QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen (on the application of Zahid Hafeez)
|- and -
|The Secretary of State for the Home Department
Mathew Gullick (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 3 April 2014
Crown Copyright ©
Mr Justice Green :
"You are a national of Pakistan which is not a majority English-speaking country as defined in Appendix A of the Immigration Rules. You have not obtained an academic qualification at least equivalent to a UK Bachelors Degree taught in a majority English-speaking country as defined in Appendix A of the Immigration Rules. You did not complete a course of study in the United Kingdom for which you were granted permission to stay as a Tier 4 (Child) Student Migrant or whilst under 18 years old under the student rules that were in force before 20 March 2009.
Your CAS assigned on 09 May 2011 is to study Master of Business Administration at City of London College who are a Recognised Body. However although you meet an exemption for the English Language Test requirement the sponsor still needs to state on the CAS how they have assessed your English Language Skills B2 level in all four components. Your Tier 4 sponsor has not detailed on your CAS how your English language has been assessed at B2 level in all four components. You have not provided any documentation to show that you have obtained a academic degree qualification equivalent to a Bachelors Degree (professional and vocational qualifications are not acceptable). Therefore you have not met the requirement and no points have been awarded for the CAS."
"To qualify for leave to remain as a Tier 1 (Post-Study Work) Migrant, an application must meet the requirements listed below. Subject to paragraph 245FE(a)(i), if the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
(a) the applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal immigrant."
"The applicant's period of UK study and/or research towards his eligible award were undertaken whilst he had entry clearance, leave to enter or leave to remain in the UK that was not subject to a restriction preventing him from undertaking a course of study and/or research"
"as you had no valid leave at the time of study we are unable to award points under Immigration Status."
"You have claimed 20 points for Qualification under Appendix A of the Immigration Rules but on the basis of the documents you have provided you do not qualify for the award of points in this area. The reason for this is detailed below. As you had no valid leave during your period of study, we are unable to award points under Qualification."
A similar conclusion was reached in relation to "Institution of study". In relation to this 20 points were being claimed but 0 points were awarded upon the basis that: "as you have been awarded 0 Points under Qualification we are unable to award Points under Institution of Study." The same reasoning was given for the award of 0 points in relation to date of obtaining the eligible award namely: "as you have been awarded 0 Points under Qualification we are unable to award points under Institution of Study."
"Permission is hereby granted limited to a challenge to the Defendant's decision of 4th December 2012 to refuse the Claimant's application for leave to remain as a Tier 1 (Post-Study Work) Migrant."
In limiting permission the Judge observed that it was at least arguable, given the Defendant's acknowledgement that there were errors in her 2012 Decision, that the decision was unlawful. He added however:
"Insofar as the Claimant seeks to challenge the Defendant's earlier decision of 21 July 2011 to refuse the Claimant's application for further leave to remain as a Tier 4 (General) Student Migrant permission is refused as the claim is manifestly out of time and in any event the Claimant availed himself of an alternative remedy by way of appeal to the First-Tier Tribunal."
i) Qualification 20/20 points (i.e. 20 out of a maximum of 20)
ii) Institution of study 20/20 points
iii) Immigration status in the UK during period of study and/or research 0/20 points
iv) Date of obtaining the eligible award 15/15 points
Ground 1: The erroneous allocation of points in the 2012 Decision / the implication of the existence of typographical and inadvertent errors in decision letters
(i) The Claimant's Submissions
(ii) A near miss is still a miss.
"12. Whilst I acknowledge that to allow applications which anticipate the award of the necessary qualification does not undermine the purpose of the policy, the wording of the fourth section seems to me plain. The fact that an applicant will achieve a score of 60 points, by obtaining a recognised degree at a qualifying institution during a lawful stay, achieves nothing. Only a score of 75 points attracts the right to be granted leave to remain. There is no room in the points-based scheme for a near-miss. Viewed as a whole, qualification under Table 10 requires strict compliance with the requirement to make the application within the period of 12 months from the time when the qualification was obtained.
