England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		3 February 2012

1. THE DEPUTY: The Claimant challenges the Secretary of State's decision, contained in a letter dated 8 September 2009 ("the refusal letter") to refuse her application for leave to remain in the United Kingdom as a Tier 4 (General) Student migrant. The application raises two questions. The first concerns the construction of Paragraph 245ZX(l) of the Immigration Rules. The second question concerns the validity and effect of Appendix A Paragraph 116(e) of the Immigration Rules. Both questions are of general importance, although Paragraph 116(e) is re-numbered Paragraph 116(f) in the revised scheme which now operates.
2. The only issue in dispute relates to the second question. In this respect, this is one of several cases concerning the Immigration Rules falling for determination in the slip-stream of the seminal Court of Appeal decision in Pankina v Secretary of State for the Home Department [2011] QB 376. That decision was followed by the Divisional Court in R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2010] EWHC 3524 (Admin) ("JCWI") and by a differently constituted Court of Appeal in R (Alvi) v Secretary of State for the Home Department [2007] EWCA Civ 681. Appeals by the Secretary of State against the decisions in JCWI and Alvi, including a challenge to the correctness of the decision in Pankina, are to be heard by the Supreme Court in April. Nonetheless there has been no suggestion that I should defer judgment pending the outcome of the further appeals.

Factual background

3. The Claimant is a citizen of the Philippines and was born in 1974. She was granted leave to enter the United Kingdom as a student on 13 May 2007, which leave expired on 29 February 2008. On 13 March 2008 she was granted further leave to remain as a student, which expired on 30 April 2009. Thereafter, she was what is termed an overstayer.
4. On 12 November 2008 she was joined by her husband, who was granted leave to enter the United Kingdom as a student dependent of the Claimant until 30 April 2009.
5. On 7 March 2009 she made an application for further leave to remain as a Tier 4 (General) Student Migrant, supported by a visa letter from Hamilton College London where she had been accepted for a full-time, two year course leading to the award of an Advanced Diploma in Business Information Systems, to start on 21 September 2009. On 15 April 2009 her application was returned as invalid because the submitted photographs were not in the correct format. On 30 March 2009 there was a relevant change in the Immigration Rules affecting would-be students in the Claimant's situation, to which I shall be referring below, but (perhaps because she was unaware of the change) the Claimant resubmitted her application (with the photographs in the correct form) on 25 April 2009, but relying on the same visa letter. On 3 August her second application was returned as invalid because the wrong application form had been used and the wrong fee had been submitted.
6. On 17 August 2009 the Claimant submitted her third application for further leave to remain, supported by a new visa letter from Hamilton College London, dated 11 August 2009. This was the subject of UKBA's refusal letter dated 8 September 2009, the relevant part of which read:

"In view of the fact that you have claimed 30 points for a valid visa letter, but mandatory information is missing from it, the Secretary of State is not satisfied that you have a valid visa letter and you have not been awarded any points for the visa letter. It has therefore been decided that you have not met the rules to be granted leave to remain under Tier 4 (General) Student Migrant.

In view of the fact that there is a gap of more than 1 month between the end of your current leave which expired on 30 April 2009 and the start date of your new course as detailed on your visa letter 21 September 2009 the Secretary of State is not satisfied that you meet the requirement of paragraph 245ZX(l) of the Rules and your application is therefore refused.

Therefore you do not satisfy the requirements of the Immigration Rules for this category and it has been decided to refuse your application for leave to remain as a Tier 4 (General) Student Migrant under paragraph 245ZX(l) of the immigration rules."

The Claimant had claimed the standard 30 Points in respect of the visa letter, but the letter she received went on to explain that "The visa letter is missing what documents were used to obtain the visa letter. Therefore no points have been awarded for the visa letter". She was informed that there was no right of appeal against the decision and that, as she had no right to stay in the United Kingdom, she was liable to be removed and should leave as soon as possible. The letter concluded by informing her that she could submit a fresh application, including "full supporting evidence", if she wanted the decision reconsidered "on the basis of new or additional information". Given that one of the reasons for refusal of her application was non-compliance with Paragraph 245ZX(l) of the Immigration Rules, it is unsurprising that no fresh application was made at that time.

