Pokhriyal v The Secretary of State for the Home Department

This judgment is in six parts, namely:

These are appeals by two foreign students whose leave to remain in this country has expired. They challenge the Secretary of State’s decisions, upheld by the First-tier Tribunal and the Upper Tribunal, that their proposed further courses do not constitute academic progress from their previous studies.

The first appellant is Himanshu Pokhriyal (“HP”). The second appellant is Amjad Hussain (“AH”). Although there is no order for anonymity, it is easier to refer to both appellants by their initials.

Both appellants came to the UK as Tier 4 (general) students under the Points Based System (“PBS”). The rules governing the PBS are set out in the Immigration Rules and the appendices to those rules. These provisions have now achieved a degree of complexity which even the Byzantine Emperors would have envied. I shall set out the rules as they were prior to 6^th April 2012.

Paragraph 245ZX of the Immigration Rules provided:

“Requirements for leave to remain

To qualify for leave to remain as a Tier 4 (General) Student under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the applicant will be refused.

…

(c)

The applicant must have a minimum of 30 points under paragraphs 113 to 120 of Appendix A.”

Appendix A to the Immigration Rules set out, amongst much else, the attributes which Tier 4 (general) students must possess. Paragraph 115 of Appendix A provided that such a student scores 30 points for obtaining a confirmation of acceptance for studies (“CAS”). Paragraph 115A of Appendix A required the student to provide a valid CAS reference number, but not the CAS, to UKBA. It is the college concerned which prepares the CAS and submits it electronically to UKBA.

Paragraphs 116 and 117 of Appendix A set out the various requirements with which a CAS and its reference number must comply in order to be valid.

Paragraph 120B of Appendix A provided:

“Points will only be awarded for a valid Confirmation of Acceptance for Studies assigned on or after 4 July 2011 (even if all the requirements in paragraphs 116 to 120A above are met) if the Sponsor has confirmed that the course for which the Confirmation of Acceptance for Studies has been assigned represents academic progress from previous study undertaken during the last period of leave as a Tier 4 (General) Student or as a Student, except where:

(i)

the applicant is re-sitting examinations or repeating modules in accordance with paragraph 119 above, or

(ii)

the applicant is making a first application to move to a new institution to complete a course commenced elsewhere.”

In this judgment I shall refer to a foreign student who has previously been given leave to remain in the UK as a student as an “existing student”. I shall use the phrase “academic progress” to mean academic progress from the previous study undertaken.

The Secretary of State for the Home Department has overall responsibility for administering the immigration system. Section 3 (2) of the Immigration Act 1971 (“the 1971 Act”) provides:

“The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances;

…”

From time to time the Secretary of State issues instructions to immigration officials to guide them in their application of the rules. The Secretary of State issues such instructions pursuant to paragraph 1 (3) of Schedule 2 of the 1971 Act. They are known as Immigration Directorate’s Instructions (“IDIs”). The Secretary of State also from time to time issues guidance statements for the assistance of those who are operating under the rules.

Having set out the legislative background, I must now turn to the facts.

HP is an Indian national, born in 1986 and now aged 27. HP came to the UK for the purpose of studying in September 2008. He was granted leave to enter as a Tier 4 (general) student under the PBS. He was subsequently given leave to remain in that capacity until 4^th January 2012.

Initially HP studied for a postgraduate diploma at the London School of Business Management. HP subsequently transferred to other colleges, where he studied business administration and business management. These courses were classified as NVQ level 7.

In late 2011 HP decided that he needed to obtain a qualification in IT, in order to improve his career prospects. He applied for and secured a place at St Stephen’s College to study for a diploma in IT. This was a two and a half year course, classified as NVQ level 5.

HP applied to the Secretary of State for an extension of his leave to remain in the UK, so that he could undertake the IT course. In support of that application St Stephen’s College issued a CAS, which it sent to UKBA.

In the box on the CAS marked “evidence provided” the college described the previous courses which HP had undertaken. The college then added this:

“ACADEMIC PROGRESSION: Student has studied a PGD for general academic purposes but as he wants to go into the IT industry, a qualification in IT combined with the PGD would offer him better opportunities. Student wishes to follow a career in IT in India and in particular with the Tata Group. He believes that his previous studies in the UK combined with an IT qualification would provide him with additional opportunities in following his chosen career path.”

By a letter dated 9^th February 2012 the Secretary of State refused HP’s application on the ground that HP’s new course did not constitute “academic progress” within the meaning of paragraph 120B of Appendix A to the Immigration Rules. Accordingly HP failed to achieve the required 30 points under paragraph 245ZX (c) of the Immigration Rules.

HP appealed unsuccessfully against that decision first to the First-tier Tribunal, then to the Upper Tribunal. He now appeals to the Court of Appeal.

AH is a Pakistani national, born in 1984 and now aged 29. AH came to the UK for the purpose of studying in October 2010. He obtained leave to enter and remain until 4^th February 2012 as a Tier 4 (general) student under the PBS.

Initially AH studied at Charles Edward College for a postgraduate diploma in business management. This course was classified as NVQ level 7. Whilst at Charles Edward College he duly attended the classes and took the examinations which were set. He passed in three subjects and failed in three subjects.

Unfortunately the licence of Charles Edward College was revoked by the Secretary of State. It appears that by then AH had completed his course, with the three passes and the three failures previously mentioned.

AH then applied for and secured a place at Cranford College to study for a post-graduate diploma in strategic management and leadership. This was a course at NVQ level 7.

AH applied to the Secretary of State for an extension of his leave to remain in the UK, so that he could undertake the course at Cranford College. In support of that application Cranford College issued a CAS, which it sent to UKBA. In that CAS the college summarised AH’s past academic achievements, but did not address the question whether the new course represented academic progress.

By a letter dated 4^th April 2012 the Secretary of State refused AH’s application on the ground that Cranford College had not confirmed that the new course constituted “academic progress” within the meaning of paragraph 120B of Appendix A to the Immigration Rules. Accordingly AH failed to achieve the required 30 points under paragraph 245ZX (c) of the Immigration Rules.

On 8^th June 2012 Cranford College sent a letter to UKBA as follows:

“This is to confirm that Mr Amjad Hussain, DOB: 31/01/1984 applied for PGD in Strategic Management and Leadership at Cranford College. The College assessed the student previous qualification and it was found that he was unable to complete his previous course of studies in level 7 at Charles Edward College because his previous College licence had been revoked by the UKBA. However, Charles Edward College had confirmed his progression and attendance in their letter of November 2011.

Cranford College assessed the progression of the student on the basis of the letter he presented from his previous College. Thus, the College assigned him a CAS in the same level on the basis of his previous study (PGD in Business Management) undertaken during the last period of his leave as Tier 4 (General) student at Charles Edward College.”

Armed with that letter AH pursued an appeal to the First-tier Tribunal against the Secretary of State’s decision. Tribunal Judge Mayall sitting in the First-tier Tribunal dismissed AH’s appeal. I would summarise his reasoning as follows:

AH appealed against that decision to the Upper Tribunal. The Upper Tribunal dismissed that appeal in a written determination dated 18^th October 2012. The Upper Tribunal approved the reasoning of the First-tier Tribunal. In paragraph 14 of its decision the Upper Tribunal said this:

“However, it is plain from his findings at paragraphs 26 and 27 that the judge simply did not accept that the appellant’s change of course represented academic progress or that the college was able to demonstrate that it did and he did not accept that the letter of 8 June 2012 constituted confirmation of such. Indeed, a close reading of the letter, which is written in rather vague terms, would suggest that that was a view he was perfectly entitled to take.”

AH is aggrieved by the decision of the Upper Tribunal. Accordingly he appeals to the Court of Appeal.

The appeals of HP and AH were heard together on 14^th November 2013. They raise common issues concerning the correct interpretation of paragraph 120B of Appendix A to the Immigration Rules. They also raise a number of additional issues which are specific to the case of one or other appellant.

