England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd November 2011

The Honourable Mr. Justice Singh:

Introduction:

1. This is a claim for judicial review of the Secretary of State's decision dated 25 May 2010 to refuse the Claimant's application for leave to remain in the United Kingdom as a Tier 4 (General) student migrant.
2. On 12 October 2010 HH Judge Curran QC (sitting as a Deputy Judge of the High Court) granted permission to apply for judicial review on limited grounds, namely the first two grounds set out in his claim form. Those two grounds, which I will describe later, have been advanced before me; no application was made to pursue the other grounds before me.

Factual background

3. The Claimant is a citizen of Pakistan and was born on 12 August 1984. On 11 October 2006 he was granted leave to enter the UK as a student until 31 October 2009. On 21 October 2009 he made an application for further leave to remain as a Tier 4 (General) student migrant. This was refused by the Secretary of State on 17 February 2010. Subsequently, the time limit for bringing an appeal to the Asylum and Immigration Tribunal expired and the Claimant's application to appeal out of time was refused by that tribunal.
4. On 29 April 2010 the Claimant made a fresh application for leave to remain as a Tier 4 (General) student migrant. In support of his application he submitted a letter dated 23 February 2010 from London South Bank University, which confirmed that he was enrolled as a full-time student for the academic year 2009-10 and set out details about him and the course. The letter described itself in terms as a "visa letter."
5. On 25 May 2010 the Secretary of State refused that application. It is that refusal which is the subject of the present challenge by way of judicial review.
6. The letter of 25 May 2010 informed the Claimant that:

"Due to a change in the immigration rules, all applications for leave to remain as a Tier 4 (General) student migrant made on or after 22 February 2010 must include a valid Confirmation of Acceptance for Studies (CAS) reference number. Since that date, visa letters have not been accepted for the award of points under Appendix A of the immigration rules.

As your application was made on 29 April 2010 and no evidence has been provided to establish that you have been assigned a CAS, the Secretary of State is therefore not satisfied that you have met the requirements to be awarded 30 points under Appendix A of the immigration rules."

7. Further in the same letter under the heading "Attributes – Confirmation of Acceptance for Studies (CAS)", there appeared a box in which it was outlined that the Claimant had claimed 30 points in respect of this matter but that zero points had been awarded for it. The text in the box stated:

"You have claimed 30 points under Appendix A of the immigration rules. For applications made on or after 22 February 2010 it became mandatory that applications as a Tier 4 (General) Student Migrant are accompanied by a Confirmation of Acceptance for Studies (CAS). You have provided a photocopied visa letter from London South Bank University and no evidence has been provided to establish that you have been assigned a CAS.

It has therefore been decided that you have not met the requirements and no points have been awarded for your CAS."

8. At this juncture it is important to refer to a policy document entitled 'Tier 4 of the Points Based System – Policy Guidance' issued by the UK Border Agency, which is an agency of the Home Office (version 04/10). The title page of that document states that this guidance is to be used for all Tier 4 applications made on or after 6 April 2010. The relevant part of the guidance appears under the heading Replacement of Visa Letters and states:

"20. On 22 February 2010 visa letters were fully replaced by Confirmations of Acceptance for Studies. A confirmation of acceptance for studies is an electronic reference number. The student's Tier 4 sponsor will need all the same information that was contained in a visa letter to assign a confirmation of acceptance for studies."

9. Then under the heading "The Confirmation of Acceptance for Studies" the guidance states:

"21. The Confirmation of Acceptance for Studies (CAS) is not an actual certificate or paper document but is a virtual document similar to a database record. Each confirmation of acceptance for studies has a unique reference number and contains information about the course of study for which it has been issued and the students personal details. The information that the sponsor will include in a confirmation of acceptance for studies can be found on our website…."

10. There is a similar definition of the term "Confirmation of Acceptance for Studies" in Annex 1, which contains a glossary of terms used in the policy guidance.

Legislative Framework

11. Two provisions of the Immigration Act 1971 are relevant for present purposes.
12. Section 1 (4) provides:

"The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode may include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming….for purposes of study…"

13. Section 3(2) of the 1971 Act provides:

"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter…..