7. On 17 August 2009, the Claimant's husband applied for leave to remain as a Partner of a Points Based System Migrant. Consequent on the decision made in respect of the Claimant, his application was also refused by separate letter dated 8 September 2009, which included the same reference to liability to removal.
8. On 19 October 2009 the Claimant issued her application for judicial review, which was stayed by agreement between the parties on 21 January 2010 pending the Court of Appeal's decision in Pankina, which decision was handed down on 23 June 2010.
9. By letter dated 1 October 2010 to the Claimant's solicitors, the Treasury Solicitor sought withdrawal of the application for Judicial Review. The letter reiterated that the Claimant was unable to meet the requirements of Paragraph 245ZX(l) of the Immigration Rules, and contended that the Court of Appeal's decision in Pankina was distinguishable and consistent with the Secretary of State's other ground for refusing the Claimant's application.
10. Following service of Amended Grounds, on 12 January 2011 the Secretary of State filed Acknowledgment of Service. In her accompanying Summary Grounds of Defence, she maintained her position on the Pankina ground, but stated that:

"the SSHD accepts that, on the facts of the Claimant's case, the decision letter dated 8.9.09 ... should not have referred to paragraph 245ZX(l) of the Immigration Rules."

11. On 1 March 2011 Mr Michael Kent QC (sitting as a deputy high court judge) granted permission to apply for Judicial Review on limited grounds, raising the two questions I have identified above.

Legal and policy framework

12. The Immigration Rules "are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration" (MO (Nigeria) v Secretary of State for the Home Department [2009] 1 WLR 1239 at paragraph 6 per Lord Hoffmann).
13. Section 1(4) of the Immigration Act 1971 ("the 1971 Act") states:

"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 shall 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 the purpose of taking employment, or for purposes of study, or as visitors, or as dependents of persons lawfully in or entering the United Kingdom."

Section 3(2) states:

"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 of 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, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admissions of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).

If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes to 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 forty days beginning with the date of the resolution (but exclusive as aforesaid)."

14. Prior to 30 March 2009, the Immigration Rules relating to students contained no mention of a visa letter from the sponsoring institution, merely providing that the student must have "been accepted for a course of study, or a period of research, which is to be provided or undertaken at an organisation which is included on the Registrar of Education and Training Providers ..." (Rule 57). From 30 March 2009 the position changed. The new Paragraph 245ZX of the Immigration Rules stated, under the heading "Requirements for leave to remain":

"To qualify for leave to remain as a Tier 4 (General) Student under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the applicant will be refused.

Requirements:

...

(c) The applicant must have a minimum of 30 points under paragraphs 113 to 119 of Appendix A.

...

(l) The applicant must not be applying for leave to remain for the purpose of studies which would commence more than one month after the applicant's current entry clearance or leave to remain expires."

15. Appendix A then identified the attributes:

"Attributes for Tier 4 (General) Students

113. An applicant applying for entry clearance or leave to remain as a Tier 4 (General) Student must score 30 points for attributes.

114. Available points are shown in Table 16 below.

115. Notes to accompany Table 16 appear below that table. "

Then table 16 showed for "Criterion" a visa letter and for "Points awarded" 30. There then followed "Notes":

"116. A visa letter will only be considered to be valid if:

...

(e) it contains such information as is specified as mandatory in guidance published by the United Kingdom Border Agency."

