Secretary of State for the Home Department v Khan

The respondent, Muhammad Amjid Khan, now aged 34, applied to remain in the United Kingdom as a Tier 4 (General Student) on 20 February 2012. In a letter dated 15 August 2012, the UK Border Agency informed him that the licence of the sponsoring college named in his application had been revoked on 23 May 2012. After the decision in Patel (revocation of sponsor licence – fairness) India [2011] UKUT 00211 (IAC), the Secretary of State had introduced a policy to notify those in the position of Mr Khan and to suspend consideration of their applications for 60 days to enable them remedy the problem. The letter dated 15 August 2012 gave Mr Khan this opportunity. It stated inter alia that it was open to him “to obtain a new CAS for a course of study at a fully licensed Tier 4 educational sponsor and then submit an application to vary the grounds of your original application”. Mr Khan did this on 9 October 2012 but his application was refused by the Secretary of State on 13 May 2013 because on 9 October he did not satisfy the requirements of the Immigration Rules as to maintenance funds.

An appeal by Mr Khan to the First tier Tribunal succeeded, and one by the Secretary of State to the Upper Tribunal was dismissed. The Secretary of State now appeals to this court with the permission of Sales LJ.

The issue before the court is whether, in Mr Khan’s circumstances, all he was required to do was, as the tribunals decided, to submit a further application with a new CAS from a fully licensed sponsor and that it sufficed that the other mandatory requirements of a Tier 4 (General Student) application in particular the ability to show proof of sufficient funds to maintain himself during the course, were satisfied at the time of the original application. It is submitted on behalf of the Secretary of State that, when he submitted his application in October 2012, he also had to fulfil those other mandatory requirements. For the reasons given at [38] – [50] below I accept the Secretary of State’s submission and would allow her appeal.

For the purposes of this appeal, the Immigration Rules (“the Rules”) are of primary relevance. It is, however, appropriate to start by referring to section 3C of the Immigration Act 1971. That provision deals with applications by those with limited leave to remain in the United Kingdom for “variation of the leave”: section 3C(1)(a). It provides (section 3C(1)(b), 3C(2)) that where “an application for variation” is made before the existing limited leave expires, the leave is extended by virtue of the section pending a decision on the application for variation and any appeal against a decision refusing it. Leave so extended by section 3C lapses where the applicant leaves the United Kingdom.

The relevant provisions of the Rules, as they stood at the material time, are paragraphs A34 and 34A, 34C, and 34E. Paragraph A34 requires applications to be made either by completing the relevant online application process or by using the specified application form in accordance with paragraphs 34A – 34D. Paragraph 34A provides, among other things, that the application must be accompanied by documents specified as mandatory in the form and notes, and paragraph 34C provides that an application that does not comply with the requirements in paragraph 34A will be invalid and will not be considered. The heading to paragraphs 34E and 34F is “Variation of Applications or Claims for Leave to Remain”. They provide:

“34E – If a person wishes to vary the purpose of an application or claim for leave to remain in the United Kingdom and an application form is specified for such new purpose or paragraph A34 applies, the variation must comply with the requirements of paragraph 34A or paragraph A34 (as they apply at the date the variation is made) as if the variation were a new application or claim, or the variation will be invalid and will not be considered.

34F – Any valid variation of a leave to remain application will be decided in accordance with the Immigration Rules in force at the date such variation is made.”

Paragraph 34G is headed “Determination of the date of an application or claim (or variation of an application or claim) in connection with immigration”. It makes explicit provision for this in the case of applications sent by post (date of posting), those submitted in person (date of acceptance at a UKBA Office), online applications (date of submission), and courier (date of delivery).

Appendix C to the Rules deals with maintenance funds. Paragraph 1A(a) states that an applicant must have the funds specified in the relevant part of the Appendix “at the date of the application”. In the case of those applying as Tier 4 migrants, the applicants must have had the funds “for a consecutive 28 day period of time”: see Appendix C, paragraph 1A(c). Sub-paragraph (h) of paragraph 1A states that the end date of the 28 day period “will be taken as the date of the closing balance on the most recent of the specified documents” and “must be no earlier than 31 days before the date of application”. The amount of the funds required depends on the course fees, the length of the course, whether it is in or out of London, and whether the applicant is a person with “an established presence” in the United Kingdom.

