England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(Immigration and Asylum Chamber)
Upper Tribunal Judge Allen and
Upper Tribunal Judge Chalkley
[2012] UKUT 368 (IAC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/10/2013

Lord Justice Moses :

1. Mr Ali is a national of Pakistan and had been lawfully present in the United Kingdom as a student from March 2008. His leave to remain as a student expired on 30 January 2011. To obtain further leave to remain, he needed to apply and qualify before his leave expired. When Mr Ali applied for further leave to remain as a Tier 1 (General) Migrant under the provisions of the Points-Based system he failed to qualify for a number of reasons including the reason that he did not have an MBA from one of the institutions specified in the Immigration Rules which qualification by itself would have given him the necessary points under Appendix A. By the time of the Secretary of State's refusal he had been awarded an MBA from another institution which would qualify him under a different provision as a Tier 1 (Post-Study Work) Migrant. He was served with a Section 120 (one-stop warning) notice. In his response he asserted that he qualified for leave to remain as a Tier 1 (Post-Study Work) Migrant.
2. The issue in this appeal from the Upper Tribunal is whether the grounds of appeal served in response to the Section 120 notice have effect as an application to remain as a Tier 1 (Post-Study work) Migrant. If, contrary to the conclusions of the FTT and the UTT, they have that effect then he has attracted sufficient points to qualify as a Tier 1 (Post-Study Work) Migrant. The relevant statutory provisions and Rules are annexed to this judgment.
3. In Raju v Secretary of State for the Home Department [2013] EWCA Civ 754, this Court decided that to qualify as a Tier 1 (Post-Study Work) Migrant under Part 6A of the Immigration Rules (HC395 as amended), the United Kingdom recognised qualification must have been notified to an applicant by the time of but not after the application. A response to the service of the Section 120 notice could not have availed Mr Raju because by that time the Rules had changed [18]. But this appellant submits that he could succeed if an additional ground in response to a Section 120 notice may be regarded as an application, because by the time of that response he had been awarded the necessary qualification and the Rules had not, at that stage, been amended to remove the Tier 1 (Post-Study Work) route.
4. As I have recalled, the appellant's leave to remain as a student expired on 30 January 2011. It was necessary for him to apply for further leave to remain before 30 January 2011 so as to obtain the advantage of a statutory extension pursuant to Section 3C of the Immigration Act 1971. Without such an extension he would have become an overstayer and any application thereafter would normally have been refused (Rule 322(3)). His application to remain as a Tier 1 (General) Migrant was refused on 17 March 2011 on the grounds that he did not achieve the minimum number of 80 points required under Appendix A of the Rules. It is unnecessary to detail the grounds of refusal since the applicant does not now contend that the refusal was unjustified. (He did not have an MBA from a listed institution, did not establish the requisite earnings, nor the experience required.) The refusal letter also pointed out that he had not been awarded the qualification on which he relied by the date of his application.
5. However, on 11 March 2011, six days before the Secretary of State refused Mr Ali's application, he was awarded his MBA. The Secretary of State served a Section 120 Notice under the Nationality, Immigration and Asylum Act 2002 at the time of her refusal. The effect of Section 120 is to permit an appellant to raise grounds which differ from the original grounds on which an application has been made and from the grounds considered by the Secretary of State when she refused the original application (AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076 [2011] 1 WLR 385 [80] and [113]).
6. The appellant did raise a fresh ground by way of appeal on 20 May 2011. He said he met the requirements for leave to remain as a Tier 1(Post-Study Work) Migrant. He said he had filled in the wrong form by mistake and knew he did not satisfy the requirements under Tier 1 (General) Migrant. The First Tier Tribunal dismissed this aspect of the appeal because the requisite number of 75 points had not been accumulated at the date of the application [12]. The Upper Tribunal dismissed the appeal because evidence of the award of the degree could not be adduced by virtue of Section 85A(4)(a). The Secretary of State accepts that evidence of the award could have been relied upon if it was adduced before she made her decision on 17 March 2011.
7. The degree had not been awarded prior to the original application on 29 January 2011. This is fatal to the award of 15 points under what was, at the material time, Table 9, (in Raju (q.v. supra) Table 10), unless the application to which Table 9 refers may be construed to include the further grounds relied upon in the response to the Section 120 Notice.
8. To earn the necessary 15 points, under the fourth row of Table 9, it was necessary that:

"The applicant made the application…for leave to remain as a Tier 1(Post-Study Work) Migrant within 12 months of obtaining the relevant qualification."

This was construed in Raju to require the qualification to have been obtained by the time of the application [7]. Table 9 refers only to "the application…for leave to remain as a Tier 1 (PSW) Migrant". Can then the reliance on a fresh ground of appeal in response to a Section 120 Notice be regarded as an application to remain as a Tier 1 (PSW) Migrant?

