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)
The Hon. Mr Justice Blake (President) and
Upper Tribunal Judge Jane Coker
[2013] UKUT 44 (IAC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/06/2013

Lord Justice Moses:

1. All four of the respondents to the Secretary of State's appeals applied for leave to remain under the Tier 1 (Post-Study Work) provisions of the points-based system. In order to satisfy the criteria under that scheme in Part 6A of the Immigration Rules (HC 395, as amended) they required a United Kingdom recognised bachelor or post-graduate degree. Each of them was awarded that qualification. But they only received notification of that qualification after they had submitted their application for leave to remain. That, asserted the Secretary of State, was fatal to their application because leave to remain depended upon acquiring 75 points under the relevant provisions of Appendix A to the rules. They fell short, so the Secretary of State maintained, because they had not been notified of the qualification by the time they submitted their applications.
2. In these four conjoined appeals, the Upper Tribunal concluded that they were entitled to the 75 points they needed because they had been awarded the qualification by the time the Secretary of State made her decision. The Secretary of State appeals. The appeal turns on the true construction of the relevant provisions of the Immigration Rules (HC 395 as amended). The Secretary of State contends that an applicant for leave to remain under this part of the points-based system must have received notification of the qualification by the time the application is submitted. These applicants, the respondents to the appeal, seek to uphold the decision of the Immigration and Asylum Chamber of the Upper Tribunal, comprising Blake J (President) and Upper Tribunal Judge Jane Coker, that it is sufficient that the notification of the award has been received by the time of the Secretary of State's decision. As the Secretary of State had warned in 2011, the Tier 1 (Post-Study Work) Migrant Scheme has been removed from the points-based system as from 6 April 2012. The Statement of Changes (HC 1888) provided:

"The other changes set out in this Statement shall take effect on 6 April 2012. However, if an applicant has made an application for…leave before 6 April 2012 and the application has not been decided before that date, it will be decided in accordance with the rules in force on 5 April 2012."

The applications were made before 6 April 2012 and, therefore, turn on the rules in force on 5 April 2012. There are a large number of cases which await the resolution of this issue.

3. The issue turns on the relevant provisions of the Immigration Rules (HC 395), in force as at 5 April, 2012. By paragraph 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 for 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."

Each of these applicants satisfied all the requirements save for (c). Had they satisfied all the requirements they would have been entitled to leave to remain for a maximum period of two years (see paragraph 245FE).

4. Appendix A 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 leave to remain as a Tier 1 (Post-Study Work) Migrant within 12 months of obtaining the relevant qualification or 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

Qualification: notes

69. Specified documents must be provided as evidence of the qualification and, where relevant, completion of the United Kingdom Foundation Programme Office affiliated Foundation Programme as a postgraduate doctor or dentist.

70. A qualification will have been deemed to have been 'obtained' on the date on which the applicant was first notified in writing, by the awarding institution, that the qualification had been awarded."

