United Kingdom Asylum and Immigration Tribunal

CT & Others (Highly skilled migrant – student switching) No Country [2006] UKAIT 00095

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 22 August 2006

Date Determination notified: 06 December 2006

Before

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

Senior Immigration Judge Gill

Between

CT & Others	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellants: Mrs J Rothwell, instructed by Scudamores Solicitors For the Respondent: Mr J Gulvin, Home Office Presenting Officer

DETERMINATION AND REASONS

The purpose of the Highly Skilled Migrants Programme is to enable migration, and it is not contrary to the purpose of the relevant Rules to interpret the switching rules (paragraphs 135DA-135DG) restrictively. A person cannot meet the requirements of paragraph 135DB unless his current leave was granted in accordance with the requirements of paragraphs 57-62: it is not sufficient to have merely leave "as a student". In that context, it is clear that the reference to a degree in paragraph 135DB(ii) is reference to a degree obtained during the current period of leave in the United Kingdom, thus excluding those who have leave under paragraphs 57-62 for courses below degree level.

1. This is the reconsideration of the appellants' appeals against decisions of the respondent on 9 February 2006 refusing to vary their leave to remain. The first appellant was admitted to the United Kingdom as a student and sought to remain as a highly skilled migrant; the other appellants were admitted to the United Kingdom as the dependents of a student and sought to remain as the dependents of a highly skilled migrant. We do not need to deal separately with their appeals, which stand or fall with that of the first appellant, whom we shall call "the appellant".
2. There is no dispute as to the facts, or as to the motives of the appellant. He is a distinguished academic. He obtained a postgraduate degree from the University of Sussex in the late 1980s, following which he returned to his own country and his own employment in a well known university. He became dean of his faculty and acting vice chancellor. He was deputy co-ordinator of a government project promoting undergraduate education, funded by an international organisation of the highest repute. He became, therefore, a person of whom the public had some knowledge. He is well known in his country as a social scientist and political analyst.
3. No doubt it was for that reason that his opinion was sought on certain political matters, in an interview that was subsequently broadcast by the BBC. Apparently as a result of what he said, he has been twice abducted and detained; and his brother-in-law, who works in the broadcasting media, has been killed. A politician who secured his release from detention advised him to stay away from his local area. He took the opportunity to return to the United Kingdom for further studies. There is no suggestion that he intended to use his entry to the United Kingdom as a device in order later to claim asylum: on the contrary he has steadfastly refused to make such a claim, believing that his proper role is doing his own work in his own country, as soon as it is safe for him to be there.
4. The appellant was granted entry clearance and leave to enter the United Kingdom in order to undertake postgraduate research at the University of Sussex. We have not seen any papers relating to that entry, but entry clearance is said to have been granted under paragraph 58 of HC 395 with reference to paragraph 57, which is the principal rule relating to entry as a student. At Sussex he had a position equivalent to an unofficial fellow: he has been undertaking research and doing some part-time teaching. Towards the conclusion of his research he took the view that it was not yet safe for him to return to his country. He considered that he ought to eligible to take part in the government's programme for highly skilled migrants, and accordingly took steps to attempt to obtain an extension of his leave in that category.
5. The Immigration Rules relating to highly skilled migrants are contained between paragraphs 135 and 135I of HC 395. We put it in that way because their denomination is by no means obvious. The primary requirements for those seeking entry clearance as highly skilled migrants are in paragraph 135A, which is followed by paragraphs 135B and 135C dealing with the grant or refusal of entry clearance in such cases. Paragraph 135D contains the requirements for the extension of leave as a highly skilled migrant in the case of a person who was admitted as such. That is followed by paragraphs numbered 135DA, 135DB, 136DC, 135DD, 135DE, 135DF and 135DG, each of which deals with the particular circumstances in which a person who has been admitted other than as a highly skilled migrant may have an extension of leave as a highly skilled migrant. Paragraphs 135E and 135F deal with the grant and refusal of variation of leave as a highly skilled migrant, and paragraphs 135G and 135H deal with indefinite leave to remain as a highly skilled migrant.
6. Paragraph 135A is as follows:

"Requirements for leave to enter the United Kingdom as a highly skilled migrant

135A. The requirements to be met by a person seeking leave to enter as a highly skilled migrant are that the applicant:

(i) must produce a valid document issued by the Home Office confirmed that he meets, at the time of the issue of that document, the criteria specified by the Secretary of State for entry to the United Kingdom under the Highly Skilled Migrant Programme; and

(ii) intends to make the United Kingdom his main home; and

(iii) is able to maintain and accommodate himself and any dependants adequately without recourse to public funds; and

(iv) holds a valid United Kingdom entry clearance for entry in this capacity."

7. The requirements of sub-paragraphs (i) to (iii) are the subject of reference in all the other substantive paragraphs (with the exception of paragraph 135DG, which has its own specific requirements, and is of no relevance in this appeal). In order to qualify for leave as a highly skilled migrant at all, an individual needs to obtain specific approval from the Home Office, which allocates points on the basis of an applicant's background, skills, educational qualifications and employment prospects. In order to qualify, an applicant must obtain 65 points. If he does so, he is sent a letter so informing him. This is the "valid document issued by the Home Office" to which reference is made in paragraph 135A(i). Once obtained, the letter is valid for an application made within the next six months. There is no doubt that the appellant is, and was at the relevant time, entitled to at least 65 points; and he was duly issued with an approval letter. There is also no doubt that he met and meets the requirements of sub-paragraphs (ii) and (iii). It might be thought that in his case there would be some doubt about sub-paragraph (ii), but no question has been raised on it, and we think rightly: bearing in mind that entry clearance as a highly skilled migrant is normally granted under paragraph 135B for a period not exceeding twelve months, and that an extension in the first instance under paragraph 135E will be for a period not exceeding three years, it seems unlikely that any permanent intention is required by paragraph 135A(ii).
8. The appellant had, at the time of his application, leave to remain as a student. The relevant paragraph of the Immigration Rules relating to his application was therefore paragraph 135DB, which is as follows:

"135DB. The requirements for an extension of stay as a highly skilled migrant in the case of a person who has leave to remain as a student are that the applicant:

(i) entered the United Kingdom or was given leave to remain as a student in accordance with paragraphs 57 to 62 of these Rules; and

(ii) has obtained a degree qualification on a recognised degree course at either a United Kingdom publicly funded further or higher education institution or a bona fide United Kingdom private education institution which maintains satisfactory records of enrolment and attendance; and

(iii) has the written consent of his official sponsor to remain as a highly skilled migrant if he is a member of a government or international scholarship agency sponsorship and that sponsorship is either ongoing or has recently come to an end at the time of the requested extension; and

(iv) meets the requirements of paragraph 135A(i)-(iii)."

It is at this point that the appellant and the respondent disagree. The disagreement relates to the precise meaning of sub-paragraph 135DB(ii). The appellant says that he meets the requirements of that paragraph, because of his postgraduate degree from Sussex, obtained many years ago. The respondent argues that that sub-paragraph requires the degree in question to have been obtained during the very student leave which is now to be varied. The appellant responds that that interpretation is demanded neither by the wording of the Rules nor by common sense, because it excludes from consideration a person such as himself who is more highly skilled than a new graduate would be.

9. The respondent made his position clear to the appellant before and in the course of refusing his application. The appellant's argument was put to the Immigration Judge, who rejected it, and it was put again to us.
10. The Immigration Judge's determination of this issue is as follows:

"16. I can see no logical basis for the stipulating in paragraph 135DB that switching in the case of students is only open to those who have a British degree, irrespective of when it was obtained. To permit switching in the case of a student who has acquired a British degree at some point in the past, but to deny that possibility to a student whose degree had been obtained abroad would make no sense. To distinguish between students on that basis would be irrational. It is all the more irrational given that eligibility for the Highly Skilled Migrant Programme does not depend on the applicant having a British degree, or indeed any degree at all.