If a statement laid before either House of Parliament under this sub-section is disapproved by a resolution of that House passed within the period of 40 days beginning with the date of laying…then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of 40 days beginning with the date of the resolution…."

14. At the material time the relevant provisions of the immigration rules were as follows.
15. Paragraph 245AA, headed "Documentary evidence", provided in sub-paragraph (a):

"Where part 6A or Appendices A to C or E of these rules state that specified documents must be provided, that means documents specified by the Secretary of State in the Points Based System Policy Guidance as being specified documents for the route under which the applicant is applying. If the specified documents are not provided, the applicant will not meet the requirement for which the specified documents are required as evidence."

16. From paragraph 245ZT there begins the section of the rules (or "route") dealing with Tier 4 (General) student migrants. That paragraph provides that this route is for migrants aged 16 or over who wish to study in the UK.
17. Paragraph 245ZX provides that, to qualify for leave to remain under this rule, an applicant must meet the requirements listed in that rule and that, if the applicant meets those requirements, leave to remain will be granted but that, if the applicant does not meet those requirements, the applicant will be refused leave. Requirement (c) is that the applicant must have a minimum of 30 points under paragraphs 113 to 120 of Appendix A.
18. Appendix A is entitled Attributes for Tier 4 (General) students. Paragraph 113 requires an applicant to have 30 points. Paragraph 114 states that available points are shown in table 16. Paragraph 115 provides that notes to accompany table 16 appear below the table. The table itself specifies that the criterion is for Confirmation of Acceptance for Studies and that the number of points to be awarded for that will be 30.
19. In the notes to table 16 paragraph 116 provides:

"A Confirmation of Acceptance for Studies will only be considered to be valid if:

a) It was issued no more than 6 months before the application is made.

b) 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.

c) The sponsor has not withdrawn the offer since the Confirmation of Acceptance for Studies was issued.

d) It was issued by an institution with a Tier 4 (General) student sponsor licence.

e) The institution must still hold such a licence at the time the application for entry clearance or leave to remain is determined.

f) It contains such information as is specified as mandatory in guidance provided by the United Kingdom Border Agency."

20. Paragraph 117 provides:

"A Confirmation of Acceptance for Studies reference number will only be considered to be valid if:

a) The number supplied links to a confirmation of acceptance for studies checking service entry that names the applicant as the migrant and confirms that the sponsor is sponsoring him in the Tier 4 category indicated by the migrant in his application for leave to remain (that is, as a Tier 4 (General) student or a Tier 4 (child) student)…."

21. The interpretation provision provides:

"Under part 6A of these rules, 'Confirmation of Acceptance for Studies checking service' means a computerised interface with the points based system computer database which allows a United Kingdom Border Agency case worker or entry clearance officer assessing a migrant's application for entry clearance, leave to enter or leave to remain as Tier 4 migrant under these rules. To access and review details of the migrants confirmation of acceptance for studies, including details of the migrants sponsor, together with details of the course of study and other details associated with the circumstances in which the confirmation of acceptance for studies was issued."

22. At the material time it was provided that:

"Under part 6A of these rules, 'Confirmation of Acceptance for Studies' means an authorisation issued by a sponsor to an applicant for entry clearance, leave to enter or remain as a Tier 4 migrant in accordance with these rules."

23. After the material events in the present case, a further change to the immigration rules was made on 31 March 2011 and a new definition of Confirmation of Acceptance for Studies was inserted into Part 6A and Appendix A of the Immigration rules. This provides that that term now means:

"A unique reference number electronically issued by a sponsor via the sponsor management system to an applicant for entry clearance, leave to enter or remain as a Tier 4 migrant in accordance with these rules."