The material part of the guidance for Tier 4 students issued as a result of the decision in Patel (pp.62 – 63 of version 06/12) states that, where a sponsor’s licence is revoked while an application by a student is under consideration, the CAS becomes invalid but:

“If the student was not involved in the reasons why the Tier 4 sponsor had their licence revoked, we will delay the refusal of his/her application for 60 days to allow the student to regularise his/her stay or leave the UK. The action a student can take to regularise his/her stay in the UK depends on what leave he/she has:

… If the student’s permission to stay has expired while he/she was awaiting a decision on his/her application, we will delay the refusal of his/her application for 60 days to allow the student to obtain a new Confirmation of Acceptance for Studies from a different sponsor and vary their application or leave the UK.

…”

Mr Khan, a Pakistani national, arrived in the United Kingdom on 28 September 2010 with a visa valid until 21 February 2012. On 20 February 2012, he made an application for further leave to remain as a Tier 4 (General Student) migrant. He sought to undertake a course of study at Lincoln’s College London, at that time a registered licensed sponsor, and he provided the proof of sufficient funds to maintain himself during the course during the relevant 28 day period. Since Mr Khan made his application a day before his existing leave expired, section 3C of the Immigration Act 1971 operated to extend his leave.

As I have stated, on 23 May 2012 the UK Border Agency revoked Lincoln’s College’s licence. The effect of that was that Mr Khan’s CAS from that college became invalid and his application was bound to fail because no points could be awarded for the CAS.

When the UKBA came to consider Mr Khan’s application, in accordance with the post-Patel policy guidance, in its letter dated 15 August 2012 it stated that it would suspend consideration of his application for a period of 60 days. The material parts of this letter stated:

“During this 60 day period it is open to you [to] withdraw your application and submit a fresh application in a different category or to leave the United Kingdom. If you do decide to withdraw your application, you will need to confirm this by writing to us at the address given at the top of this page.

However, if you wish to remain in the UK as a Tier 4 student it is open to you to obtain a new CAS for a course of study at a fully-licensed Tier 4 educational sponsor and then submit an application to vary the grounds of your original application.

If you decide to do this, you will need to find a new Tier 4 educational sponsor, who will need to issue you with a new CAS. In order to assist you in obtaining a new CAS, we have enclosed with this letter an information leaflet which … explains to [any potential new sponsors] that you have an application outstanding … ”

The letter as enclosed a certified copy of Mr Khan’s passport, which any new sponsor would need to see. It then stated (in bold type):

“Important – please note:

… If you obtain a new CAS, then you will need to submit fresh and up-to-date documents with your application to vary, for example, bank statements showing you are in possession of sufficient funds to cover your course fees and the maintenance requirement.

You will also need to complete a fresh Tier 4 (General) application form – the most up-to-date version of this form is available on the UKBA website at [link given].”

Mr Khan submitted a fresh Tier 4 (General) application form together with a new CAS from a new college, Edward’s College, and bank statements spanning the period between 8 September and 5 October 2012. The financial information submitted showed that between 12 and 26 September the amounts in the relevant account were no more than £21 and thus below the £1,600 required to support the application. If the relevant 28 day period required by Appendix C was 8 September to 5 October 2012 and not the period before the original application, it is accepted that Mr Khan could not meet the financial requirements.

In a letter dated 30 May 2013, the UKBA stated on behalf of the Secretary of State that Mr Khan’s application dated 20 February 2012 was refused under the Immigration Rules. The reason for the refusal was that the Secretary of State was not satisfied that the documents provided demonstrated that Mr Khan possessed the required level of funds for the 10 points for maintenance.

On 17 January 2016, while this appeal was pending, Mr Khan left the United Kingdom voluntarily. In one sense the issues then became moot. Had the appeal been by him, the effect of his departure would have been that it would have been automatically abandoned as a result of the operation of section 104(4) of the Nationality, Immigration and Asylum Act 2002. In the case of an appeal by the Secretary of State, however, the court continues to have jurisdiction to determine the appeal. In this case, at a time when it appeared that the respondent would not be represented, the Secretary of State stated that, in view of the importance of the issue, she wished this court to determine the appeal and give a reasoned judgment.

We have been assisted by and are grateful to Miss Broadfoot, on behalf of the Secretary of State. We are also grateful to Mr Malik, who was instructed on behalf of Mr Khan very shortly before the hearing. He put before the court a number of cases, to some of which I will refer later in this judgment, which at the hearing Miss Broadfoot accepted contained statements which were adverse to the Secretary of State’s case. It is not suggested that the omission by the Secretary of State to refer to the cases was anything other than an oversight. But we would observe that it is important where it appears that only one side will be before the court in an appeal that all relevant material is put before the court by that party. It is particularly important that this happens where that party is a department of the State, which has an overview of the area as a whole and constitutional responsibility for the legal position in that area.

Mr Khan successfully appealed to the First-tier Tribunal. In a written determination on the papers in Glasgow dated 26 February 2014, the FtT held that since the Secretary of State was prepared to exercise a degree of flexibility in relation to the CAS document, it appeared unfair that she did not extend that flexibility to other outstanding information which she considered important. The decision also stated that it seemed unfair that the Secretary of State did not ask Mr Khan to produce up-to-date information if it was required for his application, and it seemed to the FtT judge that she had shifted the goalposts. I observe that this gave no weight to the statement in bold on the letter dated 15 August 2012 that I have set out earlier, or to the fact that Mr Khan did in fact provide up-to-date information.

The Upper Tribunal dismissed the Secretary of State’s appeal on 3 July 2014. UT Judge Lane stated that the policy guidance did not state that an applicant who was submitting a new CAS after the revocation of the licence of the original sponsoring institution was required to submit fresh maintenance documents, and did not refer to any sanction from a failure to provide up-to-date financial evidence when providing a new CAS.

The UT judge set out the provisions of paragraphs 34E – 34I of the Immigration Rules and (at [12]) noted that paragraph 34E refers to varying “the purpose of an application or claim for leave to remain … ”. He stated that “on the most obvious construction of the rule, the present appellant did not seek to vary the ‘purpose’ of his application, which has throughout remained the same (that is, to remain as a Tier 4 (General) migrant).” He did not consider that the words of paragraph 34E could mean that, by seeking to change the educational provider with whom the person intends to study, the applicant was varying his application. He concluded that, notwithstanding the language in the letter dated 15 August 2012, Mr Khan was not required to “vary” his application in any manner which brought his application under the provisions of paragraph 34 of the Immigration Rules and that the “60 day” concession was one provided wholly outside the context of the rules so that they did not compel a person in Mr Khan’s position to comply with financial or other requirements, both at the date of the initial application and at the date of the new CAS form.

The UT judge also stated, on the basis of Pankina [2010] EWCA Civ 719, that, while the Secretary of State can grant a concession outside the Immigration Rules ameliorating harsh consequences on matters which are wholly outside the control of an applicant, it is not lawful for her to impose upon a applicant stricter conditions than those contained in the Immigration Rules. Accordingly, although for reasons that were different to those given by the FtT, the UT held that there was no error of law by the FtT by allowing Mr Khan’s appeal.

Miss Broadfoot submitted that the UT made three errors of law. The first is that it was wrong, as a matter of interpretation, to conclude that only further applications which change the “purpose” of an application amount to variations within the meaning of the Immigration Rules and section 3C of the Immigration Act 1971.

Secondly, Miss Broadfoot argued that the UT’s conclusion is contrary to the decision of this court in JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78. In that case submissions on behalf of the Secretary of State that a narrow interpretation be given to the term “variation” in section 3C of the 1971 Act were rejected. She submitted that the meaning of “variation” in section 3C is relevant in considering the meaning of paragraphs 34E – 34I of the Immigration Rules.

Miss Broadfoot accepted that there are statements in authorities put before the court by Mr Malik (see [30ff] below) which support giving a different meaning to the words “vary” and “variation” in paragraphs 34E – 34I of the Immigration Rules. She submitted that the context of those cases was different to the present case because they were concerned with attempts by applicants for leave to provide further information of a sort which, under the Rules, is required to be available at the time of the application and not later. They did not concern a relaxation of the requirements of the Rules by the Secretary of State to enable an applicant to deal with a problem that was unknown to him, in no way his fault, and remediable by him. She also relied on the statement in Patel’s case itself (at [21]) that the where an application has been made, the applicant “may vary that application by substituting a new college sponsor” on which she relied but she is not assisted by that because the Upper Tribunal’s decision did not refer to paragraph 34 of the Rules and appears to be solely concerned with section 3C of the 1971 Act.

