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
		21st March 2013

1. THE DEPUTY JUDGE: This is an application for judicial review which comes before me as a rolled up hearing, following the refusal of permission to apply on the papers by Mr James Dingemans QC, sitting as a Deputy Judge of the High Court, on 21st November 2011.
2. The application relates to the refusal by the Defendant of the Claimant's application for leave to remain as a Tier 4 migrant on 12th July 2001. The application was made under the points-based system and included application for a biometric residence permit.
3. The basis on which the application was made was that the Claimant wished to seek Tier 4 status on the basis of a Certificate of for Study on CAS to study an MBA at Catford Financial Ltd. That CAS had been assigned to him on 21st April 2011.
4. In applying the points-based system the decision maker agreed that he satisfied the necessary points in relation to maintenance. He did not however secure the necessary points in relation to the CAS. The reason for that, as articulated in the decision, was that whereas he was required to demonstrate that he had completed an academic qualification, at least equivalent to a UK Bachelors' degree, taught in a majority English speaking country, in fact the conclusion which was reached was that he had not done so. The decision reads:

i. "You have not completed an academic qualification at least equivalent to a UK Bachelor's degree, taught in a majority English speaking country, as defined as appendix A of the Immigration Rules."

5. In order to understand where that finding comes from it is necessary, at this stage, to set out the operative provisions of the Rules as they stood at the time when this application was being considered. Paragraph 245ZX of the Immigration Rules provides as follow:

i. "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...

ii. (c) The applicant must have a minimum of 30 points under paragraphs 113 to 120 of Appendix A."

6. That therefore takes us to the operative provisions of Appendix A to the rules at the material time and in particular to paragraph 118 of Appendix A which provides as follows:

i. "118. No points will be awarded for a Confirmation of Acceptance for Studies unless:

ii. ...

iii. (c) for confirmation of acceptance for studies assigned on or after 21st April 2011 one of the requirements in (i) to (iii) is met.

iv. (2) the course is degree level study and the Confirmation of Acceptance for Studies

v. has been assigned by a Sponsor which is not a Recognised Body or is not a body in

vi. receipt of funding as a higher education institution from the Department for

vii. Employment and Learning in Northern Ireland, the Higher Education Funding Council

viii. for England, the Higher Education Funding Council for Wales, or the Scottish

ix. Funding Council, and...

x. (2) has obtained an academic qualification (not a professional or vocational qualification), which is deemed by UK NARIC to meet or exceed the

xi. recognised standard of a Bachelor's or Master's degree or a PhD in the UK

xii. from an educational establishment in one of the following countries: ... the UK; ... and provides the specified documents;...

xiii. (4) the applicant provides an original English language test certificate from an

xiv. English language test provider approved by the Secretary of State for these

xv. purposes, which is within its validity date, and clearly shows..."

