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YS and SJ ('Degree level' study) Mauritius [2006] UKAIT 00094

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 19 September 2006

Date Determination notified: 08 December 2006

Before

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal

Senior Immigration Judge Grubb

Between

YS	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT
and
SJ	APPELLANT
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Dr Kublah, Counsel instructed by Sasdev & Co

For the Respondent: Mr Tam QC, instructed by Treasury Solicitor

DETERMINATION AND REASONS

The requirement of 'a course of study at degree level or above' in paragraph 60(i)(b) of HC 395 has to be interpreted in accordance with paragraph 6 of the Rules and also sections 214-216 of the Education Reform Act 1988. The condition can be met only if the claimant has been accepted for a course leading to a degree awarded by an institution capable of awarding degrees recognised by the Act. "Dublin Metropolitan University" is not such an institution. The requirements of paragraph 60(i)(b) relate to the award that is to be the outcome of the course: they are not to be confused with those of paragraph 57(i), which relate to the provider of the course itself rather than the award.

The Appellants

The first appellant is a citizen of Mauritius. He arrived in the United Kingdom on 23 January 2005 without entry clearance. He applied, and was granted, six months leave to enter as a visitor. On 23 February he applied for leave to remain as a student at Croydon College of Business Management to pursue a course for a BSc in computing and information systems. At that stage he supplied copies of a certificate of enrolment, a letter of acceptance and a certificate of payment, all dated 18 February 2005, from the College. Later, he supplied a copy of a letter dated 4 October 2005 from "Dublin Metropolitan University" confirming his registration as an external student of that organisation.

His application was refused by the respondent on 29 March 2006, the reasons for the refusal being that the respondent was not satisfied that the first appellant had been accepted for a course of study at degree level or above.

The second appellant arrived in the United Kingdom on 8 October 2004 without entry clearance. She applied for and was granted six months leave to enter as a student. Following an application made within the currency of that leave, she was granted leave to remain in the United Kingdom as a student until 31 December 2005. On that date she applied for further leave to remain as a student at Edgware College, to pursue a course for a BA (Hons) in business administration. In confirming the details of her registration and admission, the College also confirmed that the second appellant's course was to lead to an award by "Dublin Metropolitan University". On 30 March 2006 the respondent refused the second appellant's application, the reason for the refusal being that the respondent was not satisfied that the second appellant had been accepted for a course of study at degree level or above.

In each case the basis for the respondent's reason for the refusal was that paragraph 60(i) of HC 395, as then in force and as it applied to these appellants, required that a person seeking extension of stay as a student had been "accepted for a course of study at degree level or above". "Dublin Metropolitan University" did and does not appear on the lists maintained by the Department for Education and Skills of recognised United Kingdom bodies awarding United Kingdom degrees. Consequently, courses leading to qualifications described as degrees awarded by that body were not, in the respondent's view, courses "at degree level or above".

"Dublin Metropolitan University"

The evidence before us indicates that "Dublin Metropolitan University" is a company registered in the Republic of Ireland with an address in Durmcliffe, Co. Sligo. It has a website, which gives no contact details or address except via email. It is not recognised by the higher education authority in Ireland and appears to possess no property in Ireland used or suitable for use in the provision of educational courses. It has no approval from the Minister for Education and Science enabling it to use the word "university" in its name: the use of that word without approval by a college established after July 1996 (as "Dublin Metropolitan University" appears to have been) is contrary to Irish law. There is some suggestion that this institution conducts some activities in the Republic of Cyprus.

There is nothing before us to suggest that a "degree" awarded by "Dublin Metropolitan University" represents any educational attainment. Nevertheless, a substantial number of students currently in the United Kingdom appear to have registered for such "degrees". Their doing so may possibly be not unconnected with the changes in the Immigration Rules in the period 2004 to 2006, to which we make reference below.

Procedural History

These appeals, together with 37 others, were listed before a panel consisting of a Senior Immigration Judge and an Immigration Judge on 10 May 2006. As the heading of her directions shows, the Senior Immigration Judge appears to have thought that the appeals were to be determined by way of reconsideration: she may have been encouraged in this view by the fact that Mr Bruce Tattersall, Counsel for some of the appellants, applied for a Costs Order. She expressly reserved consideration of that issue until the termination of the appeals. We can deal with it now: as these are not reconsiderations, no question of a Costs Order arises.

