Rasheed v Secretary of State for the Home Department

These renewed applications for permission to appeal have been listed for hearing together because they all raise one or more of a number of common grounds. Most of them arise out of a much larger group of cases, 22 in all, which for that reason were heard together by the Upper Tribunal; a few were the subject of determinations by the Upper Tribunal in more conventional proceedings.

Until 6^th April 2012 students who had completed further education courses in this country could apply for leave to remain for up to 2 years in order to enter employment as Tier-1 (Post-study Work) migrants. It was hoped that the scheme would attract high quality graduates to this country, but in March 2011 the government concluded that it had not succeeded in doing so and announced that it had decided in principle to close that particular route to entry from April the following year. In the event the new rules took effect from 6^th April 2012.

Under the Immigration Rules as they had been before 6^th April 2012 persons wishing to apply for entry as Tier-1 (Post-study Work) migrants were required to apply under the Points-Based System. The points that would be awarded in respect of different aspects of an application were set out in Table 10 of Appendix A to the Immigration Rules. 75 points were required to qualify for leave to remain, of which 20 points could be awarded for a qualifying degree or other award and 15 points for an application made within 12 months of obtaining the qualification in question. An applicant would need to be awarded points under both heads in order to obtain the full 75 points required for a successful application.

It was clear from Table 10 that a person could not make an effective application until he had been formally awarded the qualification on which it was based. Despite that, it had become common for applications to be made by students who had completed their courses before they had been formally awarded their degrees or other qualifications and it appears that at some stage there had been some doubt about how to deal with such applications. In July 2010 caseworkers were sent an instruction by email in which it was pointed out that applications should not be made before qualifications had been formally confirmed and that those whose leave to remain had expired before that date should make their applications from abroad. However, they were also advised that if, by the time they came to make a decision, the qualification had been confirmed, they should not refuse the application. This became known as the “pragmatic” policy. It was justified by the fact that, until this route of entry was closed in April 2012, a person whose application was refused on that ground alone, but who had had since been awarded the relevant qualification, could immediately make a further application and could expect to be given leave to remain.

In Khatel and Others (s.85A; effect of continuing application) v Secretary of State for the Home Department [2013] 00044 (IAC) the Upper Tribunal endorsed that view on the basis that an application was a continuing process which was not completed until a decision had been reached. However, that decision was overturned by this court on appeal under the name of Raju v Secretary of State for the Home Department [2013] EWCA Civ 754. The court held that in order to qualify for 15 points under the fourth section of Table 10 the application had to be made within a period of 12 months following the date on which the degree or other qualification on which it was based had been awarded. It followed that an applicant was not entitled to be awarded any points under that section if he had made his application before he had received his qualification.

Following the closure of the Tier-1 (Post-study Work) migrant scheme, in May 2012 the Secretary of State produced a fresh casework instruction on the handling of applications made before 6^th April 2012 in cases where the relevant qualification had not then been confirmed or formally awarded. Caseworkers were instructed that in such cases the rules were to be applied strictly.

The present applicants are all foreign nationals who have been studying here and who applied for variations of their existing leave to remain as Tier-1 (Post-study Work) migrants, having completed their various courses at graduate level. The applicants made their applications on various dates before 6^th April 2012, in each case before the award of the qualification on which the application was based had been confirmed. Although in each case the award of the relevant qualification had been confirmed before a decision had been made, the Secretary of State refused their applications. She considered that they could not claim the necessary 15 points because at the time of their applications the qualifications on which they were based had not been awarded.

A large number of appellants whose applications to vary their leave to remain had been refused by the Secretary of State raised similar arguments in support of their appeals to the Upper Tribunal. The tribunal therefore directed that 22 appeals, including most of the present applicants, be heard together in order to determine the main issues that had been raised in such cases. The decision in Raju v SSHD, however, meant that the appeals were bound to fail unless it could be circumvented in some way.

Before the Upper Tribunal the appellants between them put forward a number of arguments, none of which had been raised or considered by this court in Raju. They can be summarised as follows:

that it was unlawful for the Secretary of State to depart from the pragmatic policy in their cases;

that they had been misled by the existence of the pragmatic policy and by the way in which the application form was worded into making premature applications and consequently had a legitimate expectation that the pragmatic policy would be applied in their cases and their applications granted;

that the Secretary of State should have accepted evidence of the award when it was eventually obtained under section 85A of the Immigration, Nationality and Asylum Act 2002;

that the delay in obtaining formal confirmation of their qualifications should be ignored pursuant to the maxim de minimis non curat lex;

that the Secretary of State should have accepted the formal confirmation of the award of their qualifications when it became available in accordance with the evidential flexibility policy;

that the production of the formal confirmation of the award (or in one case the decision to rely on a different qualification) should be treated as a variation of the original application which was to be decided in accordance with the Immigration Rules as they existed before 6^th April 2012 pursuant to the transitional provisions in the new rules;

that there had been a breach of the common law requirement of fairness in the determination of their applications.

