Malik Sohail Kamran v The Secretary of State for the Home Department

These appeals come before us as a result of permission to appeal having been granted in the Upper Tribunal by Upper Tribunal Judge Grubb on 17 ^th May 2011. The terms of the grant of permission provide an adequate introduction to the details of the appeals. Permission to appeal was granted for the following reasons:

We received skeleton arguments from both from Mr Mohammad and Mr Deller and we have also taken into account their oral submissions. The thrust of the argument advanced on behalf of the appellants was that UK NARIC had no function other than to assess overseas qualifications and their equivalence to United Kingdom qualifications. Reliance was placed upon the UK NARIC website which said that UK NARIC was the national agency responsible for providing information and advice about how qualifications from schools from overseas compared to the UK’s national qualification frameworks. Mr Mohammad suggested that the Credit Accumulation Scheme (CATS) operated by the Quality Assurance Agency for Higher Education (QAA) was the body which oversaw quality assurance for indigenous awards and there was no general requirement for British citizens to reference (sic) their British awards. It was said that with the QAA in place the respondent was not correct to insist that UK NARIC was the body of reference for indigenous qualifications. Having said that, he conceded that the QAA did not cover private institutions such as the Birmingham International College (BIC).

Mr Mohammad further argued, by reference to a document taken from the Directgov website, that since the National Qualifications Framework (NQF) set out the level at which a qualification could be recognised in England, Northern Ireland and Wales across the NQF and Qualifications and Credit Framework (QCF), the Secretary of State was acting unreasonably in requiring UK NARIC to assess the equivalence of the first-named appellant’s English qualification, particularly since such was not part of UK NARIC’s role. It was also argued that since the first-named appellant’s qualification had been deemed sufficient to entitle him to leave to remain in the United Kingdom under the International Graduates Scheme (IGS), it should be deemed to be sufficient for the purposes of his application for leave as a Tier 1 (General) Migrant.

We observe that only the latter point was raised before the First-tier Tribunal judge at the hearing of the appeal. Then the appellants’ representative conceded that at the date of the application and the decision the first-named appellant was not able to show that he had obtained an academic qualification deemed by UK NARIC to meet the recognised standard of a bachelor’s degree. It is clear from paragraph 9 of the determination that what was argued on the appellants’ behalf was that as the first-named appellant had qualified under the International Graduate Scheme because transitional arrangements enabled such persons to apply for further leave as Tier 1 (General) Migrants to obtain a total of up to two years’ leave under a combination of their previous scheme and Tier 1, the first-named appellant’s Postgraduate Diploma in Management Studies should be regarded as an adequate qualification. The First-tier Tribunal judge accepted that whilst that might be true the appellants still needed to satisfy the requirements of the Immigration Rules.

The reality of the position was that the first-named appellant had been granted further leave to remain in the United Kingdom as a participant of the International Graduate Scheme on 17 ^th July 2008 until 17 ^th July 2009 and then on 27 ^th July 2009 he was granted further leave to remain in the United Kingdom as a Tier 1 (Post-Study Work) Migrant until 17 ^th July 2010.

We also observe that the only matter advanced in the grounds of appeal to the Upper Tribunal was that UK NARIC had no jurisdiction to adjudicate on the standards of British awards.

Paragraph 245C of HC 395, as amended, in force at the date of decision required, so far as relevant, as follows:

Appendix A provided, so far as is relevant, as follows:

Therefore according to the immigration rules in order for the appellants to have succeeded in the appeals the first-named appellant would have to have been entitled to 30 points in respect of the Postgraduate Diploma in Management Studies issued to him in 2007 by Birmingham International College. According to paragraph 5 of Appendix 1 points would only be awarded if this qualification was deemed by UK NARIC to meet or exceed the recognised standard of a bachelor’s degree in the United Kingdom.

The point made on the appellants’ behalf before the First-tier Tribunal judge, that the first-named appellant’s qualification, which was sufficient to entitle him to leave under the International Graduates Scheme, should be regarded as adequate for the purpose of his application for leave as a Tier 1 (General) Migrant, was and is in our view wholly unarguable in the light of the decision of the House of Lords in Odelola v Secretary of State for the Home Department [2009] UKHL 25. In that appeal the House of Lords held that in the absence of transitional provisions and an indication to the contrary, even if the rules changed between the date of an application and the date of the decision, an appellant still needed to comply with the immigration rules as they were at the date of the decision.

