(Immigration and Asylum Chamber) Appeal Number: IA/01256/2013
THE IMMIGRATION ACTS
Heard at Field House
On 19 August 2013
On 27 August 2013
UPPER TRIBUNAL JUDGE GLEESON
Mr SHAIKH MAJID RASHID
(no anonymity order)
For the Appellant: Mr E Tufan, Senior Home Office Presenting Officer
For the Respondent: Miss L Baines, Counsel, instructed by Jacobs Solicitors
DETERMINATION AND REASONS
1. The Secretary of State appeals with permission against the determination of First-tier Tribunal Judge Miles who on 26 June 2013 allowed the claimant’s appeal against the her decision taken on 24 September 2012 to refuse him further leave to remain under the Tier 1 (Post-Study Work) provisions of paragraph 245Z and Appendix A of the Immigration Rules HC 395 (as amended). For clarity, I refer to the Secretary of State, who is the appellant in this application, as ‘the Secretary of State’ and the appellant below as ‘the claimant’.
2. The Secretary of State refused to award the claimant the points claimed for his qualification, which was not issued by the date of his application in April 2012 and indeed, not until 6 July 2012. The requirement in Appendix A of the Rules as they stood before July 2012 was that the claimant had to have been awarded the eligible qualification “no more than twelve months before the date of your application”. Miss Baines told me that, like many of her clients, the claimant made his application before the qualification was available, because the Tier 1 (Post-Study Work) category was about to be abolished, and was in fact abolished, on 6 April 2012. There is no issue about maintenance or any of the other requirements, but the absence of his qualification left the claimant 15 points short of the points required by paragraph 245Z and Appendix A and was the basis for the refusal of his application.
3. The Secretary of State also made a removal direction under s.47 Immigration, Asylum and Nationality Act 2006. That direction was withdrawn at the hearing, in the light of the Upper Tribunal’s decision in Adamally and Jaferi (section 47 removal decisions: Tribunal Procedures)  UKUT 414 (IAC).
First-tier Tribunal determination
4. The appeal was heard in the First-tier Tribunal on 17 June 2013 and promulgated on 26 June 2013. Following the decision of the Upper Tribunal in Khatel and others (s85A; effect of continuing application) Nepal  UKUT 44 (IAC) and the Secretary of State's evidential flexibility policy, the First-tier Tribunal Judge considered that the effective date of the application could be extended to include the date of the issue of that qualification and allowed the appeal. The First-tier Tribunal determination made no reference to the decision of the Court of Appeal in Secretary of State for the Home Department v Raju and Others  EWCA Civ 754, published on 25 June 2013, which had overturned Patel, and which was published the day before the determination was promulgated.
Permission to appeal
5. The Secretary of State was granted permission to appeal on Raju grounds. She argued that the Tribunal had misdirected itself in its approach to the Tier 1 assessment in the light of the decision in Raju and that had the Immigration Rules been applied as set out in the Court of Appeal’s decision in Raju the appeal would have been dismissed. That being so the First-tier Tribunal’s misdirection was material. Permission to appeal was granted on that basis.
Upper Tribunal hearing
6. For the Secretary of State, Mr Tufan argued that the First-tier Tribunal determination was wrong, following the observations by Lord Justice Moses in Raju, at paragraph :
“24. An application is made when paragraph 34G says it is made. The Secretary of State at the date of her decision assesses the evidence which determines whether the appellant's leave to remain as a Tier 1 (Post-Study Work) Migrant has accumulated 75 points. Whether that evidence was assessed by the Secretary of State or even later by a Tribunal, these applicants could not score 75 points because they had made their applications before they obtained their qualifications. On a true construction of the relevant Rule … they could not score the 15 points they needed. No subsequently obtained evidence could cure that defect. AQ does not assist these respondents.”
7. He submitted that the First-tier Tribunal determination was wrong in law and that I should substitute a decision dismissing the appeal.
8. For the claimant, I received a skeleton argument from Miss Baines, served on the morning of the hearing. I have had regard to its contents and to her oral submissions. The claimant relied upon the decision of the Immigration Appeal Tribunal in Secretary of State for the Home Department v S&K (Croatia) CG  UKIAT 05613*, paragraph , which says, in connection with an asylum claim, that the decision under appeal is to be regarded as being maintained at the date of the hearing. However asylum applications are always assessed at the date of hearing, whereas immigration applications are assessed at the date of application. S&K‘s case does not assist the claimant in these proceedings.
9. Miss Baines argued that following the Court of Appeal decision in 2009 in JH (Zimbabwe) v Secretary of State for the Home Department  EWCA Civ 78, paragraph , it was necessary for the Secretary of State to notify the claimant of her failure to submit required documents under 12(1B) of the 2003 Regulations before treating an application as invalid. The difficulty with that case is that it significantly predates the present version of the Rules and also the version of the Rules considered when this application was made. Furthermore this is not a situation where the claimant failed to supply to the Secretary of State relevant documents which were in existence.
10. Miss Baines asked me to uphold the positive decision made by the First-tier Tribunal and dismiss the Secretary of State’s appeal.
11. This is a case where on the date when the claimant made his application, the documents evidencing a required qualification did not exist and could not have been produced, because he had not yet been awarded that qualification. By the time they did exist and could have been produced, the Tier 1 (Post-study) Migrant category for which he wished to apply was no longer in existence.
12. The primary point therefore is that on the date of his application, 30 March 2012, although he was entitled to 60 of the required 75 points, the claimant lacked the qualification which would have given him the additional 15 points. Following Raju, that is the only relevant date for the purpose of calculating the required 75 points for the category of Tier 1 (Post-Study) Migrant.
13. By the date to which the First-tier Tribunal erroneously extended his application, a date on or after 6 July 2012, or possibly the date of decision, 24 September 2012, although the claimant had the required qualification, the category for which he wished to apply no longer existed. He had not met the points requirement at the date of application and that was an end of the matter.
14. There is therefore a material error in the determination of the First-tier Tribunal Judge which I hereby set aside. I substitute a decision dismissing the appeal.
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law. I set aside the decision.
I re-make the decision in the appeal by dismissing it.
The First-tier Tribunal did not make an order pursuant to Rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. There is nothing in the material before me to suggest that anonymity is required in these proceedings.
Judge of the Upper Tribunal