Raju and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Lord Justice Kitchin,Lord Justice Floyd |
| Judgment Date | 25 June 2013 |
| Neutral Citation | [2013] EWCA Civ 754 |
| Docket Number | Case Nos: C5/2013/0631, C5/2013/0632, C5/2013/0633, C5/2013/0634 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 June 2013 |
[2013] EWCA Civ 754
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(Immigration and Asylum Chamber)
The Hon. Mr Justice Blake (President) and
Upper Tribunal Judge Jane Coker
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moses
Lord Justice Kitchin
and
Lord Justice Floyd
Case Nos: C5/2013/0631, C5/2013/0632, C5/2013/0633, C5/2013/0634
Mr Mathew Gullick (instructed by The Treasury Solicitor) for the Appellant
Mr Zane Malik (instructed by Malik Law Chambers Solicitors (Mr Raju, Mr Khatel and Mr Adhikari) and Farani Javid Taylor Solicitors (Mr Islam)) for the Respondents
Approved Judgment
Hearing date: 12 th June, 2013
All four of the respondents to the Secretary of State's appeals applied for leave to remain under the Tier 1 (Post-Study Work) provisions of the points-based system. In order to satisfy the criteria under that scheme in Part 6A of the Immigration Rules (HC 395, as amended) they required a United Kingdom recognised bachelor or post-graduate degree. Each of them was awarded that qualification. But they only received notification of that qualification after they had submitted their application for leave to remain. That, asserted the Secretary of State, was fatal to their application because leave to remain depended upon acquiring 75 points under the relevant provisions of Appendix A to the rules. They fell short, so the Secretary of State maintained, because they had not been notified of the qualification by the time they submitted their applications.
In these four conjoined appeals, the Upper Tribunal concluded that they were entitled to the 75 points they needed because they had been awarded the qualification by the time the Secretary of State made her decision. The Secretary of State appeals. The appeal turns on the true construction of the relevant provisions of the Immigration Rules (HC 395 as amended). The Secretary of State contends that an applicant for leave to remain under this part of the points-based system must have received notification of the qualification by the time the application is submitted. These applicants, the respondents to the appeal, seek to uphold the decision of the Immigration and Asylum Chamber of the Upper Tribunal, comprising Blake J (President) and Upper Tribunal Judge Jane Coker, that it is sufficient that the notification of the award has been received by the time of the Secretary of State's decision. As the Secretary of State had warned in 2011, the Tier 1 (Post-Study Work) Migrant Scheme has been removed from the points-based system as from 6 April 2012. The Statement of Changes (HC 1888) provided:
"The other changes set out in this Statement shall take effect on 6 April 2012. However, if an applicant has made an application for…leave before 6 April 2012 and the application has not been decided before that date, it will be decided in accordance with the rules in force on 5 April 2012."
The applications were made before 6 April 2012 and, therefore, turn on the rules in force on 5 April 2012. There are a large number of cases which await the resolution of this issue.
The issue turns on the relevant provisions of the Immigration Rules (HC 395), in force as at 5 April, 2012. By paragraph 245FD:
"To qualify for leave to remain as a Tier 1 (Post-Study Work) Migrant, an applicant must meet the requirements listed below. Subject to paragraph 245FE(a)(i), if the applicant meets these requirements, leave for remain will be granted. If the applicant does not meet these requirements, the application will be refused.
Requirements:
(a) The applicant must not fall for refusal under the general grounds of refusal, and must not be an illegal entrant.
(b) The applicant must not previously have been granted entry clearance or leave to remain in as a Tier 1 (Post-Study Work) Migrant.
(c) The applicant must have a minimum of 75 points under paragraph 66–72 of Appendix A."
Each of these applicants satisfied all the requirements save for (c). Had they satisfied all the requirements they would have been entitled to leave to remain for a maximum period of two years (see paragraph 245FE).
Appendix A sets out the attributes required to qualify under the points-based system. The attributes attract different points. The attributes for Tier 1 (Post-Study Work) Migrants are as follows:-
" Attributes for Tier 1 (Post-Study Work) Migrants
66. An applicant for entry clearance or leave to remain as a Tier 1 (Post-Study Work) Migrant must score 75 points for attributes.
67. Available points are shown in Table 10.
68. Notes to accompany the table appear below the table.
Table 10
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, or
(b) If the applicant is claiming points 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 higher 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 period 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
Qualification: notes
69. Specified documents must be provided as evidence of the qualification and, where relevant, completion of the United Kingdom Foundation Programme Office affiliated Foundation Programme as a postgraduate doctor or dentist.
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."
I shall call the section in Table 10, above, which refers to the award of 15 points "the fourth section". It is common ground that the respondents needed to obtain the necessary 75 points by satisfying the requirements of each of the first four sections of Table 10, and that they did not qualify for the award of 75 points under the final section. The Secretary of State contends that the fourth section of Table 10 requires the qualification to have been obtained within the period of 12 months prior to the making of the application. At the time they submitted their applications, the respondents had not obtained the qualifications on which they rely and accordingly had not made their applications for leave to remain within 12 months of obtaining their qualifications. They thus failed to qualify for the 15 points which that fourth attribute attracts.
All four of the respondents were awarded a degree falling within the qualification identified in the first section of Table 10, scoring 20 points. All four studied at a United Kingdom institution falling within the second section, and thus scored 20 points under the second section. All four of the respondents' periods of study were undertaken whilst they had leave to remain, not subject to restriction, and thus scored the 20 points under the third section of Table 10. But Mr Prasad Raju submitted his application for leave to remain as a Tier 1 (Post-Study Work) Migrant on 4 April 2012 without evidence of his qualifications. He was first notified of his MBA in International Management on 30 April 2012 and thus is deemed to have obtained that qualification on that date (paragraph 70). Mr Prakash Khatel submitted his application on 4 April 2012 and was awarded an MA in Marketing and Innovation on 6 July 2012. Mr Naryan Adhikari submitted his application on 5 April 2012 and obtained his MA in Marketing and Innovation on 6 July 2012. Mr Mostaquim Al Islam submitted his application on 29 February 2012 and obtained his MSc in Accounting and Finance on 2 July 2012. It was only after all four had obtained their qualifications within the meaning of paragraph 70 of Appendix A to the Rules that the Secretary of State considered and refused their applications.
The language used in the fourth section of Table 10 must be construed in the context of the table as a whole and the function which it serves in the administration of...
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