Had we had to decide the main argument now advanced on behalf of the appellant, namely that UK NARIC had no role in judging the equivalence of the appellant’s qualification because it was not a foreign qualification, unaided by authority we would have had no hesitation in rejecting it. If it were the case that UK NARIC had no such role then all that would have followed would have been that on a proper construction of the immigration rules no mechanism would have been in place for judging the equivalence of the appellant’s qualification. In that situation as he did not have a UK bachelor’s degree he could not have satisfied the requirements of the immigration rules.

As it is, the point has already been decided in the Court of Appeal by Richards LJ in a renewed application for permission to appeal in AH (Pakistan) v Secretary of State for the Home Department [2010] EWCA Civ 1564. The same point was unsuccessfully argued before Senior Immigration Judge Southern in the reconsideration of an appeal before the AIT, in a determination promulgated on 8 ^th February 2010, dismissing the appellant’s appeal against the respondent’s refusal of his application for a variation of his leave to remain. The unsuccessful appellant applied to the Court of Appeal for permission to appeal but his application was refused. Richards LJ recited that the appellant’s contention before the senior immigration judge was that the role of UK NARIC was limited to vetting overseas qualifications and that UK NARIC’s approval was not needed for a UK qualification. In paragraph 8 of his judgment he said that Mr Malik, who appeared on behalf of the applicant, submitted that paragraph 5 of Appendix A related only to qualifications from abroad. He said Mr Malik pointed to the statement on UK NARIC’s own website that UK NARIC “provided a service whereby qualifications from outside the UK are compared to the UK’s qualification framework” and to an email from UK NARIC which was before the senior immigration judge. Mr Malik submitted that e-mails from the UK Border Agency to the contrary effect could not displace what was said by UK NARIC itself.

Richards LJ noted that it was further submitted that qualifications from within the United Kingdom were deemed to be of recognised standard if obtained from an institution on a list approved by the Department for Business, Innovation and Skills in accordance with the Education (Listed Bodies) England Order 2007 and that Saxon College was on that list when the applicant obtained his qualification and its removal from the list at a later date could not affect the applicant’s qualification. He did not accept the submissions. He said this in paragraph 9 of his judgment:

He went on to say that there was no provisional machinery setting up a separate regime for UK qualifications, save to the extent expressly provided for under paragraph 1A. He said Appendix A provided on its face a complete code. He could see no basis for qualifying it by reference to a separate regime for UK qualifications as contended for by Mr Malik. He said in particular he thought it wrong to have regard to extraneous material, be it e-mails or policy guidance, in considering the Appendix. To his mind, Mr Malik’s submission that there was a lacuna in the Appendix insofar as the generality of UK qualifications was concerned was unsustainable.

Mr Mohammad made a bold submission that the decision of Richards LJ was wrong. He said the court probably did not have the advantage of a fully argued case at a permission stage. It is apparent, however, that the applicant in AH was represented by very experienced counsel, namely Mr Z Malik, and we just do not accept the proposition that the case on behalf of the applicant was not fully argued. The submission of Mr Mohammad that even if the reference to UK NARIC included it having power to judge the equivalence of the first-named appellant’s qualification such was not in accordance with the law and should have been disregarded, in our view is wholly without merit. The fact that the Secretary of State might have chosen different means of testing the equivalence English qualification is neither here nor there.

In Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719 Sedley LJ with whom the other members of the Court agreed and said that he accepted that the decision of the Court of Appeal in R v Secretary of State for Social Services, ex-parte Camden LBC [1987] 1 WLR 819 established that a measure which had to be laid before Parliament was not vitiated if, rather than being self-contained, it derived part of its content from an extant and accessible outside source. He accepted that that had a direct bearing on the Statement of Immigration Rules which under section 3(2) of the 1971 Act, likewise had to be laid before Parliament. It meant that the answer to the question whether the immigration rules could lawfully incorporate provisions set out in another document which had not itself been laid before Parliament was that the bare fact that a measure laid before Parliament was not self-contained did not render it ineffective. In paragraph 27 of his judgment he mentioned that counsel for Ms Pankina had drawn attention to places where plainly legitimate reference was made in the rules to outside sources: for example, by rule 6 a private education institution must offer courses recognised by an appropriate accreditation body. He said one could add Appendix C itself, which perfectly reasonably relied on bank statements and the like, so the objection was not to rules which relied on outside sources for evidence of compliance. Such considerations equally apply to the circumstances of this case.

In our view the interpretation of Appendix A to HC 395, as amended, is perfectly clear. The First-tier Tribunal judge did not make an error of law in his determination in finding that the first-named appellant did not comply with the requirements of paragraph 345C of HC 395, as amended. Therefore his decision dismissing the appeals shall stand.