England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London, WC2A 2LL
		16 June 2015

1. LORD JUSTICE TOMLINSON: This is a renewed application for permission to appeal by Mr M who has been refused permission to remain as a Tier 4 (General) student migrant by the Home Office by a determination of 2 September 2013. His appeal to the First-tier Tribunal was dismissed and in due course, his appeal to the Upper Tribunal was similarly dismissed by Upper Tribunal Judge Perkins by a determination made on 24 June 2014.
2. The application turns entirely on one provision of the Immigration Rules. That is paragraph 120A of Appendix A of the Immigration Rules which provides that:

"Points will only be awarded for a valid Confirmation of Acceptance for Studies... 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, as defined in (b) below undertaken during the last period of leave as a Tier 4 (General) Student or as a Student where the applicant has had such leave...

(b) For a course to represent academic progress from previous study, the course must:

(i) be above the level of the previous course for which the applicant was granted leave as a Tier 4 (General) Student or as a Student, or

(ii) involve further study at the same level, which the Tier 4 sponsor confirms as complementing the previous course for which the applicant was granted leave as a Tier 4 (General) Student or as a Student."

3. The Applicant was granted further leave to remain in the United Kingdom on 14 August 2012 as a Tier 4 (General) student in order to pursue an ACCA course. It is accepted by the Applicant that anyone applying for a visa for the ACCA course will be granted a visa only for what is known as level 7 on the NVQ scale.
4. What appears to have happened here is that, entirely unilaterally and without consultation of the Home Office or the immigration agencies, the Applicant did not pursue the ACCA course, apparently because the college indicated that it was not going to continue that course. He studied instead an NVQ level 4 course, which he successfully completed on 12 February 2014.
5. By his application, he sought leave to remain in order to progress to NVQ level 5. As was pointed out by both the First-tier Tribunal and the Upper Tribunal, that is something which is not permitted by the Rules because the rule is clear that the subsequent application or the basis upon which a subsequent leave to remain will be granted is only where the course of study which it is proposed to pursue is above the level of the previous course for which the Applicant was granted leave.
6. It is plain here, and it is accepted by the Applicant, that he was granted leave to pursue a course at level 7. It follows, therefore, that his application falls outside the Rules and was correctly refused by the Secretary of State.
7. It is pointed out by Upper Tribunal Judge Perkins this is precisely the point that was considered by the Upper Tribunal in the case of Naeem (Para 120A of Appendix A) [2013] UKUT 465 (IAC) where the Tribunal, Mr C M G Ockelton, Vice President, and Upper Tribunal Judge Martin, made clear at paragraph 10 that the Rules allow no flexibility and the relevant test was the level of the course for which the Applicant had leave.
8. As Upper Tribunal Judge Perkins pointed out at paragraph 11:

"This Applicant had changed his course of studies. He may not have been entirely at liberty to do that, but he did it for the apparently sensible reason that his college had closed or was closing his course of studies and in his mind, he was making the best of a change of circumstances. This is not a case of his being criticised for behaving cynically or irresponsibly but in his attempting unsuccessfully to meet the requirements of the Rules."

9. This is an application to bring a second appeal and in my judgment, it raises no point of principle nor is there any feature which renders it appropriate that the Court of Appeal should entertain an appeal.
10. I should mention that Mr M in his statement, which he has placed before me this morning, points out that he has established his family life in the United Kingdom. He has three daughters aged 10, 4 and 2. Two of them, I think, were born in this country. Two of them are going to school. He points out at paragraph 7 that:

"If further leave to remain is not to be granted, it will be a great loss for my studies and for my family life in the United Kingdom and my time and money will be a waste, which I have spent for my studies."

11. Of course, the time and money spent on the studies will not be wasted because the Applicant has obtained the qualification which he has placed before me.
12. On the other point, insofar as this is a resort to Article 8, which I note is not raised in the grounds of appeal, it is, of course, a quite hopeless attempt to rely upon the establishment of family life in the United Kingdom. That family life has been established at a time when the Applicant had only a limited right to remain for the purposes of studies and there is no suggestion that there are any obstacles to the Applicant and his family pursuing their family life in Pakistan.
13. For all these reasons, therefore, whilst I recognise, as did the judge in the Upper Tribunal, that this is not a case in which the Applicant has behaved cynically or irresponsibly, it is a case in which the Rules are quite clear and were correctly applied by the Secretary of State. For all those reasons, therefore, the application for permission to appeal must be dismissed.