At the hearing on 10 May 2006, the 39 cases before the Tribunal were identified as falling into two groups, and the appeals of the present appellants were identified as "lead" cases in each group. The first appellant is an example of those who entered the United Kingdom as visitors and later sought leave to remain as students in order to acquire "degrees" awarded by "Dublin Metropolitan University". The other group is defined in the directions given by the Senior Immigration Judge as "those who enter the UK as students having obtained student visas at an entry clearance post in Mauritius and then sought further leave to enter or remain as students". The second appellant was identified as a member of that group and her appeal was selected to represent them as a "lead" case. The second appellant, however, is not a member of that group as defined. Although her entry to the United Kingdom was with leave as a student, she had no prior entry clearance, as we have indicated in paragraph 3 above. The distinction between the two appellants before us is, therefore, a distinction without a difference.

As we understand the provisions of the relevant Immigration Rules, both as they were in force at the date of the decisions now under appeal and following subsequent amendment, the question of whether a student's proposed course is of "degree level or above" arises only in the case of those non visa-nationals who arrive in the United Kingdom without entry clearance as students. Thus the Secretary of State's reasons for refusal in the present appeals could not apply to a person who fell within the group intended to be represented by the second appellant. On the other hand, we do not see that the Rules make any distinction, amongst those non-visa nationals arriving without student entry clearance, between those who are initially admitted as students and those who are initially admitted for some other purposes. There is, therefore, no operative distinction between the two appellants before us. They are both non visa-nationals who arrived in the United Kingdom without entry clearance as students and subsequently sought a variation of leave in order to allow them to remain as students.

Partly because of the confusion or ambiguity in the identification of aspects of the appeals that were to be resolved by the decisions in "lead" cases, we made an attempt to arrange for all 39 appeals, together with some others raising similar issues to be heard on the same day, 15 August 2006. The previous week, Sasdev and Co contacted the Tribunal and asked for the hearings to be adjourned owing to the sudden illness of their counsel, Mr Bruce Tattersall. The Tribunal replied, asking for evidence. No evidence was forthcoming, but it was asserted that Mr Tattersall was seriously ill and in the circumstances it would not be appropriate for evidence to be sought. No evidence has ever been provided; but in the circumstances, and bearing in mind the assertions being made by the solicitors, the appeals were adjourned. What the Tribunal did not know at that stage was that Sasdev and Co had given no indication to the Treasury Solicitor, who represented the respondent, that they were making the application. Before us Dr Khublah, on instructions from Sasdev and Co said that the solicitors were unaware that the Treasury Solicitor was representing the respondent, that they had advised the Home Office Presenting Officers' Unit of their request for an adjournment and that they had also advised the Treasury Solicitor as soon as they knew that he was the representative. It is, however, apparent from the face of the letter purporting to be to the Treasury Solicitor that it was sent to the wrong fax number, and it appears to us that it was not received by him because he protested about the granting of an adjournment when no notice of the application had been given to him. We are not in a position to say that no notification was sent to the Presenting Officers' Unit but none appears to have been received, and the only evidence that it was sent was a manuscript addition at the bottom of Sasdev and Co's letter to the Tribunal requesting the adjournment. That letter is also headed in the vaguest terms: "Re: Various hearings listed on 15 August 2006 Mauritian appeal hearings", and has the case reference only of one of the cases, not being either of the "lead" cases.

The attempt to deal with all the cases together having been abortive, the "lead" cases were listed again for hearing on 19 September 2006. The Treasury Solicitor and Sasdev and Co were notified of that date by letter from the Deputy President's office: the principal purpose of that letter was an apology to the Treasury Solicitor for acting on the assumption that Sasdev and Co would have complied with Rule 21(1)(a). Formal notices of hearing were also subsequently sent out. In a fax to the Tribunal dated 18 September 2006, Sasdev and Co wrote:

"We write to advise the court that we did not received no formal notice of hearing for the matter listed for tomorrow even though we have side information through the Treasury Solicitors in this matter."

In view of the curious grammar of that sentence it is far from clear whether the solicitors are claiming that neither the letter nor the notice was received. The letter continues as follows:

"However we are ready to proceed and can only but apologise that we have to file the papers upon which we intend to rely in the prescribed hearing for tomorrow. A copy of which is being served to the Treasury Solicitors accordingly. However as far as the legal argument and the skeleton arguments are concerned counsel will endeavour to file it prior to the hearing for tomorrow as he was equally given a short notice based on the circumstances."

The letter goes on to identify documents attached to it.

At the hearing, Dr Khublah applied for an adjournment, on the basis that Mr Tattersall was engaged on another case in Nottingham. Mr Tam QC opposed that application. He set out the history. He pointed out that it was remarkable that Sasdev and Co seemed to have such difficulty in sending or receiving post. He pointed out that amongst the documents attached to the previous day's fax was a letter allegedly sent to the Treasury Solicitor on 22 August 2006. That had also not arrived. He said that there were serious questions about Sasdev and Co's conduct of the litigation.

Further enquiries of those instructing them were made by Dr Khublah and Mr Tam. Dr Khublah reported that Sasdev and Co had instructed him that they had telephoned the Treasury Solicitors on the morning of the hearing to canvas the possibility of an adjournment and had said also that they were not sure whether it was a full hearing or not. He said that he had not been able to prepare for a hearing, because Mr Tattersall had collected all the papers from London at the end of the previous week on the understanding that he would need them for the hearing on 19 September. In reply, Mr Tam reported that there was no record of anyone from Sasdev and Co having telephoned the Treasury Solicitor that morning: there had, however, been a telephone call on the previous day. He remarked that, if Sasdev and Co were not aware of the hearing, it was extremely odd that Mr Tattersall should have taken the papers away at the end of the previous week to prepare for it.

We considered the application. Despite the assertions made at various stages by Sasdev and Co, we are confident that they were aware that the hearing of these appeals was to be on 19 September. They had indicated to the Tribunal that they were ready to proceed. It is for the appellants and their solicitors, not for the Tribunal, to make arrangements to cover the possibility of counsel being unavailable because of being briefed to appear elsewhere. Neither of the appellants was present at the hearing either: it therefore follows that it was not envisaged by Sasdev and Co they would given oral evidence. We had a full skeleton prepared by Mr Tattersall for the previous hearing. It did not appear to us that the interests of justice required an adjournment and we so announced, indicating also that we would keep the matter under review as the case progressed. Dr Khublah then withdrew from representing the appellants, although he remained in court. We may say at this stage that nothing that occurred during the hearing of these appeals caused us to reconsider our decision on the application for an adjournment.

The Issues

Two principal issues are raised by the appellants. They claim, first, that each is entitled to a variation of leave in order to remain as a student studying for a "degree" awarded by "Dublin Metropolitan University"; and they argue further that if they are not entitled under the Immigration Rules, the Secretary of State has conducted himself in such a way that it would now be unfair to refuse them such leave.

The Immigration Rules

The relevant Immigration Rules are in paragraphs 57 and 60 of HC 395. Paragraph 57 contains the Rules relating to applications for entry clearance and leave to enter for studies. Paragraph 60 contains the Rules for student leave granted after entry, and makes reference to paragraph 57. Paragraph 57 was amended with effect from 1 January 2005 in order to incorporate a requirement that studies be at an organisation included on the DfES Register. From that date, and at the date of the appellants' applications and at the date of the decisions against which they appeal, it read as follows:

"57. The requirements to be met by a person seeking leave to enter the United Kingdom as a student are that he:

(i) has been accepted for a course of study which is to be provided by an organisation which is included on the Department for Education and Skills' Register of Education and Training Providers, and is at either;

(a) a publicly funded institution of further or higher education; or

(b) a bona fide private education institution which maintains satisfactory records of enrolment and attendance; or

(c) an independent fee paying school outside the maintained sector; and

(ii) is able and intends to follow either:

(a) a recognised full time degree course at a publicly funded institution of further or higher education; or

(b) a weekday full time course involving attendance at a single institution for a minimum of 15 hours organised daytime study per week of a single subject, or directly related subjects; or

(c) a full time course of study at an independent fee paying school; and

(iii) if under the age of 16 years is enrolled at an independent fee paying school on a full time course of studies which meets the requirements of the Education Act 1944; and

(iv) intends to leave the United Kingdom at the end of his studies; and

(v) does not intend to engage in business or to take employment, except part time or vacation work undertaken with the consent of the Secretary of State for Employment; and

(vi) is able to meet the costs of his course and accommodation and the maintenance of himself and any dependants without taking employment or engaging in business or having recourse to public funds."

Paragraph 60 was amended with effect from 1 October 2004. From that date until 3 April 2006 (a period which includes the present appellants' applications and the decisions against which they appeal) it read as follows:

60. The requirements for an extension of stay as a student are that the applicant:

(i) either

(a) he is {sic] a person specified in Appendix 1 to these Rules and he was last admitted to the United Kingdom in possession of a valid student entry clearance, or valid prospective student entry clearance in accordance with paragraphs 82 to 87 of these Rules; or

(b) he is not a person specified in Appendix 1 to these Rules and he has been accepted for a course of study at degree level or above; or

(c) he is not a person specified in Appendix 1 to these Rules and he was last admitted to the United Kingdom in possession of a valid student entry clearance, or valid prospective student entry clearance in accordance with paragraphs 82 to 87 of these Rules, if he has been accepted for a course of study below degree level; and

(ii) meets the requirements for admission as a student set out in paragraph 57(i)-(vi); and

(iii) had produced satisfactory evidence of regular attendance during any course which he has already begun; or any other course for which he has been enrolled in the past; and

(iv) can produce satisfactory evidence of regular attendance during any course which he has already begun; or any other course for which he has been enrolled in the past; and

(v) can show evidence of satisfactory progress in his course of study including the taking and passing of any relevant examinations; and

(vi) would not, as a result of an extension of stay, spend more than 2 years on short courses below degree level (ie courses of less than 1 years duration, or longer courses broken off before completion); and

(vii) has not come to the end of a period of government or international scholarship agency sponsorship, or has written consent of his official sponsor for a further period of study in the United Kingdom and satisfactory evidence that sufficient sponsorship funding is available."

Also on 1 October 2004 the Rules were amended by the insertion into paragraph 6, which contains other definitions, the following definition:

"'Degree level study' means a course which leads to a recognised United Kingdom degree at bachelor's level or above, or an equivalent qualification at level 6 or above of the revised National Qualifications Framework, or level 9 or above of the Scottish Credit and Qualifications Framework;"

For completeness we should add that paragraph 60(i) was replaced again with effect from 3 April 2006. There are further restrictions on the type of leave which may be extended for studies: in particular, a person who arrived in the United Kingdom without entry clearance and is granted leave to enter as a visitor will not be able to remain for studies if the visitor's leave was granted after 1 July 2006.

The reference in paragraph 60 to appendix 1 to the Rules is a reference to the list of countries whose nationals always require entry clearance, in the form of a visa issued abroad, before they can be granted leave to enter the United Kingdom. Nationals of countries not specified in that appendix are non-visa nationals. They may travel to the United Kingdom and seek entry for some (but not all) purposes on arrival. They will be granted leave to enter if and only if they meet the requirements of the Immigration Rules. Some purposes require entry clearance even for non-visa nationals, and, for all purposes, non-visa nationals are entitled to apply for entry clearance before travelling. That is how paragraph 60 as it was in force at the relevant time comes to distinguish in sub-paragraphs 60(i)(b) and (c) between non-visa nationals who have not, and who have, arrived in the United Kingdom with valid entry clearance as students or prospective students. The present appellants are non-visa nationals who have no entry clearance as students: they can therefore meet the requirements of paragraph 60 only they have been "accepted for a course of study at degree level or above".