16. It is Paragraph 245ZX(l) and Appendix A Paragraph 116(e) of the Immigration Rules with which this application is concerned.
17. The original guidance referred to in Paragraph 116(e) of the Immigration Rules took effect from 31 March 2009. It was then replaced with effect from 1 June 2009 by the Home Office UK Border Agency Tier 4 of the Points Based System - Policy Guidance, which, so far as relevant to the present application, was in very similar form to the previous guidance.
18. Paragraph 1 of the Policy Guidance warned would-be applicants that there might be changes from time to time, and that "you should always check you have the right version by going to our website". In paragraph 3 a visa letter was defined as "official unconditional offer confirming course from an approved education provider, which the student gets 30 points for". Paragraph 6 explained that to obtain 30 points for doing a course (at an acceptable level) with an approved education provider (also known as sponsorship), the applicant needed "Visa letter from your education provider and supporting documents as specified in this guidance". Paragraph 8 explained that "When you provide your visa letter, you must also provide the documents listed on your visa letter at the same time as your application". Paragraph 15 explained that "The information in the visa letter depends on what category of student you are applying under. You can find the details of what the letter should include in the sections of this guidance for adult and child students".
19. For adult students, paragraph 90 of the Policy Guidance explained that "You will only get the points if your approved education provider has met all the requirements of the immigration rules when they issue your visa letter, and all the documents listed in the visa letter are sent with your application". Paragraph 91 then set out the information which "the visa letter should include" against a number of categories or "fields", it being explained in paragraph 92 that "All fields apart from those marked optional or if applicable are mandatory" (echoing the wording of Paragraph 116(e) of the Immigration Rules).
20. For the present application the relevant category in paragraph 91 was "Evidence used to obtain the offer (visa letter)", the required information for which was:

"List of evidence the sponsor (approved education provider) used to assess your academic ability to finish the course, which may include:

• Level or type of qualification (if applicable);

• Qualification awarding body and/or institution (if applicable);

• Confirmation that an Academic Technology Approved Scheme (ATAS) clearance certificate is needed (if applicable)."

It then continued:

"If you are applying to continue or complete the course of study for which your last grant of leave was made, and your sponsor (approved education provider) has used your progress to date to assess your suitability to continue this course, they must explain this in the visa letter."

The first question

21. The second, but more fundamental, reason for refusing the Claimant's application for leave to remain as a Tier 4 student was that, procedural matters apart, she did not meet the requirements of Paragraph 245ZX(l) of the Immigration Rules. The rationale for this particular requirement of the Immigration Rules was not explained to me. The Claimant from the time of her original application for Judicial Review has always contended that the use of the word "current" in the phrase "current entry clearance or leave to remain" in Paragraph 245ZX(l) is critical. On her behalf Mr Malik argues that this paragraph is only relevant where at the time of application for leave to remain the applicant enjoyed valid leave to remain. It had no relevance to a person who at the time of application was an overstayer. Since the Claimant was an overstayer at the time of her third application on 17 August 2009 (as also at the time of her second application on 25 April 2009), Paragraph 245ZX(l) was not applicable at all.
22. As soon as the Defendant instructed Counsel in the present matter, it was recognised that the refusal letter of 8 September 2009 had been wrong to invoke Paragraph 245ZX(l). This led to the concession in the Summary Grounds of Defence in relation to this matter (see paragraph 10 above). In giving permission to bring this Judicial Review, the deputy high court judge explained that the reason for the Secretary of State's concession had not been spelt out, but that the concession "clearly makes this ground arguable".
23. This concession fed through into Mr Poole's skeleton argument, which reiterated that:

"On the specific facts of the present case the SSHD accepts that it was not correct to refuse the Claimant's application for further leave to remain by reference to paragraph 245ZX(l) of the Immigration Rules."

24. When pressed by the Court as to why the concession was so limited and whether Mr Malik's argument was accepted (namely that Paragraph 245ZX(l) simply had no application to any overstayer), Mr Poole on instructions conceded that this was so.
25. I consider that the extended concession properly reflects the language of Paragraph 245ZX(l). This means that the challenge to the refusal letter on that first question succeeds. However, it is common ground that for the Defendant's decision to be quashed, the Claimant must succeed also on the second question.

The second question

26. There is no dispute that the visa letter from Hamilton College London dated 11 August 2009 did not contain any "list of evidence [it] used to assess [the Claimant's] academic ability to finish the course" for which she was being accepted contrary to the mandatory requirement in the Policy Guidance. Therefore the visa letter was not a Confirmation of Acceptance for Studies which "contains such information as is specified as mandatory in guidance published by the United Kingdom Border Agency", which was a requirement for leave to remain under Appendix A Paragraph 116(e) of the Immigration Rules.
27. Absent the Pankina line of authorities, the Claimant would have no arguable case in relation to the second question. The deputy high court judge's reason for granting permission in respect of this ground was that "it is, arguable following Pankina ... that the requirements in paragraph 91 of the Guidance ... effectively supplement those rules with a requirement of academic ability to finish the course not otherwise mentioned".
28. The Claimant advanced both a broad and a narrow submission. The broad submission is that the Immigration Rules cannot lawfully incorporate any mandatory policy guidance set out in another document which has not itself been laid before Parliament, is not itself a rule of law but a departmental policy, and is able to be altered after the rule in question had been laid before Parliament. The narrow submission is that even if some mandatory policy guidance can so be lawfully incorporated, that is not the case on the present facts where the mandatory policy guidance in question affects the contents of a visa letter required by the Immigration Rules.

