ON APPEAL FROM THE UPPER TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LORD JUSTICE VOS
| HIMANSHU POKHRIYAL
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
- and -
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Robert Palmer (instructed by The Treasury Solicitor) for the Respondent
Hearing date: Thursday 14th November
Crown Copyright ©
Lord Justice Jackson:
Part 1. Introduction,
Part 2. The facts,
Part 3. The appeals to the Court of Appeal,
Part 4. The construction of paragraph 120B of Appendix A to the Immigration Rules,
Part 5. HP's appeal,
Part 6. AH's appeal.
"Requirements for leave to remain
To qualify for leave to remain as a Tier 4 (General) Student under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the applicant will be refused.
(c) The applicant must have a minimum of 30 points under paragraphs 113 to 120 of Appendix A."
"Points will only be awarded for a valid Confirmation of Acceptance for Studies assigned on or after 4 July 2011 (even if all the requirements in paragraphs 116 to 120A above are met) if the Sponsor has confirmed that the course for which the Confirmation of Acceptance for Studies has been assigned represents academic progress from previous study undertaken during the last period of leave as a Tier 4 (General) Student or as a Student, 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."
"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances;
"ACADEMIC PROGRESSION: Student has studied a PGD for general academic purposes but as he wants to go into the IT industry, a qualification in IT combined with the PGD would offer him better opportunities. Student wishes to follow a career in IT in India and in particular with the Tata Group. He believes that his previous studies in the UK combined with an IT qualification would provide him with additional opportunities in following his chosen career path."
"This is to confirm that Mr Amjad Hussain, DOB: 31/01/1984 applied for PGD in Strategic Management and Leadership at Cranford College. The College assessed the student previous qualification and it was found that he was unable to complete his previous course of studies in level 7 at Charles Edward College because his previous College licence had been revoked by the UKBA. However, Charles Edward College had confirmed his progression and attendance in their letter of November 2011.
Cranford College assessed the progression of the student on the basis of the letter he presented from his previous College. Thus, the College assigned him a CAS in the same level on the basis of his previous study (PGD in Business Management) undertaken during the last period of his leave as Tier 4 (General) student at Charles Edward College."
i) It is clear from the CAS that AH's new course is at the same level at his previous course. This did not constitute academic progress.
ii) If the Secretary of State should have made further inquiries of Cranford College, any further information obtained would have led to the same conclusion.
"However, it is plain from his findings at paragraphs 26 and 27 that the judge simply did not accept that the appellant's change of course represented academic progress or that the college was able to demonstrate that it did and he did not accept that the letter of 8 June 2012 constituted confirmation of such. Indeed, a close reading of the letter, which is written in rather vague terms, would suggest that that was a view he was perfectly entitled to take."
"If a Tier 4 (General) student has a CAS that was assigned on or after 4 July 2011, and he/she has previously had permission to stay as a Tier 4 (General) Student (or under the student rules that were in force before 31 March 2009), a Tier 4 Sponsor can only give the him/her a CAS for a new course if that new course represents academic progress from his/her previous study … "
i) Paragraph 120B uses the word "confirmed", rather than "stated".
ii) There is no point in issuing a CAS to an existing student, unless the college considers that the stated course represents academic progress.
iii) Paragraph 63 of the Secretary of State's guidance statement issued to students states that a college can only issue a CAS for an existing student if the new course represents academic progress.
i) Paragraph 120B of Appendix A to the Immigration Rules requires a college issuing a CAS for an existing student to confirm that the stated course constitutes academic progress.
ii) That confirmation may be included either in the CAS or in a separate document.
iii) When determining whether the words used constitute such confirmation, it must be borne in mind that the mere issue of the CAS creates a presumption or expectation that the proposed course represents academic progress.
iv) Whether a course constitutes academic progress is a matter for the college, not the Secretary of State. The Secretary of State must accept the college's decision unless it is vitiated by fraud or for some other reason (see paragraph 47 above).
"Cranford College assessed the progression of the student on the basis of the letter he presented from his previous college. Thus the college assigned him a CAS…"
Lord Justice Longmore:
"371. Since 4 July 2011, if you assign a CAS to a student to take another course in the UK after they finish one, it must be academic progression from the previous course. This applies whether the student is applying from overseas or in the UK.
372. You do not need to show academic progression if this will be the student's first course of study in the UK or you are assigning a CAS for a student to complete an existing course. For example, the student may be completing a course with you that they started with another Tier 4 sponsor.
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. Sometime 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."
"Paragraphs 282 and 283 of the July 2011 Tier 4 Sponsor Policy Guidance state:
282. If the student is undertaking a second or subsequent course of study in the UK then you must vouch that this represents academic progression. You must include a statement confirming the student's academic progression in the "evidence provided" box on the CAS.
Where academic progression involves study at either the same level or at a lower level then you must provide justification as to why the course move represents progression.
283. If you do not confirm the student's academic progression of the CAS then the student's application for entry clearance or leave to remain will be refused. If you are unable to evidence how you have assessed the student's academic progression or we have concerns about how you have assessed this then we will suspend or revoke your licence. We may also ask for evidence of why you believe this represents academic progression and how you have assessed this during compliance visits.
Your sponsor, Cranford College, has not confirmed on your Confirmation of Acceptance for Studies that the course for which the Confirmation of Acceptance for Studies has been assigned represents academic progress from previous study undertaken during the last period of leave as a Student, therefore no points can be awarded for attributes."
"We may not question your confirmation of progression."
Paragraphs 376 and 377 then warn the college that the UKBA will visit it, ask relevant questions and take action if they find that the college has falsely stated that there is academic progression when there is not.
Lord Justice Vos: