Raju and Others

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeCoker,The Hon Mr Justice Blake
Judgment Date15 January 2013
Neutral Citation[2013] UKUT 44 (IAC)
Date15 January 2013

[2013] UKUT 44 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

THE PRESIDENT, The Hon Mr Justice Blake

UPPER TRIBUNAL JUDGE Coker

Between
Prakash Khatel
Mostaqium Al Islam
Narayan Adhikari
Appellant
and
The Secretary of State for the Home Department
Respondent
The Secretary of State for the Home Department
Appellant
and
Mr Prasad Raju
Respondent
Representation:

Zane Malik Instructed by Malik Law Chambers Solicitors for Khatel, Adhikari and Raju

Zane Malik and Mr S Khan Instructed by Farani Taylor Solicitors for Al Islam

For the Secretary of State: Mr Daniel Hayes, Senior Presenting Officer

Khatel and others (s85A; effect of continuing application)

(1) An application for further leave to remain is to be treated as a continuing application, starting with the date when it was first submitted and ending on the date when it is decided: AQ (Pakistan) v SSHD [2011] EWCA Civ 833.

(2) It follows that an appellant is not precluded by section 85(5) of the Nationality, Immigration and Asylum Act 2002 (as amended) from relying in an appeal upon evidence that was notified to the Secretary of State before the date of her decision.

(3) Where, in an application for leave as a Post-Study Work Migrant, the obtaining of the academic award needed to gain the requisite points is notified to the Secretary of State after the date when the application was first submitted but before a decision is made on the application, the requirement of Table 10, that the qualification is obtained within 12 months of making the application, is satisfied because the application is a continuing one until a decision upon it has been made.

DETERMINATION AND REASONS
Introduction
1

These four appeals are being heard together because they raise a common issue about the interpretation of the Immigration Rules and law relating to an application for post-graduate work experience as a Tier 1 Post Study Work Migrant within the meaning of Appendix A to the Immigration Rules.

2

We shall refer to each of the original applicants as a claimant. In the appeals of Adikari, Khatel and Al Islam their appeals before the First-tier Tribunal Judge were unsuccessful and they are the appellants for the Upper Tribunal. The appeal of Raju succeeded before the First-tier Tribunal and the Home Office is the appellant before us.

3

Each appeal contains the following common features:-

  • i) The claimant was given leave to enter for a short postgraduate course in the United Kingdom.

  • ii) Such leave was due to expire in the early part of 2012.

  • iii) The application for leave to remain was made before the expiry of the leave granted to each claimant and before 6 April 2012 when, subject to transitional provisions, the Tier 1 Post Study Work Migrant scheme was removed from the points based system (“PBS”).

  • iv) At the time of each application the academic part of the course was completed and each applicant was expected by their institution of study to be awarded a qualification by the awarding institution.

  • v) Such predictions were well-founded and awards were made by the awarding institution on various dates in the summer of 2012.

  • vi) The application was refused by the UKBA in the autumn of 2012 after the qualification had been awarded.

  • vii) The basis of the refusal was that at the time of the application the award or the qualification had not been made.

The Terms of Appendix A
4

Paragraph 245FD of the Immigration Rules provided for the grant of leave to remain for applicants who had a certain number of points under Appendix A, B and C. Before its eventual removal from the scheme, Appendix A, entitled attributes for Tier 1 (Post-Study Work), Migrants set out the requirements. Table 10 set out how points were to be acquired. It dealt with points for the award of qualifications. It is reproduced as follows:

Paragraph 70. A qualification will have been deemed to have been ‘obtained’ on the date on which the applicant was first notified in writing, by the awarding institution, that the qualification had been awarded.

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,

(b) If the applicant is claiming pints for having been awarded a Higher National Diploma from a Scottish Institution, he studied for that diploma at a Scottish publicly funded institution of further or high education, or a Scottish bona fide private education institution which maintains satisfactory records of enrolment and attendance.

The Scottish institution must:

(i) be on the list of Education and Training Providers list on the Department of Business, Innovation and skills website, or

(ii) hold a Sponsor licence under Tier 4 of the Points based System.

20

The applicant's periods of UK study and/or research towards his eligible award were undertaken whilst he had entry clearance, leave to enter or leave to remain in the UK that was not subject to a restriction preventing him from undertaking a course of study and/ or research.

20

The applicant made the application for entry clearance or leave to remain as a Tier 1 (Post-Study Work) Migrant within 12 months of obtaining the relevant qualification or within 12 months of completing a United Kingdom Foundation Programme Office affiliated Foundation Programme as a postgraduate doctor or dentist.

15

The applicant is applying for leave to remain and has, or was last granted leave as a Participant in the International Graduates Scheme (or its predecessor, the Science and Engineering Graduates Scheme) or as a Participant in the Fresh Talent: Working in Scotland Scheme.

75

5

In the cases of Khatel, Adhikari and Al Islam, the judges of the First-tier Tribunal each concluded that the claimant did not meet the requirements of the rules because at the time of the application he had not been awarded the post graduate qualification by the awarding institution.

6

In reaching that conclusion regard was had to the jurisprudence of the Asylum and Immigration Tribunal notably Kan (PSW degree award required) India [2009] UKAIT 22 and NO (PSW award needed by date of application) Nigeria [2009] UKAIT 54.

7

In the case of Raju Judge Parkes had regard to the decision of the Court of Appeal in AQ (Pakistan) v SSHD [2011] EWCA Civ 833. He also noted the decision in Ali (section 120-PBS) Pakistan [2012] UKUT 368 (IAC). Ali was a decision of the Upper Tribunal following AQ (Pakistan) where Upper Tribunal Judge Allen had regard to section 85A of the Nationality Immigration and Asylum Act 2002 as amended (“NIAA”).

AS (Afghanistan)

8

In order to examine the potential importance of what the Court of Appeal said in AQ (Pakistan) it is necessary to recite some legislation and case law that led to it.

9

Section 120 of the NIAA provides for service of notice on a person with respect to whom an immigration decision has been taken or is being taken

“(2) The Secretary of State or an Immigration Officer may by notice in writing require the person to state –

  • a) his reasons for wishing to enter or remain in the United Kingdom,

  • b) any grounds on which he should be permitted to enter or remain in the United Kingdom and

  • c) any grounds on which he should not be removed from or required to leave the United Kingdom.”

10

The problem that has arisen from time to time is whether, following an immigration decision initially made upon an application for leave to remain a section 120 notice is served, a person is entitled to raise a wholly new claim for leave to remain; in the event of that modified claim being made, is he entitled to an appeal against it?

11

In the case of AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, a judgment delivered on the 20 October 2009, the majority of the Court of Appeal (Lord Justice Moore-Bick and Lord Justice Sullivan) concluded that in general terms a person could raise a wholly different application and require it to be determined by the Tribunal in accordance with the statutory scheme. Lady Justice Arden dissented from this conclusion and did so mainly by reference to section 3C of the Immigration Act 1971 as amended.

12

The statutory scheme at the time included section 85 of the NIAA as follows:

Matters to be considered.

  • (1) An appeal under section 82(1) against a decision shall be treated by [the Tribunal] including an appeal against any decision in respect of which the appellant has a right of appeal under section 82 (1).

  • (2) If an appellant under section 82(1) makes a statement under section 120, [The Tribunal] shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.

  • (3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.

  • (4) On an appeal under section 82(1), 83( 2) or 83A(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision…”

13

The scheme also included section 3C Immigration Act 1971:

Continuation of Leave Pending Variation Decision

  • 1. This section applies if –

    • a) A person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,

    • b) the application for variation is made before the leave expires, and

    • c) The leave expires...

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