KAN v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

The appellant is a citizen of India, born on 6^th March 1983. Her appeal against the decision of the respondent, made on 9^h January 2009, refusing her application for leave to remain as a Tier 1 (Post-Study Work) Migrant under paragraph 245Z of HC 395 as amended was dismissed under the immigration rules and on human rights grounds under article 8 of the ECHR after a hearing by Immigration Judge Monro, in a determination promulgated on 12^th March 2009.

On 25^th March 2009 Senior Immigration Judge Warr ordered reconsideration for the following reasons:

“The immigration judge felt constrained to dismiss the appeal on a technical issue but the appellant arguably submits that the appellant might have succeeded on the guidance referred to.

In the premises it is appropriate to order reconsideration on the grounds as pleaded.”

In paragraph 1 of her determination the immigration judge recited that on 26^th February 2006 the appellant was granted leave to enter the United Kingdom as a student until 31^st January 2007. On 14^th February 2007 she was granted leave to remain in the United Kingdom as a student until 30^th April 2008. On 28^th April 2008 she was granted leave to remain in the United Kingdom until 31^st December 2008. On 20 October 2008 she made the application, the refusal of which was the subject matter of the appeal.

In paragraph 5 of her determination she said that she had heard evidence from the appellant and found her to be a credible witness. The appellant had completed her studies in July 2008 and in October she received written confirmation that “the certificate” would be awarded in March 2009. She said she had not yet received the certificate. In paragraph 11 of her determination the immigration judge said that London South Bank University had confirmed in a letter of 27^th October 2008 that the appellant “has completed the requirements for award of the Postgraduate Diploma in Corporate Governance which will be awarded at the next Examination Board scheduled to be held in March 2009”. She explained that in another letter dated 21^st January 2009 the university had stated:

“[KAN] is registered as a student on the MSc/PgDip in Corporate Governance Course at this university, which commenced on 26^th September 2005. Under our corroboration arrangements with Loyola College Chennai she completed semester one at that institution and came to the UK in February 2006 for completion of the rest of the course. [KAN’s] attendance record has been excellent (over 95%) and she is a student in good financial standing with no arrears of fee payments. In the academic year 2007/8 (i.e. the academic year ending July 2008) she successfully completed the Postgraduate Diploma in Corporate Governance which will be awarded after the next Examination Board scheduled to be held in March 2009.”

In paragraph 12 of her determination the immigration judge said that the wording of the two letters from the university was plain. She said there was no doubt that the award would be made but the wording of Appendix A of HC 395 was also clear. She said the student must have written confirmation that the qualification had been awarded, not that it would be awarded, even if there was little or no doubt that this would be the case. She found the appellant did not meet the requirement of the rules at the date of application and that the decision made by the Secretary of State was in accordance with the law and rules applicable to the case.

At the hearing before me Ms Bustani confirmed that no certificate that the appellant had been awarded her degree was in existence at the date of the hearing.

In the grounds for review the appellant relied upon the Tier 1 (Post-Study Work) of the Points Based System - Policy Guidance issued by the respondent for the proposition that if an applicant was unable to provide a certificate of award she could rely upon a letter from the body awarding the qualification stating that the certificate of award would be issued. The grounds asserted that the immigration judge had failed to properly apply the guidance to the appellant’s case and thereupon made a material error of law.

In her submissions to me Ms Bustani submitted that the combination of the fact that the appellant had succeeded in her course together with the letter from the London South Bank University, dated 21^st January 2009, saying that the appellant had successfully completed the Postgraduate Diploma in Corporate Governance which would be awarded at the next Examination Board scheduled to be held in March 2009, in the light of the respondent’s guidance meant that the appellant had complied with the immigration rules. She submitted that a purposive interpretation ought to be given to the immigration rules.

The relevant part of paragraph 245Z of HC 395 for the purpose of the appeal is sub-paragraph (c) by which the applicant was required to have a minimum of 75 points under paragraphs 51 to 58 of Appendix A. Paragraph 52 of Appendix A indicates that available points are shown in Table 9 and paragraph 53 states that notes to accompany the table appear below the table. Table 9 states that 20 points are scored where:

“The applicant has been awarded:

(a)

a UK recognised Bachelor or Postgraduate Degree, or

(b)

a UK Postgraduate Certificate or Diploma, or

(c)

a Higher National Diploma (‘HND’) from a Scottish institution.”

Paragraph 54 states that specified documents must be provided as evidence of the qualification and paragraph 55 states that a qualification will have been deemed to have been ‘obtained’ on the date on which the applicant was first notified in writing, by the awarding institution, that the qualification had been awarded.