Relevant Authorities on the Status of the Immigration Rules and Policy Guidance

24. The leading authority on the status of immigration rules and their relationship with policy guidance documents is the decision of the Court of Appeal in Pankina v Secretary of State for the Home Department [2011] QB 376. The case concerned an amendment to the immigration rules in 2008 which provided that a relevant applicant had to have at least £800 to maintain him- or herself and had to provide those documents specified. By way of guidance the Secretary of State purported to require that the applicant should show that he or she had at least £800 in a bank account for the period of at least three months before the application was made. It was this "three month rule" which was challenged in that case on the ground that it was not to be found in the immigration rules themselves and could not be grafted onto them in a guidance document.
25. In a judgment with which Rimer and Sullivan LJJ agreed, Sedley LJ said at paragraph 6:

"The change emphasises what the applicants' counsel submit is the reality of this part of the policy guidance: that it goes well beyond simply specifying the means of proving eligibility and introduces a substantive further criterion which did not form part of the statement of rules laid before Parliament."

26. At paragraph 17 Sedley LJ said:

".....the time has come to recognise that, by a combination of legislative recognition and executive practise, the rules made by Home Secretaries for regulating immigration have ceased to be policy and have acquired a status akin to that of law. Because they derive from no empowering primary legislation, they cannot be subordinate legislation or therefore open to conventional ultra vires challenges but as an exercise of public power, which they undoubtedly are, they can be no more immune to challenge for abuse of power or violation of human rights than any other exercise of the prerogative power, including prerogative Orders in Counsel."

27. At paragraph 21 Sedley LJ emphasised that there was a "potent constitutional reason" for the insistence by Parliament in the 1971 Act that the Home Secretary's rules of practice must be subject to the negative resolution procedure in each House of Parliament. This is because the Crown as the executive has no power to change the law of this country without securing the authority of Parliament to do so. It follows that only that which enjoys or secures Parliament's authority by the absence of a negative resolution within 40 days after being laid before Parliament is entitled to the "quasi-legal status" which the immigration rules now have.
28. At paragraph 27 Sedley LJ made it clear that the objection is not to rules which rely on outside sources for evidence of compliance but rather is to rules which purport to supplement themselves by further rules derived from an extraneous source, whether that source is the rule-maker him- or herself or a third party. At paragraph 28 Sedley LJ explained that a policy is not a rule precisely because it is required by law to be applied without rigidity and to be adapted in the interests of fairness and good sense. Sedley LJ went on in the same paragraph to explain that circumstances may arise where the object of a policy could be sensibly met even if its precise terms are not and in such circumstances:

"the law might well require the policy to be applied with sufficient flexibility to admit the applicant, or would at least require consideration to be given to doing so. But if the requirement is a rule – and it is the Home Secretary's case that by incorporation it becomes a rule – then there is no discretion and no judgement to be exercised."

29. At paragraph 29 Sedley LJ said that the objection goes even deeper. This is because the policy guidance document is open to change at any time. If it could be validly incorporated by reference in the immigration rules that would mean:

"That a discrete element of the rules is placed beyond Parliament's scrutiny and left to the unfettered judgement of the rule-maker."

30. In the circumstances of Pankina itself at paragraph 37 Sedley LJ concluded that the constitutional issue in that case should be decided in favour of the applicants before the court.
31. The decision of the Court of Appeal in Pankina has subsequently been applied by the courts in a number of other cases. The first of these to which I will refer is the R (on the application of English UK Ltd) v Secretary of State for the Home Department [2010] EWHC 1726 (Admin), a decision by Foskett J. At paragraphs 59 and 60 Mr Justice Foskett said:

"59. The Court of Appeal held that the revised criterion could not be put in place by virtue of the process of issuing guidance. The ratio of the decision appears to me to be that a provision that reflects a substantive criterion for eligibility for admission or leave to remain must be the subject of a process that involves a true Parliamentary scrutiny: see paragraphs 6, 22 and 33 of the judgment. The statutory foundation for such a conclusion is section 3 (2) of the Act.