In his skeleton argument, Mr Tattersall refers a number of times to the fact that the institutions with which the appellants are registered are institutions on the DfES Register. We accept Mr Tam's submission that the requirement that the institution be on the DfES Register and the requirement that the course be at degree level or above are two separate requirements: indeed the contrary is unarguable. So far as variation of leave is concerned, the requirement that the institution be on the DfES Register is contained in sub-paragraph 60(ii) by its reference to paragraph 57(i). That is a requirement which applies to all those seeking leave under paragraph 60. The requirement that the course be at degree level and above applies only to some of those seeking leave under paragraph 60 and is without doubt an additional requirement. It follows that the nature of the institutions with which the appellants are registered cannot assist them in their claim under the Rules. In particular, we reject Mr Tattersall's submission that the Secretary of State may be acting under a misapprehension and confusing the requirements of s216 of the Education Reform Act 1988 (which relates to institutions recognised as able to award degrees, and to which we shall make further reference below) with the Register of Providers maintained by the DfES. With respect, the confusion is Mr Tattersall's. His statement that the two lists "were not, are not and never were intended to congruent" although perhaps infelicitous is correct. The two lists perform two different functions. The mere fact that an institution is on one list does not mean that it is on the other; but that is no reason to conflate two separate requirements of the Immigration Rules.

Mr Tattersall's submissions contain no reference to the definition of degree level study in paragraph 6 of HC 395, which we fear may have escaped his attention. Its wording and its application to the present appeals are, however, clear. In order to know what is a "recognised United Kingdom degree" we do have to look at ss214 - 216 of the 1988 Act. Section 214(2) defines, for the purposes of that section, a "recognised award" as:

"(a) any award granted or to be granted by a university, college or other body which is authorised by Royal Charter of Act of Parliament to grant degrees;

(b) any award granted or to be granted by anybody for the time being permitted by any body falling with paragraph (a) above to act on its behalf in the granting of degrees; or

(c) such other award as the Secretary of State may by order designate as a recognised award for the purposes of this Section."

Section 214(1) makes it a criminal offence in the course of business to grant or offer to grant a degree "which may reasonably be taken to be an award granted or to be granted by a United Kingdom institution", except a recognised award. Section 215 contains provisions as to enforcement and s216, to which Mr Tattersall makes reference in his skeleton argument, provides in part as follows:

"216

…

(2) The Secretary of State shall compile, maintain and publish by order a list including the name of every body which appears to him to fall for the time being within sub-section (3) below.

(3) A body falls within this sub-section if it is not a recognised body and either –

(a) provides any course which is in preparation for a degree to be granted by a recognised body and is approved by or on behalf of the recognised body; or

(b) is a constituent college, school or hall or other institution of a university which is a recognised body.

(4) In this section 'recognised body' means a body falling within section 214(2)(a) or (b) of this Act."

"Dublin Metropolitan University" is not a body falling with s214(2)(a) or (b) of the Act, and there has been no order designating its awards under s214(2)(c). Its awards are therefore not recognised awards, and their representation in the course of a business as awards of degrees by a United Kingdom institution would constitute the criminal offence defined by s214(1). There can be no conceivable reason for supposing that the phrase "recognised United Kingdom degree" in paragraph 6 of HC 395 carries any meaning other than that given to the phrase "recognised award" in s214. It is absurd to suggest that the Immigration Rules should entitle a person to remain in order to undertake studies for a degree, the offering or granting of which would amount to a criminal offence; and if criminal liability is to be escaped by making it clear that the awarding body is not a "United Kingdom institution", then the degree would not be a United Kingdom degree. If it be said on the appellants' behalf that "recognised United Kingdom degree" bears a wider meaning than that indicated by s214 of the 1988 Act, and includes, for example, other degrees whose validity is recognised in the United Kingdom, then there are two separate answers. The first is that the wording of the Rule simply cannot bear that meaning: in particular, a degree awarded by an institution other than a United Kingdom institution cannot properly be described as a United Kingdom degree. Secondly, it is necessary to remember the context of the Immigration Rules as a whole. The provision in question, paragraph 60(i)(b), relates to a specific class of people. The class consists of those non-visa nationals who did not obtain entry clearance as students, and who now seek to remain in the United Kingdom in order to study for a degree. In that context it is obvious that the degree in question would be one awarded by a United Kingdom institution, and there is no reason to attempt to twist the wording of the Rule in order to give it some other meaning.

