Sukhjeet Kaur v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Sir Timothy Lloyd,Lord Justice Pitchford |
| Judgment Date | 20 January 2015 |
| Neutral Citation | [2015] EWCA Civ 13 |
| Docket Number | Case No: C5/2013/3594 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 January 2015 |
[2015] EWCA Civ 13
Lord Justice Pitchford
Lord Justice Burnett
and
Sir Timothy Lloyd
Case No: C5/2013/3594
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Upper Tribunal (Immigration and Asylum Chamber)
Upper Tribunal Judge Rintoul
IA/06503/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Zane Malik (instructed by Mayfair Solicitors) for the Appellant
Mathew Gullick (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 3 December 2014
Written submissions 6 and 9 December 2014
In March 2013 the appellant was refused leave to remain in the United Kingdom as a Tier 4 (General) Student having previously studied here with such leave. The application was governed by the points based system contained in the Immigration Rules ("the Rules") which requires applicants to score points under various heads. If they fail to do so their application is refused. She was required to have a minimum of 30 points under paragraphs 113 to 120 of Appendix A to the Rules. Acting for the Secretary of State, the United Kingdom Border Agency ("UKBA") declined to take into account a Confirmation of Acceptance for Studies ("CAS") assigned to the appellant on 8 February 2012 by her Tier 4 Sponsor. One of the matters which the CAS was expected to do was to confirm that her proposed course of study represented "academic progress" as defined by Paragraph 120A(b) of Appendix A to the Rules. As a result the appellant failed to secure the necessary points. UKBA's refusal was on a technical ground, namely that the CAS had not been provided with the original application. The appellant failed in her appeal to the First Tier Tribunal ("FTT") and again to the Upper Tribunal (Immigration and Asylum Chamber) ("UTIAC"). Both took the CAS and other evidence into account but concluded that it did not provide the confirmation required by the rules. Shortly after UTIAC had dismissed the appeal and refused permission to appeal further, this court gave judgment in Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568. The appellant relied upon that decision in her appellant's notice. Permission to appeal was granted by Longmore LJ.
Mr Malik advances two submissions on behalf of the appellant reflecting the grounds on which permission to appeal was granted:
i) The approach of UTIAC (and the FTT) to the meaning of Paragraph 120A was inconsistent with Pokhriyal, which should be understood to have decided (a) whether a course represents academic progress is a matter for the academic institution concerned and not the Secretary of State; (b) the Secretary of State is obliged to accept the assessment of the academic institution absent fraud; (c) there is no requirement for the CAS to justify the conclusion on academic progress; and (d) the mere issuing of a CAS raises a presumption that the proposed course does represent academic progress. The CAS provided the necessary confirmation.
ii) Even if the Secretary of State did not have to accept the CAS as confirming academic progress, she was obliged to make further inquiries of the academic institution before refusing the application on the basis of Naved v Secretary of State for the Home Department [2012] UKUT 14 (IAC), which was applied by analogy in Pokhriyal.
As material the Rules provide:
"120A
(a) Points will only be awarded for a valid Confirmation of Acceptance for Studies … if the sponsor has confirmed that the course for which the Confirmation of Acceptance of Studies has been assigned represents academic progress from previous study as defined in (b) below undertaken during the last period of leave as a Tier 4 (General) Student or as a Student, where the applicant has had such leave except where:
(i) the applicant is re-sitting examinations or repeating modules in accordance with paragraph 119 above, or
(ii) the applicant is making a first application to move to a new institution to complete a course commenced elsewhere.
(b) For the course to represent academic progress from previous study, the course must:
(i) be above the level of the previous course for which the applicant was granted leave as a Tier 4 (General) Student or as a Student, or
(ii) involve further study at the same level, which the Tier 4 Sponsor confirms as complementing the previous course for which the applicant was granted leave as a Tier 4 (General) Student or as a Student."