Mr Zane Malik, leading Mr Darryl Balroop, appeared for both appellants. Mr Robert Palmer appeared for the Secretary of State in both appeals.

Most helpfully, counsel dealt first with the construction of paragraph 120B of Appendix A. They then addressed the issues in the individual appeals. I shall adopt the same approach. I will therefore begin by dealing with the issues of construction.

Mr Malik, for the appellants, submits that the issue of a CAS to an existing student necessarily means that there has been compliance with paragraph 120B of Appendix A. In other words, by the mere issue of a CAS the college is confirming that the course to be pursued constitutes academic progress. Therefore the CAS does not need to say this expressly. In the alternative, if an express confirmation to that effect is needed, it does not have to be contained in the CAS. It can be included in a later letter. Furthermore any such confirmation is a confirmation of that which is presumed to be the case.

Mr Malik’s second submission is that the assessment of whether a course constitutes academic progress is a matter which has been delegated to the various colleges. The Secretary of State cannot go behind the decision of an authorised college on this issue.

Mr Palmer, for the Secretary of State, submits that the issue of a CAS does not imply compliance with paragraph 120B of Appendix A. If the student is to secure the requisite 30 points, the college must also expressly state that the proposed course constitutes academic progress.

Initially Mr Palmer contended that the express confirmation of academic progress must be contained in the CAS. When pressed by the court, however, he accepted that the college’s confirmation could be contained in a separate document.

Mr Palmer accepted that the question whether a particular course constitutes academic progress is a matter for the college, rather than the Secretary of State. Nevertheless the course as described by the college must be capable of constituting academic progress. If the course as described does not appear to amount to academic progress, the college must provide some justification for its assertion that it does.

In addressing these various submissions, I must first consider the nature of the Immigration Rules. These are statements of the rules of practice which the Secretary of State and her officials follow in dealing with immigration issues. They are laid before Parliament pursuant to section 3 (2) of the 1971 Act. Thus they have Parliament’s tacit approval, but they are not a statutory instrument.

In relation to the correct approach to construing the Immigration Rules, both counsel took the court to the Supreme Court’s decision in Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48. In that case the claimants were seeking to join family members settled in this country. An issue arose concerning the interpretation of rules setting out the means of support which such persons must possess.

Lord Brown gave the leading judgment, with which all other members of the court agreed. At paragraph 10, after referring to earlier authorities, Lord Brown stated that the Immigration Rules should not be construed with the strictness appropriate for a statute or a statutory instrument. Instead they should be construed “sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy”.

Later in the same paragraph Lord Brown said that the court could not take IDIs into account as an aid to the construction of the rules. I of course accept that proposition. There is, however, a qualification which should be noted.

If there is ambiguity in Immigration Rules and the Secretary of State publicly declares that he/she will adopt the more lenient interpretation, then tribunals and courts may hold the Secretary of State to that assurance. This is exemplified by the Court of Appeal’s decision in Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773; [2011] 1 WLR 564. The relevant rule in that case provided that leave to enter would be refused where the applicant had made “false” representations. The relevant minister said in Parliament that “false” in this context meant not merely incorrect, but deliberately false. There were other public statements by Government officials to similar effect. The Court of Appeal construed the rule in accordance with those assurances. Rix LJ gave the leading judgment, with which Longmore and Jacob LJJ agreed. At paragraph 70 Rix LJ said that in a situation of genuine ambiguity, it was legitimate to derive assistance from the executive’s formally published guidance, including IDI’s.

I respectfully agree with paragraph 70 of Rix LJ’s judgment in Adedoyin. I would, however, add this comment. I do not think it is possible for the Secretary of State to rely upon extraneous material in order to persuade a court or tribunal to construe the rules more harshly or to resolve an ambiguity in the Government’s favour. The Secretary of State holds all the cards. The Secretary of State drafts the Immigration Rules; the Secretary of State issues IDIs and guidance statements; the Secretary of State authorises the public statements made by his/her officials. The Secretary of State cannot toughen up the rules otherwise than by making formal amendments and laying them before Parliament. That follows from the Supreme Court’s reasoning in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33; [2012] 1 WLR 2208.