The Appellants' Present Position

Under cover of a letter to the Tribunal dated 18 September 2006, the appellants have provided evidence that each of them is enrolled at the London Institution for Further and Higher Education, 19 Elmwood Road, Croydon, for a full-time course leading to an advanced diploma of the Association of Business Executives. The first appellant's diploma is to be in business information systems and his start date is given as 26 June 2006; the second appellant's diploma is to be in business administration and her start date is given as 16 October 2006. As is demonstrated by a letter from IND to the registrar of that institution, an ABE advanced diploma is regarded as a qualification at "degree level" for the purposes of the definition in paragraph 6 of HC 395. That is not because it is itself a degree, but because it is at level 6 or above of the revised National Qualifications Framework. We take it that the letters were intended to demonstrate that, at the date of the hearing, the appellants met the requirements of the Immigration Rules. It is possible that s85(4) of the 2002 Act was to be invoked. The position is, however, as Mr Tam pointed out, that registration for an ABE advanced diploma could not of itself show that the appellants met all the other requirements of paragraph 60. There is no evidence that they do meet the other requirements of paragraph 60, and the matter has never been investigated, because the refusal was solely on the basis of their failure to meet the requirements of paragraph 60(i)(b). There is a further problem. Each of the appellants' enrolment for the diploma is specifically conditional on meeting the "necessary entry requirement to pursue the course". According to the only evidence before us on the matter, which is paragraph 3.7.3.4 of the Respondent's Immigration Directorates' Instructions, in order to qualify for entry onto either of the advanced diplomas, an entrance must have attained an ABE diploma in the relevant discipline, a degree awarded by a recognised United Kingdom or overseas university, or another recognised qualification on an approved overseas institute of higher education. There appears to be no evidence before us that either of the appellants was qualified to embark on a course leading to an ABE advanced diploma. We note also from the IDIs that "the normal duration for the advanced diploma is twelve months". Each of the enrolment letters indicates that the course will take two whole academic years full-time. This suggests to us that the course is in fact intended to embrace the ABE diploma before going on to the advanced diploma. The ABE diploma is itself below degree level, and if that is indeed the structure of the course the appellants will not be able to satisfy paragraph 60(i)(b) at its outset.

For the foregoing reasons we find that the appellants' intention to take a "degree" awarded by "Dublin Metropolitan University" did not enable them to meet the requirements of paragraph 60(i)(b); and that their present circumstances do not demonstrate compliance with the requirements of that provision either. The decisions against which they appeal were therefore in each case decisions which complied and comply with the Immigration Rules.

"Not in accordance with the law"

In addition or alternatively to their claim to be entitled under the Immigration Rules, the appellants claim that the decision to refuse to allow them to remain in the United Kingdom for studies was unlawful in that it discriminates unlawfully between them and others, whom it is said the Secretary of State has treated differently. The arguments are put thus in Mr Tattersall's skeleton:

"4. In these cases, but not in other identical one, all have been refused on the grounds that DMU was not a recognised body for the purposes of the Rules. There is appended (pp.6-7) a list of identical cases which were granted leave to study in UK.

5. The questions raised by the decisions of the SoS in these cases are:-

(i) Was the Secretary of State acting ultra vires in relation to the Immigration Rules in his decision? [This is the question whether the decisions were in accordance with the Immigration Rules, which we have answered.]

(ii) If he was not (which is denied) was he acting in such an inconsistent and discriminatory manner as to create in the appellants a legitimate expectation that they would be treated in the same way as the successful applicants and/or is the SoS estopped from taking such action against the appellants?

(iii) If he was not acting in an inconsistent and discriminatory manner (which is again denied) would it be just and reasonable for him to either to allow all the appellants a reasonable time to switch courses. [sic]

6. Question 5 i

The requirements for an extension of stay as a student are set out in s60 of the Immigration Rules Rule 60 ii requires the applicant to 'meets the requirements for admission as a student set out in paragraph 57' [paragraph 57 is then set out]. In the number of cases students at colleges which fall under 57 i (b) above and are taking courses validated by DMU have been accepted by the SoS (see appellant's bundle paragraph 5). The usual criterion for acceptance of a college is that the institution is accredited by the British Accreditation Council.

Further the case of [another individual] contains and admission by the SoS that such a provider falls within the Rules even if the validating body is not registered … . On this basis we say that the appellants have proved a prima facie case for extension of leave to remain as students under the Immigration Rules.