13. Read in that way the rules are analogous to those which require an applicant to satisfy a requirement at the date of his application, such as the requirement to have a specified minimum level of personal savings at least three months prior to the date of the application (paragraph 245AA), and to the rules as to levels of funds under the applicant's control on the date of the application under Appendix C - Maintenance (paragraph 1A (g)). As Sedley LJ said :
"There are many instances of rule-based issues which need to be appraised as they stand at the moment of the appeal hearing, but the question whether at the date of the application the specified funds had been in the applicant's bank account for three continuous months cannot intelligently be answered by evidence that they had not, albeit they now have been" (Pankina v Secretary of State for the Home Department  EWCA Civ 719,   QB 376)."
(Emphasis in paragraph 12 above added)
"23. Secondly, in my view it does not follow from the fact that the extent and quality of an applicant's family and private life in this country must be assessed that the degree of non-compliance with an Immigration Rule similarly falls to be assessed. One is always a matter of degree, requiring assessment; non-compliance with a rule may be a bright line question, admitting of an answer Yes or No. In my respectful judgment, Sedley LJ erred in thinking that both had to be assessed in the same way.
24. Thirdly, the judgment in Pankina accepts that there are some Rules that do not admit of a Near-Miss argument: those requiring academic and linguistic qualifications. It follows that there would be two classes of Immigration Rules: those to which the Near-Miss principle applies, and those to which it does not. The basis of the distinction is that a financial criterion, to which the principle is said to apply "has in itself no meaning". But if the financial criterion has no meaning, it must be irrational to apply it, and it may be the subject of judicial review. Yet it is clear that it does have meaning: it is a test of the liability of an applicant to become a charge on public funds. I see nothing meaningless or irrational in a rule requiring specified minimum financial means to be shown by an applicant for entry or leave to remain, and therefore I cannot see the basis for the distinction between those rules in respect of which "a miss is as good as a mile" and those in relation to which a near miss may be regarded as close to a bull's eye. Lastly, paragraphs 134 and 128 of the Immigration Rules are part of a code that, as was held in Pankina, has "a status akin to law" (paragraph 17 of Sedley LJ's judgment), and are made by "an established legislative route" under section 3(2) of the Immigration Act 1971. The last sentence of paragraph 46 of the judgment in Pankina must, I think, be read as relating to practices of the Secretary of State in the administration of that Act that have not been incorporated in the Immigration Rules.
25. Finally, quite apart from authority, I prefer the approach stated in Mongoto and Rudi. A rule is a rule. The considerations to which Lord Bingham referred in Huang require rules to be treated as such. Moreover, once an apparently bright-line rule is regarded as subject to a Near-Miss penumbra, and a decision is made in favour of a near-miss applicant on that basis, another applicant will appear claiming to be a near miss to that near miss. There would be a steep slope away from predictable rules, the efficacy and utility of which would be undermined. "
(iii) The relevance of typographical errors in a decision
(iv) The relevance of the 2013 Decision
"The D's subsequent decision in July 2013 does not remedy the error identified in these proceedings, nor has the D sought to consent to amend the grounds for JR, thus that decision is irrelevant to these proceedings".
Ground 2: The discrimination argument / abuse of process
i) The Claimant clearly must be taken to have known when he applied to enrol for the MBA course that this would end at a point in time he had no extant leave to remain.
ii) He then (after enrolling) made his application to the SSHD which was refused and he appealed to the FTT but did not attend the appeal and did not seek an adjournment.
iii) He subsequently made an application for permission to appeal to the UT out of time. In his application the Claimant cites in support of his arguments (at paragraph ) 13 instances where student colleagues of the Claimant succeeded before the FTT on what he submitted was exactly the same argument as he now sought to raise. He pointed out that the SSHD did not appeal any of these judgments.
iv) However the application was refused (i) on procedural grounds and (ii) on the merits of the FTT's legal reasoning in his case.
v) The Claimant did not seek judicial review of the decision of the UT upon the basis of a point of law.
vi) Thereafter, the Claimant made a fresh application for leave to remain.
vii) The application was refused (the 2012 Decision) and the Claimant sought judicial review of the resultant refusal and the 2011 Decision.
viii) Permission was granted on one ground relating to the admitted errors in the 2012 Decision. The challenge to the 2011 Decision was refused permission upon the twin basis (i) that the application was manifestly out of time and (ii) that the Claimant had availed himself of alternative remedies viz statutory appeals.
ix) The Claimant did not seek leave to renew his application for permission in light of the decision of the single Judge refusing permission.
x) The SSHD, in order to cure the errors in the 2012 Decision, adopted the 2013 Decision.
xi) The Claimant has not sought judicial review of the 2013 Decision.