The third ground of appeal is that the UT’s interpretation did not take into account, and in fact undermines, the public policy objective reflected in the Rules of ensuring that a person making an application for leave to remain as a student provides evidence showing that at the time of the application to be considered he has sufficient funds to maintain himself.

The resolution of the issue before the court involves consideration of three key phrases in the 1971 Act and the Rules. The first is “variation of the leave” in section 3C of the 1971 Act. The second is “variation of the purpose of an application” in paragraph 34E of the Rules. The third is the term “the date of the application” in paragraph 1A(a) of Appendix C to the Rules and the closely related phrase “the date of an application or claim (or variation of an application or claim)” in paragraph 34G of the Rules. Mr Malik’s defence of the approach taken by the tribunals has three limbs. The first rests on the difference between the wording of section 3C and paragraph 34E. The second rests on authority, in particular the decision of this court in Raju, Khatel and others v Secretary of State for the Home Department [2013] EWCA Civ 754, [2014] 1 WLR 1768, which he submitted bound this court. He also relied on what he contends is the proper construction of “the date of the application” in paragraph 1A(a) of Appendix C. He maintains that can only refer to the date of the original application in cases where paragraph 34E does not apply. The third limb of his submission is policy. Mr Malik, relying on the decision in Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568 at [40] and [43], submitted that the Rules should not be construed narrowly in order to resolve an ambiguity in favour of the Secretary of State. This is because, in his words, the Secretary of State holds all the cards and makes the Rules, and can and often does change them.

It is clear from JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78 that “variation” of leave in section 3C of the Immigration Act 1971 has a wide meaning. The result is that a broad category of applicants will have their leave continued pursuant to that provision pending a decision on their application for variation of their leave: see especially [35] – [37]. Richards LJ, with whom Laws and Wall LJJ agreed, also rejected the emphasis by the tribunal in that case on the purpose for which an application is made. He stated (at [37]) that “it is difficult to see why a difference in purpose should determine whether one application is capable of amounting to a variation of another”. He considered that, even where an application is for a different purpose from that of the existing leave, as a matter of language there was no reason why it should not also be treated as a variation of the first application. He rejected the submission that a variation can only arise where a later application is for the same purpose but with different details. He also stated (at [39] that it “makes good sense to adopt an approach towards variations that will allow decisions to take account of any relevant change of circumstances since the first application was made, whether the change is one of detail or affects the capacity in which the applicant seeks leave to remain …”.

The Tier 4 guidance 06/2012 which deals with the position where a Tier 4 sponsor’s licence is revoked explicitly states that the refusal of an application in these circumstances will be delayed for 60 days to allow the student to obtain a new CAS from a different sponsor and to vary their application. The language used, varying an application, is in broad terms the language of section 3C.

I return to paragraph 34E of the Immigration Rules which I have set out. Its heading is “Variation of applications or claims for leave to remain”. Its material words are that “if a person wishes to vary the purpose of an application” and an application is specified for such new purpose or paragraph A34 applies, the variation “must comply with the requirements of paragraph 34A or paragraph A34 (as they apply at the date the variation is made) as if the variation were a new application or claim …” (emphasis added). If paragraph 34E applies in Mr Khan’s circumstances, the variation must comply with the requirements at the date it is made “as if it were a new application”. If this is so, it follows that the Secretary of State’s appeal must succeed.

Mr Malik submitted that paragraph 34E does not apply and that the wide meaning given to the phrase “variation of the leave” in section 3C in JH (Zimbabwe) is not apt for paragraph 34E. Had the Secretary of State wished the meaning to be the same, the language of the Rules would have tracked that of the statute. He submitted that the ordinary meaning of the phrase “vary the purposes of” in paragraph 34E is narrower than “variation of the leave” in section 3C. He submitted that the use of the word “purpose” in other parts of the Rules when describing the different “tiers” through which individuals can apply assists in understanding its meaning in paragraph 34E. He referred to the headings “Purpose” in Rule 245B and C, “purpose of this route” in paragraphs 245ZI and 245ZT, “purpose of this route and meaning of ‘business’” in paragraph 245F, and “purpose of these routes and definitions” in paragraph 245ZM.