(a) The broad submission

29. On one reading of Pankina, there is substance in Mr Malik's broad submission. The requirement with which the Court of Appeal was concerned was contained in Paragraph 1A of Appendix C of the then Immigration Rules, concerning Tier 1 migrants, who were required to have funds in the amount of £800 "and must also have those funds for a period of time set out in the guidance specifying the specified documents for that purpose", as explained in paragraph 57 of the supporting judgment of Burton J in JCWI (where the leading judgment was that of Sullivan LJ). The relevant policy guidance in Pankina specified that "Applicants ... must have at least £800 of personal savings which must have been held for at least three months prior to the date of application" (Pankina paragraph 5). Complaint was made by the applicants that this "goes well beyond simply specifying the means of proving eligibility and introduces a substantively further criterion which did not form part of the statement of rules laid before Parliament" and that the Immigration Rules could not "purport to supplement themselves by further rules derived from an extraneous source" (Pankina paragraphs 6 and 27).
30. The agreed first question for the Court was:

"Can the immigration rules lawfully incorporate provisions set out in another document which (a) has not itself been laid before Parliament, (b) is not itself a rule of law but a departmental policy and (c) is able to be altered after the rule has been laid before Parliament" (Pankina paragraph 23),

Those being precisely the matters relied upon by Mr Malik in the present case.

31. Sedley LJ (with whose judgment Rimer and Sullivan LJJ agreed) distinguished between a policy, which "is required by law to be applied without rigidity", and a rule. The requirement of the policy guidance was a rule, allowing no discretion and no judgment to be exercised (Pankina paragraph 28 per Sedley LJ). He said "This in itself would in my opinion require the three-month criterion to form part of the rules laid before Parliament if it were to be effective" (Pankina paragraph 9).
32. There was, however, also a more fundamental objection than the policy guidance "has been open to change at any time. It is this, rather than the fact that it has in the event been changed, which ... in my view is critical. It means that a discrete element of the rules is placed beyond Parliament's scrutiny and left to the unfettered judgment of the rule-maker" (Pankina paragraph 29). The consequence was that the relevant part of the then Immigration Rules lacked the necessary certainty which was required of the Immigration Rules, since the three month funding requirement constituted "criteria affecting individuals' status and entitlement which ... (a) have not themselves been tendered for parliamentary scrutiny, and (c) even if ascertainable at that point in time, may be changed without fresh scrutiny" (Pankina paragraph 33). The first agreed question was therefore answered in the negative.
33. At paragraph 35 Sedley LJ recognised that this conclusion might give rise to future problems. Nevertheless:

"Parliament will expect the Home Secretary to lay before it any rules by which he or she proposes to manage immigration; the courts will expect such rules, like any other source of law, to be those and only those which have Parliament's approval; and appellate tribunals will expect to find in the rules the certainty which rules must have if they are to function as law. If for some reason this model breaks down, the courts or the legislature will have to decide how to fix it."

34. Drawing on Pankina, Mr Malik argues that the requirement that a visa letter must include the list of evidence used by the educational institution changed the practice of accepting letters without such a list (and this is agreed). Here the Secretary of State, as in Pankina, was treating this requirement as a rule and applying it rigidly. That required the listing requirement to be laid before Parliament. He further argued that all criteria for eligibility for admission of leave to remain must be submitted to parliamentary scrutiny. If Parliament's intention was to create a distinction between different types of change to the contents of the Immigration Rules, it would have said so in the 1971 Act. In that case section 3(2) would have said "the Secretary of State shall from time to time lay before Parliament statements of substantive rules, or any material changes to the rules, laid down by him to the practice to be followed..." He argues that Appendix A Paragraph 116 (e) does seek to make a change to the eligibility criteria, which is itself sufficient to trigger the section 3(2) obligation. Further the duty under section 3(2) is mandatory.
35. Mr Malik relied also on two further decisions where Pankina had been followed. Chronologically, the first was the decision of the Divisional Court in JCWI, a successful challenge to the imposition by the Secretary of State of interim limits on the number of applicants who may be issued visas under the Points Based System of the Immigration Rules. Following Pankina, it was held that the interim limits were unlawful because they had not been laid before Parliament in accordance with the statutory procedure (JCWI paragraphs 40 and 48).
36. The second case was Alvi, where a challenge was upheld to the Secretary of State's List of Skilled Occupations published for the purpose of Tier 2 category. Paragraph 82(a)(i) of Appendix A to the Immigration Rules required an applicant's job to appear on the list, but the list was not part of the Immigration Rules laid before Parliament, and it included only those jobs that were at or above NVQ or SVQ Level 3. It was held, following Pankina, that this additional requirement, which was a "governing principle", needed to be set out in the Immigration Rules if it was to be valid (Alvi paragraph 40 per Jackson LJ, with whose judgment Tomlinson LJ and Sir Anthony May P agreed).
37. Mr Malik contended that the recent decision of Singh J in R (Ahmed) v Secretary of State for the Home Department [2011] EWHC 2855 (Admin), in which both he and Mr Poole had appeared, had been wrongly decided. In that case it was expressly held at paragraph 40 that:

"... 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."

Mr Malik drew my attention to the reason given by Singh J for granting permission to appeal to the Court of Appeal that "it is arguable that, in the light of Pankina, it is not open to the Secretary of State to have any policy outside the Immigration Rules which applies in mandatory terms ... this is still a developing area of law..."

38. In response to the broad submission, Mr Poole drew my attention to the fact that in Pankina the Court of Appeal was concerned with "criteria affecting individuals' status and entitlements", the phrase used by Sedley LJ at paragraph 33 to be contrasted with "forms of evidence of compliance" (Pankina paragraph 33). Sedley LJ had specifically mentioned that Ms Pankina's "objection is not to rules which rely on outside sources for evidence of compliance" (paragraph 27).
39. Taking the other cases chronologically, he first took me to the decision of Foskett J in R (English UK Ltd) v Secretary of State for the Home Department [2010] EWHC 1726 (Admin), where a Pankina-based challenge to the changed minimum educational requirements and those applying to study English in the United Kingdom succeeded. Mr Poole relied particularly on what Foskett J had said at paragraphs 59 and 60:

"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."

40. He then took me to JCWI, which set out in paragraph 28 the entirety of paragraph 59 of Foskett J's judgment in English UK, and where in paragraph 43 Sullivan LJ stated 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. Alterations to the limits of those who may be permitted to enter under Tiers 1 and 2, whether the limits are 6, 60, 600 or 6,000 per month or per year are precisely the kinds of substantive changes that should be laid before Parliament. They are most certainly not to be equated with UKBA's list of skilled occupations which are very much at the other end of the spectrum."

41. He then took me to Wyn Williams J's decision in R (New London College Ltd) v Secretary of State for the Home Department [2011] EWHC 856 (Admin), where a decision to suspend the institution's sponsor license only partially succeeded. At paragraph 42 the learned judge endorsed the identification of the governing principles in English UK. Then at paragraph 46 he said.

"I accept that it is the published guidance which explains the circumstances in which the power to grant a licence will be exercised; it also explains when the power to downgrade, suspend, withdraw or revoke a licence will or may be exercised. I do not consider, however, that this guidance constitutes a material or substantive change in the immigration policy which is contained within the rules themselves. In my judgment it constitutes no more than an explanation of how the powers conferred by relevant rules will be exercised in practice. Further, and in particular, I am not persuaded that the part of the guidance which explains how revocation or withdrawal of a licence will impact upon a student is in a different category. Paragraph 323A empowers UKBA to curtail a student's entry clearance or leave to remain; it also permits UKBA to alter the duration of a student's leave to remain. The guidance does not impact upon the rights of the student in any way which is inconsistent with that which is contemplated by paragraph 323A itself."

I shall shortly be coming to the very recent Court of Appeal decision in New London College.

42. Next, Mr Poole took me back to Alvi, where at paragraph 39 in his judgment Jackson LJ set out the entirety of paragraph 43 of Sullivan LJ's judgment in JCWI (although in the transcript a crucial "not" has been omitted from the final sentence). In paragraph 40, Jackson LJ specifically drew a distinction between "substantive" matters and those which were merely a "minor" alteration to the Secretary of State's practice", holding that the governing principle in the list which the Court of Appeal was considering was "a substantive matter".
43. Finally, Mr Poole returned to Ahmed, where, following citation of all the previous Pankina-based authorities, Singh J summarised the position thus:

"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."

44. In the short period between the hearing and my delivery of judgment, the Court of Appeal has dismissed an appeal in New London College [2011] EWCA Civ 51. Counsel were able to make brief submissions to me concerning this. At paragraphs 46 and 48 Richards LJ (with the agreement of Rimer and Mummery LJJ) endorsed Foskett J's identification of the ratio of Pankina in English UK. At paragraphs 14, 46 and 50, Richards LJ noted that the policies which were in issue in New London College did not explain how powers conferred by the Immigration Rules would be exercised and were thus distinguishable from those in Pankina, JCWI and Alvi (or indeed from those with which I am here concerned). In New London College at paragraph 46, Richards LJ continued:

"Whilst the criteria for the grant, suspension or withdrawal of a sponsor licence may have an indirect effect on a person's entitlement to enter or remain as a student, in that the substantive criteria for eligibility to enter or remain include a requirement that the sponsor holds a sponsor licence, what was said in Pankina cannot have been intended to apply to such a situation."

45. Based on this formidable line of authorities, of which JCWI (as a decision of the Divisional Court) and Alvi and New London College (decisions of the Court of Appeal) are binding on me, I readily endorse Mr Poole's submission that the broad submission of Mr Malik is not one to which I can properly accede, even were I to accept that it is the logical consequence of the decision in Pankina itself, including its first ground in paragraph 30. In other words, I accept that there is indeed a "spectrum", to use Sullivan LJ's phrase from JCWI, and it is to where in that spectrum the visa letter requirement in the present case falls that I now turn.

(b) The narrow submission

46. Mr Malik's fall back submission, though realistically he accepted that it is his most promising submission at this level, is that what the Secretary of State has sought to do by Appendix A paragraph 116(e) of the Immigration Rules and paragraph 91 of the Policy Guidance was by no means a "'minor' alteration to the Secretary of State's practice", to use the phrase of Jackson LJ in Alvi. Replacing confirmation letters with visa letters that must include the list in question was precisely the kind of substantive change that had, in accordance with Pankina, Alvi and JCWI, to be laid before Parliament. He claimed that the rule of law was threatened by changes of this nature, and invoked the perplexity and concern expressed by Longmore LJ in Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773; [2011] 1 WLR 564 paragraph 67 at "how any individual whom the Rules affect can discover what the policy of the Secretary of State actually is at any particular time..."
47. Mr Malik reminded me that where and how the dividing line in the JCWI spectrum was to be drawn was still unclear, and had in any effect been left open in Alvi. Even if Ahmed was rightly decided, it was clear that the factual situation here was more serious and intrusive than the requirement for "a virtual document similar to a database record" rather than "an actual certificate or paper document"(Ahmed paragraph 9), held to be merely a "means of proving eligibility" (Ahmed paragraphs 41 and 42).
48. Mr Poole's response is that the detail on how the substantive criteria may be satisfied or complied with, such as the requirements for application forms or relevant supporting documents, need not be contained in the Immigration Rules, and can properly be contained in policy guidance, as specified in Appendix A Paragraph 116(e) of the Immigration Rules. He accepts that the present case falls rather higher on the "spectrum" than did the "virtual document" in Ahmed, but contends that the same principle applies.
49. On the present state of the authorities, in my view the proper approach is to ask whether the requirement (in this case for a list of evidence that the institution had used to assess the Claimant's ability to finish the course for which she had been accepted" was a change that operated to change (and change materially) "a substantive criterion for entry" (or in the Claimant's case to remain in the UK) (English UK paragraph 60). One presumes that she was only offered the place at Hamilton College on the basis that she was considered able to complete the course. I assume would-be students will submit evidence of their qualifications. All that is required by the changed policy is that (no doubt for the avoidance of fraud) the institution list in the visa letter the evidence it used in its assessment. This is not a material change in the substantive criteria. It is not a change "affecting individuals' status and entitlements" (Pankina paragraph 33). It is a "minor" alteration to the Secretary of State's practice (Alvi paragraph 40), having an "indirect effect" (New London College paragraph 46), though, as explained above, New London College, unlike the present case, fell altogether outside the mischief at which Pankina was directed. I so find notwithstanding that the change was undoubtedly capable of having serious consequences for an applicant in the case of non-compliance, as the facts of this case show.
50. So far as concerns the perplexity expressed by Longmore LJ in Adedoyin, there should be no difficulty for would-be student applicants obtaining the relevant policy guidance, and Mr Malik did not contend to the contrary on the facts of this case. On the other hand I accept that ease or difficulty of access formed no part of the reasoning in Pankina.