7. I have added the emphasis by underlining "(not a professional vocational qualification)" because that is at the heart of the dispute in this judicial review application.
8. The difficulty for the Claimant was that he had secured a qualification entitled the LXL Level 7 BTEC Advance Professional Award Diploma in Management Studies. It was that qualification upon which he relied in his application to demonstrate that he came within the rules and in particular paragraph 118 of Appendix A. It was that qualification which was rejected which led to the decision that I have set out above.
9. The documentation in the case provides the "notification of performance" in respect of this LXL Level 7 BTEC qualification. There are a number of elements that the Claimant had to pass in order to achieve that qualification. They include, and I do not propose to quote them all, courses or elements of the course entitled "Advanced Professional Development", "Managing Change in Organisations, "Human Resources, Planning and Development" and "Strategic Marketing Management." The course was passed in July 2010.
10. The contentions in the case, as argued before me are two-fold. The first is that the rule itself fails a rationality analysis on the basis of the failure of it to provide a coherent picture in relation to what is an academic and what is a professional or vocational qualification. The second point that is raised relates to the particular circumstances of the Claimant and the question of whether or not it was rational for the Secretary of State to conclude that the LXL level 7 BTEC qualification the Claimant had attained did not fall within paragraph 118(ii)(2).
11. The principles on which the rules should be construed are not in essence in dispute. A purposive approach needs to be taken to understanding what the rules mean and having understood what they mean in that context, they then need to be properly applied. It is clear to me and it appears to be undisputed between the parties that the purpose of in particular paragraph 118(ii)(2) is to ensure that the applicant is competent and proficient in the English language. The reason for concluding that is that the structure of the rule is to provide an exception to paragraph 184 (the requirements for an English language test certificate) if paragraph 180(ii)(2) has been passed. Thus, the purpose of examining whether or not someone has obtained an academic qualification to exceed the recognised standard of a Bachelor's degree or above is as a proxy for determining their English Language Comeptence or a means of excluding them from the need to provide an English language test certificate.
12. Against that background it is submitted by Mr Biggs, on behalf of the Claimant, that the rule itself needs to be construed and applied in a manner which means when a person has demonstrated, through the qualification that they exhibit as part of their application that they have a competence in English and that their competence in English has been tested through achieving that qualification, then the exception should be applied. He goes on to submit that in any event in the circumstances of the Claimant's course, the course itself was in effect very similar to degree courses in management studies which enable one to conclude that he would have an adequate comprehension and proficiency in English.
13. By contrast it is submitted on behalf of the Secretary of State by Mr Turney that the rule necessarily provides a distinction between academic qualifications and those which are professional or vocational, on the basis that the latter may have been acquired in an environment which would not necessarily require the applicant to have been immersed in English language and those qualifications could be obtained by teaching methods and in teaching circumstances where English was not the main learning vehicle. He goes on to submit that in the circumstances of the case the Secretary of State was in any event entitled to conclude, on the basis of the content of the course, that it was a professional or vocational qualification rather than one which was academic.
14. I propose to address the two questions that are raised separately and start with the issue of the rationality of the rules. It is fair to observe that the distinction between an academic qualification and a professional or vocational qualification is not one which in every case it will necessarily be simple and straightforward to draw. There may well be degrees that are taken which fulfil both the purpose of exposing the student to academic rigour but also are part of a sequence of qualifications that a student might be obtaining in order to pursue a professional calling. A law degree would be a classic example of that. But to my mind the existence of the need to exercise judgment in determining whether or not a qualification is either academic, professional or vocational is not necessarily a cogent criticism of the drafting of the rule. The rule is after all a piece of policy. It is designed in order to create a filter for those who do not need to sit the English language test and provide a certificate.
15. Bearing in mind that there may be some degree level qualifications which are professional or vocational but which do not involve exposure to or attaining a proficiency in the English language, (and Mr Turney cited the ACCA qualification as one which may fall into that category), it seems to me entirely sensible for the Secretary of State to have this filter on the exception which may lead to hard cases where, for instance, a person has passed the Bar Finals exam but nevertheless has to sit an English language test because they have passed a vocational qualification or professional qualification rather than one that is, strictly speaking, academic. It does not lead to any difficulty in relation to that person because quite plainly they will be able to pass the English Language test and to produce the test certificate. It is therefore to my mind a sensible filter on the exemption and not one which bespeaks irrationality in the rules themselves. I am unable to accept that there is substance in the contention that because the distinction between an academic qualification and a professional or vocational qualification is not clear cut, the rule has not been rationally drafted. I am also unpersuaded that further definition will be helpful or necessary in order to perfect or make the rules rational. It will inevitably, it seems to me, be a matter of judgment for the person applying the policy to determine whether or not the qualification with which they are presenting is one which is professional or vocational.
16. That then brings me to the second question which is whether or not in the circumstances of the case the LXL Level 7 BTEC qualification is one which is professional or vocational rather than academic. In fact the question which I have to determine, in my view, is narrower than that, in the sense that what I need to consider is whether or not the decision reached by the Secretary of State in respect of the categorisation of the qualification held by the Claimant was one which was rational in the circumstances.
17. In order to assist me in seeking to obtain that understanding a number of materials have been placed before me. Firstly, I have been provided with a determination of Immigration Judge Goldmere, promulgated on 12th October 2011, in which the Appellant had the self-same qualification as the Claimant. The Immigration Judge concluded that the appeal should be allowed under the Immigration Rules in paragraph 35 of the determination. But Mr Turney rightly points out that that was on the basis, it seems, of a concession on behalf of the Respondent, which is no longer sustained in these proceedings, that the BTEC Level 7 was and is an academic qualification.
18. The second source of materials I have already alluded to. Mr Biggs draws my attention to the modules which were taken by the Claimant in seeking to obtain a qualification and makes the comparison between those modules and what might form part of a Management or Business Studies Degree which could be regarded as an academic qualification within the parameters of the rules.
19. The third element of evidence provided to me is a document dated September 2005 from LXL providing guidance in relation to the substance of this qualification. A number of passages in that document have been drawn to my attention. In particular on page 6 of the document it provides as follows:

