England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/07/2011

LORD JUSTICE PILL :

1. This is an appeal against a decision of the Upper Tribunal (Immigration & Asylum Chamber) ("the Tribunal") which, by a determination promulgated on 21 May 2010, dismissed the appeal of AQ (Pakistan) ("the appellant") against a decision of an Immigration Judge dated 31 March 2009. The Immigration Judge had dismissed an appeal under section 82 of the Nationality & Asylum Act 2002 ("the 2002 Act") against the decision of the Secretary of State for the Home Department ("the Secretary of State") refusing to vary leave to remain in the United Kingdom pursuant to Rule 245Z of the Immigration Rules (post-study work).
2. To qualify for leave to remain as a Tier 1 (Post-Study Work) Migrant, an applicant must meet requirements, including having a minimum number of points specified in appendices to the Rules. The Tribunal held that the Immigration Judge had not erred in law in dismissing that appeal.
3. Rule 245Z provides, in so far as is material:

"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.

Requirements:

. . .

(c) The applicant must have a minimum of 75 points under paragraph 5 to 58 of Appendix A.

. . ."

4. The issue can be put succinctly. Can the points entitlement arising from a Masters degree count towards the minimum if the degree is awarded after the Secretary of State's decision but before the decision of the Tribunal?
5. The appellant is a citizen of Pakistan and came to the United Kingdom in September 2006. On 17 March 2008, his leave to remain as a student was extended until 31 October 2008. On 7 October 2008 he made application for further leave to remain as a Tier 1 (Post-Study Work) Migrant. Application had to be made before the leave came to an end on 31 October (JH (Zimbabwe) v Secretary of State [2009] EWCA Civ 78, per Richards LJ at paragraph 35). The appellant produced evidence that his final year project was expected to be completed by 31 October 2008.
6. By a letter dated 28 November 2008, the Secretary of State refused the application on the ground that the appellant had failed to obtain the requisite number of points under Appendix A. He had yet to complete his Masters degree which had not been awarded to him. In the letter refusing the application, the appellant was told of his right of appeal under section 82(1) of the 2002 Act. Section 84(1) identifies the grounds on which an appeal can be brought. The appellant was also given a One-Stop Warning ("OSW") under section 120(2) of the Act. The sub-section provides:

"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."

7. The appellant exercised his right of appeal. Section 82 of the 2002 Act provides, in so far as is material:

"(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;

. . ."

8. The appellant responded to the section 120 Notice. Under the heading "Statement of additional grounds" he relied on evidence that he had on 3 December 2008, that is after the Secretary of State's decision, been awarded a degree in MSc Computer System & Networking by City University.
9. The Tribunal's duties, when considering a section 82(1) appeal and the appellant has made a statement under section 120, are set out in section 85 of the 2002 Act:

"(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."

10. Section 86(2) and (3) provide:

"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) . . ."

11. The Immigration Judge dismissed the appeal on the ground that the degree had not been awarded at the time of the Secretary of State's decision. The decision was said to be in accordance with the rules and was not unlawful. The Immigration Judge stated that he was bound to dismiss the appeal, adding, at paragraph 10, that the circumstances were exceptional in that, at the date of the hearing before him, the appellant would qualify for the appropriate visa.
12. A reconsideration was ordered on 23 April 2009 and the Tribunal (CMG Ockelton, Vice President, and Senior Immigration Judge Storey) stated, at paragraph 12:

"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."

13. The Tribunal concluded, at paragraph 15:

"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."

14. When granting permission to appeal to this court on 7 January 2011, SIJ Storey stated:

"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 [79] 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."

As appears, the decision of this court in AS (Afghanistan) [2009] EWCA Civ 1076, [2010] 2 All ER 21 was not addressed by the Tribunal. The appellant now relies on that decision.

