ON APPEAL FROM THE UPPER TRIBUNAL
(Immigration and Asylum Chamber)
The Hon. Mr Justice Blake (President) and
Upper Tribunal Judge Jane Coker
 UKUT 44 (IAC)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KITCHIN
LORD JUSTICE FLOYD
| The Secretary of State for the Home Department
|- and -
Mostaquim Al Islam
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Mr Zane Malik (instructed by Malik Law Chambers Solicitors (Mr Raju, Mr Khatel and Mr Adhikari) and Farani Javid Taylor Solicitors (Mr Islam) ) for the Respondents
Hearing date: 12th June, 2013
Crown Copyright ©
Lord Justice Moses:
"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.
"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.
(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).
"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.
|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.
|(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.
|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.||
|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
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."
"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."
"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  EWCA Civ 719,   QB 376).
"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."
"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 )
The Court of Appeal rejected the submission that s.120 permitted a fresh application to be made relying on events since 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."
Lord Justice Kitchin:
Lord Justice Floyd: