(Immigration and Asylum Chamber) Appeal Number: IA/21823/2012
THE IMMIGRATION ACTS
Heard at Field House
On 4th July 2013
On 12th July 2013
UPPER TRIBUNAL JUDGE REEDS
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr E. Tufan, Home Office Presenting Officer
For the Respondent: Mr Syed-Ali, Counsel on behalf of S. Z Solicitors
DETERMINATION AND REASONS
1. The Secretary of State appeals with permission against the decision of the First-tier Tribunal (Judge M. A Khan ) who allowed the Respondent’s appeal against refusal to vary leave to remain as a Tier 1 (Post Study Work) Migrant in a determination promulgated on 15th March 2013.
2. I shall set out the history of this appeal. The Respondent, Mr Muhammed Noor, is a citizen of Pakistan born on 3rd March 1982. He originally landed in the United Kingdom on 27th March 2009 in possession of entry clearance, which, conferred leave to enter as a student, subject to a condition restricting employment and recourse to public funds prohibited, until 31st March 2010.
3. On 4th June 2010 the Appellant was granted leave to remain in the United Kingdom as a Tier 4 (General) Student, subject to a condition restricting employment and studies and recourse to public funds prohibited, until 30th May 2013. On the 26th January 2012 his application for leave to remain as a Tier 4 migrant was refused and on that date his leave to remain was curtailed so as to expire on the 27th February 2012. On the 31st May it was decided that the Secretary of State would reconsider the application refused on the 26th January 2012, and the application was varied to a Tier 1 (Post-Study Work) application on the 4th April 2012 under paragraph 245FD of the Immigration Rules (as amended).
4. In order to qualify under that particular Rule, Mr Noor was required to show that he would be entitled to be awarded 75 points or more under paragraphs 66 to 72 of Appendix A. That Appendix sets out the attributes required to qualify under the points-based system. The attributes attract different points. Available points are shown in Table 10 (see paragraph 67). Mr Noor was required to demonstrate that the qualification was obtained within the period of 12 months prior to the making of the application.
5. On 25th September 2012 the Appellant refused the application. In a notice of immigration decision dated 26th September 2012, it was not accepted that the Appellant was able to claim 15 points under the date of award section of his Tier 1 (post-study work) application on the basis that the Anglia Ruskin University had confirmed the date of award of the eligible qualification as the 6th July 2012 and this did not satisfy the Rule as the applicant must have been awarded the qualification at the date of the application. Thus Mr Noor was not awarded any points under Appendix A. As a consequence of being awarded nil points under Appendix A, he was not entitled to be awarded the requisite 10 points under Appendix B either.
6. The Respondent appealed that decision and Grounds of Appeal were submitted on 9th October 2012.
7. The decision came before the First-tier Tribunal (Judge Khan), sitting at Hatton Cross on 22nd November 2012. At that hearing Mr Noor was represented by Mr Ahmed, and the Secretary of State was represented by Ms Chhopra, Home Office Presenting Officer. In a determination promulgated on the 7th December 2013, Judge Khan allowed the appeal. The basis for that decision is set out at paragraphs 22 to 25 of the determination:-
“23. It is clear from the evidence that the Appellant did inform the Respondent of the date of the award of his degree and that the Respondent also made enquiries from Anglia Ruskin University to when the master degree certificate would be awarded. I find that the Appellant is not at fault if the certificate is awarded to him July 2012. It is clear that he has successfully completed the course, passed his examinations and is merely waiting for the day when his qualification certificate is awarded to him. If he waits for the award then he is out of time with his previous leave to remain.
24. In the application form at G5, there are two boxes, which ask to show that the Appellant has sent his/her original certificate of award to prove his/her qualifications. If the Appellant has not sent his/her certificate then to provide evidence from the educational institution as to the completion of the course. Under the UKBA guidelines, which are still on their website, under the heading ‘Extra information’ it states;
‘If you are unable to provide a certificate of award (for example, when the application is made before your graduation), this letter (from the educational institution) must also be included. Details of the body awarding the qualification; and confirmation that the certificate of award will be issued.’
25. It is totally unfair to the Appellant in this case, having provided all the evidence necessary at the time of the application, to have been refused. The question of common law fairness was the subject matter of the Upper Tribunal in Patel (revocation of sponsor licence - fairness) India  UKUT 21 (IAC) where Mr Justice Blake, the president states that ‘Immigration Judges have jurisdiction to determine whether decisions on variation of leave applications are in accordance with the law, where issues of fairness arise.’”
8. Thus he allowed the appeal.
9. The Secretary of State sought permission to appeal that decision on the basis that the First-tier Tribunal (Judge Khan) materially erred in law. The Secretary of State submitted that the First-tier Tribunal had misunderstood paragraph 245FD, and that it required a fixed historic timeline. Applications under a Rule with an historic timeline must meet the requirements of the Rules at the relevant cut-off point, usually the date of the application. In respect of paragraph 245FD and Appendix A Table 10 paragraphs 66 to 72, there is a fixed historic timeline. For the 15 points required Appendix A Table 10 does employ a fixed timeline for the application to be made within twelve months of obtaining the qualification. This limits the consideration to degrees obtained before the application was made. Thus Appendix A Table 10 expressly or implicitly requires a degree to have been awarded by the date of the application. Alternatively, the wording “has been awarded” should be interpreted as a reference to “by the date of the application.” The second ground of appeal was that the First-tier Tribunal had erred in law by taking into account evidence which was not submitted in support of or at the time of the making of the PBS application and that the judge should have applied Section 85A of the Nationality, Asylum and Immigration Act 2002.
10. On 20th December 2012, Designated First-tier Tribunal Judge Macdonald gave permission to appeal. The reasons given were as follows:-
“What the judge did find was that it was totally unfair to the Appellant, having provided all the evidence at the time of the application, to have had the application refused. It is an arguable error of law, as set out in the grounds, that the judge failed to give adequate reasons for his decision. It is an arguable error of law that if the judge was going to find in favour of the Appellant on the basis of fairness that fuller reasoning was required. Permission is granted for the reasons set out in the grounds.”
11. Thus the appeal came before the Upper Tribunal. According to the court file, the appeal had been before the Tribunal last on 3rd June 2013 to await the imminent decision from the Court of Appeal in the case of The Secretary of State for the Home Department and Raju, Khatel, Adhikari and Islam. At the hearing the Secretary of State was represented by Mr Tufan and the Respondent by Mr Syed-Ali, Counsel instructed on behalf of S. Z Solicitors. Mr Tufan on behalf of the Secretary of State submitted that he relied upon the grounds for permission and that the Court of Appeal decision of The SSHD v Raju & Others  EWCA Civ 754 supported the content of the grounds as submitted namely that the judge erred in law in this appeal by allowing it under the Immigration Rules. As the Court of Appeal had stated, that the wording of the paragraph was plain that the Respondent required a score of 75 points to be granted leave to remain and that viewed as a whole, qualification under Table 10 required strict compliance with the requirement to make the application within the period of twelve months from the time when the qualification was obtained. In this case the qualification was not obtained until July 2012 which was substantially after the application was made. In those circumstances the decision of the First-tier Tribunal was an error of law and should be set aside. On the facts as they stand, the only outcome for the appeal in respect of the variation of leave to remain was that it should be dismissed.
12. Mr Syed-Ali, on behalf of the Appellant conceded that he was, in his own words “defending a precarious position” in the light of the Court of Appeal decision. He conceded that the Court of Appeal had now ruled upon that issue and that the Tribunal was duty bound to follow the Court of Appeal’s decision. However he stated that there were two matters which had not been raised before the Court of Appeal which demonstrated that Mr Noor should succeed in his application. The first point was that “like cases should be treated as like” on the basis that there were a number of similar appeals to that of this Appellant which were allowed by the Secretary of State. He submitted that once the leave had been granted to those Appellants, the leave could not be withdrawn and thus they were able to succeed in their appeals whereas this Appellant could not. To support this submission he made reference to a decision of the Privy Council in Matadeen v Pointuu  1 SC 98. He did not have a copy of that authority nor had he read the authority but had an article in which that decision of the Privy Council had been referred to. He could not state how that authority, which had not been produced before the court, could support such a submission. Furthermore, he was not able to provide any information concerning the similar appeals that he stated had been allowed. He stated that there had been no freedom of information request made as to the numbers and therefore he could not give any further account of those matters.
13. The second matter that he raised was that there had been a number of Judges of the Upper Tribunal hearing cases on the same facts as this Appellant and had allowed their appeals. He said the points-based system Rules had created a confusion and the confusion had led to Upper Tribunal Judges allowing similar cases. The confusion surrounding the law was contributed to by the way the Secretary of State had operated their own policy and thus it raised a legitimate expectation for this Appellant to have his case decided positively. He made no further submissions concerning this particular Appellant and any legitimate expectation that he had but made the submission in general terms as stated above.
14. Mr Tufan on behalf of the Secretary of State by way of reply, indicated that these two issues had not been raised before the First-tier Tribunal nor had they been raised before the Upper Tribunal in any way before this hearing. As to the argument of legitimate expectation, it did not apply in this case. Furthermore whilst some claimants may have had their appeals allowed that in itself would not give rise to a legitimate expectation for this Appellant who cannot meet the Rules. Thus he submitted the only outcome for this appeal is that it should be dismissed.
15. I reserved my decision.
16. The facts of the appeal are set out earlier in this determination. On 26th January 2012 the Appellant’s application for leave to remain in the United Kingdom as a Tier 4 (General) Student was refused. On that date his leave to remain in the United Kingdom as a Tier 4 (General) Student was curtailed so as to expire on 27th February 2012. The application that was refused on 26th January, was reconsidered by UKBA reinstating his leave through Section 3C, this application was varied to a Tier 1 (Post-Study Work) application on 4th April 2012 under paragraph 245FD of the Immigration Rules (as amended).
17. In order to qualify under that particular Rule, Mr Noor was required to show that he would be entitled to be awarded 75 points or more under paragraphs 66 to 72 of Appendix A. That Appendix sets out the attributes required to qualify under the points-based system. The attributes attract different points. The available points are shown in Table 10 (see paragraph 67). To obtain 15 points for the date of award under Appendix A, Table 10, he would have to demonstrate that the qualification was obtained within the period of twelve months prior to the making of the application.
18. In this appeal, it is common ground, that Anglia Ruskin University had confirmed that the date of award of his eligible qualification was 6th July 2012. Mr Syed-Ali concedes that the decision of the Court of Appeal in SSHD v Raju & Others has stated that the paragraph when viewed as a whole, and the qualification at Table 10 requires strict compliance with the requirement to make the application within the period of twelve months from the time when the qualification was obtained. Thus Mr Syed-Ali concedes that the Upper Tribunal is bound by the decision of the Court of Appeal in The SSHD v Raju (as cited). In those circumstances, on the facts of this case which are not in dispute, the Appellant cannot meet the requirements of paragraph 245FD. However he has raised two points as set out in the submissions that I have recorded earlier. It is right to observe that those two new points were raised for the first time at this hearing before the Upper Tribunal. Despite directions that were sent from the Upper Tribunal which directed those representing the Respondent to file and serve upon the Secretary of State any response under Rule 24 to the notice of appeal and also any submissions made and importantly, where the Respondent wished the Upper Tribunal to consider evidence that was not before the First-tier Tribunal, that evidence (including any witness statement) must be filed with the Upper Tribunal and served upon the Secretary of State, together with the notice required by Rule 15(2A), indicating the nature of that evidence and why it was not submitted to the First-tier Tribunal. The directions also state at paragraph 4 that the parties are on notice that:
(b) A failure by a party to comply with any of these directions may lead the Upper Tribunal to proceed on the basis that nothing (or nothing further) is to be said or advanced in support of that party’s case before the Upper Tribunal.
19. Despite there having been a previous hearing, there has never been any documentation either under Rule 24 or under Rule 15(2A) of the Procedure Rules setting out any reply made on behalf of Mr Noor. The decision of the Court of Appeal in The SSHD v Raju & Others was made available from 25th June 2013, some three weeks after the parties had appeared before the Upper Tribunal thus they were on notice of this case being heard. Despite the decision being made available since that date and before the hearing of this appeal before the Upper Tribunal, there still has been no compliance with any of those directions that have been made. Similarly there has been no Rule 15 notice or any Rule 24 response concerning any further argument or submissions made on behalf of the Respondent. In those circumstances, having considered the procedural history, and the failure to follow directions of the Upper Tribunal even to the extent of not producing evidence before this Tribunal at the hearing, I do not admit those grounds.
20. Even if I did consider them, I do not find that they are made out on the evidence that has been presented to the Tribunal. As stated earlier, in respect of the submission made that “like cases should be treated as like”, there is no information put before this Tribunal on behalf of the Respondent to demonstrate the number of appeals that it is claimed were allowed or the facts of those appeals. The fact that the Secretary of State has granted leave to a group of applicants by mistake, which is in effect what Mr Syed-Ali was stating, does not mean that this Appellant, who cannot satisfy the appropriate Rule should therefore succeed.