15. It is accepted on behalf of the appellant that the consistent practice of the Tribunal, in the absence of AS, was to require the accumulation of points to be established at the date of the application for an extension (KAN (Post-Work Study - degree award required) India 2009 UK AIT00022, NO (Post-Study Work – award needed by date of application) Nigeria 20009 UKAIT00054). NA and Others (Tier 1 Post-Study Work Funds) 2009 UKAIT00025) was cited in detail by the Tribunal. It was accepted that evidence of means (not an issue in the present case) could be given on appeal but only if it related to a period of time immediately prior to the date of the application to the Secretary of State. Evidence of means for a period of time wholly or partly subsequent to the date of application was not enough.
16. In EA (section 85(4) explained) Nigeria 2007 UKAIT00013, the Tribunal had held that it was necessary to demonstrate compliance with the requirements of the Immigration Rules at the date of the application. In that case, the Secretary of State had not taken account of information available at the date of the hearing but bearing upon facts available at the date of decision. What an applicant may do under section 85(4), it was accepted, is to demonstrate that the application to the Secretary of State would be successful at the date of the hearing, provided the evidence related to events at that earlier time.
17. In AS, Moore-Bick LJ and Sullivan LJ conducted detailed analyses of the section 120 procedure and held that the duty of the Tribunal to consider any matter raised in a statement under the section was not restricted to considering grounds relating to the reasons for the Secretary of State's decision or to the original grounds of appeal.
18. On the basis of AS, Mr Malik, for the appellant, makes the general submission that, once there is a response to an OSW, the Tribunal is the primary decision- maker as if deciding a fresh application. That includes an obligation to consider a re-formulation of the original ground on which leave to remain was sought. The original ground had been re-formulated, in response to the OSW, and the award of the degree in December 2008 could be relied on to demonstrate compliance with r.275Z. The ruling on whether points had been acquired should be made at the date of the hearing, the Tribunal having become the primary decision-maker.
19. Mr Malik puts section 85(2) at the heart of his submission. Section 85(4), he submits, must be construed in the context of section 85(2). The situation, he accepts, would not arise in the absence of a statement by the appellant under section 120. Once such a statement is made, the Tribunal is required to consider any matter raised in it which constitutes a ground of appeal listed in section 84(1). That includes reliance on the award of a degree in December 2008, which the Tribunal must take into account when making its decision.
20. Mr Malik relies on the statement of Moore-Bick LJ at paragraph 80 of AS that the purpose of a response to an OSW is to state "any grounds [the appellant] may have for challenging the substance of the decision made against him." That suggests, it is submitted, that the Tribunal will be making a decision on the "substance" of the application under the Rules, which means a decision on the situation at the time of the Tribunal's decision. Moore-Bick LJ added, at paragraph 81, that the issue of an OSW does not mean that "the decision being challenged can be defined by reference to the particular facts on which it was based." Further facts, it is now submitted, may have become relevant.
21. It is submitted that the obligation on an appellant in section 120 to put forward all reasons for challenging the decision creates a corresponding obligation to determine those reasons in one process. For that purpose, the Tribunal becomes the primary decision-maker. The appellant met the requirements of the rule at the date of hearing and the appeal should have been allowed. No fresh application can be made (JH (Zimbabwe)) and, following an OSW and response, the existing application, as reformulated, should be considered by the Tribunal. Moore-Bick LJ, at paragraph 84, stated that he saw little force in arguments against making the Tribunal "the primary decision-maker in relation to any additional grounds."
22. For the Secretary of State, Mr Payne accepts that, following AS, the relevant date for the assessment of evidence is the date of the Secretary of State's decision and not, as may have appeared from earlier Tribunal decisions, the date of the application to her. The application is treated as continuing until the date of decision. It is further accepted that the response to an OSW may in some circumstances include additional support for the original application as well as fresh grounds of application. Moreover, the purpose of the statutory procedure, as stated by the majority in AS, is accepted and asserted.
23. Moore-Bick LJ confirmed, at paragraph 78, that sections 85(2), 96(2) and 120 of the 2002 Act "demonstrate that they are intended to form constituent parts of a coherent procedure designed to avoid a multiplicity of applications and appeals." Sullivan LJ made a similar statement at paragraph 103. The underlying legislative policy was "to prevent successive applications."
24. In MS (AS & NV Considered) Pakistan [2010] UKUT 117 (Senior Immigration Judge Allen), decided since AS, it was stated, at paragraph 49:

"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."

25. For the Secretary of State, it is submitted that AS was not concerned with evidence of events subsequent to the Secretary of State's decision. I agree with that submission and with the reasoning in MS I have cited. The fears expressed by Senior Immigration Judge Storey when granting leave are not in my view entirely justified.
26. Both cases considered in AS involved consideration of evidence of events prior to the decision of the Secretary of State. In one case an application to the Secretary of State had been based on an intention to establish the appellant in business (r.206E) where she could have applied under the International Graduate Scheme. In the second case, the application for leave to remain was based on 10 years' residence in the United Kingdom whereas the appellant could have sought variation of her leave to remain on the basis that she was a student. Moore-Bick LJ stated, at paragraph 83, that "the matters relied on [in the section 120 Notice] all pre-date the decision [under appeal]". Moore-Bick LJ added, at paragraph 83:

"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."

