ON APPEAL FROM UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOULSON
LORD JUSTICE SULLIVAN
| AQ (Pakistan)
|- and -
|Secretary of State for the Home Department
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Alan Payne (instructed by Treasury Solicitor) for the Respondent
Hearing dates : 21 June 2011
Crown Copyright ©
LORD JUSTICE PILL :
"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 245ZA (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.
. . .
(c) The applicant must have a minimum of 75 points under paragraph 5 to 58 of Appendix A.
. . ."
"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."
Section 120(3) provides:
"A statement under subsection (2) need not repeat reasons or grounds set out in his previous application."
"(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal .
(2) In this Part "immigration decision" means -
. . .
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain."
Section 84(1) of the 2002 Act provides, in so far as is material:
"An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds -
(a) that the decision is not in accordance with immigration rules;
. . ."
"(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) . . . against a decision the Tribunal may consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.
(5) But in relation to an appeal under section 82(1) against refusal of entry clearance or refusal of a certificate of entitlement under section 10—
(a) subsection (4) shall not apply, and
(b) the Tribunal may consider only the circumstances appertaining at the time of the decision to refuse."
"The Tribunal must determine—
(a) any matter raised as a ground of appeal (whether or not by virtue of section 85(1)), and
(b) any matter which section 85 requires it to consider.
(3) The Tribunal must allow the appeal in so far as it thinks that -
(a) a decision against which the appeal is brought . . . was not in accordance with the law (including immigration rules) . . ."
"The plain meaning of the words '. . . has been awarded' in para 55 of Appendix A is clear. For a qualification to be accepted as having been 'obtained', the award must already have been made. Put another way, the award must already be an historic fact."
The Tribunal added, at paragraph 14:
"Under para 245Z(c), it is stipulated that in order to score the necessary points under 'Attributes', an applicant must have been awarded the qualification and be able to show that this was the state of affairs as at the date of application. The decision in respect of both requirements is one that has to look back at the position as at the date of application. The decision-maker is not asked to consider the substantive position of the applicant at the date of decision, or, in the case of an Immigration Judge, at the date of hearing."
"On the evidence in this case the appellant's university only awarded him his degree on a date well after the date of application and decision. Accordingly, the IJ was right to conclude that the decision of the respondent refusing his application was in accordance with the law."
"However, the Tribunal did not address the AS (Afghanistan) case and it is perhaps difficult to say that the decision of the majority in AS (Afghanistan), which is binding on the Tribunal, did not require a different approach than was taken: see in particular  and [111-113] of AS (Afghanistan). It would appear that so long as there is a decision outstanding on whether to grant variation of leave to remain the reasoning of the majority in AS (Afghanistan) would permit an existing appellant to lodge a fresh application and have it treated as a further ground of appeal against what is effectively the substance of that decision. The fact that that appears to make a nonsense of the Rules requiring applications to be made in a particular form and fees to be paid for them, to short-circuit consideration by the respondent of a new application, to defeat the apparent intention of Immigration Rules specifying historic tests and also to turn the Tribunal into a primary decision-maker appears to matter not. However, even if the grounds for the foregoing reasons might be said to take AS (Afghanistan) further than their lordships intended, they are certainly arguable."
"I consider that the Court of Appeal limited the ambit of its decision to cases where a fresh ground is raised in respect of the particular immigration decision made, rather than the making at a later date of an application, based on fresh evidence . . . I consider that the purpose of the procedural scheme established by section 120 is to encourage an applicant to provide all the reasons he or she has for appealing against a particular decision (e.g. to refuse or vary leave to remain), rather than permitting the later submission of evidence relating to subsequent circumstances in a case such as this where the rule in question specifies a fixed historic time-line."
"It may be that in a limited class of cases a prohibition on hearing evidence of matters that post-date the decision under appeal will prevent the appellant from effectively pursing an additional ground, but that is not the case with either of the present appeals, in which the matters relied on all pre-date the decision, and it is unlikely to be so in the majority of cases."
"Although argument has been directed to large issues of principle arising out of the phraseology of the legislation, the answer has in my judgment to be found in the provisions themselves. The rule as framed makes it clear that it is to the Home Office that the necessary proof must be submitted. The argument that a fresh opportunity arises on appeal is based on s.85(4) of the 2002 Act, which provides that on such an appeal 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". There are many instances of rule-based issues which need to be appraised as they stand at the moment of the appeal hearing, but the question whether at the date of the application the specified funds had been in the applicant's bank account for three continuous months cannot intelligibly be answered by evidence that they had not, albeit they now have been."
"You must now inform us of any reasons why you think you should be allowed to stay in this country."
"If, at a later date, the reasons why you think you should be allowed to stay in this country change, or new reasons arise, you must tell us as soon as possible."
"A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section."
That limitation appears to me to be inconsistent with the appellant's submissions. These would have the effect of permitting a fresh application to the Tribunal, as primary decision-maker, based on events occurring while the leave has been extended by virtue of the section.
LORD JUSTICE TOULSON :
LORD JUSTICE SULLIVAN :