17. To allow students who have obtained a degree during the period of their current period of leave to switch to highly skilled migrant status is more readily understandable, because to except them from the need to return to their own countries is likely to ensure that their skills are not lost to the United Kingdom.

18. Adopting a purposive approach to the interpretation of paragraph 135DB, I am in no doubt that the Respondent's construction is the correct one and I must therefore dismiss the Appellant's appeal in respect of the Immigration Rules."

11. Reconsideration was ordered on the ground that the Immigration Rules appeared to contain no express provision that the degree to which reference is made in paragraph 135DB(ii) be one obtained during the current student leave.
12. We heard submissions from Mrs Rothwell and Mr Gulvin on this issue, and we intend no disrespect to either of them if we say simply that they expanded on the parties' positions as we have already stated them.
13. It is undoubtedly true to say that, taken by itself, paragraph 135DB(ii) does not express the requirement urged by the Secretary of State. But, as we pointed out at the hearing, that sub-paragraph needs to be taken in the context of the paragraph as a whole, and the paragraph as a whole needs to be taken in the context of the Rules relating to highly skilled migrants as a whole. If one reads the paragraph as a whole, one sees from its opening words that it applies (only) to those who have leave to remain as students. Within the group of those to whom the Rule applies, the first requirement is that the applicant:-

"(i) entered the United Kingdom or was given leave to remain as a student in accordance with paragraphs 57 to 62 of these Rules".

Not all those who have leave as student are able potentially to meet the requirements of paragraph 135DB: they can do so only if their leave was granted under the requirements of paragraphs 57 to 62.

14. We do not need to set out those paragraphs in full. The substantive requirements relating to courses and level of studies are in paragraph 57(i)-(iii). Leave will be granted or extended under paragraphs 57 to 62 only to a person who proposes to attend a full-time degree course or a full-time course of another sort, in either case at an institution falling within the requirements of paragraph 57(i). When the requirements of paragraph 57(i)-(iii) are read in conjunction with paragraph 135DB(ii), the meaning of the latter becomes clear. In order to qualify under paragraph 135DB at all, the appellant's leave must have been granted in accordance with the substantive requirements of paragraph 57; paragraph 135DB(ii) is intended in that context merely to exclude those whose admission or extension of leave as a student was for a course below degree level. It appears to us that, when the requirements of paragraph 135DB are taken as a whole, the Secretary of State's reading of sub-paragraph (ii) is strongly supported.
15. What, then, of the argument that a person like the appellant may be much better qualified than a new graduate, and might therefore expect to be more easily able to join the Highly Skilled Migrant Programme? Here we must look at the Rules relating to the Programme as a whole. The paragraph with which we are concerned does not relate to entry as a highly skilled migrant, but to "switching". The Secretary of State has an interest in preventing abuse of entry and entry clearance procedures and does so by restricting the ability of those who have been admitted for one purpose to obtain leave to remain for another purpose. (We should emphasise that we do not suggest any attempt at abuse by the present appellant: we are concerned with the interpretation of the Rules.)
16. The purpose of the Highly Skilled Migrant Programme is set out in part of an official government website as follows:-

"The Programme is designed to allow highly skilled people to migrate to the United Kingdom to look for work or self-employment opportunities."

Other guidance, in chapter 5, section 11 of the Immigration Directorates' Instructions indicate that:-

"In general, those seeking to remain in the UK as a highly skilled migrant should have obtained the correct entry clearance before travelling to the UK. However, the Immigration Rules specify a limited number of categories (listed below) from which individuals may apply to switch into leave as a highly skilled migrant."

