Upper Tribunal Appeal Number:
Immigration and Asylum Chamber IA/01640/2013
THE IMMIGRATION ACTS
Heard at Field House
On 11 October 2013
On 14 October 2013
Mr Abdul Wadood
Secretary of State for the Home Department
Determination and Reasons
For the Appellant: Mr S Khan, Legal Representative
For the Respondent: Mr A Avery, Senior Home Office Presenting Officer
Details of appellant and basis of claim
1. This is a challenge by the Secretary of State to the determination of First-tier Tribunal Judge Traynor who allowed the appeal of the appellant by way of a determination promulgated on 31 May 2013. for the sake of convenience, I continue, however, to refer to the Secretary of State as the respondent and to Mr Wadood as the appellant. There has been no anonymity order in this case and none was requested of the Upper Tribunal.
2. The appellant is a Pakistani national born on 30 April 1978. He was granted leave to enter the UK as a Tier 4 student on 2 April 2011; that leave expired on 26 July 2012. On 4 April 2012 he applied for leave to remain as a Tier 1 (Post study Work) Migrant however at that time he had not been awarded his degree and his application was refused on 3 January 2013 under paragraph 245FD. In the meantime, however, he received his degree on 30 May and forwarded evidence of same to the Secretary of State on 30 July 2012. It is his case that on 9 May 2012 he had received confirmation that he had been successful in his degree studies and that evidence was submitted when he lodged his appeal.
3. Although an oral hearing had been requested and one was in fact listed, the appellant subsequently asked, though his representatives, for it to be vacated and for the appeal to be determined on the papers. A skeleton argument from the appellant was submitted and reliance was placed on Khatel (s.85A; effect of continuing application) Nepal  UKUT 44 (IAC) and Ali (s.120 - PBS)  UKUT 368 (IAC). It was argued that the application should be seen as continuing until the date of the decision and that therefore the relevant date of assessment of the application was the date of the decision. The judge accepted that position and allowed the appeal under the Immigration Rules. He also found that the decision under section 47 was not in accordance with the law as the decision maker had not had power to make that decision. The appeal was also allowed in that respect.
4. No challenge is made to the decision as far as section 47 is concerned. What is challenged is the decision under the rules given the changed position of the law following the judgment of the Court of Appeal in Raju and Others v Secretary of State for the Home Department  EWCA Civ 754. Permission to appeal was initially refused by the First-tier Tribunal but granted by Upper Tribunal Judge McKee on renewal.
Proceedings before the Upper Tribunal.
5. The matter thus came before me on 11 October 2013. I heard opening submissions from Mr Avery who relied upon Raju. He submitted that this was a straightforward case; the appellant did not have his degree when he made his application and so could not qualify under the rules. The judge had erred in law.
6. In response, Mr Khan submitted a skeleton argument and made two points. The first was that the respondent’s application had been made out of time and that the Tribunal had no jurisdiction to hear the appeal. The second was that the appeal should be adjourned or the determination stayed until a panel of the Tribunal which had recently heard several linked appeals on Khatel/Raju issues had promulgated its determination. When asked for his submissions on why the appellant maintained there was no error in law, assuming I were to go ahead and determine the appeal, he acknowledged he would be in difficulty given the Raju decision. He did then strive to make submissions based on paragraph 62 of the last Tier 1 guidelines but was unable to provide a copy of these.
7. In reply Mr Avery submitted that there had been a technical error with the transmission of the application for permission to appeal and that once alerted to that, the missing part of the application was submitted forthwith. This matter had been dealt with by Judge McKee.
8. At the conclusion of the hearing I reserved my decision which I now give.
Findings and Conclusions
9. I have considered all the evidence and submissions carefully. I deal first with the issue of jurisdiction. It is Mr Khan’s submission that the Secretary of State’s application was made out of time, that no request for an extension was made and that as such the Tribunal has no jurisdiction to hear the appeal.
10. I have considered the submissions made both orally and in the skeleton argument but with respect to Mr Khan do not agree with them. The initial application to the Upper Tribunal was made in time having been received by the Tribunal on 27 June 2013. It was not until 8 July, however, that the Tribunal noticed that the application was incomplete in that the grounds were missing. In accordance with longstanding Field House administrative practices, the respondent was notified of this omission and given until close of business on the day following the deemed date of the letter of notification to supply the missing section. The respondent complied with this direction and indeed re-served the grounds and the rest of the application the next morning.
11. On 8 August 2013 Judge McKee considered and refused the application for permission to appeal finding that the application had been received late, on 9 July, with no request to extend time. The decision was served on 12 August.
12. On 27 August the respondent pointed out to the Tribunal that Upper Tribunal Judge McKee appeared to have been ignorant of the fact that the Tribunal had invited the respondent to submit the missing parts of the application and that those had been adduced within the deadline given. This letter was brought to Judge McKee’s attention and, as a result, he set aside his decision under Rules 43(1) and (2)(d) of the Upper Tribunal Procedure Rules and re-made it. Permission to appeal was granted.
13. I can find nothing untoward in these actions. The same practice for supplying missing forms or parts of applications applies to all appellants and indeed is used far more widely for the applications of appellants than those made by the respondent. There is nothing in the documents on the Tribunal’s file to suggest that this was a ‘holding application’ with the grounds deliberately held back, as Mr Khan suggested. What is apparent is that the application form was faxed but the part of it on which the grounds were recorded was not successfully transmitted via fax. Once the Secretary of State was made aware of this, she took immediate steps to rectify the problem and Judge McKee properly dealt with the matter in his decision granting permission. I also note that along with the resubmitted application on 9 July was evidence of the original faxed transmission of 27 June. For all these reasons I do not accept the submission that the application was out of time and that the Tribunal has no jurisdiction to hear the appeal.
14. I now proceed to the Secretary of State’s challenge. Under the law as it now stands, as per Raju, it is plain that the appeal of the appellant cannot succeed and that the judge erred in finding that the late submission of the award certificate should have been taken account of by the respondent when the decision was made. Mr Khan sensibly acknowledged that the only chance of success his client would have would be if the determination was stayed until the decision of the Upper Tribunal in the other cases recently heard on Raju and Khatel arguments was promulgated and even then only if that decision was in the appellants’ favour. Although Mr Khan submitted that all such pending cases were being adjourned and stacked up to await the outcome of those appeals, that is not the information I have obtained.
15. I note that no application for an adjournment was made in respect of his appeal prior to Mr Khan’s submissions. I am not persuaded that the appeal cannot be justly disposed of without an adjournment. There will always be issues and legal arguments pending in the system. That is the very nature of the legal system. It does not follow that each time a principle is challenged all similar cases must be stayed to await the resolution of that principle. I am required to consider the law as it currently stands. That means I must apply the principles and conclusions set out by the Court of Appeal in Raju. I can see no reason why I must await a decision in another appeal heard by the Upper Tribunal. If, when that decision is promulgated, it goes against what I now decide, it will be open to the appellant to challenge my decision. In any event, I bear in mind that the judgment in Raju was delivered by the Court of Appeal and not by another Upper Tribunal Judge.
16. It is plain from Raju that the appellant cannot succeed. His application was made well before the award of his degree. As he did not have confirmation of his award when he made his application, he cannot bring himself to qualify under the Immigration Rules. Mr Khan made submissions with respect to Home Office polices and guidance but did not have copies of any of these to hand. Those submissions have not therefore been of any assistance.
17. The First-tier Tribunal erred in law. Its decision to allow the appeal is set aside and re-made.
18. The appeal of the appellant to remain as a Tier 1 Migrant is dismissed.
Dr R Kekić
Judge of the Upper Tribunal
11 October 2013