"41. The consideration which weighed most heavily with the Court of Appeal in Sivasubramaniam was proportionality. There must be a limit to the resources which the legal system can devote to the task of trying to get the decision right in any individual case. There must be a limit to the number of times a party can ask a judge to look at a question. The Court of Appeal took the view that, in the sorts of cases coming before the district judges in the county courts, it was enough if both the district judge and the circuit judge could detect no arguable case that the district judge had gone wrong. There was no need, save in the two extreme and exceptional cases identified, for a High Court judge to take another look especially as, under the current judicial review procedures, it would then be possible for the case to be looked at another four times."
"93. What would, however, be totally disproportionate, is that this judicial supervision should extend to the four stage system of paper and oral applications first to the Administrative Court and then, by way of appeal, to the Court of Appeal, to which the ordinary judicial review procedure is subject. What are first required are readily identifiable criteria for the grant of permission to seek judicial review. That these exist should be capable of demonstration by paper applications, and my firm view is that applications for judicial review should be restricted to a single paper application, unless the court otherwise orders. This is, however, a matter for the Civil Procedure Rule Committee. "
94. As to the criteria, I have been persuaded, for the reasons given by Lady Hale, that the test laid down by the Court of Appeal in Siva is not the most satisfactory, and that the test governing second appeals in the courts of England and Wales should be adopted.
95. For these reasons I endorse the conclusions reached by Lady Hale. I consider, however, that the procedural change, the possibility of which she contemplates in paragraph 58 of her judgment, will prove a necessity. I concur in the order that she proposes at para 60."
Ground 4: Article 8 of the Convention education and post education rights
"There should come a time when it is obvious to the Secretary of State that it is only right to allow the Claimant to complete what he started and disproportionate otherwise"
"57. It is important to remember that article 8 is not a general dispensing power. It is to be distinguished from the Secretary of State's discretion to allow leave to remain outside the rules, which may be unrelated to any protected human right. The merits of a decision not to depart from the rules are not reviewable on appeal: section 86(6). One may sympathise with Sedley LJ's call in Pankina for 'common sense' in the application of the rules to graduates who have been studying in the UK for some years However, such considerations do not by themselves provide grounds of appeal under article 8, which is concerned with private or family life, not education as such. The opportunity for a promising student to complete his course in this country, however desirable in general terms, is not in itself a right protected under article 8."
"19. It is important to bear in mind that the "good reason", which the state must invoke is not a fixity. British citizens may enjoy friendships, employment and studies that are in all essential respects the same as those enjoyed by persons here who are subject to such controls. The fact that the government cannot arbitrarily interfere with a British citizen's enjoyment of those things, replicable though they may be, and that, in practice, interference is likely to be justified only by strong reasons, such as imprisonment for a criminal offence, cannot be used to restrict the government's ability to rely on the enforcement of immigration controls as a reason for interfering with friendships, employment and studies enjoyed by a person who is subject to immigration controls.
20. We therefore agree with Mr Jarvis that  of Patel and Others is a significant exhortation from the Supreme Court to re-focus attention on the nature and purpose of Article 8 and, in particular, to recognise its limited utility to an individual where one has moved along the continuum, from that Article's core area of operation towards what might be described as its fuzzy penumbra. The limitation arises, both from what will at that point normally be the tangential effect on the individual of the proposed interference and from the fact that, unless there are particular reasons to reduce the public interest of enforcing immigration controls, that interest will consequently prevail in striking the proportionality balance (even assuming that stage is reached).
21. In conclusion on this first general matter, we find that the nature of the right asserted by each of the appellants, based on their desire, as former students, to undertake a period of post-study work in the United Kingdom, lies at the outer reaches of cases requiring an affirmative answer to the second of the five "Razgar" questions and that, even if such an affirmative answer needs to be given, the issue of proportionality is to be resolved decisively in favour of the respondent, by reference to her functions as the guardian of the system of immigration controls, entrusted to her by Parliament."