With the benefit of this guidance from the authorities, I now return to the construction of paragraph 120B of Appendix A to the Immigration Rules.

The phrase “academic progress” is a vague one. If the new course is at a higher level than the previous course, then generally that constitutes academic progress. There can, however, be situations in which another course at the same level, or even rarely at a lower level, may constitute academic progress. This is recognised in paragraphs 374 and 375 of the guidance statement which UKBA issued to colleges in September 2011.

Whether a particular course constitutes academic progress is not a hard edged question. It involves comparing the new course with the student’s previous academic achievements and then making a value judgment. There is a degree of subjectivity which is inescapable. Paragraph 120B of Appendix A makes it clear that it is for the college, not the Secretary of State, to carry out the assessment. It is unsurprising that colleges are trusted to make this particular decision. The colleges have the requisite expertise. Also they have been approved by the Secretary of State to act as sponsors under the PBS. If any college steps out of line, its authorisation will be withdrawn. See R (New London College Ltd) v Secretary of State for the Home Department [2013] UKSC 51; [2013] 1 WLR 2358 and R (WGGS) v Secretary of State for the Home Department [2013] EWCA Civ 177.

In the ordinary way the Secretary of State cannot go behind the college’s assessment of academic progress. The Secretary of State must accept that assessment and then go on to decide the various matters which lie within her own domain. I say “in the ordinary way” because different considerations might arise if, for example, there were fraud, or if the college made an assessment which was plainly inappropriate on the face of the documents. It would be better to leave further consideration of such situations to a case in which they arise.

I now come to the question whether the college is required expressly to state that the proposed course constitutes academic progress or whether the mere issue of a CAS constitutes an assertion to that effect. The language of paragraph 120B of Appendix A suggests that the CAS and the confirmation of academic progress are two separate matters. Paragraphs 116 and 117 of Appendix A set out the requirements which must be met to ensure that the CAS and its reference number are valid. The separate requirement set out in paragraph 120B presupposes that the CAS is valid. I therefore conclude that paragraph 120B requires a separate confirmation that the proposed course constitutes academic progress.

At this point it is necessary to refer to the guidance statement which UKBA published in July 2011 for the assistance of foreign students coming to the UK. Paragraph 63 of that guidance provides:

“If a Tier 4 (General) student has a CAS that was assigned on or after 4 July 2011, and he/she has previously had permission to stay as a Tier 4 (General) Student (or under the student rules that were in force before 31 March 2009), a Tier 4 Sponsor can only give the him/her a CAS for a new course if that new course represents academic progress from his/her previous study … ”

This paragraph informs the student that if a college issues a CAS it has concluded that the proposed course constitutes academic progress. The college sends the CAS electronically direct to UKBA. The student is simply told the CAS reference number. From this the student is entitled to infer (a) that the college has sent the CAS to UKBA and (b) that the college is satisfied that the course constitutes academic progress.

Against that background the mere issue of a CAS creates a presumption or expectation that the stated course constitutes academic progress. What paragraph 120B of Appendix A requires is confirmation of that which is presumed or expected to be the case. I reach this conclusion for three reasons:

It is no doubt convenient for the college to include the confirmation of academic progress in the CAS, but this is not obligatory. There is nothing in the language of paragraph 120B which requires all matters to be dealt with in a single document. The CAS is an electronic document which, at the material time, did not contain a separate box for dealing with the issue of academic progress.

Mr Palmer points out that paragraph 377 of the guidance statement issued to colleges requires the question of academic progress to be dealt with in the CAS. That, however, does not assist. The Secretary of State cannot rely upon such a guidance document to insert additional requirements into the rules.

From the analysis set out above, I draw the following conclusions:

Having reached these conclusions, I must now address the two individual appeals which are before the court.

The issue in HP’s case is a short one. It turns upon the words used by St Stephen’s College in the CAS, which I have quoted in Part 2 above. The issue is whether those words constituted confirmation that the IT course for which HP had been accepted represented academic progress.

