NO v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

The appellant is a citizen of Nigeria, born on 13^th April 1978. His appeal against the decision of the respondent, made on 3^rd November 2008, refusing his application to remain in the United Kingdom 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 P A Grant-Hutchison, in a determination promulgated on 23^rd June 2009.

The background to this appeal is that on 16^th June 2006 the appellant was granted leave to enter the United Kingdom until 31^st October 2008 as a student. On 2^nd October 2008 he applied for leave to remain in the United Kingdom as a Tier 1 (Post-Study Work) Migrant. As Mr Saunders pointed out during the hearing before me, the qualification in respect of which the appellant claimed 20 points in his application was a United Kingdom recognised degree at post-graduate level. In answer to question G2 in the appellant’s application form, it was stated to be a Master’s Degree in Energy Futures – Oil and Gas, awarded by the School of Engineering (at the University of Aberdeen). The appellant claimed 20 points in respect of having studied at a United Kingdom institution, that is to say the University of Aberdeen. He claimed 20 points in respect of having leave to remain as a student during his period of study and 15 points on the basis that the eligible qualification was obtained in the twelve month period immediately before submitting the application. Section K1 of the application form stated that the applicant must have made the application for entry clearance or leave to remain as a Tier 1 (Post-Study Work) Migrant within 12 months of obtaining the relevant qualification. It went on to say:

“Please tick the box to confirm that the applicant obtained his/her eligible qualification in the 12 month period immediately before submitting this application.”

The appellant ticked the box.

In support of his application the appellant submitted a letter from Dr Thangavel Thevar, the coordinator of the MSc (Energy Futures) programme in the School of Engineering at the University of Aberdeen, which confirmed that the appellant was currently a full-time MSc (Energy Futures – Oil and Gas) student in the School of Engineering, University of Aberdeen. The letter read as follows:

“This letter is to confirm that Mr. O is currently a full time Msc (Energy Futures-Oil and Gas) student in School of Engineering, University of Aberdeen. The programme runs from 18^th September 2007 to 30^th September 2008.

Mr. O has satisfied all requirements for the award of a Post-Graduate diploma. He is currently working on his dissertation which is due for submission on 30^th September 2008. Subject to his successful completion of the dissertation, he will be awarded a Master’s degree in November 2008.”

During the hearing before me Mr Ogolo suggested that the appellant had earned the necessary points in respect of the award of a post-graduate diploma but it is perfectly plain from the appellant’s application form that he did not make the application based upon the award of a postgraduate diploma and Mr Ogolo was not able to point to any evidence before the immigration judge, or me for that matter, that a post-graduate diploma had in fact been awarded to the appellant, so as to comply with the requirements of the immigration rules.

It is clear from the letter of refusal, dated 3^rd November 2008, that the Secretary of State refused the application because the appellant had failed to provide a certificate or letter confirming that he had been awarded the Master’s degree he claimed. This meant that he failed to obtain 20 points for his qualification and failed to obtain 15 points for having obtained the award within twelve months of his application.

In the respondent’s bundle before the immigration judge there was a certificate from the University of Aberdeen showing that the degree of Master of Science in Energy Futures (Oil and Gas) was conferred upon the appellant on 28^th November 2008. The appellant attended the hearing and I am prepared to accept that he showed to the immigration judge the original certificate which he had with him at the hearing before me. In paragraph 11 of his determination the immigration judge said this:

“Ultimately the only matter that was in dispute between the parties was whether or not the Appellant could claim 15 points for having obtained an appropriate qualification. Whereas I can perfectly understand why the Appellant applied when he did, as a matter of fact he did not, as is required, obtain his degree in the twelve months prior to application. Indeed the letter from the University of Aberdeen only states that he will obtain his degree if his dissertation is successfully completed. I am prepared to accept that the Appellant did indeed obtain his degree but that has little effect on the respondent’s decision as it was obtained out with the relevant period.”

In paragraph 13 he said that for the reasons stated above he did not accept the reasons given by the respondent in the refusal to allow entry clearance (sic) to the appellant. He said the appellant had not discharged the burden of proof and the reasons given by the respondent did justify the refusal.