The Upper Tribunal considered and rejected all these arguments and accordingly dismissed the appeals. The applicants therefore now seek permission to appeal to this court against that decision. It is accepted that in order for permission to be granted any such appeal would have to have a real prospect of success and would also have to give rise to an important point of principle or practice. It is not suggested that in any of these cases there is some other compelling reason for this court to hear an appeal.

Before considering the various grounds of appeal it may help if I say something about the documents that have been filed in some of these appeals. The first matter to mention concerns the parties to the appeal. In some of these appeals a single notice of appeal has been filed on behalf of more than one person (in one case on behalf of as many as five people), despite the fact that those on whose behalf it has been filed are not parties to the same proceedings. The fact that in the present case the Upper Tribunal heard a large number of appeals together for practical convenience does not detract from the fact that (save in the case of Dharmisthaben and Kartikkumar Pandya, which concerned a claim by husband and wife) only one person was a party to each of the appeals. I understand that it has become the practice among some solicitors representing several parties whose appeals have been heard at the same time to issue one notice of appeal on behalf of all their clients. However, unless all the persons concerned were parties to a single set of proceedings, or are parties to proceedings which have been formally consolidated, that is not appropriate. Each appeal arises in a separate set of proceedings; a separate notice of appeal must be issued on behalf of each appellant and a separate fee paid. The Civil Appeals Office has therefore been instructed not to accept notices of appeal on behalf of more than one appellant, unless all the appellants named in the notice of appeal were parties to the same proceedings below, for example, as joint claimants or defendants.

The second matter concerns grounds of appeal and skeleton arguments. Grounds of appeal are intended to be short, succinct documents which identify as briefly as possible the respects in which it is said that the court below (in this case the Upper Tribunal) erred. If drafted as the rules intend and require, they provide the court and the parties with a clear and concise statement of the issues that will arise on the appeal and to which argument will be directed. They are not intended to be a vehicle for describing in general terms the circumstances giving rise to the appeal; nor are they intended to serve as a vehicle for setting out the appellant’s arguments or submissions. That is the function of the skeleton argument. To include material of that kind in the grounds of appeal renders them unhelpful both to the parties and to the court. It follows that the grounds of appeal and skeleton argument should not be combined in a single document and the Civil Appeals Office has been instructed not to accept in future combined grounds of appeal and skeleton arguments of the kind that have been filed in some of the present appeals.

I can now turn to consider the various grounds of appeal on which the applicants rely. In substance they reflect the various arguments on which the applicants relied before the Upper Tribunal. Some of them can be disposed of without much elaboration. Mr. Iqbal, who appeared on behalf of the majority of the applicants, accepted that there was little or no merit in the grounds based on section 85A of the Immigration, Nationality and Asylum Act 2002, the maxim de minimis non curat lex or the evidential flexibility policy. He did not formally abandon them, but he did not consider it appropriate to pursue them in argument. In my view he was right not to do so since none of them are reasonably arguable.

That leaves the three grounds that were pursued by Mr. Iqbal: unlawful departure from the pragmatic policy, legitimate expectation and common law unfairness (all of which are really different aspects of the same point) and variation, which was the subject of submissions from Mr. Malik which Mr. Iqbal adopted.

Mr. Iqbal drew our attention to the instructions to caseworkers circulated in July 2010 which set out the pragmatic policy. They make it clear that applications should not be submitted before confirmation of awards have been obtained, but that:

Mr. Iqbal also drew our attention to section G5 of the form used for applications of this kind, which invites an applicant who cannot provide an original certificate of his award to tick a box to indicate that he has provided instead a letter from the institution at which he has studied giving details of the awarding body and confirmation that the certificate of award will be issued. That was said to reflect and reinforce the pragmatic policy. He submitted that the policy had become well known and had been relied on by those whom he represented. They had submitted applications for variation of their leave to remain before they had received confirmation that their qualifications had been awarded in the expectation those applications would be granted. It was unlawful for the Secretary of State to alter her policy without prior notice.

In my view there is no substance to this point, however it is put. There is no finding by the Upper Tribunal that any of the applicants did in fact provide with his application a letter of the kind that would satisfy section G5, which requires “confirmation that the certificate of award will be issued.” (Emphasis added.) In any event, one only has to look at the form as a whole to see that section G as a whole is concerned with the nature of the qualification, not with the date on which it was awarded. That is dealt with in section K. Quite apart from all that, the pragmatic policy was based on the fact that, for the reasons explained earlier, once formal confirmation of the award had been obtained, it would serve no useful purpose to refuse the application simply on the grounds that the award post-dated it. In effect, by adopting the pragmatic policy the Secretary of State was saying ‘I will treat the confirmation as pre-dating the application because you can now make another valid application which is likely to succeed.’ The policy therefore ceased to have any relevance once the Tier-1 (Post-study Work) migrant scheme had been withdrawn because a fresh application could no longer be made following confirmation of the award, if that occurred on or after 6^th April 2012. The decision to withdraw the scheme was announced a long time before it took effect, so that those in the position of the present applicants had plenty of warning of the impending change.