60. It would follow from this that, if a change to current practice (even if reflecting the requirement of a rule) did not involve any alteration of a substantive criterion for admission or for leave to remain, there would be no objection to the change being effected in some form of extrinsic guidance. [Emphasis in original]"

32. At paragraph 78 of his judgment, Foskett J returned to this theme and so far as material said:

"A material or substantive change in the administration of immigration control is, by virtue of section 3(2), to be placed before Parliament for consideration pursuant to the negative resolution procedure. There is nothing wrong with an immigration rule that refers to the use of guidance provided that the guidance is then not used to change in a material way the effect of the rule or the effect of extrinsic guidance available at the time of its promulgation….all that would be unlawful would be the making of a material change in immigration policy pursuant to guidance permitted by the rule….."

33. In the result, on the facts of the case before him, Foskett J found in favour of the claimant in that case upon the principal ground advanced. At paragraph 106 of his judgment, Foskett J said:

"I should say, lest the effect of this decision is misunderstood, that I do not see it as in any way undermining the use generally of guidance by or on behalf of the Secretary of State. Guidance is plainly of great value in the administration of a difficult and important area of Government policy. The decision is confined to one particular provision within the immigration rules although the reasoning that leads to it, if it is correct, is simply that extrinsic guidance cannot be used in the manner in which it was sought to be used in this case to make a material or substantive change in existing immigration policy without the negative resolution procedure set out in section 3(2) of the immigration act being implemented…."

34. The way in which Pankina was understood by Foskett J in the English UK case was endorsed by the Divisional Court (comprising Sullivan LJ and Burton J) in R (on the application of Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2010] EWHC 3524 (Admin): see in particular paragraph 28 of that judgment, quoting with approval paragraph 59 of the judgment of Foskett J, in which he had sought to summarise the ratio of the decision in Pankina. From paragraph 37 onwards, Sullivan LJ expressed his agreement with the conclusions in the Pankina case, which he would have followed even if the Court had, strictly speaking, not been bound by it. At paragraph 40, Sullivan LJ said:

"It would frustrate that statutory purpose if the Secretary of State was able to lay before Parliament a change in the rules, which said in effect, that the practice to be followed will be set out in guidance, or be published on a website, which the Secretary of State would be free to change from time to time at her discretion. Far from giving effect to the statutory purpose, such a rule would be a deliberate evasion of the statutory purpose: an attempt to place the exercise of ministerial discretion beyond the bounds of Parliamentary scrutiny as required by the 1971 Act."

35. At paragraph 43 of his judgment Sullivan LJ observed that:

"I readily accept that there is a spectrum and that in enacting section 3(2) Parliament did not intend that every alteration to the Secretary of State's practice, however minor, should be subject to the scrutiny of Parliament. It is unnecessary to consider the precise point in the spectrum at which Parliamentary scrutiny is not required because the quantification of the limits on the number of applicants who may be admitted under Tier 1 and Tier 2 is, on any basis, at the very top end of the spectrum…."

36. At paragraph 51 of his judgment Sullivan LJ said:

"It is unnecessary to reach a conclusion on this issue, but it seems to me that if there is material which is to be incorporated into the Rules, that material should, like the changes to the Rules themselves, be available to Parliament for it's scrutiny for the full 40 day period…"

37. Finally, Pankina was applied by the Court of Appeal in R (on the application of Alvi) v Secretary of State for the Home Department [2011] EWCA Civ 681. The principal judgment was given by Jackson LJ, with whom Tomlinson LJ and the President of the Queen's Bench Division (Sir Anthony May) agreed. At paragraph 40 of his judgment Jackson LJ drew a distinction between "substantive" matters and "minor" alterations to the Secretary of State's practice. In the circumstances of the case before the Court he concluded that the list in question did seek to make a substantive change outside the scope of the immigration rules and accordingly was subject to the principle in Pankina.