The argument is thus that the intent of the rule-maker when formulating paragraph 34E must have been to give the word “purpose” the same meaning as it has in paragraphs 245B-D, F, H, ZI, and ZT of the Rules. Mr Malik submitted that the consequence is that paragraph 34E requires the formality of a full reapplication for a narrower category of case than those that qualify as variations under section 3C. He argued that the Rules, unlike section 3C, make a distinction between a change as to the category in which a person seeks to remain, for example as an entrepreneur or a spouse rather than a student, and a change of the details of an application within a single category. In the first type of case, paragraph 34E requires a full reapplication. In the second, it does not. He did not consider that the words of paragraph 34E could mean that, by seeking to change the educational provider with whom the person intends to study, the applicant was varying the purpose of his application. Since Mr Khan’s purpose remained to obtain leave as a Tier 4 (General) Student he did not have to make a full reapplication.

As to the authorities, Mr Malik relied on Raju, Khatel and others v Secretary of State for the Home Department [2013] EWCA Civ 754, [2014] 1 WLR 1768, which he submitted bound this court, and statements in Mansoor Ali v Secretary of State for the Home Department [2013] EWCA Civ 754 1198, the permission decision in Rasheed v Secretary of State for the Home Department [2014] EWCA Civ 1493, and the decisions of the Upper Tribunal in Qureshi (Tier 4 – effect of variation – App C – Pakistan) [2011] UKUT 00412 and Nasim and others (Raju: reasons not to follow?) [2013] UKUT 610. Before considering the decisions of this court in Raju, Khatel and others, Mansoor Ali, and the meaning of “the date of the application” in paragraph 1A(a) of Appendix C of the Rules, I summarise the other statements relied on by Mr Malik.

In Nasim and others at [58] and [62] the Upper Tribunal stated that “one can vary an application made for a specified purpose by changing details whilst not altering that purpose” and that “by referring to variation of the purpose of an application, the drafter at paragraph 34E must be taken to acknowledge that there may be variations that do not amount to change of purpose”. In Rasheed’s case at [22] Moore-Bick LJ stated that the scope of paragraph 34E is more limited than that of paragraph 34F. In Qureshi’s case at [35] the Upper Tribunal stated it was satisfied that varying an application for leave to study at Empire College London by substituting Birmingham City University as the course provider “was for the same purpose, which was to remain in the United Kingdom in order to pursue studies”. Only the last of these statements is inconsistent with the Secretary of State’s position in the present case.

Mr Malik also submitted that where paragraph 34E does not apply there is nothing in the Rules making the date of the request to vary the date of the application “the date of the application” in paragraph 1A(a) of Appendix C to the Rules and thus the relevant date. He argued that Raju, Khatel and others and the other decisions to which I have referred (at [30] above) show that the making of an application is a fixed historic event and cannot be varied by furnishing additional materials later and preclude paragraph 1A(a) being read to mean “the date of the application or any subsequent variation of that application”. His case is that Raju, Khatel and others and Mansoor Ali v Secretary of State for the Home Department [2013] EWCA Civ 1189 at [9] – [11] show that making an application is what he described as a “fixed historic event” and that the requirement in Appendix C of the rules that an applicant must have the funds specified “at the date of the application” is a reference to the date of the original application, in this case 2 February 2012.

All the cases referred to at [30] except Qureshi’s case involved the effect of the closure of the category of Tier 1 (Post-Study Work) leave which enabled those who had studied in the United Kingdom as Tier 4 students to acquire a limited period of post-study professional or practical experience. In Hossain v Secretary of State for the Home Department [2015] EWCA Civ 207 This court applied Raju, Khatel and others and (at [36]) approved of the approach in the Nasim cases and the Rasheed cases. Mr Malik argued that the submissions made on behalf of the Secretary of State in this appeal are directly contradictory to those successfully made on her behalf to prevent applicants for Tier 1 (Post-Study) status providing their qualification after they had made their application. It is therefore necessary to explain the issue in those cases.

In order to earn the 15 points that were a necessary component of the points required for the Tier 1 (Post-Study Work) category, paragraph 245FD and the fourth box of Table 10 of Appendix A to the Immigration Rules provided that the application had to be made “within 12 months of obtaining the relevant qualification”. The effect of the announcement in March 2011 that the category was to be closed as from 6 April 2012, but applications made before that date remained eligible for consideration under it was that many of those who were studying for bachelors or postgraduate degrees applied for the post-study work category shortly before 6 April 2012 and before they had been formally awarded their degree. Many studied at teaching institutions which did not themselves award degrees but where another university or college validated and awarded the degree.

The time lag in considering applications meant that before decisions on their applications were made the applicants had obtained the degree certificate from the awarding university and submitted it to the UKBA. They argued that they had complied with paragraph 245FD and Appendix A because the Upper Tribunal had held that an application was to be treated as “continuing” and still open until the date on which it was decided. Accordingly, a person who obtained the relevant qualification before the date of the Secretary of State’s decision was entitled to the points for the attribute, in this case the qualification. The tribunal decisions so holding were overruled in Raju, Khatel and others. This court held that subsequently obtained evidence could not cure a defect in the application at the date it was made.

Moses LJ recognised that, although allowing applications which anticipated the award of a necessary qualification did not undermine the purpose of the policy of requiring those seeking to use the, by then revoked, Tier 1 (Post-Study Work) route, the wording of the relevant paragraph of Appendix A setting out the required attributes plainly required the applicant to make the application within 12 months of obtaining the relevant qualification and thus after obtaining it. He stated (see [12] and [13]) that strict compliance was required with the time period, in the same way as with the requirement to have a specified minimum level of personal savings in a specified period prior to the date of the application. He also stated (at [24]) that “an application is made when paragraph 34G says it is made”, i.e. the date of posting or the date on which it is accepted by an office of the UKBA. It followed that the quality of the application had to be appraised at the date of the application and not at the time when the Secretary of State made her decision on it: see at [13] per Moses LJ, citing the statement of Sedley LJ in Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719, [2011] QB 376 at [39]. Mr Malik submitted that it followed that, absent any provisions in the Rules modifying the relevant date, such as that in paragraph 34E, “the date of the application” is a reference to the date of the original application, in this case 2 February 2012.

I accept that in the light of the statements in the Nasim and the Rasheed cases “varying the purpose” in paragraph 34E has a narrower meaning than “variation of the leave” in section 3C. It does not, however, follow that it has the meaning for which Mr Malik contends. It also does not necessarily follow that, if paragraph 34E does not apply to Mr Khan’s case, an applicant in his position is not required to fulfil the other requirements of the Rules as at the date of the variation. The answer to that question depends on the meaning of “the date of the application” in paragraph 1A(a) of Appendix C to the Rules.

Mr Malik put his submissions attractively and concisely, but I have concluded that they should be rejected. For the reasons in the following paragraphs, I do not consider that the use of the word “purpose” in paragraph 34E of the Rules has the effect for which he contended. I have concluded that paragraph 34E applies to the circumstances of Mr Khan’s case so that the requirements of the Rules apply “as if the variation were a new application or claim”.

My starting point in determining the meaning of the word “purpose” in paragraph 34E is the approach to the interpretation of the Immigration Rules. In Mahad v Entry Clearance Officer [2009] UKSC 16, [2010] 1 WLR 48. Lord Brown of Eaton-under-Heywood stated (at [10]) that “the rules are not be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, 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.”

The submission that “purpose” refers to the different routes by which a person may obtain leave in the Rules in my judgment departs from the natural and ordinary meaning of the word. Moreover, it does not reflect the way that changes to the Rules are in fact made. It is a feature of the Rules that they are constantly changing as the Secretary of State’s policy changes or because, in the words of counsel representing her in another case, she “has had to play ‘catch-up’ to address problems that had manifested themselves in the practical operation of the system” (R (Global Vision College Ltd) v Secretary of State for the Home Department [2014] EWCA Civ 659 at [14]) or revealed by previous decisions. The architecture of the Rules is not the grand design of Lutyens’ Delhi or Haussmann’s Paris, but more that of the organic growth responding to the needs of the moment that is a feature of some shanty towns. Moreover, as Miss Broadfoot stated in reply, the separate tiers in the Rules do not each reflect a separate purpose in a uniform way. For example, one of the Tier 2 categories includes general migrants, ministers of religion, and sportsperson migrants.