In these circumstances I do not think it arguable that the applicants had a legitimate expectation that after 6^th April their applications would be determined in accordance with the former policy. Mr. Iqbal said that if they had known that the policy had been changed they would not have made premature applications, but (subject only to the variation argument, to which I shall come in a moment) any application made after 6^th April 2012 following the confirmation of an award was bound to fail because the scheme had been withdrawn. The applicants cannot say that if they had been told that the pragmatic policy had been withdrawn they could and would have acted in a way that would have enabled them to make a valid application before 6^th April 2012. There was nothing arguably unfair about the changes to the system introduced on that date or about the way in which the applications were dealt with.

This brings me to the submissions based on variation of the application. Two slightly different submissions were made to the Upper Tribunal by Mr. Iqbal and Mr. Malik, but on the present application we heard only from Mr. Malik. His client, Mr. Asif Rashid, originally applied for the variation of his leave to remain on the basis of a qualification awarded by the Association of Chartered Certified Accountants(“ACCA”) . However, some time after he had submitted his application he was awarded an M.Sc. in Accounting and Finance by Anglia Ruskin University and he applied to vary his application by basing it on the award of that degree.

Mr. Malik drew our attention to section 3C(5) of the Immigration Act 1971, which allows a person whose leave to remain has been extended under that section to vary his application for a variation of his existing leave to remain. He submitted, correctly in my view, that his client had varied his application as permitted by that section. He then directed our attention to the transitional provisions relating to the changes to the Immigration Rules which took effect on 6^th April 2012, which are set out in HC 1888. These provide that, if an applicant has made an application for leave to remain before 6^th April 2012, that application will be decided in accordance with the rules in force on 5^th April 2012. On that basis he submitted that his client’s application as varied, having originally been made before 6^th April 2012, fell to be decided in accordance with the rules and policies in force on 5^th April. Mr. Malik submitted that in rejecting this argument the Upper Tribunal had misconstrued HC 1888.

The Upper Tribunal did not in fact refer to HC 1888 in its decision, which leads me to doubt whether the argument put forward by Mr. Malik on that occasion was quite the same as that on which he relied before us. The argument which the tribunal did address was that paragraph 34F of the rules is limited in scope by reference to paragraph 34E. It is an argument which proceeds on the assumption that paragraph 34F is potentially applicable to this case. The two paragraphs provide as follows:

The tribunal rejected the argument that the scope of paragraph 34F is limited to that of paragraph 34E and in my view it was clearly right to do so. Paragraph 34F forms part of a section of the rules intended to be of general application and is worded in broad terms. I do not think it arguable that its scope is limited to cases falling within paragraph 34E.

The main difficulty in the way of Mr. Malik’s argument is that paragraph 34 formed part of the rules in existence on 5^th April 2012. Its effect, both before and after the changes to the rules, was to require an application to be decided by reference to the rules in force at the date of the variation. Although Mr. Rashid’s original application was made before 6^th April 2012, the variation to rely on a different qualification (which was in substance a fresh application) occurred after that date. In my view the application had to be decided in accordance with the rules in force at that later date and was therefore bound to fail. I do not think that the contrary is reasonably arguable.

In his skeleton argument Mr. Iqbal also raised an argument based on section 3C(5) of the Immigration, Asylum and Nationality Act 2002 and paragraph 34E of the rules. He submitted that, if the variation does not affect the purpose of the application, there is no requirement to comply with paragraph 34E and that the provision of confirmation of an award amounted to a variation falling outside the scope of that paragraph.

Both counsel sought to rely on the decision in Qureshi (Tier-4 – effect of variation – App C) Pakistan [2011] UKUT 00412 (IAC), but in my view it is of no assistance to them. It is not reasonably arguable, in my view, that the provision of confirmation of an award can amount to a variation of the application, but even if it could, it would still be subject to paragraph 34F. Mr. Malik submitted that the decision in Qureshi was inconsistent with the decision of the tribunal in this case, but in my view that is plainly not the case. The tribunal in this case accepted (as did the tribunal in Qureshi) that the variation did not fall within paragraph 34E, but that did not mean that it fell outside paragraph 34F. In my view it plainly did not. I do not regard either of these arguments as having any real prospect of success.

In the light of the conclusions I have reached on the specific arguments relied on by the applicants it is perhaps unnecessary for me to deal separately with the question of unfairness, which in any event Mr. Iqbal did not press as a separate ground of appeal. However, I can say that I find it difficult to understand how it can be said that the procedure in any of these cases was unfair. Following the announcement in March 2011 that the Tier-1 (Post–study Work) migrant scheme was to be withdrawn in April 2012, the applicants all made premature applications for a variation of their leave to remain in an attempt to take advantage of a policy, the foundation for which had by then disappeared. In those circumstances the rejection of their applications was not arguably unfair.

For these reasons I have reached the conclusion that the applications of all those for whom Mr. Iqbal and Mr. Malik appeared should be dismissed. I need only add that Mr. Biggs, who appeared on behalf of Mr. Adil Mehmood, very sensibly accepted that he was unable to support his client’s application, which was therefore withdrawn.

I agree.