Analysis

The Claimant's First Ground

38. The Claimant's first, and main, ground of challenge is that the Secretary of State acted unlawfully in rejecting his application for leave to remain on the ground that he had not provided a Confirmation of Acceptance of Studies (CAS) in virtual form. The Claimant submits that there was, at the relevant time, no requirement in the immigration rules for a CAS to be in virtual form; that that requirement was set out in policy guidance; and that, in accordance with the principle in Pankina, such a requirement was not one that could be imposed since it was not in the immigration rules and had not been subject to the negative resolution procedure.
39. From the principal authorities which have been cited to me, it appears to me that the governing principle laid down by Pankina as understood and applied in subsequent cases is that: a substantive or material change to the content of the immigration rules must be made by way of amending rules which must be laid before Parliament. What is not permissible is for the amending rules to cross-refer to the possibility of further substantive or material changes being made by the Secretary of State, by way of policy guidance statements or other extrinsic material which could change from time to time, and which do not need to be laid before Parliament and are therefore not subject to the negative resolution procedure.
40. However, it does not follow that every change, however minor, to the administration of the immigration system has to be made by way of amending rules which have to be laid before Parliament. There is a spectrum, as the courts have acknowledged. As Pankina itself recognised, there is nothing wrong in principle with the immigration rules cross-referring to policy guidance or other similar statements. Furthermore, it seems to me that Parliament must be taken to have envisaged when enacting the 1971 Act, and in particular the procedures in respect of rule changes which are set out in sections 1(4) and 3(2), that administrative changes which might be thought to be necessary and desirable from time to time, in order to implement the substantive regime set out in the immigration rules, could be made in the discretion of the Secretary of State and without the need for Parliamentary scrutiny and the negative resolution procedure.
41. In essence the distinction which both as a matter of principle seems sensible and is supported by the authorities is that between (i) the substantive requirements which an applicant has to meet in order to obtain leave to enter or leave to remain under the immigration rules and (ii) the means of proving such eligibility: see paragraph 6 of Sedley LJ's judgment in Pankina itself. The former can only be changed by amending the immigration rules and in accordance with the negative resolution procedure. The latter need not be and can properly be the subject of policy guidance.
42. Turning to the circumstances of the present case, in my judgment, what the Secretary of State did in making the change to the immigration rules which is set out at Appendix A, paragraph 116 (f), falls on the unobjectionable side of the line. It sets out an evidential requirement for such information as is specified as being mandatory in guidance published by the UK Border Agency. In doing so, it is consistent with paragraph 245AA of the rules, which requires that, where Appendix A requires documents to be provided, that means documents specified in the Points Based System Policy Guidance as being specified documents for the route under which the applicant is applying. Paragraph 116(f) does not, in my judgment, seek to make a substantive change to the eligibility criteria in the immigration rules themselves.
43. Accordingly, there is nothing either in the rules or in the guidance which, in my judgement, offends against the principle laid down in Pankina. It was open to the Secretary of State to act as she did. In my view it does not alter this conclusion that, subsequent to the material events in this case, the Secretary of State has sought to make a similar change by way of an amendment to the immigration rules themselves. She may well have done that out of an abundance of caution. In any event, in the light of the conclusion I have reached, it was not required by the Pankina principle.

The Claimant's Second Ground

44. As to his second and alternative ground in support of this claim for judicial review, the Claimant submitted that on their proper construction the immigration rules could be satisfied in the present case by the provision by him of a paper document and that there was no requirement for there to be a virtual document in the form of a CAS.
45. The Claimant relied upon a dictum in the decision of the Supreme Court in Mahad v Entry Clearance Officer [2010] 1 WLR 48. At paragraph 10 Lord Brown said:

"The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy."

46. The Claimant relied upon that dictum in order to advance his submission that a non-technical and generous interpretation should be given to the immigration rules.
47. In my judgement the Claimant's second ground must also be rejected. However non-technical or generous an interpretation is given to the immigration rules in question, it seems to me that, if the Claimant fails on his first ground, then he cannot succeed on his second ground. This is because I have already held that the legal requirement that the CAS must be in a virtual form is one which is permissible according to the immigration rules read with the relevant guidance. If I am wrong about that, the Claimant does not need his second ground. However, if I am correct in my conclusion on the first ground, then it seems to me that the Claimant was not entitled to provide a CAS in paper form and not in virtual form. The Secretary of State was not obliged to accept it since it was in paper form and not in conformity with the mandatory requirement in the guidance published by the UK Border Agency.

Conclusion

48. For the reasons which I have given this claim for judicial review is dismissed.