Khan v Secretary of State for the Home Department

LORD JUSTICE MOORE-BICK: This is a renewed application for permission to appeal following my earlier refusal of the application on paper.

For today's purposes, the background to the application can be stated quite shortly. The Applicant, Mr Khan, is a national of Pakistan who was granted leave to enter this country as a student in 2006. His leave to remain was then extended on several occasions until, eventually, 15 April 2012.

On 5 April 2012, he applied for leave to remain in this country under the Tier 1 (Post-Study Work) provisions of the points-based system, which requires an application to be made within 12 months of obtaining the requisite qualification. In support of his application, Mr Khan submitted a letter from Anglia Ruskin University dated 2 April 2012 confirming that he had successfully completed his Master’s course, but he did not formally receive confirmation of his degree until 6 July 2012.

On 18 December 2012, the Secretary of State rejected his application on the grounds that the qualification had been awarded after the date on which the application had been made. At the same time, the Secretary of State gave notice of her decision to remove him from the United Kingdom under section 47 of the Immigration, Asylum and Nationality Act 2006.

Mr Khan appealed to the First-tier Tribunal, which allowed his appeal on the basis of the decision of the Upper Tribunal in Khatel v Secretary of State for the Home Department [2013] UKUT 44 that his application continued until finally determined, by which time he had obtained formal confirmation of his degree. The First-tier Tribunal also held that the appeal should be allowed on the basis that the Secretary of State's decision to make removal directions at the same time as she refused the application was unlawful.

Shortly thereafter, however, in Raju v Secretary of State for the Home Department [2013] EWCA Civ 754, this court overturned the decision in Khatel and held that an application was made when it was submitted to the Secretary of State and that the relevant qualification must have been awarded during the 12 months prior to that date.

In the light of that decision, the Secretary of State appealed to the Upper Tribunal where it was accepted on behalf of Mr Khan that he could not succeed on his original ground. It was also accepted that the removal direction was unlawful, but in the event nothing turns on that.

Before the Upper Tribunal, those appearing for Mr Khan applied for leave to amend the ground of appeal to rely on Article 8 of the European Convention on Human Rights, but the judge refused the application on the basis that Mr Khan had not previously sought to rely on Article 8, despite having had plenty of opportunity to do so and that in any event, his case in that regard had no merit.

Mr Khan now seeks permission to appeal on three grounds. First, that the Upper Tribunal failed to deal with his argument that the Secretary of State had acted inconsistently and had departed from her own policy, thereby frustrating his legitimate expectations. Second, that the Upper Tribunal erred in law by refusing to grant him permission to amend his grounds of appeal to pursue the claim based on Article 8. Third, that the Upper Tribunal failed to find that removal would be a breach of his rights to private life under Article 8, given that he had spent something over 8 years in this country.

The question whether in order to comply with the requirements of the Immigration Rules it is sufficient for an Applicant to provide a letter from the college confirming that he has successfully completed his course of study was considered recently by this court in the case of Hossain v Secretary of State for the Home Department [2015] EWCA Civ 207. The court held that it was not sufficient and that the Rules require an Applicant to submit a formal certificate of the award of the relevant degree.

Moreover, the question when the failure to accept a letter of the kind on which the Applicant relies involved an unlawful departure from the Secretary of State's established policy and a denial of the Applicant's legitimate expectation was considered in the case of Rasheed v Secretary of State for the Home Department [2014] EWCA Civ 1493 and held to be unarguable. That decision was itself approved by this court in the course of its judgment in Hossain.

This ground of appeal, therefore, seems to me to have no real prospect of success.

Whether to allow an Appellant to amend his grounds of appeal to raise a new claim is essentially a matter for the tribunal hearing the case to decide in the exercise of its discretion. The claim based on Article 8 had not been raised before the First-tier Tribunal and in the circumstances the Upper Tribunal was entitled to conclude that it was not a particularly strong one.

This court will only interfere with an exercise of discretion of that kind if it can see that it was plainly wrong and I can see no basis in this case on which it could be said that the Upper Tribunal erred in the exercise of its discretion. It follows that since the Article 8 claim was not before it, the Tribunal did not err in law by failing to deal with it.

For all those reasons, permission to appeal in this case must be refused.