27. Sullivan LJ, at paragraph 106, plainly had in mind evidence available at the time of the Secretary of State's decision in his example, at paragraph 106, of an applicant who had applied for leave to remain on the wrong basis and failed to mention their marriage to a United Kingdom citizen.
28. The Secretary of State maintains the submission that the Immigration Rules require criteria to exist at the time of her decision under appeal and compliance is to be judged as of that date. Admission before the Tribunal of further evidence of the situation at that date did not alter the principle, which was not affected by the decision in AS. The appellant did not have his degree at the date of that decision and could not rely, before the Tribunal, on its subsequent award.
29. The appellate jurisdiction of the Tribunal is triggered by an immigration decision as defined section 82 of the 2002 Act. The Tribunal is required to consider the lawfulness of the decision which gives rise to its jurisdiction, as demonstrated by section 84, which sets out exhaustively the permitted grounds of appeal. The focus is on the decision of the Secretary of State under appeal, it is submitted. Section 85(2) contemplates a statement by an appellant under section 120 and provides that the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal against the decision appealed against, but that is still the decision of the Secretary of State.
30. Reliance is placed on the statement of Sedley LJ in Pankina v Secretary of State [2010] EWCA Civ 719, at paragraph 39:

"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."

31. Compliance with the requirements after the date of decision is not relevant to the "substance of the decision" as defined by section 85(4), it is submitted. By contrast, post-decision evidence may be allowed to demonstrate that the requirements were satisfied at the date of decision, subject to the change of the law by the addition of section 85A to the 2002 Act with effect from 23 May 2011. Section 85A of the 2002 Act, with effect from 23 May 2011, amended section 85(5) to provide further exceptions to the provisions of section 85(4). It has no application in the present appeal, whether or not remitted to the Upper Tribunal. I see no need to embark upon a consideration of the effect of section 85A.
32. Mr Payne submits that to permit evidence of subsequent events to challenge the decision of the Secretary of State would be to allow successive applications which it is the object of the OSW procedure to prevent. It would convert the statutory appeal system into a statutory application system considering fresh matters raised in a section 120 Notice.
33. Before expressing my conclusion, I mention Mr Malik's reference to the terminology used in the decision letter of 28 November 2008 when referring to the appellant's right to respond to the OSW. It is relied on not as creating a legitimate expectation but as an aid to considering the effect and intention of section 120. Reference is properly made in the document to the provisions of section 96 of the 2002 Act whereby failure to state a reason in response to an OSW may prevent it being raised at a later stage. However, it is also stated that in the response:

"You must now inform us of any reasons why you think you should be allowed to stay in this country."

and

"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."

34. The wording suggests, it is submitted, that a fresh decision will be taken by the Tribunal under the Immigration Rules.

Conclusions

35. In my judgment, the decision of the Tribunal in this case was correct. A Tribunal's task is to "look back at the position as at the date of application [now decision]" as stated by the Tribunal in the present case at paragraph 14 or, as the Tribunal put it in MS, at paragraph 49, in cases where "the rule in question specifies a fixed historic time-line".
36. Section 85(2), put by the appellant at the heart of his case, concludes by referring to the availability of grounds of appeal "against the decision appealed against." I agree with Mr Payne that the focus is on the decision of the Secretary of State. In my judgment, the "decision" is clearly the decision of the Secretary of State. In the present context, fresh matters may be raised but are relevant only in so far as they challenge that decision. As Sedley LJ recognised in Pankina, at paragraph 39, there will be cases under the Rules which depend on the situation existing at the time of the Secretary of State's decision. In my judgment, Rule 245Z is one of those cases. The points to be accumulated must be accumulated at the time of the Secretary of State's decision. That includes, as is agreed, a requirement that the relevant degree has been awarded.
37. I do not consider that section 120 was intended, or has the effect, of allowing a fresh application to be made to the Tribunal, under the Rule, relying on events since the Secretary of State's decision. If that were to be so, the effect of section 120 would be contrary to the intention of the section in that the statutory scheme would provide for an application to the Secretary of State and then a fresh application to the Tribunal which could be based on events since the decision of the Secretary of State. I do not consider that to accord with the intention of the section.
38. I see no inconsistency between the intention in section 120 and an intention by which the determination by the Tribunal is by reference to the decision being appealed, that is the decision of the Secretary of State. Section 3C of the Immigration Act 1971 provides for continuation of leave to remain pending a variation decision on leave. It applied in the present case to extend the appellant's leave to remain until his appeal against refusal is determined (section 3C(2)). Sub-section (4) provides:

"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.

39. I would dismiss this appeal.

LORD JUSTICE TOULSON :

40. I agree.

LORD JUSTICE SULLIVAN :

41. I also agree.  In AS the Court was not concerned with decisions made by the Respondent under the "Points-based" system of determining applications for leave to remain.  In such cases there is a "fixed historic time-line".  The effective operation of a points based system requires the points to have been accumulated at the date of the Secretary of State's decision.