5. I shall call the section in Table 10, above, which refers to the award of 15 points "the fourth section". It is common ground that the respondents needed to obtain the necessary 75 points by satisfying the requirements of each of the first four sections of Table 10, and that they did not qualify for the award of 75 points under the final section. The Secretary of State contends that the fourth section of Table 10 requires the qualification to have been obtained within the period of 12 months prior to the making of the application. At the time they submitted their applications, the respondents had not obtained the qualifications on which they rely and accordingly had not made their applications for leave to remain within 12 months of obtaining their qualifications. They thus failed to qualify for the 15 points which that fourth attribute attracts.
6. All four of the respondents were awarded a degree falling within the qualification identified in the first section of Table 10, scoring 20 points. All four studied at a United Kingdom institution falling within the second section, and thus scored 20 points under the second section. All four of the respondents' periods of study were undertaken whilst they had leave to remain, not subject to restriction, and thus scored the 20 points under the third section of Table 10. But Mr Prasad Raju submitted his application for leave to remain as a Tier 1 (Post-Study Work) Migrant on 4 April 2012 without evidence of his qualifications. He was first notified of his MBA in International Management on 30 April 2012 and thus is deemed to have obtained that qualification on that date (paragraph 70). Mr Prakash Khatel submitted his application on 4 April 2012 and was awarded an MA in Marketing and Innovation on 6 July 2012. Mr Naryan Adhikari submitted his application on 5 April 2012 and obtained his MA in Marketing and Innovation on 6 July 2012. Mr Mostaquim Al Islam submitted his application on 29 February 2012 and obtained his MSc in Accounting and Finance on 2 July 2012. It was only after all four had obtained their qualifications within the meaning of paragraph 70 of Appendix A to the Rules that the Secretary of State considered and refused their applications.
7. The language used in the fourth section of Table 10 must be construed in the context of the table as a whole and the function which it serves in the administration of immigration policy (see Mahad v Entry Clearance Officer [2009] UKSC 16 [2010] 1 WLR 48 per Lord Brown [10]). The fourth section sets a time for making the application by reference to the date when the qualification was obtained within the meaning of paragraph 70 of Appendix A. The applicant has 12 months from the date when he obtained his qualification to make an application. In order to earn 15 points the applicant must have made his application at any time within the 12 month period following the date when the qualification was obtained. The rule fixes the period of 12 months during which an application may be made by reference to the date when the award was obtained. It does not fix a time by which the award must have been granted. The rule could have said that the award must have been obtained before the application. But the meaning of the fourth section is the same. The Upper Tribunal agreed with this construction [39].
8. Mr Malik, on behalf of the respondents, submits that the fourth section of the Rule requires no more than that the relevant qualification be obtained either 12 months before or 12 months after the application is made, provided only that it is obtained by the time the Secretary of State makes her decision. He questions whether there is any justification for requiring the qualification to have been awarded prior to the application for leave to remain. The purpose of the Tier 1 (Post-Study Work) Migrant route to leave to remain is stated explicitly in paragraph 245F: it is to encourage international graduates who have studied in the United Kingdom to stay on and perform skilled or highly skilled work. All four of these respondents, if they were permitted to remain, would amply fulfil the explicit purpose of the Rule. That purpose may be fulfilled whether the application precedes the award or not. Provided that the application is made no more than 12 months before or after the qualification is obtained, graduates will be able to deploy their freshly acquired skill.
9. Moreover, as the Upper Tribunal observed [43(iv)], under Table 10 the award of the qualification scores 20 points, whether it was obtained before or after the application. There is little reason to be discerned in granting 20 points, or indeed 60 points, irrespective of the date of the application if the application is to fail because it is premature. If the 75 points can be established by the time of the decision, then, submits Mr Malik, there is no reason to fail the applicant because he, ex hypothesi, correctly anticipates the qualification. If the applicant proves over-optimistic as to how he has fared in his course, he will not in any event obtain the points he needs.
10. This submission is fortified by recalling that a premature application was of no concern before it was proposed to revoke the Tier 1 (Post-Study Work) route and a date was set for its revocation. Before then, the Secretary of State was content to accept applications which anticipated the grant of a qualification. The reason she did so is explained in the Casework Instruction issued in May 2012 to caseworkers dealing with applications after the abolition of this route :

"You were previously advised that if applicants were awarded their eligible qualification after submitting their application, but before you had made a decision on the case, you were able to accept the evidence allowing the case to be approved. This was a pragmatic interpretation of the Immigration Rules, as any migrant refused on this basis was able to reapply immediately using identical evidence and the case could be approved."

11. This lends force to the proposition that the Secretary of State did not, at that time, think there were policy reasons for rejecting anticipatory applications, such as avoiding the unnecessary involvement of caseworkers with applicants who might turn out to have failed their exams.
12. Whilst I acknowledge that to allow applications which anticipate the award of the necessary qualification does not undermine the purpose of the policy, the wording of the fourth section seems to me plain. The fact that an applicant will achieve a score of 60 points, by obtaining a recognised degree at a qualifying institution during a lawful stay, achieves nothing. Only a score of 75 points attracts the right to be granted leave to remain. There is no room in the points-based scheme for a near-miss. Viewed as a whole, qualification under Table 10 requires strict compliance with the requirement to make the application within the period of 12 months from the time when the qualification was obtained.
13. Read in that way the rules are analogous to those which require an applicant to satisfy a requirement at the date of his application, such as the requirement to have a specified minimum level of personal savings at least three months prior to the date of the application (paragraph 245AA), and to the rules as to levels of funds under the applicant's control on the date of the application under Appendix C - Maintenance (paragraph 1A (g)). As Sedley LJ said :

"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 intelligently be answered by evidence that they had not, albeit they now have been" (Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719, [39] [2011] QB 376).

14. The question posed by the fourth section is: was the application made within 12 months of obtaining the relevant qualification? It is not: was the qualification obtained within 12 months of making the application?
15. In light of that construction, the Upper Tribunal and the respondents focus on the question as to when the application was made. The respondents succeeded because the Upper Tribunal concluded that their applications for variation of leave to remain were continuing applications starting when the applications were first lodged and remaining open until they were decided [43(i)], [49]. As I have recalled, all these applicants obtained their qualifications before the Secretary of State's decisions.
16. In my judgment that vital conclusion was based on a misconstruction of paragraph 34G of the Rules:

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

34G. For the purposes of these 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 submitted in person, the date on which it is accepted by a public enquiry office of the United Kingdom Border Agency of the Home Office,

(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 is made via the online application process, on the date on which the online application is submitted."

17. As the heading and full-out words opening the rule make clear, this rule applies to all the rules. It identifies a specific date when the application, for the purposes of the rules, is made. The Upper Tribunal [47] seem to have been led by the submissions made on behalf of the Secretary of State, not by Mr Gullick, to believe that paragraph 34G was related to the two rules which preceded it, 34E and 34F, under the rubric "Variation of Applications or Claims for Leave to Remain"[47]. Both of those rules deal with a variation by an applicant to existing claims or applications. As 34G makes clear in its parenthesis, it is not limited to such variations. Paragraph 34G precludes the concept of a continuing application which starts when it is first submitted and concludes at the date of the decision, either of the Secretary of State or, on appeal, of a tribunal.
18. The Upper Tribunal derived the concept of a continuing application from the decision of this court in AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA 1076 [2011] 1 WLR 385 and AQ (Pakistan)v SSHD [2011] EWCA Civ 833 [2011] Imm AR 832. In neither of those cases was this court concerned with the wording of the rule in question in the instant appeal. In AS the majority of the court held that an applicant was entitled to raise a new claim, which differed from his original claim, in response to a notice served by the Secretary of State under Section 120 of the Nationality Immigration and Asylum Act 2002. The effect of that conclusion was that a Tribunal would have to decide on the grounds advanced in the statement in response to the s.120 notice, even though they had not earlier been considered by the Secretary of State. This proposition does not assist these respondents, since, although they were served with s.120 notices after they been awarded their qualifications, by that time the rules had changed. Even if it had been permissible to take that opportunity to reiterate their original grounds (which I doubt but do not decide), it was too late. There is no provision which permits a ground advanced in a response to a s.120 notice to be back-dated to the date of the original application.
19. Founding his argument on AS, the applicant in AQ contended that he could rely on the fact that he had acquired the points necessary for leave to remain as a Tier 1 (Post-Study Work) Migrant by the time of his appeal to the Tribunal. The Court of Appeal disagreed and held that the points must be accumulated "by the time of the Secretary of State's decision" (per Pill LJ [37]).

"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". (per Sullivan LJ [41])

The Court of Appeal rejected the submission that s.120 permitted a fresh application to be made relying on events since the decision [37].

20. This conclusion is consistent with my reading of the fourth section of Table 10 and paragraph 34G. The points must, indeed, have been accumulated by the date of the Secretary of State's decision. But that says nothing about how the points are to be accumulated. The rules dictate how points are scored. If, as I have concluded, the fourth section means that 15 points can only be scored if the application is made within the period of 12 months from the date when the qualification was obtained, the mere fact that the Secretary of State must count the number of points accumulated at the date of her decision does not help the applicants. In short, AQ is not authority for any proposition as to how the fourth section of Table 10 is to be interpreted. It makes no reference to it.
21. Mr Malik, however, draws attention to a passage in the judgment of Pill LJ which is important to his submission that an application continues to the date of the decision:

"For the Secretary of State, Mr Payne accepts that, following AS, the relevant date for the assessment of the 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."[22]

22. Mr Malik and the Upper Tribunal relied in particular on the proposition in the second sentence that the application "is continuing". This led the Secretary of State to ask us to look at the transcript of the hearing before the Court of Appeal in an attempt to show the flimsy basis of an unwanted concession. She should not have been so concerned. The acceptance that evidence is assessed at the date of decision is unremarkable and of no assistance in construing the relevant rule in this appeal. A tribunal on appeal, by virtue of s.85(4) of the 2002 Act may consider evidence which only became available after the decision because it casts light on events relevant to the decision (AQ [16]). But it is necessary to look to the relevant rules to identify those events which are relevant to the decision in question. Section 85(4) has now been excluded by s.85A in relation to decisions under the points-based system (s.85A (3)(b)), but that is irrelevant to this case where the qualification was obtained before the date of the Secretary of State's decision.
23. Provisions relating to the possibility of adducing evidence on appeal do not assist in construing the fourth section of Table 10. They say nothing about when an application is 'made' within the meaning of that section and under the rules. I doubt whether the Court of Appeal, in the passage on which the Upper Tribunal so heavily relied, was intending to refer to the date when an application is 'made' for the purposes of those rules where it is relevant to identify that date. If it was, it does not follow from the proposition that evidence is assessed at the date of the decision that an application is 'made' throughout the period from the time when it is submitted up to the date when it is decided, either by the Secretary of State or by a tribunal.
24. An application is made when paragraph 34G says it is made. The Secretary of State at the date of her decision assesses the evidence which determines whether the applicant for leave to remain as a Tier 1 (Post-Study work) Migrant has accumulated 75 points. Whether that evidence was assessed by the Secretary of State, or even later, by a tribunal, these applicants could not score 75 points because they had made their applications before they had obtained their qualifications. On a true construction of the relevant rule, the fourth section of Table 10 in Appendix A, they could not score the 15 points they needed. No subsequently obtained evidence could cure that defect. AQ does not assist these respondents. It is not authority for the proposition on which the Upper Tribunal relied, that the applications were 'made' throughout the period starting with the date of their submission and finishing with the date of the decisions.
25. I would allow the appeals.

Lord Justice Kitchin:

26. I agree.

Lord Justice Floyd:

27. I also agree.