7. Question 5 ii

There is evidence before the Tribunal of students in identical circumstances being accepted on similar courses validated by DMU from 2004- early 2006. Even if (which is denied) the SOS was in error in admitting these students, he cannot now discriminate against those in the same position. There is also a statement from Reena Goosnanee Potanah demonstrating that there appears to have been an unauthorised change in policy by the SoS.

In these circumstances we assert that these appellants have a legitimate expectation to remain as students. Further or in the alternative the SoS is estopped since he gave an assurance upon which the appellants have relied to their detriment.

8. Question 5 iii

Even if the SoS is acting professionally and legally these appellant should at the very least be granted a stay to allow them to move to suitably recognised courses."

It appears that there are three separate allegations being made. One that is in a particular named appeal there was "and admission by the SoS that such a provider falls within the Rules even if the validating body is not registered" (our emphasis). Secondly it is said that in "identical" cases individuals have been granted leave to remain. Thirdly, it is said that there has been an "unauthorised change in policy" by the Secretary of State. Those considerations are said to lead to a legitimate expectation that the appellants be granted leave to remain either to undertake a course leading to a "degree" awarded by "Dublin Metropolitan University", or that they should have time to remain in the United Kingdom in order to move to another course.

We consider first the argument based on the events during the appeal hearing of a particular named individual. We have read the determination. It is clear that the Immigration Judge dismissed the appeal for want of jurisdiction, and did so correctly. All his analysis of the possible application of the Immigration Rules is therefore, as Mr Tam pointed out, obiter. During the hearing the Immigration Judge, apparently being unaware himself of the contents of the Immigration Rules, required the Presenting Officer to show him any part of the Immigration Rules requiring a degree for the purposes of paragraph 60(i)(b) to be awarded by a recognised body. The Presenting Officer, who had earlier referred in general terms to this requirement, was unable to find it in the time allowed him by the Immigration Judge. He therefore did not pursue that element of the refusal, he acknowledged that the college at which the student was registered was a recognised provider, and he apparently accepted that the decision under the Rules was (albeit unappealable) wrong.

Any concession made by the Presenting Officer was clearly based on his ignorance of the provisions of paragraph 6 of HC 395, including the definition of "degree level study". Even if the Immigration Judge had had jurisdiction to determine whether the individual before him complied with the requirements of the Immigration Rules, his acceptance of a concession of a point of law, made apparently under pressure and demonstrably in ignorance of the legal provisions involved, could not conceivably constitute any precedent; nor could it bind the Secretary of State to act in a similarly hasty and uninformed way in any other case, even in a case where the Immigration Judge did have jurisdiction. For these reasons we consider that there is no merit at all in the appellants' submissions based on the conduct of the respondent in the case we have described.

It is then said that a number of other individuals have been treated more beneficially, even though their circumstances are the same as those of the appellants. We treat that submission with very great reservation. We note that, in Mr Tattersall's skeleton argument, it is made by reference only to the requirements of paragraph 57 and 60(ii). The individuals in question are said to be identical in that they are studying for their "degrees" at the same institution as those attended by other individuals who have had adverse immigration decisions, including the appellants. The submission is made without any reference at all to the additional requirements of paragraph 60(i)(b), which have to be met by those to whom that particular sub-sub-paragraph applies. Mr Tattersall's decision to treat the matter without reference to paragraph 60(i) casts real doubt on whether the cases of the other individuals are properly to be regarded as "identical".

Further, as our discussion of the Immigration Rules themselves shows, the requirements in question were introduced only in October 2004. Some or all of those whose cases are described as "identical" may not have been caught by the change in paragraph 60 which occurred on that date. We do not know.

Thirdly, however, even if it were shown that all the other cases were truly identical, that would not in our view entitle the appellants to claim to be treated in a similar fashion. So far as the appellants are concerned, the position is clear: they are not entitled under the Rules to the leave they seek. The Secretary of State has never made to them any representation that they would be granted leave outside the Rules, nor has he given them any reason to suppose that they would be treated other than in accordance with the Immigration Rules, nor is there any evidence that he has had a policy of departing from the Rules in cases relating to "Dublin Metropolitan University". The evidence provided on the appellants' behalf, whether in the form of the list of other cases of which no detail is given, or in the latest witness statements, is wholly insufficient to show any deliberate, considered or detailed undertaking, to the appellants or others, that their cases would be dealt with other than in accordance with the Immigration Rules.

