Ali v Secretary of State for the Home Department

1. Mr Ali is a national of Pakistan and had been lawfully present in the United Kingdom as a student from March 2008. His leave to remain as a student expired on 30 January 2011. To obtain further leave to remain, he needed to apply and qualify before his leave expired. When Mr Ali applied for further leave to remain as a Tier 1 (General) Migrant under the provisions of the Points-Based system he failed to qualify for a number of reasons including the reason that he did not have an MBA from one of the institutions specified in the Immigration Rules which qualification by itself would have given him the necessary points under Appendix A. By the time of the Secretary of State’s refusal he had been awarded an MBA from another institution which would qualify him under a different provision as a Tier 1 (Post-Study Work) Migrant. He was served with a Section 120 (one-stop warning) notice. In his response he asserted that he qualified for leave to remain as a Tier 1 (Post-Study Work) Migrant.

2. The issue in this appeal from the Upper Tribunal is whether the grounds of appeal served in response to the Section 120 notice have effect as an application to remain as a Tier 1 (Post-Study work) Migrant. If, contrary to the conclusions of the FTT and the UTT, they have that effect then he has attracted sufficient points to qualify as a Tier 1 (Post-Study Work) Migrant. The relevant statutory provisions and Rules are annexed to this judgment.

3. In Raju v Secretary of State for the Home Department [2013] EWCA Civ 754 , this Court decided that to qualify as a Tier 1 (Post-Study Work) Migrant under Part 6A of the Immigration Rules (HC395 as amended), the United Kingdom recognised qualification must have been notified to an applicant by the time of but not after the application. A response to the service of the Section 120 notice could not have availed Mr Raju because by that time the Rules had changed [18]. But this appellant submits that he could succeed if an additional ground in response to a Section 120 notice may be regarded as an application, because by the time of that response he had been awarded the necessary qualification and the Rules had not, at that stage, been amended to remove the Tier 1 (Post-Study Work) route.

4. As I have recalled, the appellant’s leave to remain as a student expired on 30 January 2011. It was necessary for him to apply for further leave to remain before 30 January 2011 so as to obtain the advantage of a statutory extension pursuant to Section 3 C of the Immigration Act 1971 . Without such an extension he would have become an overstayer and any application thereafter would normally have been refused (Rule 322(3)). His application to remain as a Tier 1 (General) Migrant was refused on 17 March 2011 on the grounds that he did not achieve the minimum number of 80 points required under Appendix A of the Rules. It is unnecessary to detail the grounds of refusal since the applicant does not now contend that the refusal was unjustified. (He did not have an MBA from a listed institution, did not establish the requisite earnings, nor the experience required.) The refusal letter also pointed out that he had not been awarded the qualification on which he relied by the date of his application.

5. However, on 11 March 2011, six days before the Secretary of State refused Mr Ali’s application, he was awarded his MBA. The Secretary of State served a Section 120 Notice under the Nationality, Immigration and Asylum Act 2002 at the time of her refusal. The effect of Section 120 is to permit an appellant to raise grounds which differ from the original grounds on which an application has been made and from the grounds considered by the Secretary of State when she refused the original application ( AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076 [2011] 1 WLR 385 [80] and [113]).

6. The appellant did raise a fresh ground by way of appeal on 20 May 2011. He said he met the requirements for leave to remain as a Tier 1(Post-Study Work) Migrant. He said he had filled in the wrong form by mistake and knew he did not satisfy the requirements under Tier 1 (General) Migrant. The First Tier Tribunal dismissed this aspect of the appeal because the requisite number of 75 points had not been accumulated at the date of the application [12]. The Upper Tribunal dismissed the appeal because evidence of the award of the degree could not be adduced by virtue of Section 85A(4)(a). The Secretary of State accepts that evidence of the award could have been relied upon if it was adduced before she made her decision on 17 March 2011.

7. The degree had not been awarded prior to the original application on 29 January 2011. This is fatal to the award of 15 points under what was, at the material time, Table 9, (in Raju ( q.v. supra ) Table 10), unless the application to which Table 9 refers may be construed to include the further grounds relied upon in the response to the Section 120 Notice.

8. To earn the necessary 15 points, under the fourth row of Table 9, it was necessary that: “The applicant made the application…for leave to remain as a Tier 1(Post-Study Work) Migrant within 12 months of obtaining the relevant qualification.” This was construed in Raju to require the qualification to have been obtained by the time of the application [7]. Table 9 refers only to “the application…for leave to remain as a Tier 1 (PSW) Migrant”. Can then the reliance on a fresh ground of appeal in response to a Section 120 Notice be regarded as an application to remain as a Tier 1 (PSW) Migrant?

9. The Notice under Section 120 permits the Secretary of State to require an appellant to state any grounds on which he should be permitted to remain in the United Kingdom ( s.120(2) (b)). A Tribunal is required to consider any additional ground, just as the Secretary of State would have had to consider it, had it been advanced at the time of the original application ( AS ) [80]).

10. I have, however, come to the conclusion that it is not permissible to regard a fresh ground of appeal as an application within the meaning of the fourth row of Table 9. First, it is inconsistent with the structure of the Rules. Rule 34G identifies the date on which an application or a variation under rule 34E is made. They require the application or the variation to comply with the requirements of 34A as they apply at the date of the application or the variation. Rule 34E allows a variation of an application for leave to remain. Such a variation is required to comply with rule 34A “ as if the variation were a new application or claim”. Section 96 contemplates a new decision on a fresh application or claim and makes a clear distinction between the fresh application and “a statement made in response” to a Section 120 Notice (s.96(2)(b)). All of these provisions make a clear distinction between a statement in response to a Section 120 Notice and an application.

11. Second, if the response to the Section 120 Notice is to be regarded as an application for the purposes of Table 9, it has the result that the applicant has obtained an advantage by making an unsuccessful application for leave to remain as a Tier 1 (General) Migrant which, he now accepts, was rightly refused. That advantage consists of a statutory extension under section 3 C and avoidance of the risk of a refusal under Rule 322(3). Had he waited until he was qualified as a Tier 1 (PSW) Migrant, he would have been an overstayer unless he left and applied for entry clearance from overseas. Section 3 C(4) of the 1971 Act would not have prevented him from applying to vary before the Secretary of State had made a decision as to his qualification. Had he applied as a Tier 1 (PSW) Migrant before his leave to remain had expired, on 30 January 2011, he would not have been qualified to do so. It is not consistent with the statute or the Rules to permit this appellant to overcome these difficulties by reliance on a fresh ground of appeal. The points-based system is strict and requires the necessary qualification to be obtained before the application for leave to remain is made and not after, through the mechanism of appeal.

12. I have not found it necessary to consider the decisions of this court in AQ (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 833 or Alam & Anwar v Secretary of State for the Home Department [2012] EWCA Civ 960 . Alam & Anwar awaits the decision of the Supreme Court. But if it is in favour of the Secretary of State, that will only add to the appellant’s difficulties. It was in those circumstances that we acceded to the appellant’s wish to refuse the Secretary of State’s application for an adjournment of the instant appeal, an appeal which I would dismiss. Lord Justice Sullivan:

13. I agree. Lord Justice Thorpe:

14. I also agree.