten
and
Lady Justice Gloster
Case Nos: C4/2013/1242, and C4/2013/1312
Case No: C5/2012/2705
Zane Malik and Darryl Balroop (instructed by Allied Law Chambers Solicitors) for the Appellant Syed
Al Mustakim (instructed by Capital Solicitors) for the Appellant Ahmed
Al Mustakim (instructed by Sky Solicitors) for the Appellants Kamran and Gul
Mathew Gullick and Caroline Stone (instructed by The Treasury Solicitor) for the respondent Secretary of State
Hearing dates : 28–29 January 2014
These cases were listed for hearing together because they both raise issues concerning the qualifications necessary for the grant of leave to remain as a Tier 1 (General) Migrant or a Tier 1 (Post-Study Work) Migrant under the points based system in Part 6A of the Immigration Rules. The issues are, however, almost entirely distinct and the cases are best considered separately.
The issue in the case of Mr Syed and Mr Ahmed is whether professional qualifications obtained from the Association of Chartered Certified Accountants ("ACCA") count as "a UK recognised bachelor or postgraduate degree" under the rules relating to Tier 1 (Post-Study Work) Migrants. In refusing the appellants' applications for leave to remain, the Secretary of State took the view that ACCA qualifications did not count. The appellants brought judicial review challenges to that decision. Their claims were heard together by Holman J and were dismissed by him. Applications for permission to appeal against the judge's order were listed before us on the basis of a "rolled-up" hearing, with the substantive appeals to follow immediately if permission was granted. In the event we heard full argument and I think that the right course is to grant permission and to consider the cases as substantive appeals.
The case of Mr Kamran concerns an application for leave to remain as Tier 1 (General) Migrant. The application relied on a Postgraduate Diploma in Management Studies ("the Diploma") from Birmingham International College. It was refused on the ground that the Diploma had not been assessed by the National Recognition Information Centre for the United Kingdom ("UK NARIC") to meet or exceed the recognised standard of a bachelor's or master's degree or a PhD in the United Kingdom as required by the rules. The main issue is whether the role given to UK NARIC under the rules is lawful. Mrs Gul is the wife of Mr Kamran and her application for leave to remain is dependent on his.
Save where otherwise indicated, references in this judgment to the rules and guidance are to the versions in force at the time material to the decisions under challenge.
The appeals of Mr Syed and Mr Ahmed: the status of ACCA professional qualifications
The rules
The Tier 1 (Post-Study Work) route was closed to new applicants from 6 April 2012 but the present issue is of relevance not only to the appellants but to numerous other individuals who applied before the change in the rules.
The route was governed by paragraphs 245F et seq. of the Immigration Rules. Its stated purpose was "to encourage international graduates who have studied in the UK to stay on and do skilled or highly skilled work" (paragraph 245F).
Paragraph 245FD(c) provided that one of the requirements for leave to remain was that the applicant must have a minimum of 75 points under paragraphs 66 to 72 of Appendix A. Paragraph 67 of Appendix A stated that available points were shown in Table 10.
So far as relevant, Table 10 read as follows (I have emphasised the key expression):
| Qualifications | Points |
| The applicant has been awarded: (a) a UK recognised bachelor or postgraduate degree, or (b) a UK postgraduate certificate in education or Professional Graduate Diploma of Education, or (c) a Higher National Diploma ('HND') from a Scottish institution. | 20 |
| (a) The applicant studied for his award at a UK institution that is a UK recognised or listed body, or which holds a sponsor licence under Tier 4 of the Points Based System … | 20 |
The interpretation provisions of paragraph 6 of the Immigration Rules include a number of relevant definitions:
"' degree level study' means a course which leads to a recognised United Kingdom degree at bachelor's level or above, or an equivalent qualification at level 6 or above of the revised National Qualifications Framework, or levels 9 or above of the Scottish Credit and Qualifications Framework.
A ' UK recognised body' is an institution that has been granted degree awarding powers by either a Royal Charter, an Act of Parliament or the Privy Council.
A ' UK listed body' is an institution that is not a UK recognised body but which provides full courses that lead to the award of a degree by a UK recognised body.
' a UK Bachelors [ sic] degree' means
(a) A programme of study or research which leads to the award, by or on behalf of a university, college or other body which is authorised by Royal Charter or by or under an Act of Parliament to grant degrees, of a qualification designated by the awarding institution to be one of Bachelor's degree level; or
(b) A programme of study or research, which leads to a recognised award for the purposes of section 214(2)(c) of the Education Reform Act 1988, of a qualification designated by the awarding institution to be of Bachelors [ sic] degree level."
The reference in the definition of "a UK Bachelors degree" to section 214 of the Education Reform Act 1988 requires some explanation. Section 214(1) makes it an offence to grant an award which is described as a degree or purports to confer on its holder the right to the title of bachelor, master or doctor; but section 214(2) disapplies that provision as respects anything done in relation to any "recognised award", defined as (a) any award granted or to be granted by a university, college or other body which is authorised by Royal Charter or by or under Act of Parliament to grant degrees, (b) any award granted or to be granted by any body for the time being permitted by any body falling within (a) to act on its behalf in the granting of degrees, and (c) such other award as the Secretary of State may by order designate as a recognised award for the purposes of the section. In substance, therefore, paragraph (a) of the definition of "a UK Bachelors degree" covers recognised awards within section 214(2)(a) and (b) of the 1988 Act, whilst paragraph (b) of the definition covers recognised awards within section 214(2)(c).
As explained below, the arguments on both sides refer to various other provisions of the Immigration Rules. It is convenient to set out here what those provisions are.
First, the provisions relating to the Tier 4 (General) Student route, at paragraphs 113 to 120B of Appendix A, included at the material time a requirement for the applicant to have been issued with a Confirmation of Acceptance of Studies meeting certain conditions. One of the conditions, at paragraph 118(c)(i) of Appendix A, was that:
"the course is degree level study … and
(1) the applicant is a national of one of the following countries …; or
(2) has obtained an academic qualification (not a professional or vocational qualification), which is deemed by UK NARIC to meet or exceed the recognised standard of a Bachelor's or Master's degree or a PhD in the UK …."
The Secretary of State relies on the contrast between that language and the wording of Table 10.
Secondly, when the Tier 1 (Post-Work Study) Migrant route was closed it was replaced by the Tier 1 (Graduate Entrepreneur) Migrant route which was subject to materially different provisions. In particular, the replacement Table 10 in Annex A laid down different criteria for points. The first criterion was that the applicant had been endorsed by a UK Higher Education Institution which had certain attributes. The second criterion was that if the applicant's previous grant of leave was not as a Tier 1 (Graduate Entrepreneur) Migrant, the endorsement should confirm that, within the 12 months immediately before the date of the endorsement, "the institution has awarded the applicant a UK recognised Bachelor degree, Masters degree or PhD (not a qualification of equivalent level which is not a degree)". The expression "a UK recognised bachelor or postgraduate degree (not a qualification of equivalent level which is not a degree)" was also to be found in new paragraphs 245HD(d)(i) and 245ZQ(b)(vi). The appellants seek to contrast the wording of those new provisions with the wording of Table 10 as it existed at the material time.
The guidance
Paragraph 46 of the Secretary of State's Tier 1 (Post-Study Work) of the Points Based System — Policy Guidance, in the form in which it existed at the material time, stated that the category "aims to retain the most able international graduates who have studied in the United Kingdom" and "will also enhance the United Kingdom's overall offer to international students".
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