21. Even at this hearing, Mr Syed-Ali did not have a copy of the authority that he relied upon nor could he provide any further details in respect of his primary submission on the basis that “like cases should be treated as like” namely that a number of similar appeals had been allowed on the same facts as of this Appellant and therefore it would be wrong to treat this Appellant any differently. He has not produced any evidence relating to those similar appeals that he states have been allowed or the circumstances of those appeals. He has produced no evidence concerning his assertion that the Secretary of State has granted a group of applicants on the same facts as this Appellant either. Thus he has provided no evidence before this Tribunal to support the submission he has made and thus has not demonstrated that there was any unfairness applied to the circumstances of this particular Appellant.
22. Whilst he submits that the points-based system Rules have created some confusion and that Upper Tribunal Judges have allowed similar cases and that the confusion has been contributed to by the Secretary of State and thus this raises a legitimate expectation on behalf of the Appellant, he has not provided any evidence to show how such a legitimate expectation applies to this particular Appellant. should be treated as like”, there is no information put before this Tribunal on behalf of the Respondent to demonstrate the number of appeals that it is claimed were allowed or the facts of those appeals. The fact that the Secretary of State has granted leave to a group of applicants by mistake, which is in effect what Mr Syed-Ali was stating, does not mean that this Appellant, who cannot satisfy the appropriate Rule should therefore succeed.
23. In respect of the submission made that relates to the legitimate expectation for this Appellant, I have considered that submission. The Tribunal has jurisdiction to consider a challenge to an immigration decision on the basis of the public law concept of legitimate expectation which falls within the grounds “otherwise not in accordance with the law” (see s.84(1)(e) of the 2002 Act). However in order to establish a legitimate expectation, the Appellant would have to establish that there was a clear and unambiguous representation of a particular benefit being granted, detrimental reliance on that claim or representation and that there was no overriding public interest which could defeat that expectation.
24. In this case it has not been established that there was any such clear and unambiguous representation made and Mr Syed-Ali does not identify through any documentation or otherwise as to what has given rise to the legitimate expectation. Consequently I do not find that it has been demonstrated that there was any legitimate expectation on the part of the Appellant that he would be entitled to be granted leave to remain based on his past history and based on the fact that there had been any “ confusion” in the law. The only legitimate expectation is for his application to be decided in accordance with the Rules at the time the decision is made. The fact remains that he is not able to qualify under the Immigration Rules for the reasons given.
25. I am satisfied that this was a case where the judge allowed the appeal on the basis that he thought the decision to be an unfair one. As noted in the case of Fiaz (cancellation of leave to remain and fairness)  UKUT 57, the Tribunal noted that the jurisdiction of the Tribunal to determine that a decision was not in accordance with the law because of a lack of fairness was not to be downgraded to a general judicial power to depart from the Rule where the judge thinks such a case appropriate or to turn a mandatory factor into a discretionary one. That was an error of law in the light of the reasons I have set out; the Appellant could not meet the Rules. There is no unfairness in that.
26. Thus I have reached the decision that to refuse leave to remain was a lawful one as the Appellant cannot demonstrate that he meets the Immigration Rules. It has not been demonstrated before this Tribunal that that there has been any unfairness in the decision making process when considering the circumstances of this particular Appellant for the reasons set out earlier in this determination as there has been no evidence to support the submissions made by Mr Syed-Ali. I refer to the determination of the Upper Tribunal in Thakur (PBS decision - common law fairness) Bangladesh  UKUT 151 (IAC) which while not on all fours with the facts before me does contain the following remarks:
‘We emphasise the guidance given by Lord Mustill that the principles of fairness are not to be applied by rote identically in every situation and that what fairness demands is dependent on the context of the decision and the Appellant’s particular circumstances’.
27. Judge Khan dealt with the fact that the removal decision under Section 47 of the Immigration, Asylum and Nationality Act 2006 is unlawful, having been made at the same time as the decision to refuse to vary leave to remain. A lawful decision will have to be made if the Secretary of state wishes to remove the Respondent. Thus that decision I find is not in accordance with the law
The First-tier Tribunal made an error of law and the decision is set aside. The decision is re-made as follows. The appeal against the refusal to vary leave under the Immigration Rules is dismissed. The decision made to remove is not in accordance with the law and the appeal is allowed in that respect only.
Signed Date: 9th July 2013
Upper Tribunal Judge Reeds