Disposal

51. It follows that this application is dismissed.
52. One cannot leave this application without regretting that the institution concerned failed to provide a compliant visa letter. I was told by Mr Malik that in recent months (and since the Defendant's concession in respect of Paragraph 245ZX(l)) the claimant has made several attempts, involving various institutions, to gain entry to a course, as a precursor to obtaining a compliant visa letter, but has failed because institutions will not risk their licences by dealing with overstayers. It was only on a technicality (albeit a mandatory requirement) that her application for leave to remain failed. It is to be hoped that she may still be able to make a compliant application, particularly since she no longer faces the problem formerly posed by Paragraph 245ZX(l) of the Immigration Rules.
54. MR POOLE: My Lord, in terms of consequential orders, as far as the Secretary of State is concerned, we would ask for our costs on the basis that costs should follow the event and they should be subject to detailed assessment if not agreed. My understanding is that the claimant is privately funded in this matter.
55. THE DEPUTY: Should not there be a exchange of certificates of costs?
56. MR POOLE: Well, my Lord, I'm certainly not inviting your Lordship to assess those costs.
57. THE DEPUTY: No, but have you not produced a schedule of costs and have they not been agreed? I thought for cases set down for a day it was the practice to do that.
58. MR POOLE: My Lord, your Lordship -- sadly the practice is correct. Neither party have exchanged a schedule of costs.
59. THE DEPUTY: That merely increases the costs overall. Yes, Mr Malik?
60. MR MALIK: My Lord, before I respond for my learned friend's application, may I express my gratitude for this very clear and detailed judgment.
61. So far as the question of costs is concerned, it was only on 12 January 2011 when the Secretary of State conceded the paragraph 245ZX(l) point. Therefore it was entirely appropriate for this Claimant to have pursued her application up till that date. In the circumstances, in my respectful submission, the Secretary of State is not entitled for her costs incurred prior to that date and my Lord's order should reflect that.
62. THE DEPUTY: Do you have any --
63. MR POOLE: My Lord, I could see the force in that argument if the concession had effectively disposed of this matter, but there has always been two points that have been run and, to put it bluntly, the Pankina point has always been the main point. I accepted that the --
64. THE DEPUTY: Well, is that right, because it struck me all along that, if you hadn't had the other ground of refusal, what I call the unlawful ground of refusal, it would have been as easy as anything for Ms Castro simply to have gone back to the college and said "put in the further details" and gone back to the Secretary of State with a letter which was compliant. But, as I said in my judgment, she could not sensibly do that, because she was going to be met immediately by what I call your knockout blow point, and therefore really the big ground was not the Pankina ground but the other ground, wasn't it?
65. MR POOLE: My Lord, I can see the force in that logic. In my submission, it has always been when one looks at the actual claim form itself, the weight of the argument has always been on the side of the Pankina point and that is --
66. THE DEPUTY: It may be only because that is simply the point which takes longer to spell out. The other is a straightforward point of construction, which is incapable of very much elaboration.
67. MR POOLE: My Lord, I can see that the concession should have some bearing on the question of costs, but obviously the Secretary of State has incurred cost prior to the date of that concession that was spent on the Pankina point. So I would not accept that the Secretary of State should not have any of her costs up until the date of the concession.
68. THE DEPUTY: Well, I think the proper order that I make is that the Secretary of State should have her costs, but, in respect of the period before 12 January 2011, the Secretary of State should only have one third of her costs.