i. "BTEC advanced professional qualifications are designed to provide focussed and specialist vocational short courses, linked to professional body requirements and national occupational standards where appropriate, with a clear work related emphasis. The qualifications provide short vocational programmes of study that meet the individual needs of learners. There is a strong emphasis on practical skills and development alongside the development of requisite knowledge and understanding in the sector...

ii. BTEC advanced professional qualifications are designed to meet a range of different needs. The range of qualification offers...

b. maximum flexibility of the shorter programmes available across Level 7 and 8 the NQF.

c. the opportunity to certificate small box of learning which is designed to motivate learners and encourage widely participation in education and training.

d. courses that related to particular training and employment patterns in sector.

e. courses that may offer preparation for specific jobs in employment.

f. The opportunity to use a range of delivery methods.

g. opportunities for learners to develop skills and support career and professional development.

h. underpinning knowledge, skills and understanding linked where appropriate to named NVQs.

i. programmes that can enable progression either to higher levels of study or to other courses at the same level of study."

20. On page 7 the particular course taken by the Claimant, the professional diploma, is described as follows:

i. "This qualification broadens and deepens the learner's management skills and knowledge. These qualifications offer an engaging programme for higher education and adult learners who are clear about the area of employment they wish to enter or to which they wish to progress within existing employment. It also provides a suitable qualification for those wishing to change career or move into employment in mantra following a career break. Access to suitable management work situations is fundamental to successful completion of this qualification, either for permanent, full or part-time employment or through ... work placement."

21. Then it proceeds on page 9 to set out the
22. teaching learning and assessment modes of the course as follows:

i. "Assessment is normally undertaken by creating asylum briefs using the criteria that can textualise to be relevant. For learners asylum briefs are devised by centres and should ensure coverage of all criteria in the unit as set out in the unit assessment criteria grid. Criteria should be clearly indicated on each assignment to provide a focus for learners (transparency ... the feedback is specific to criteria) and to assist with internal standardisation process. Tasks of the activities should enable them to produce evidence that directly relates to the specified criteria."

23. The document then proceeds at page 13 to address the modes of delivery of the qualification and explains as follows:

i. "This may be through traditional classroom teaching, open learning, distance learning or a combination of these. Whatever mode of delivery is used centres must ensure that learners have appropriate access to the resources identified in the specifications and to the subject specialist delivering news. This is particularly important for learners studying for the qualification through open or distance learning."

24. It goes on to observe as follows:

i. "Those planning programmes should aim to ensure the vocational nature of the BTEC Advanced Professional Qualification by:

b. liaising with employers to ensure a course relevant to learner's specific needs.

c. accessing and using non confidential data and documents from learner's work places.

d. including sponsoring employers in the delivery of the programme in work promoting the assessment.

e. linking the company based and workplace training programmes.

f. making full use of the variety of experience of working life that learners bring to the programme."