The words I have italicised are those that were introduced by the Statement of Changes in Immigration Rules laid before Parliament in July 2012 (Cmd 8423) and applicable with effect from 20 July. The two exceptions in Paragraph 120(A)(a) are not in play in this case.
Thus before 20 July 2012 there was no sub-paragraph (b). The paragraph contained no definition of academic progress. Instead, guidance issued to Tier 4 Sponsors in September 2011 had contained similar, but not identical, requirements. The guidance sought to impose obligations on Tier 4 Sponsors to issue a CAS to a student in the United Kingdom in respect of a second or subsequent course only if academic progress would be made in the sense described in the guidance. The guidance did not form part of the Immigration Rules. Paragraphs 373 to 377 of that guidance were in these terms:
"373. To show academic progression the student's new course should normally be above the level of the previous course for which we gave them permission to stay in the UK as a student. For example, if a student's previous course was at QCF or NQF6 (and equivalents) we expect their next course to be at least at level QCF or NQF7.
374. However, academic progression may involve further study at the same level. In these cases you must confirm that the new course complements the previous course. For example, a student may be moving from a taught masters degree to an MBA or research-based masters degree, or taking a course to develop a deeper specialisation in a particular field.
375. Sometimes the further study may be at a lower level but we expect these cases to be rare. We may not question your confirmation of progression, but we will closely monitor the situation.
376. If the student is taking a further course in the UK you must confirm that this is academic progression in the 'evidence provided' box on the CAS. When the course is at the same level or a lower level you must justify this as progression. When we visit you, we may also ask you to show why it is academic progression and how you assessed it.
377. If you do not confirm the student's academic progression on the CAS we will refuse the student's application. We will take action against you if:
you cannot show how you assessed the progression, or we are concerned about how you assessed it; or
we find, after you have assigned a CAS stating that there is academic progression, that there is no academic progression."
The Statement of Changes was a substantial document, the purpose of which was to amend the Rules to incorporate within them requirements hitherto found in guidance and other external documents. That is explained by the Explanatory Memorandum. It was a response to developing jurisprudence in this court and the Supreme Court that such external documents, not laid before Parliament, could not be treated as if they were part of the rules themselves.
In saying that the guidance was not in identical terms to the new Paragraph 120A, I have in mind particularly that it contemplated circumstances in which a second course at a level lower than the first course might nonetheless constitute academic progress. That part of the guidance was not incorporated in the amended rules. One of the appellants in Pokhriyal was moving to a course at a lower level. Oddly, the guidance issued to Tier 4 Sponsors to coincide with the July Statement of Changes to the Immigration Rules (Version 07/12) at paragraph 415 still contained the suggestion that academic progression could be made in those circumstances. In the light of the way in which the appellant's intentions with regard to her second course developed, no issue arises on that apparent contradiction. What was paragraph 374 became paragraph 414 in the new guidance but was unchanged.
Neither the Rules nor the guidance presents any difficulty. The Tier 4 Sponsor need simply state that the course at the same level complements the previous course. Whilst the guidance calls (and called) for an explanation for that conclusion, the Rules do not.
The Facts
The facts in the case are a little convoluted but of importance given the way in which Mr Malik developed his arguments on the appellant's behalf.
The appellant is an Indian national born on 24 August 1982. On 29 November 2009 she was granted leave to enter the United Kingdom as a Tier 4 (General) Student until 22 March 2011. Her leave was extended until 2 November 2011. During that time she undertook two courses of study, the second of which was a Diploma in Business Management at West London Business College. That course finished in September 2011. It was a course at Level 6 of the National Qualifications Framework. Before the expiry of that leave she made a further application for leave to remain as a Tier 4 (General) Student. She was proposing to study a two year Advanced Diploma in Administration Management at Level 5 of the National Qualification Framework. She relied upon a CAS granted by the Citizen 2000 Education Institute assigned to her on 31 October 2011.
On 27 January 2012 that application was refused because UKBA considered that the CAS did...
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