Secondly, while Mr Malik is entitled to rely on the difference in the language of paragraph 34E and its use of the term “purpose”, during the hearing it was not easy to find a principled distinction between an application to “vary the purpose” of leave and an application to vary the details of leave. A change in the address of the applicant or of name (for example, upon marriage) can be seen not to involve a variation in the “purpose” of the leave. However, while a variation of an application to remain in the United Kingdom as a Tier 4 (General Student) may not involve a variation in the general purpose – to pursue an educational course – it may involve a change in the proposed subject of study, the institution, and the dates of the course, and thus in the particular purpose.

An applicant who varies an application for leave to pursue an architecture course at a particular university by substituting a medicine course at the same or a different university is, in my judgment, in the ordinary sense of the term, varying the purpose of his application, even if he falls within the same Tier of the Points-Based System in the Rules. Such a variation may have an impact on the length of the course (and thus of the leave sought), its cost (and thus the level of financial resources required to be demonstrated), and the starting date. All of these will, as Miss Broadfoot pointed out, be material in the assessment of an application by the Secretary of State. The date of a course and its duration are of particular relevance because of the need to show that one is able to support oneself in the relevant period.

Assessing an application by reference to historic information that relates to a different course at a different institution will in general be unsatisfactory, and sometimes incoherent and irrational. Although (see [47] below) there will inevitably be a time lag between an application and a decision, where an applicant is given the opportunity to provide some up to date information without which his application is doomed to fail, it makes no sense to require the Secretary of State to assess it in all other respects by reference to historic information, and to award points on the basis of such historic information.

Thirdly, the statements in the cases which appear to support giving the word “vary” a narrower meaning in the context of paragraph 34E must be seen in their context. Raju, Khatel and others was not about “variation” in the sense used here, but about the point in time when there had to be compliance with a requirement. Although the statement from Qureshi quoted at [31] above appeared to support Mr Malik’s submission, in that case the Secretary of State did not (see [22]) take the point that a variation by applying for a different course at a different institution was an application for a different purpose. Moreover, the narrow meaning given to “purpose” did not affect the result in that case because the tribunal stated (at 36]) that the relevant date for determining the points to be awarded “is the date of the most recent variation”.

Fourthly, the reason that an applicant for Tier 4 (General Student) status is given the opportunity to submit a new CAS from a different sponsor in a case such as this is the unfairness of refusing his application automatically as a result of the revocation of the original sponsor’s licence where that factor was unknown to him or her in the way explained in Patel’s case. It is to be observed that, even where the problem is unknown to an applicant, it is not always the case that flexibility will be given within the rule-based system. Flexibility will not, for example, be required either under the Rules or the common law principle of fairness where a problem is caused by a mistake on the part of the sponsor which is unknown to the Secretary of State: see EK (Ivory Coast)v Secretary of State for the Home Department [2014] EWCA Civ 1517 at [24] and [40].

Mr Malik’s submissions do not recognise that the “Patel” scenario and the policy in guidance 06/12 in substance operates as an exception to what he described as the “fixed historic event” nature of an application. It does not do so by treating the application as “continuing” in the way rejected by this court in Raju and the other cases. It does so by treating it as a new application made at the date of posting or when it is accepted at a UKBA public enquiry office. There can, as Richards LJ stated in JH (Zimbabwe) at [35], only be one application at a time.