The appellant applied for reconsideration of the appeal on three grounds. The first was that there was an inherent contradiction in the statement by the immigration judge in paragraph 13 of his determination, that he did not accept the reasons given by the respondent in the refusal to allow entry clearance to the appellant and his statement that the appellant had not discharged the burden of proof and the reasons given by the respondent did justify the refusal. The second ground asserted that on the date of the application, 2^nd October 2008, the appellant submitted a letter from the university confirming that he qualified for the post-graduate diploma pending his dissertation to be awarded the Master’s degree. It said the letter clearly indicated the date of award and the board. It was therefore the appellant’s case that on the date of application he satisfied the requirements under the rules except that he had not obtained the original certificate for the master’s award. The third ground was that the immigration judge failed to address the appellant’s article 8 rights.

On 10^th July 2009 Senior Immigration Judge Warr ordered reconsideration for the following reasons:-

“The first sentence of the ante-penultimate paragraph of the determination may be contradictory (sporting a redundant “not”) or it may be that the judge was not satisfied with all the reasons advanced by the respondent for the decision (see paragraph 11 – some of the respondent’s reasons appear to have been dropped.)

In the premises it is appropriate to order reconsideration.”

At the hearing before me Mr Saunders agreed that there was a contradiction in paragraph 13 of the determination but he submitted that it did not amount to a material error of law. I agree. He also submitted, as was the case, that there were no grounds of appeal under article 8 of the ECHR. Mr Saunders submitted the letter which the appellant attached to his application did not satisfy the requirements of the immigration rules since at the date of the application the appellant had not been awarded a Master’s degree.

Mr Ogolo submitted that the letter satisfied the rules.

Paragraph 245Z of HC 395, as amended, provides that in order to qualify for leave to remain as a Tier 1 (Post-Study Work) Migrant, an applicant must have a minimum of 75 points under paragraphs 51 to 58 of Appendix A. Paragraph 51 of Appendix A states that an applicant applying for entry clearance or leave to remain as a Tier 1 (Post-Study Work) Migrant must score 75 points for attributes. Paragraph 52 says that available points are shown in Table 9. Table 9 shows that an applicant is entitled to 20 points if he has been awarded a United Kingdom recognised bachelor or postgraduate degree. It shows that he is entitled to 20 points if he studied for his award at a United Kingdom institution that was a United Kingdom recognised or listed body. He is entitled to 20 points if his periods of United Kingdom study towards his eligible award were undertaken while he had entry clearance, leave to enter or leave to remain in the United Kingdom and 15 points if he made the application for entry clearance or leave to remain as a Tier 1 (Post-Study Work) Migrant within twelve months of obtaining the relevant qualification. Paragraph 54 says that specified documents must be provided as evidence of the qualification. Paragraph 55 says 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.

The first issue to be decided is whether the appellant was entitled to rely upon post-decision evidence that he had been awarded an MSc by the University of Aberdeen. Section 85(4) of the Nationality, Immigration and Asylum Act 2002 provides as follows:

“On an appeal under section 82(1), 83(2) or 83A(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.”

In paragraph 7 of their determination in EA (Section 85(4) explained) Nigeria [2007] UKAIT 00013 the Tribunal said this:

“It is thus not open to an appellant to argue simply that, on the date of the hearing, he meets the requirements of the immigration rules. He can succeed only if he shows that the decision that was made was one which was not in accordance with the immigration rules. Section 85(4) allows him to show that by reference to evidence of matters postdating the decision itself, and it may well be that the effect is that the question for the Tribunal in an in-country case is whether the decision can be justified as a correct one at the date of the hearing. But that does not mean that the Tribunal is the primary decision-maker. The Tribunal’s task remains that of hearing appeals against decisions actually made. The correct interpretation of s85(4) is perhaps best indicated by saying that the appellant cannot succeed by showing that he would be granted leave if he made an application on the date of the hearing: he can succeed only by showing that he would be granted leave if he made, on the date of the hearing, the same application as that which resulted in the decision under appeal. The subsection does not permit an appellant to change his case under the Immigration Rules for being allowed to remain in the United Kingdom. (That is, of course, without prejudice to the fact that s84(1) may allow the appeal to succeed on different grounds entirely.)”

This passage from the determination of the Tribunal in EA was quoted in paragraph 9 of his determination but the immigration judge did not go on to consider expressly what the effect of it should have been upon his determination of the appeal. On the one hand he said that ultimately the only matter that was in dispute between the parties was whether or not the appellant could claim 15 points for having obtained an appropriate qualification but on the other hand went on to say that he was prepared to accept the appellant did indeed obtain his degree but that had little effect on the respondent’s decision as it was obtained out with the relevant period.

In paragraph 74 of their determination in NA & Others (Tier 1 Post-Study Work-funds) [2009] UKAIT 00025 the Tribunal said this:

“Thus it can be seen that nothing in the Immigration Rules dealing with Points Based applications or in the Policy Guidance, has the effect of rendering s.85(4)’s potential application to Tier 1 (Post-Study Work) appeals nugatory. If it had been intended that applicants could not succeed unless they had submitted the specified documents at the time of applying that could have been specified; but it was not. The nature of the decision concerned (one whose substance relates in part to an historic timeline) limits the scope of application of this sub-section, but does not exclude it entirely. Neither the Rules nor the Policy Guidance stipulates anything either about the reception of evidence on appeal, which (for in-country appeals) is governed by s.85(4).”

The Tribunal’s reference to an historic timeline related to the requirement that an appellant should have had £800 in funds at the date of the decision and three months immediately prior thereto.

The effect of the decision of the Tribunal in NA & Others is that an appellant can rely upon post-decision evidence, that is to say evidence adduced at the hearing, to show that he had the necessary funds at and prior to the date of the application but not at any subsequent time. Thus evidence that he had the necessary funds at the date of the hearing and three months immediately prior thereto is not admissible to show compliance with the requirements of the immigration rules.

Table 9 of Appendix A makes provision for the award of 15 points if:

“The applicant made the application for entry clearance or leave to remain as a Tier 1 (Post-Study Work) Migrant within 12 months of obtaining the relevant qualification.”

In my view this provision clearly requires an applicant to have obtained the relevant qualification by the date of the application, and not more than 12 months before. It disentitles an applicant from relying upon a qualification which he hopes to obtain in the future. This is borne out by the provisions of the Tier 1 (Post-Study Work) of the Points Based System – Policy Guidance which state that an applicant can claim 15 points if the qualification for which he is claiming points was obtained within the twelve months immediately before his application for entry clearance or leave to remain under Tier 1 (Post-Study Work).

It is worth noting that the application form which the appellant completed asked at question G1 “What qualification does the applicant have (my underlining)?” and at G2 asked for the details of the applicant’s qualification.

Unless an applicant is applying for leave to remain and has or was last granted, leave to remain as a participant in the International Graduate Scheme (or its predecessor) or as a participant in the Fresh Talent: Working in Scotland Scheme, he cannot score the 75 points for attributes required by paragraph 51 of Appendix A unless he obtains 15 points on account of having made the application within 12 months of obtaining the relevant qualification.

In KAN (Post-Study Work – degree award required) India [2009] UKAIT 00022 it was held that the requirements of paragraph 245Z and paragraphs 51 to 55 of Appendix A of HC 395, as amended, were that in order to be entitled to points an applicant must have been awarded the requisite qualification in respect of which points were claimed. It was not sufficient to show that the qualification would be awarded. As the appellant in that case had not obtained the relevant qualification by the date of the original hearing the determination did not strictly deal with the issue whether an appellant could rely upon a qualification obtained after the date of the application.

In my view, for the reasons which I have given, in order to satisfy the requirements of paragraph 51 of Appendix A there is an historic timeline applicable to the date by which an applicant must have obtained the qualification he relies upon, and that date is the date of the application.

This determination supplements the determination of the Tribunal in KAN.The requirement of paragraph 245Z and paragraphs 51 to 55 of Appendix A of HC 395 as amended is that in order to be entitled to points the applicant must have been awarded the requisite qualification in respect of which points are claimed by the date of the application.

In this case the appellant had not been awarded the MSc for which he was studying at the date of the application since he had yet to complete his dissertation, upon which the award depended.

In these in these circumstances the immigration judge did not make a material error of law in his determination of the appeal. There were no human rights grounds of appeal under article 8 of the ECHR so that his decision dismissing the appeal on human rights grounds was otiose. His determination dismissing the appeal under the immigration rules shall stand.