In my view that passage did constitute such confirmation. It begins with the words in capitals “ACADEMIC PROGRESSION”. In other words the college regarded the IT course as academic progress. The college uses the word “progression” as a synonym for “progress”. There then follows an explanation as to why the IT course represented academic progress. The reason why the new course at NVQ level 5 was academic progress from the previous course at NVQ level 7 was, in effect, explained by the fact that the student needed skills in a different field in order to complement his original qualification and to obtain future employment.

The Secretary of State in her refusal letter, the First-tier Tribunal and the Upper Tribunal all fell into the same error. They all considered the evidence and formed their own view as to whether the IT course constituted academic progress. The question whether the IT course was academic progress was a question for St Stephen’s College, not the Secretary of State. On appeal the First-tier Tribunal and the Upper Tribunal should not have interfered with the college’s decision, when the college had plainly addressed its mind to the question of academic progress and formed a reasonable view on the subject.

In these circumstances, I see no basis to invalidate the college’s confirmation of academic progress. As the Secretary of State acknowledges in paragraph 375 of her guidance statement to colleges, a course at a lower level can on occasions constitute academic progress. This, in the college’s view, is such a case. The IT course would enhance the business skills which HP had gained in his earlier studies.

In the result, therefore, HP satisfied the requirements of paragraph 120B of Appendix A. Accordingly he scored 30 points under paragraph 245ZX (c) of the Immigration Rules. If my Lords agree, HP’s appeal will be allowed.

The central issue in AH’s appeal is the correct construction of the letter sent by Cranford College on 8^th June 2012 to UKBA. I have set out the text of that letter in Part 2 above. The Upper Tribunal’s interpretation of that letter is set out in paragraph 14 of the Upper Tribunal’s decision and in paragraph 28 of this judgment.

I do not agree with the Upper Tribunal’s interpretation of that letter. The letter in conjunction with the earlier CAS sets out AH’s course of study at Charles Edward College. Then come the key words:

“Cranford College assessed the progression of the student on the basis of the letter he presented from his previous college. Thus the college assigned him a CAS…”

This passage is not a masterpiece of clarity. On the other hand it conveys that Cranford College has assessed AH’s academic progress and decided that it is appropriate to issue a CAS. Bearing in mind the presumption or expectation which already exists, I regard this letter as amounting to confirmation that (in the college’s view) the course in strategic management and leadership constitutes academic progress.

The fact that the two courses are at the same level does not prevent the second course being regarded as academic progress: see paragraph 374 of the guidance statement issued by UKBA to colleges.

In paragraph 14 of its decision the Upper Tribunal went on to say that if the Secretary of State had contacted the college, she would not have been told that the course in strategic management and leadership constituted academic progress. I do not agree. If the Secretary of State had made such inquiries, it is clear that she would have received the opposite answer.

It therefore follows that the Upper Tribunal’s decision cannot stand.

Mr Palmer submits that this court should not allow AH’s appeal, because his grounds of appeal are focused upon the construction of paragraph 120B of Appendix A.

I do not accept this submission. The correct construction of paragraph 120B is the central issue in both appeals. The appellants have had substantial, though not total, success on those construction issues. Once the correct construction has been established (as set out in Part 4 above) what remains is to apply that construction to the facts of both appeals.

In AH’s case it follows from my analysis that there is an analogy with Naved v Secretary of State for the Home Department [2012] UKUT 14 (IAC) (a case which the Upper Tribunal distinguished). The CAS did not confirm that which was presumed or expected to be the case. Therefore the Secretary of State should have made further inquiry or at least notified AH of the omission. If the Secretary of State had done this, she would have received the confirmation which appears in Cranford College’s letter dated 8^th June 2012. Though paragraph 120B does not require the confirmation of academic progress, as I have said, to be contained in the CAS, Mr Palmer told us there is now an express question about academic progress in the online CAS form. This will presumably cut down the number of cases in which any further enquiry is required.

In my view, therefore, the Upper Tribunal’s decision should be reversed. If my Lords agree, AH’s appeal will be allowed.