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)

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/06/2018

LORD JUSTICE LEGGATT:

1. The sole issue on this appeal is how time spent studying courses is to be calculated for the purpose of paragraph 245ZX(h) of the Immigration Rules as the wording of that provision stood on 21 November 2013, when the appellant was refused leave to remain in the United Kingdom. Paragraph 245ZX sets out the requirements which an applicant must satisfy to qualify for leave to remain as a Tier 4 (General) Student under the Rules. Those requirements include subparagraph (h), which at the relevant time stated as follows:

"(h) If the course is below degree level the grant of leave to remain the applicant is seeking must not lead to the applicant having spent more than 3 years in the UK as a Tier 4 Migrant since the age of 18 studying courses that did not consist of degree level study."

2. The wording of this rule has since been changed, so the issue raised on this appeal as to its meaning is unlikely to be of much wider relevance for other cases, but it is of course important for this appellant.
3. He is a citizen of Pakistan who on 12 May 2012 was granted entry clearance to enter the UK as a Tier 4 (General) Student until 28 September 2013. In order to qualify for entry clearance under the points-based system, the appellant had to score 30 points for what are called "Attributes" by providing a valid Confirmation of Acceptance for Studies (or "CAS" for short). In order to be considered valid, a CAS had to satisfy requirements specified in Appendix A of the Immigration Rules at paragraph 116. Those included a requirement stated in sub-paragraph (b) that "the application for entry clearance or leave to remain is made no more than 3 months before the start date of the course of study as stated on the Confirmation of Acceptance for Studies". A further requirement was that the CAS should contain mandatory information specified in subparagraph (f), which included details of the course for which the applicant had been accepted including its start and end dates. The CAS issued to the appellant on the strength of which he received entry clearance on 12 May 2012 showed the start date for his course as 28 May 2012 and the end date as 28 May 2013. The reason why he was granted entry clearance until 28 September 2013 was that paragraph 245ZW of the Immigration Rules specified that, in the case of a course of twelve months or more, entry clearance was to be granted for a period of four months after the course ended. (Had the duration of the course been six months or more but less than twelve months, the additional period would have been two months.)
4. After completing his course and shortly before his entry clearance was due to expire, the appellant applied on 26 September 2013 for leave to remain for a further course of study. The CAS which was issued to him and on which he relied for the purpose of this application showed the start and end dates for the new course as, respectively, 26 September 2013 and 30 September 2015, a period in other words of two years and four days. On 21 November 2013 the application was refused by the respondent on the ground that:

"Grants of leave to remain for Tier 4 applicants to undertake studies below degree level from the age of 18 are limited to a maximum period of 3 years (1,095 days). You were previously granted leave to enter in order to study… for twelve months... As you are applying for leave to remain in order to study a course below degree level which is 2 years, 4 days in duration, a further grant of leave would exceed a period of 3 years of combined study below degree level."