69. MR POOLE: My Lord, yes.
70. THE DEPUTY: As I was reading out my judgment, in paragraph 3, I said in the second sentence that the Claimant leave to enter in February 2008. I have a feeling that may be wrong, because it goes on to say leave expired on 29 February 2008. Can either of you recall what the correct position is?
71. MR POOLE: The Claimant's leave expired on 29 February 2008.
72. THE DEPUTY: So when did she get leave to enter?
73. MR POOLE: She was granted further leave on 13 March 2008. She was granted leave to enter on 13 May 2007.
74. THE DEPUTY: So it should have said 2007. It should have said she was granted leave to enter as a student in February 2007, not 2008. That would resolve the problem.
75. MR POOLE: Well, in fact, I think it is May 2007, so it should be May 2007, as opposed to February 2008.
76. THE DEPUTY: Thank you.
77. MR MALIK: My Lord, there are further consequential matters. Firstly, I have an application for permission to appeal to the Court of Appeal.
78. THE DEPUTY: Yes.
79. MR MALIK: My Lord will recall that, at the hearing, I handed up the order of Singh J granting permission in the case of Ahmed. I seek permission for the succinct reasons identified by Singh J. It is desirable, in my respectful submission, for an appeal from my Lord's decision to be linked with the appeal in Ahmed for a single hearing so that the Court of Appeal can consider all overlapping and interconnected issues concerning the requirements for leave for Tier 4 students. Therefore, there is a compelling reason why the appeal should be permitted. In any event, for the reasons given by Singh J, my argument, in my most respectful submission, has a real prospect of success.
80. THE DEPUTY: Yes. Mr Poole, do you have anything to say?
81. MR POOLE: My Lord, unsurprisingly, we oppose the application for permission to appeal. Again, unsurprisingly, we say your Lordship respectfully has got it right. There are no realistic prospects of success. I obviously take onboard the fact that Singh J felt in the Ahmed case that there were and he granted permission. Obviously I would invite your Lordship to form his own view on the prospect of success.
82. THE DEPUTY: Well, this is a matter to which I, as may be expected, have already given some careful thought. It seems to me that, notwithstanding what Singh J concluded and notwithstanding that I think this is a slightly stronger case than that of Singh J, this is a case where it should be for the Court of Appeal itself to decide whether it is right to grant permission. In particular I bear in mind that I would have no power myself to arrange its linkage with the other case, whereas, if the Court of Appeal were to think it appropriate to grant permission in the present case, then the court could readily link it to the other case, depending on, of course, what stage that other appeal has reached, which I understand is not very far so far.
83. You said you have a second application.
84. MR MALIK: Yes, my Lord. May I respectfully ask my Lord to direct that the transcript of this judgment be made available as soon as possible?
85. THE DEPUTY: How long do you have for making your application?
86. MR MALIK: I understand we have 14 days.
87. THE DEPUTY: 14 days. Well, because of past problems which I have had in instances like this, what I will do is, because this has to be transcribed and so forth and there inevitably are delays, and I may be out of London myself and that may slow down the process, what I will do is I will extend your time for leave to appeal to 21 days from now or seven days from receipt of the perfected transcript, whichever is the longer.
88. MR MALIK: Very well, my Lord.
89. THE DEPUTY: And I am sure the shorthand writers will do everything, but all cases they have are important and I do not suppose this one is any particularly more so than any other, so we must simply rely on them for their co-operation.
90. MR MALIK: I am very grateful indeed.
91. THE DEPUTY: I express my gratitude to both counsel for skeleton arguments which were succinct and clear and arguments of commendable brevity.