25. At page 15 the document observes under a heading "The wider curriculum" that:

i. "The study of BTEC Advanced Professional Qualifications in Management Studies provides learners opportunities to develop an understanding of ethical, environmental, international, legislative, health and safety and equal opportunities issues. These wider curriculum opportunities are indicated in the units as appropriate."

26. Having assessed that document and set it out at some length in relation to the pertinent passages, I accept the submission made by Mr Biggs that it appears relatively plain that one would need to have a proficiency in English in order to complete the course. It also seems that there may be some parity in terms of the areas of study between this course and other indisputably academic management degrees which are delivered at various higher education institutions. The difficulty is that I do not accept that the proficiency in English that needs to be necessary to complete the course is in and of itself determinative or sufficient to deal with the distinction between an academic qualification and one that is professional or vocational. The demonstration of proficiency in English may be part of the purpose of the rules, but it is not in itself sufficient to determine whether the qualification is one which is academic or professional or vocational.
27. I have formed the view having looked at the document that there is much force in what Mr Turney submits, that when one looks at the way in which firstly the document describes the course, and secondly, when one understands the kind of outcomes which the education it provides is intending to deliver, it is clear that it was far from irrational for the Defendant to conclude that the LXL Level 7 BTEC qualification was one which was vocational in character rather than one which was academic. That is as far as I need to go for the purposes of the question before this court. I am satisfied, on the basis of the material which I have set out, that it was a lawful conclusion for the Defendant to apply the rules which I have set out above, so as to conclude that this applicant did not fall within the exception and should have provided the English language test certificate, since the qualification was one which was professional or vocational. The fact that the applicant may well have been able to pass that test with ease, bearing in mind the content of the course which he had undertaken was not sufficient, in my view, bearing in mind the way in which the rule is constructed, to bring it within the exclusion which is set out in paragraph 118(ii)(2).
28. For those reasons I give judgment in this case for the Defendant.
29. MR TURNEY: My Lord I am grateful. There was a costs award in respect of the permission in the sum of £480. This is a rolled up hearing, so I also seek my costs of attending today. There is no other application for costs, it is just the fee of £350, my fee for attending today in addition to that £480.
30. THE DEPUTY JUDGE: Is there anything you wish to say?
31. MR BIGGS: My Lord, the first point is this is a rolled up hearing. It was not clear, with great respect from the judgment when he granted permission and refused on substance or not. That is just a point of observation.
32. In terms of my learned friend's position with respect to costs, it is plain that there have been a substantial number of defaults by the Defendant here. There has been no compliance with their consent order of October 2012, which required any further summary grounds to be submitted by 26th October and for a skeleton argument to be filed 7 days before the hearing. That was not done and in fact my learned friend was unaware that this was a rolled up hearing today. He made that clear to me this morning.
33. THE DEPUTY JUDGE: He made it clear to me as well actually.
34. MR BIGGS: In those circumstances, it does seem to me that it would be inappropriate, with great respect, to the court's discretion to give the Defendant its costs of today. But in terms of the costs of acknowledgement of service I cannot resist those.
35. MR TURNEY: My Lord, the directions were, that were consented to was that the Defendant have permission to file and serve any amended summary grounds. We were not required to. As it happens the point that the amendment was concerned with was the Tier 1 application. That also falls away once we have successfully defended--
36. THE DEPUTY JUDGE: You would have had to be here any way even if it was an oral renewal, would you not?
37. MR TURNEY: My Lord, yes. I do not have any further submissions.
38. THE DEPUTY JUDGE: Thank you very much.
39. It is rightly pointed out by Mr Biggs that I failed to reach a view as to whether or not permission should have been granted. In my view it should. However, having considered the matter in full, albeit arguable, I have reached the conclusion that the Claimant should lose.
40. It appears that it came before me as a rolled up hearing to some extent by accident, or at least without the knowledge of the Defendant . The Defendant would have had had to be here in any event to deal with a renewed application for permission but because of the way in which the matter has been listed we have been able to deal with it in totality.
41. In the circumstances I consider the just outcome is costs to be limited to costs of the acknowledgement of service, and I so order.