5. The appellant exercised his right of appeal from that decision to the First-tier Tribunal (Immigration and Asylum Chamber). The appeal was allowed on the ground that, notwithstanding the precise start and end dates recorded in the CAS issued to the appellant for the second course, that course was properly to be regarded as a two year course of study, with the result that the maximum period of three years referred to in paragraph 245ZX(h) of the Immigration Rules was not exceeded.
6. The respondent in turn appealed to the Upper Tribunal (Immigration and Asylum Chamber). Before the Upper Tribunal the appellant realistically accepted that the First-tier Tribunal had been wrong to allow his appeal on the ground that it did and that, if the relevant dates were those specified in the CAS for each course, the combined length of those periods exceeded the maximum allowed of three years. However, it was argued on his behalf that those were not the relevant dates and that what mattered in applying paragraph 245ZX(h) was the actual time spent on each relevant course by the applicant.
7. In the proceedings before the First-tier Tribunal, the appellant had given unchallenged evidence that he registered for the first course on 31 May 2012 but did not start the course until 4 June because of illness. It was argued that 4 June 2012 was the relevant start date, and on that basis the grant of leave to remain would not lead to the applicant having spent more than three years in the UK studying courses. That argument was rejected by the Upper Tribunal but is maintained by the appellant on this further appeal.
8. His application for permission to appeal to the Court of Appeal was initially stayed pending the outcome of two other cases. Each of those cases was later settled on the basis of a concession made by the respondent. It was in the light of that fact that permission to appeal was granted in the present case at a renewed oral hearing.
9. I do not think it necessary to examine whether the other two cases, which were conceded by the respondent and involved a different provision of the Immigration Rules albeit one similarly worded, are or are not analogous to the present case. That is because a concession made in another case does not bind the respondent in this case; nor is it relevant to the court's task of determining what the relevant rule means.
10. Another point that can be put to one side is the fact that, as I mentioned earlier, the wording of paragraph 245ZX(h) has since been amended, so that it now refers not to time spent studying courses but to time granted to study courses. Each party has sought in its skeleton argument to make something of that change, but in principle what the rule meant in November 2013, when the decision in this case was made, cannot depend on things done later. In any case, the subsequent amendment would be equally consistent with the effect of the rule having changed (which is the appellant's case) or with the original meaning simply having been made clearer (which is the respondent's case). So the amendment provides no assistance.
11. I therefore turn to consider what paragraph 245ZX(h) as it was worded in November 2013 would reasonably have been understood to mean, applying what Vos LJ described in the case of Iqbal v Secretary of State for the Home Department [2015] EWCA Civ 169, paragraph 33, as a fair, objective reading. The first submission made by Mr Calzavara, who has presented the appellant's case with skill and moderation, is that the words "having spent more than three years… studying courses" would not reasonably be understood to refer to a period for which entry clearance is granted for the purpose of studying courses – the distinction between time for which entry clearance is granted and time spent studying courses being one which, as he points out, was drawn at the relevant time in the Immigration Rules. I would accept that submission. But that brings one to the key question of what counts for this purpose as time spent studying courses. On one view the relevant period might be taken to include only days spent actually attending classes or doing other work required for the purpose of the course so that if, say, the applicant does no work at a weekend or during a vacation or misses a few days because of illness or for some other reason, then those days are to be left out of account. That, however, would be a completely unworkable interpretation which no sensible person would give to the rule. It is completely unworkable in practice because there is no way of knowing how many days an individual will actually have spent studying in that literal sense. Moreover, without a crystal ball it is impossible to know that information at the time when an applicant applies for entry clearance or leave to remain in order to attend a course which has not yet commenced. It would also be an irrational interpretation because if a person completes a course of a particular duration, there is no evident reason why the amount of time which the person is permitted to spend in the UK should depend on how many of the course days were actually spent doing the work necessary for the purpose of the course and how many were spent doing other things.
12. Mr Calzavara accepted that that approach cannot be applied in relation to the whole period of the course, as it would lead to the absurdities which I have indicated. However, he was bound to submit, because it is the only basis on which the appellant can succeed, that it is the approach which is to be applied in determining the start date for the course. In other words, he accepted that the duration of the course is to be measured as the entire time between the start date and the end date, irrespective of whether the applicant was or will be actually attending classes or doing coursework on particular days during that period. However, he submitted that a different approach is to be applied in determining the start and end dates and that, for that purpose, it is necessary to look at when the applicant actually begins to do coursework or attend classes and actually ceases to do so. On that basis he argued that the period until 4 June 2012, during which the appellant was ill, should be left out of account.
13. The manifest difficulty with that argument is that there is no rational basis for interpreting the words of the rule – in particular, the requirement not to have spent more than three years in the UK studying courses – as having one meaning when time is calculated for periods in the middle of the course and a different meaning when calculating when the course begins and ends. Whatever interpretation is adopted needs to be consistent and to apply to both situations. Accordingly, the reasons which make it an irrational and unacceptable interpretation to count only the time spent actually doing coursework apply equally to the appellant's reliance on that interpretation to ascertain the beginning and end date of his courses.
14. Mr Calzavara sought to draw support for his argument from the fact that the CAS for the first course which the appellant was granted entry clearance to attend showed, in addition to the date of 28 May 2012 as being the course start date, the latest date when a student "can be accepted onto the course", which was said to be 28 June 2012. Giving those words their natural meaning, I would take them to refer at best for the appellant to the latest date on which a student could be permitted to enrol on the course. They cannot reasonably be understood to refer to the latest date on which a student in fact attends the first class or otherwise commences coursework. There is therefore no assistance to be derived from that entry on the CAS for the appellant's case.
15. An alternative approach would be to measure the duration of the course from the date when an applicant actually enrols on the course. That, as I have indicated, would not assist this appellant, because the date when he enrolled on the first course, which was 31 May 2012, even if counted as the start date, would still leave him exceeding the period of three years by a day. But it is in any event, in my view, not the correct interpretation of the rule. Such an interpretation also falls foul of the difficulty that, if correct, it would mean that the respondent would have no way of knowing when considering whether an applicant qualified for leave to remain on what day the applicant would in fact enrol on the course. The way in which the points-based system is intended to operate is on the basis that the relevant requirements are capable of being met and can be known to have been met at the time when an application is made, in circumstances where the information required includes start and end dates shown in the CAS which the applicant is required to submit. In these circumstances the reasonable understanding and interpretation of the rule is that the length of time spent studying is to be measured by reference to those dates. Applying those dates as the respondent did, the decision was correct because, if leave to remain had been granted, the time which the appellant would have spent in the UK studying courses would have exceeded three years.
16. For those reasons I consider that the appellant's case is ill-founded, and would dismiss this appeal.

LORD JUSTICE LEWISON:

17. Mr Calzavara performed a valuable service by appearing pro bono on behalf of the appellant. He advanced the argument in support of the appeal as well as it could have been put, and the court is grateful to the Bar when appearing pro bono in appeals of this nature. But for the reasons given by Leggatt LJ, which are consistent with the earlier decision of the Upper Tribunal in Islam v Secretary of State for the Home Department [2013] UKUT 00608 (IAC), I agree that the appeal must be dismissed.

Order: Appeal dismissed