The truth of the matter is that if it should appear that applications to remain for studies connected with "degrees" from "Dublin Metropolitan University" had been granted other than in accordance with the Immigration Rules, such decisions are likely to have been made either for wholly exceptional reasons or by mistake. If the former, the appellants, whose cases are not shown to be exceptional, evidently have no claim to be treated similarly. If the latter, the position is the same: the Secretary of State is not bound to maintain consistency by repeating errors. If authority for that proposition is needed, it is to be found in a judgment of Moses J, to which Mr Tam referred us: R v Secretary of State for Defence ex parte Wilkins (CO 4676/2000, 19 June 2000) at paragraph 55.

The appellants' evidence and submissions fail to establish either a practice or a promise; they fail to establish their reliance on either; they fail to establish any expectation; as a result they fail to establish why the Immigration Rules should not be applied to them.

The third strand of the appellants' argument on this issue was that the Secretary of State had made what was described as an unauthorised change in his policy. We have to say that we do not entirely understand the force of that submission. Immigration policy is a matter for the Secretary of State: he does not need authorisation from anybody else. That problem apart, it is not easy to see what the "change of policy" is supposed to have been.

On the Secretary of State's behalf, Mr Tam frankly admitted that there had been some confusion in the issue of documentation supporting the changes introduced to paragraph 60 in October 2004 and to paragraph 57 in January 2005. Older versions of the Instructions to decision-makers (the Immigration Directorates' Instructions) were left unrevised, apparently because of difficulty in accurately detailing the effect of the changes. Decision-makers no doubt should have been aware that the old Instructions had been superseded by the new Rules, and that if the old Instructions did not accord with the new Rules, the old Instructions should not be followed. It may well have been that that was not made clear to everybody. When the Instructions were revised to accord with the Rules, however, that was not "an unauthorised change in policy". It was not unauthorised, it was not a change, and it did not relate to a policy. It was not unauthorised, because the changes to the documents in question were made by or on behalf of the Secretary of State, and they were made in order to be in accordance with the Rules authorised by Parliamentary process. There was no change, in the sense that the coming into force of the new Rules had itself rendered obsolete the Instructions for applying the old Rules, and so the subsequent updating of the Instructions made no substantive alteration. No policy is concerned, because these Instructions do not in any relevant manner give any indication that the Rules in force will not be applied, or will be applied with the generosity not implied in the Rules themselves: they merely indicate, with more or less accuracy, what the Rules themselves mean in terms of decisions in individual cases.

We accept that it may well have been the case that, at the time that the decisions in the appellants' cases were made, old Instructions were in circulation alongside the new Rules. But although the new Instructions were not finalised until more recently, the evidence before us establishes that they were circulating in draft form from an early stage.

If the appellants' case had been that there was a relevant part of the Instructions which expressly indicated that, in cases such as theirs, leave should be granted although the Rules appeared not to allow it, they might possibly have had the beginnings of an argument. But that, as we have said, was not the position here. Anyone comparing the new Rules with the old Instructions would readily have realised that the old Instructions, expounding as they did the Rules before amendment, did not reflect the current position. At that point such a person would have been bound to attribute greater authority to the new Rules than to the old Instructions. Given that there were draft new Instructions available as well, the position is even stronger. No valid argument can be mounted for a right to require a decision-maker to act on out-of-date Instructions relating to Rules no longer in force, in preference to simply applying the current Rules themselves.

There is one other matter to which we perhaps ought to refer, although it was not raised directly before us. If Immigration Rules are changed after an individual arrives in the United Kingdom, or even after he has made his application, he has, in the absence of transitional provisions in the amendment, no right to have an application decided under the old Rules rather than the new: R v IAT ex parte Nathwani [1979-80] Imm AR 9. The continuing existence of explanatory Instructions relating to the old Rules cannot affect that position, even if some caseworkers mistakenly relied on those old Instructions.

Conclusion

The appellants do not meet the requirements of the Immigration Rules and entirely fail to show that they should be treated other than in accordance with those Rules. Their appeals are dismissed.

C M G OCKELTON

DEPUTY PRESIDENT

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