Finally, I have concluded that the considerations of principle and/or policy on which both Mr Malik and Miss Broadfoot relied support giving a broad meaning to the term “purpose” in paragraph 34E. That produces greater symmetry between the 1971 Act, where a broad approach has been taken, and the Rules. It also gives effect to the general policy objective, which is to ensure as far as possible that a person seeking to remain in order to pursue a course of studies can adequately support and maintain himself or herself at the time of the studies. It is true that, because of the time lag between an application and the date of decision, by the latter date the evidence submitted in support of the application may be out-of-date and the individual may by then not have the means to support himself or herself. It would, however, be impractical, if not impossible, for the Secretary of State to require an update to the position at the point when she is in fact considering an application without subjecting what is already a lengthy process because of the numbers of applications involved to significant further delay. The genesis of the flexibility and the opportunity introduced by the guidance as a result of the decision in Patel’s case was fairness. There is, in my judgment, no unfairness in requiring a person who is given the opportunity to submit a new CAS also to show that, at that time, he or she meets the relevant financial requirements.

I referred at [24] above to Mr Malik’s submission based on the decision in Pokhriyal. The difficulty with his argument that if the Secretary of State wished to ensure that all the other requirements of Tier 4 (General Student) status were satisfied at the time the new CAS was submitted, she should have changed the Rules to make this clear is that it does not recognise that it was only because of the departure from the strict provisions of the Rules and the flexibility introduced by the policy guidance 06/12 as a result of the decision in Patel that the applicant is given an opportunity to submit a new valid CAS and “to vary the application”. The result is, in a sense, a carve-out from the Rules in favour of an applicant who cannot comply with them in order to remove a particular unfairness. When given the opportunity to submit a new valid CAS, it was made clear to Mr Khan that he should submit up-to-date financial information to show that he met the financial requirements for his new course at the material time. It is difficult to see what principle is being violated by requiring this.

The broad approach taken by Richards LJ in JH (Zimbabwe), refusing in the passages to which I have referred to distinguish alternations of details from alterations of purpose and stating that both are variations is conducive to more satisfactory results than the approach for which Mr Malik contended. To the extent that the different wording of paragraph 34E means that a distinction is to be drawn between “details” and “purposes”, the latter term should be given its ordinary meaning and not a narrow meaning.

On the basis that paragraph 34E applies, it is clear from its heading that it is concerned with “variation of application”, and from the text that there must be compliance with the requirements as they apply at the date the variation is made “as if the variation were a new application or claim”. “At the date of the application” in paragraph 1A(a) of Appendix C must be read accordingly.

In view of my conclusion that paragraph 34E applied to Mr Khan’s case, it is not necessary to decide what the position would have been had it not, or to consider Miss Broadfoot’s alternative argument. She accepted that where paragraph 34E did not apply there would be a gap in the Rules in the sense that they make no express provision for what the date of the application that has been varied is to be. But she submitted that when construing the Rules the court should have regard to the fact that it would be absurd to say that “the date of the application” in paragraph 1A(a) Appendix C is the date of the original application. That she argued would undermine the policy of requiring those who commence courses of study to have sufficient means to do so. There would also, she argued, be a difficulty in the operation of paragraph 34F, which does not use the term “purpose” but states that any valid variation of leave will be decided in accordance with the rules in force at the date such variation is made. In a case where the effect of the change of institution or course means that the financial requirements are changed, she maintained that is a strong pointer to the relevant time being the date of the variation in the way the tribunal in Qureshi’s case decided.

There is force in these arguments, but whether they mean that, where paragraph 34E does not apply, despite the absence of express provision there is in fact no gap or lacuna in the Immigration Rules is a matter to be decided on another occasion. I observe only that, if there is such a gap, it is not for this court to fill it. The Rules are the Secretary of State’s statement of her current policy. It is for her to decide whether, and if so, how to deal with any gap. As Mr Malik stated, she has ample power to change the Rules and to do so by a process which is relatively straightforward.

For the reasons I have given, I have concluded that the variation of Mr Khan’s application by the provision of a new CAS issued by a new educational provider and possibly with a course of different length and starting at a different time, fell within paragraph 34E because it was a variation of the purpose of his application for leave. Although the concept of “variation” within paragraph 34E may be narrower than that in section 3C because of the use of the word “purpose”, the word “purpose” should not itself be given a narrow or technical meaning. Accordingly, when Mr Khan submitted his application and the new CAS in October 2012, he also had to fulfil the other mandatory requirements in the Rules and the Secretary of State’s appeal should be allowed.

I agree.

I also agree.