9. The Notice under Section 120 permits the Secretary of State to require an appellant to state any grounds on which he should be permitted to remain in the United Kingdom (s.120(2)(b)). A Tribunal is required to consider any additional ground, just as the Secretary of State would have had to consider it, had it been advanced at the time of the original application (AS) [80]).
10. I have, however, come to the conclusion that it is not permissible to regard a fresh ground of appeal as an application within the meaning of the fourth row of Table 9. First, it is inconsistent with the structure of the Rules. Rule 34G identifies the date on which an application or a variation under rule 34E is made. They require the application or the variation to comply with the requirements of 34A as they apply at the date of the application or the variation. Rule 34E allows a variation of an application for leave to remain. Such a variation is required to comply with rule 34A "as if the variation were a new application or claim". Section 96 contemplates a new decision on a fresh application or claim and makes a clear distinction between the fresh application and "a statement made in response" to a Section 120 Notice (s.96(2)(b)). All of these provisions make a clear distinction between a statement in response to a Section 120 Notice and an application.
11. Second, if the response to the Section 120 Notice is to be regarded as an application for the purposes of Table 9, it has the result that the applicant has obtained an advantage by making an unsuccessful application for leave to remain as a Tier 1 (General) Migrant which, he now accepts, was rightly refused. That advantage consists of a statutory extension under section 3C and avoidance of the risk of a refusal under Rule 322(3). Had he waited until he was qualified as a Tier 1 (PSW) Migrant, he would have been an overstayer unless he left and applied for entry clearance from overseas. Section 3C(4) of the 1971 Act would not have prevented him from applying to vary before the Secretary of State had made a decision as to his qualification. Had he applied as a Tier 1 (PSW) Migrant before his leave to remain had expired, on 30 January 2011, he would not have been qualified to do so. It is not consistent with the statute or the Rules to permit this appellant to overcome these difficulties by reliance on a fresh ground of appeal. The points-based system is strict and requires the necessary qualification to be obtained before the application for leave to remain is made and not after, through the mechanism of appeal.
12. I have not found it necessary to consider the decisions of this court in AQ (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 833 or Alam & Anwar v Secretary of State for the Home Department [2012] EWCA Civ 960. Alam & Anwar awaits the decision of the Supreme Court. But if it is in favour of the Secretary of State, that will only add to the appellant's difficulties. It was in those circumstances that we acceded to the appellant's wish to refuse the Secretary of State's application for an adjournment of the instant appeal, an appeal which I would dismiss.

Lord Justice Sullivan:

13. I agree.

Lord Justice Thorpe:

14. I also agree.

APPENDIX

Immigration Act 1971

15. ) This section applies if -

(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,

(b) the application for variation is made before the leave expires, and

(c) the leave expires without the application for variation having been decided.

(2) The leave is extended by virtue of this section during any period when -

(a) the application for variation is neither decided nor withdrawn,

(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom] against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or

(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act).

(3) Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.

(4) 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.

(5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).

(6) The Secretary of State may make regulations determining when an application is decided for the purposes of this section; and the regulations -

(a) may make provision by reference to receipt of a notice,

(b) may provide for a notice to be treated as having been received in specified circumstances,

(c) may make different provision for different purposes or circumstances,

(d) shall be made by statutory instrument, and

(e) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Nationality, Immigration and Asylum Act 2002

82. Right of appeal: general

(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 –

(a) refusal of leave to enter the United Kingdom,

(b) refusal of entry clearance

(c) refusal of a certificate of entitlement under section 10 of this Act,

(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,

84. Grounds of appealE+W+S+N.I.

This section has no associated Explanatory Notes

(1) 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.

85. Matters to be consideredE+W+S+N.I.

This section has no associated Explanatory Notes

(1) An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).

(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), 83(2) or 83A(2) against a decision 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.

(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.

85A. Matters to be considered: new evidence: exceptions

(1) This section sets out the exceptions mentioned in section 85(5).

(2) Exception 1 is that in relation to an appeal under section 82(1) against an immigration decision of a kind specified in section 82(2)(b) or (c) the Tribunal may consider only the circumstances appertaining at the time of the decision.

(3) Exception 2 applies to an appeal under section 82(1) if –

(a) the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d),

(b) the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a "Points Based System", and

(c) the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f).

16. Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it –

(a) was submitted in support of, and at the time of making, the application to which the immigration decision related,

(b) relates to the appeal in so far as it relies on grounds other than those specified in subsection (3)(c),

(c) is adduced to prove that a document is genuine or valid, or

(d) is adduced in connection with the Secretary of State's reliance on a discretion under immigration rules, or compliance with a requirement of immigration rules, to refuse an application on grounds not related to the acquisition of "points" under the "Points Based System".

17. Tribunal procedure Rules may make provision, for the purposes of subsection (4)(a), about the circumstances in which evidence is to be treated, or not treated, as submitted in support of, and at the time of making, an application.

120. Requirement to state additional grounds for applicationE+W+S+N.I.

This section has no associated Explanatory Notes

(1) This section applies to a person if—

(a) he has made an application to enter or remain in the United Kingdom, or

(b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.

(2) 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.

(3) A statement under subsection (2) need not repeat reasons or grounds set out in—

(a) the application mentioned in subsection (1)(a), or

(b) an application to which the immigration decision mentioned in subsection (1)(b) relates.

Immigration Rules (HC 395 as amended)

34A. Where an application form is specified, the application or claim must also comply with the following requirements:

(i) the application or claim must be made using the specified form,

(ii) any specified fee in connection with the application or claim must be paid in accordance with the method specified in the application form, separate payment form and/or related guidance notes, as applicable,

(iii) any section of the form which is designated as mandatory in the application form and/or related guidance notes must be completed as specified,

(iv) if the application form and/or related guidance notes require the applicant to provide biographical information, such information must be provided as specified,

(v) an appointment for the purposes stated in subparagraph (iv) must be made and must take place by the dates specified in any subsequent notification by the Secretary of State following receipt of the application or as agreed by the Secretary of State,

(vi) where the application or claim is made by post or courier, or submitted in person:

(a) the application or claim must be accompanied by the photographs and documents specified as mandatory in the application form and/or related guidance notes,

(ab) those photographs must be in the same format specified as mandatory in the application form and/or related guidance notes, and

(b) the form must be signed by the applicant, and where applicable, the applicant's spouse, civil partner, same-sex partner or unmarried partner, save that where the applicant is under the age of eighteen, the form may be signed by the parent or legal guardian of the applicant on his behalf,

(vii) where the application or claim is made online:

(a) the photographs and documents specified as mandatory must be submitted in the manner directed in the application form and/or related online guidance notes and by such date as is specified in the acknowledgement of the online application,

(ab) those photographs must be in the same format specified as mandatory in the application form and/or related guidance notes, and

(b) the confirmation box (which states that the information contained in the application form is true and complete) must be completed by the applicant or, if the form is completed by an immigration adviser on the applicant's behalf, by the immigration adviser on specific instructions from the applicant that the information given is true and complete, and

(vii) the application or claim must be delivered in accordance with paragraph 34B.

Variations of Applications or Claims for Leave to Remain

34E. If a person wishes to vary the purpose of an application or claim for leave to remain in the United Kingdom and an application form is specified for such new purpose, the variation must comply with the requirements of paragraph 34A (as they apply at the date the variation is made) as if the variation were a new application or claim, or the variation will be invalid and will not be considered.

34F. Any valid variation of a leave to remain application will be decided in accordance with the immigration rules in force at the date such variation is made.

Determination of the date of an application or claim (or variation of an application or claim) in connection with immigration

34G. For the purposes of those rules, the date on which an application or claim (or a variation in accordance with paragraph 34E) is made is as follows:

(i) where the application form is sent by post, the date of posting,

(ii) where the application form is sent by courier, the date on which it is delivered to the United Kingdom Border Agency of the Home Office, or

(iii) where the application form is sent by courier, the date on which it is delivered to the United Kingdom Border Agency of the Home Office, or

(iv) where the application form is submitted online, the date on which it is so submitted.

245Z. Requirements for leave to remain

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:

(a) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.

(b) the applicant must not previously have been granted entry clearance or leave to remain as a Tier 1 (Post-Study Work) migrant.

(c) The applicant must have a minimum of 75 points under paragraphs 51 to 58 of Appendix A.

Refusal of leave to remain, variation of leave to enter or remain or curtailment of leave

322. In addition to the grounds for refusal of extension of stay set out in parts 2-8 of these Rules, the following provisions apply in relation to the refusal of an application for leave to remain, variation of leave to enter or remain or, where appropriate, the curtailment of leave:

Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom are to be refused

(1) the fact that variation of leave to enter or remain is being sought for a purpose not covered by these Rules.

(1A) where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge), or material facts have not been disclosed, in relation to the application.

Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom should normally be refused

(2) the making of false representations or the failure to disclose any material fact for the purpose of obtaining leave to enter or a previous variation of leave;

(3) failure to comply with any conditions attached to the grant of leave to enter or remain;

Appendix A

Table 9.

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.	20
The applicant's periods 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 leave to remain as a Tier 1 (Post-Study Work) Migrant within 12 months of completing a United Kingdom Foundation Programme Office affiliated Foundation Programme as a postgraduate doctor or dentist.	15
The applicant is applying for leave to remain and has, or was last granted, leave as a Participant in the International Graduates Scheme (or its predecessor, the Science and Engineering Graduates Scheme) or as a Participant in the Fresh Talent: Working in Scotland Scheme.	75