17. When the overall intention of the Programme in encouraging migration to the United Kingdom is added to the general need to prevent abuse, it is not at all surprising if the switching rules are restrictive. It is not for us to reach a view on why switching from certain categories (e.g. working holiday-maker) is so much easier than from others. The point is that it cannot be said that strict switching requirements interfere with the principal purpose of the Programme itself.
18. For the foregoing reasons we consider that the reading of paragraph 135DB(ii) adopted by the Secretary of State is the correct one. It is the only reading which makes sense in the context of paragraph 135DB(i), and it is not contrary to the purpose of the Rules. The appellant does not meet the requirements of paragraph 135DB(ii) as correctly interpreted and accordingly cannot succeed under the Immigration Rules.
19. It is indeed difficult to see that the appellant meets the requirements of paragraph 135DB(i). Although we are told that his entry clearance as a student was issued under paragraph 57, we have, as we have said, seen no details. It is extremely difficult to see how the appellant's postgraduate work, not forming any part of any course, could meet the requirements of paragraph 57. We are aware that the same could be said of much postgraduate study. We take it that although the entry clearance was for studies it was granted by an exercise of discretion outside the terms of paragraph 57. Whether or not that is so, it is clear to us that the appellant's leave was not "in accordance with the requirements of paragraphs 57 to 62" and for that reason too he has no claim under paragraph 135DB.
20. We have referred to the appellant's history. When his solicitors made the application for leave to remain on his behalf, and in subsequent correspondence, they referred to that history. They also submitted that the appellant's existing UK degree was sufficient to meet the requirements of paragraph 135DB. They further asked for consideration on an exceptional basis outside the Rules if they were wrong in their interpretation of the Rules. It looks as though the latter request was interpreted at the Home Office as a request to grant the appellant leave to remain on humanitarian grounds because of his fears about the situation in his home country. It is in our view extremely unlikely that the request was intended in that sense. The solicitors were evidently aware of the Immigration Directorates' Instructions, which they have put before us. At chapter 5 section 11 paragraph 4, we find the following:

"Where an application to switch into leave as a highly skilled migrant does not meet the requirements of the Immigration Rules because the applicant does not have leave in a relevant category, the presumption is that the application should be refused on the basis that there is no provision for the applicant to switch.

However, as with all cases, caseworkers may grant leave outside the Immigration Rules but only in compelling personal circumstances. Circumstances will be assessed by caseworkers on a case by case discretionary basis.

For the purposes of such an assessment, compelling personal circumstances are defined as 'circumstances relating to the individual (rather than the employment) where it is considered unduly harsh to expect the individual to leave the UK and apply for entry clearance in their own country'.

Whilst treating each case on its merits, not all circumstances that relate to the individual will be deemed unduly harsh and therefore compelling. Examples of such circumstances and which would not be deemed compelling include:

…

Humanitarian grounds. If there are humanitarian concerns involved, it is open to the applicant to seek leave to remain in the UK in other more appropriate immigration categories for the purposes of HSMP."

21. Reading that, no competent solicitors would have asked for consideration on an exceptional basis because of humanitarian grounds. No doubt what was intended by the request was consideration on the basis that, by any standards, the appellant was highly skilled and that if the precise terms of paragraph 135DB did not apply to him, he was nevertheless a person who might well be allowed to remain in the United Kingdom on an analogous basis. As we have said, it does appear that his admission to the United Kingdom must have been only by analogy with the requirements of the student rules, and an argument could certainly be made that the analogy should be continued. Whether or not that is so, it is clear, and Mr Gulvin accepted, that the request to consider the case outside the Rules, on some such basis, was never dealt with, because it was misinterpreted as a request based purely on humanitarian grounds. In those circumstances it seems to us that the Secretary of State has failed to comply with the terms of his published policy indicating that he will consider cases where there are compelling personal circumstances not amounting to humanitarian grounds. This point was technically before the Immigration Judge (it is ground 2 of the appellant's grounds of appeal) but he did not deal with it because it was not he subject of any detailed submissions before him. We make no criticism of him for that but, as it turns out, although we agree (albeit for slightly different reasons) with his conclusion on paragraph 135DB(ii), we consider that he materially erred in law in failing to deal with issues arising out of the request for consideration in accordance with the respondent's policy.
22. The appellant cannot succeed under the Immigration Rules. We substitute a determination allowing his appeal solely on the ground that the Secretary of State erred in law in failing to consider the application for exceptional leave outside the Rules in accordance with his policy. This application therefore awaits a lawful decision.

C M G OCKELTON

DEPUTY PRESIDENT

Date: