Talukder Mohammad Zakir Hossain and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lord Justice Vos,Lord Justice Moore-Bick |
| Judgment Date | 13 March 2015 |
| Neutral Citation | [2015] EWCA Civ 207 |
| Date | 13 March 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2013/2837 |
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick, VICE PRESIDENT OF THE COURT OF APPEAL (CIVIL DIVISION)
Lord Justice Beatson
and
Lord Justice Vos
Case No: C5/2013/2837
Michael Biggs (instructed by Universal Solicitors) for the Appellants
Mathew Gullick (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 3 March 2015
I. Introduction
This is an appeal against a determination of the Upper Tribunal concerning a decision about the Tier 1 (Post-Study Work) Migrant category of the points-based system of immigration control introduced in 2008. That category was designed to enable those who had a United Kingdom recognised bachelor's or postgraduate degree to remain in order to acquire post-study work experience. Following an announcement in March 2011, it was removed from the system as from 6 April 2012. Applications made before that date, such as the one before this court, remained eligible for consideration under it.
In this appeal, the single issue is whether the language of the form specified for making an application for leave to remain as a Tier 1 (Post-Study Work) Migrant gives rise to a legitimate expectation that, notwithstanding the requirement in the Immigration Rules that 15 points are given where the application is made "within 12 months of obtaining the relevant qualification", i.e. after obtaining the qualification, in certain circumstances the points will be given where the application is made after the successful completion of the degree course but before the degree is in fact awarded.
The appellant, Mr Talukder Hossain, is a citizen of Bangladesh. He had been in this country lawfully as a student since June 2006. On 3 April 2012, two days before the category was removed from the system, he applied for Tier 1 (Post-Study Work) status. He had then completed a course at the Birmingham Graduate School for an MBA degree to be validated and awarded by the University of Wales, but the University had not notified him that he had been awarded the degree.
Mr Hossain filed a letter dated 28 March 2012 from the Birmingham Graduate School with his application. It stated that he had completed his "full-time MBA top-up programme" and "all his academic requirements" and "is expected to receive his certificate from the University of Wales shortly". Almost two months after the application was made, on 28 May 2012, the University of Wales confirmed that Mr Hossain had been successful in obtaining the MBA degree. Seven months later, on 20 December 2012, his application was refused by the respondent, the Secretary of State for the Home Department. The reason for the refusal was that he had not obtained his MBA qualification prior to making his application as required by the Immigration Rules, was therefore not entitled to the 15 points for that attribute, and had consequently not achieved the points necessary under the Immigration Rules for leave to remain as a Tier 1 (Post-Study Work) migrant. The letter also stated that a decision had been made to remove him from the United Kingdom.
On 22 April 2013 the First-tier Tribunal ("FtT") allowed Mr Hossain's appeal against the decision. It did so on the basis of a decision of the Upper Tribunal, Khatel and others (s85A; effect of continuing application) [2013] UKUT 00044 (IAC), which held that an application was to be treated as "continuing" and still open until the date on which it was decided, so that a person who obtained the relevant qualification before the date of the Secretary of State's decision was entitled to the points for that attribute. Two months after the FtT's determination, this court overruled Khatel's case in Raju, Khatel and others v Secretary of State for the Home Department [2013] EWCA Civ 754, reported at [2014] 1 WLR 1768. Moses LJ, with whom Kitchin and Floyd LJJ agreed, stated (at [24]) that, on a true construction of the Immigration Rules, an applicant for Tier 1 (Post-Study Work) status was required to have obtained the relevant qualification before making the application in order to obtain the necessary points, and that an application was not to be regarded as "continuing" until it was determined. Accordingly, subsequently obtained evidence could not cure a defect in the application at the date it was made. As a result, on 8 August 2013 the Upper Tribunal allowed an appeal by the Secretary of State in the present case.
Permission to appeal to this court was sought on two grounds, unfairness based on inconsistency with the Secretary of State's decision in other cases, and the legitimate expectation that arose from the terms of the specified form. The inconsistency ground is no longer pursued. Sir Stanley Burnton described it as "hopeless" but adjourned the application for permission to allow the letter dated 28 March 2012 to be put before the court. After that was done, permission to appeal on the legitimate expectation ground was granted by Gloster LJ on 7 March 2014. I will refer to Mr Hossain as "the appellant" although there are three other appellants. They are his wife and his two children, who have at all material times been his dependents and whose appeals stand or fall with his.
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. There are about 40 other cases in which permission to appeal to this court from the Upper Tribunal is sought on the question whether the terms of the application form for leave to remain as a Tier 1 (Post-Study Work) Migrant completed by a person gave rise to a legitimate expectation that the Secretary of State would waive the requirements in § 245FD of the Immigration Rules and Table 10 of Appendix A to the Rules. They all involve courses studied at an educational institution which is the Tier 4 sponsor ("the educational provider") for degrees validated and awarded by another institution, normally a university ("the awarding institution"). In some, but not all, of the applications, the application was accompanied by a letter from the educational provider giving details of the awarding body. Those letters stated either that all the course requirements had been completed successfully but that the final decision by the awarding institution was awaited, or were in similar terms to the letter from the Birmingham Graduate School in this case.
II. The legal framework
The relevant provisions of the Immigration Rules (HC 395 as amended) are those that were in force on 5 April 2012. By § 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 to 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."
The appellant satisfied all the requirements save for (c). Had he satisfied all the requirements he would have been entitled to leave to remain for a maximum period of two years (see paragraph 245FE).
Appendix A to the Rules 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...
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