In his judgment in MB (Somalia) v Entry Clearance Officer [2008] EWCA Civ 102 Laws L J questioned whether the plain and ordinary meaning of a rule should be modified in order to give effect to a purposive construction. He accepted that any rule, like any evidence, should be construed so as to further its purpose but said that that purpose could usually be identified from the terms of the instrument itself. In paragraph 38 of his judgment in AM (Ethiopia) & Ors & Anor v Entry Clearance Officer [2008] EWCA Civ 1082Laws L J said:

“It is thus in the nature of the Immigration Rules that they include no over-arching implicit purposes. Their only purpose is to articulate the Secretary of State’s specific policies with regard to immigration control from time to time, as to which there are no presumptions, liberal or restrictive. The whole of their meaning is, so to speak, worn on their sleeve. Mr Gill’s plea for a construction which gives added value to family life assumes, or asserts, an internal force or impetus which the Rules entirely lack. There is no material basis for the suggestion that Mr Gill’s favoured construction must be adopted to save the vires of the relevant Rules. Indeed in light of MW (Liberia) I do not consider that he was entitled to advance such a submission.”

In my view the plain meaning of the words set out in Table 9 are that an applicant is entitled to points where he or she has been awarded one of the specified qualifications. This interpretation is borne out by the words of paragraph 55 of Appendix A which refer to the applicant being first notified in writing, by the awarding institution, that the qualification had been (my underlining) awarded. On this basis, in stating that specified documents must be provided as evidence of the qualification, paragraph 54 of Appendix A is dealing with evidence of a qualification that has been awarded.

Paragraph 245AA of HC 395 provides that where Appendix A, inter alia, states that specified documents must be provided, that means documents specified by the Secretary of State in the Tier 1 of the Points Based System - Policy Guidance. The relevant documentary evidence required is set out in paragraphs 74 to 81 of the guidance. These paragraphs provide as follows:

“74.

Paragraph 245AA (and 54 of Appendix A) of the Immigration Rules state that we will only award points when an applicant provides the specified evidence that he/she meets the requirements for this category.

75.

The evidential requirements for each scoring section are detailed in the application form. The specified documents are as follows:

(i)

original certificate of award; and

(ii)

original letter from the institution at which the applicant studied towards his/her eligible qualification; and

(iii)

where an applicant is unable to submit their original certificate of award because it has not yet been issued, he/she may submit the application without it. However, the letter from the institution must include extra information explaining the individual circumstances; and

(iv)

original passport(s) or travel document(s) containing the relevant grant(s) of leave in the United Kingdom for the period during which the applicant studied and/or conducted research for his/her eligible qualification in the United Kingdom.

(i)

Original certificate of award

76.

This must be the applicant’s original certificate (not a copy) and must clearly show the:

•

applicant’s name;

•

title of the qualification; and

•

name of the awarding body

77.

We will not accept provisional certificates.

(ii)

Original letter from the institution at which the applicant studied

78.

This letter must be an original letter (not a copy), on the official letter-headed paper of the United Kingdom institution at which the applicant studied and bearing the official stamp of that institution. It must have been issued by an authorised official of that institution and must confirm the:

•

applicant’s name;

•

title of the qualification; and

•

start and end dates of the applicant’s period/s of study and/or research for this qualification at the United Kingdom institution; and

•

date of award (as defined above)

79.

If the qualification is a Postgraduate Diploma or Certificate, the letter must also include:

•

confirmation that the qualification is equivalent to or above the level of the United Kingdom Bachelors Degree.

80.

If the qualification is an HND from a Scottish institution, the letter must also include:

•

confirmation that the qualification is at HND level and was studied at a Scottish institution

(iii)

Extra information in original letter from the institution at which the applicant studied

81.

When the applicant is unable to supply the certificate of award (for example when the application is made before the applicant’s graduation), this letter must also include:

•

details of the body awarding the qualification; and

•

confirmation that the certificate of the award will be issued

(iv)

Original passport(s) or travel document(s) containing the relevant grant(s) of leave in the United Kingdom for the period during which the applicant studied and (or) conducted research for his (her) eligible qualification in the United Kingdom”

It can be seen from the Guidance that where an applicant is unable to submit the original certificate of award he is able to rely upon a letter confirming that the certificate of the award will be issued. That is not the same as saying that an applicant can rely upon a letter confirming that the award itself will be issued. The reference to an applicant being unable to submit the original certificate of award because it has not yet been issued is not a reference to an applicant being unable to submit evidence of the award because the award has not yet been issued. This interpretation is clearly borne out by paragraph 70 of the guidance which deals with the date of award of qualification. This provides:

“We will always consider that the date on which the applicant was first notified in writing, by the awarding institution, that the qualification has been awarded, is the date on which the qualification was ‘obtained’ (date of award). This notification may have been made in writing, directly to the applicant, or by the institution publishing details of the award, either in writing (for example, via an institution notice board) or electronically (for example, on the institution’s website). Where notification was not in the form of direct correspondence to the applicant we will require written confirmation from the institution of the date of award.”

In these circumstances there is nothing in the Guidance which suggests that the words used in Table 9 of Appendix A should not be given their ordinary meaning. At the date of the decision and indeed at the date of the hearing there was no evidence that the appellant had been awarded a UK Postgraduate certificate or diploma and in these circumstances the immigration judge did not make an error of law in dismissing her appeal.

Ms Bustani accepted that the application for reconsideration had not been made in relation to the dismissal by the immigration judge of the appellant’s appeal on human rights grounds and in these circumstances the decision of the immigration judge dismissing the appeal must stand.