Syed & Anor, R (on the application of) v Secretary of State for the Home Department [2014] EWCA Civ 196

[2014] EWCA Civ 196
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/03/2014
Before
LORD JUSTICE RICHARDSLORD JUSTICE PATTENLADY JUSTICE GLOSTER
Between
The Queen on the application of (1) Raza Shahid SyedAppellants(2) Kamran AhmedAppellantSecretary of State for the Home DepartmentRespondentCase No C5/2012/2705
Case Nos: C4/2013/1242, and C4/2013/1312
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Holman
[2013] EWHC 984 (Admin)
AND ON APPEAL FROM THE UPPER TRIBUNAL(IMMIGRATION AND ASYLUM CHAMBER)Lord Bannatyne and Upper Tribunal Judge SpencerIA/33670/2010 and IA/33672/2010
Between
(1) Malik Sohail KamranAppellants(2) Samina GulAppellantSecretary of State for the Home DepartmentRespondent
Zane Malik and Darryl Balroop (instructed by Allied Law Chambers Solicitors) for Appellant SyedAl Mustakim (instructed by Capital Solicitors) for Appellant AhmedAl Mustakim (instructed by Sky Solicitors) for Appellants Kamran and GulMathew Gullick and Caroline Stone (instructed by The Treasury Solicitor) for respondent Secretary of StateHearing Hearing dates : 28-29 January 2014
JudgmentLord Justice Richards :
[1]These cases were listed for hearing together because they both raise issues concerning the qualifications necessary for the grant of leave to remain as a Tier 1 (General) Migrant or a Tier 1 (Post-Study Work) Migrant under the points based system in Part 6A of the Immigration Rules. The issues are, however, almost entirely distinct and the cases are best considered separately.[2]The issue in the case of Mr Syed and Mr Ahmed is whether professional qualifications obtained from the Association of Chartered Certified Accountants (“ACCA”) count as “a UK recognised bachelor or postgraduate degree” under the rules relating to Tier 1 (Post-Study Work) Migrants. In refusing the appellants’ applications for leave to remain, the Secretary of State took the view that ACCA qualifications did not count. The appellants brought judicial review challenges to that decision. Their claims were heard together by Holman J and were dismissed by him. Applications for permission to appeal against the judge’s order were listed before us on the basis of a “rolled-up” hearing, with the substantive appeals to follow immediately if permission was granted. In the event we heard full argument and I think that the right course is to grant permission and to consider the cases as substantive appeals.[3]The case of Mr Kamran concerns an application for leave to remain as Tier 1 (General) Migrant. The application relied on a Postgraduate Diploma in Management Studies (“the Diploma”) from Birmingham International College. It was refused on the ground that the Diploma had not been assessed by the National Recognition Information Centre for the United Kingdom (“UK NARIC”) to meet or exceed the recognised standard of a bachelor’s or master’s degree or a PhD in the United Kingdom as required by the rules. The main issue is whether the role given to UK NARIC under the rules is lawful. Mrs Gul is the wife of Mr Kamran and her application for leave to remain is dependent on his.[4]Save where otherwise indicated, references in this judgment to the rules and guidance are to the versions in force at the time material to the decisions under challenge. The appeals of Mr Syed and Mr Ahmed: the status of ACCA professional qualifications The rules

The appeals of Mr Syed and Mr Ahmed: the status of ACCA professional qualifications

[5]The Tier 1 (Post-Study Work) route was closed to new applicants from 6 April 2012 but the present issue is of relevance not only to the appellants but to numerous other individuals who applied before the change in the rules.[6]The route was governed by paragraphs 245F et seq. of the Immigration Rules. Its stated purpose was “to encourage international graduates who have studied in the UK to stay on and do skilled or highly skilled work” (paragraph 245F).[7]Paragraph 245FD(c) provided that one of the requirements for leave to remain was that the applicant must have a minimum of 75 points under paragraphs 66 to 72 of Appendix A. Paragraph 67 of Appendix A stated that available points were shown in Table 10.[8]So far as relevant, Table 10 read as follows (I have emphasised the key expression): Qualifications Points The applicant has been awarded:(a) a UK recognised bachelor or postgraduate degree, or(b) a UK postgraduate certificate in education or Professional Graduate Diploma of Education, or(c) a Higher National Diploma (‘HND’) from a Scottish institution. 20 (a) The applicant studied for his award at a UK institution that is a UK recognised or listed body, or which holds a sponsor licence under Tier 4 of the Points Based System … 20[9]The interpretation provisions of paragraph 6 of the Immigration Rules include a number of relevant definitions:
“‘degree level study’ means a course which leads to a recognised United Kingdom degree at bachelor’s level or above, or an equivalent qualification at level 6 or above of the revised National Qualifications Framework, or levels 9 or above of the Scottish Credit and Qualifications Framework. A ‘UK recognised body’ is an institution that has been granted degree awarding powers by either a Royal Charter, an Act of Parliament or the Privy Council. A ‘UK listed body’ is an institution that is not a UK recognised body but which provides full courses that lead to the award of a degree by a UK recognised body. ‘a UK Bachelors [sic] degree’ means (a) A programme of study or research which leads to the award, by or on behalf of a university, college or other body which is authorised by Royal Charter or by or under an Act of Parliament to grant degrees, of a qualification designated by the awarding institution to be one of Bachelor’s degree level; or (b) A programme of study or research, which leads to a recognised award for the purposes of section 214(2)(c) of the Education Reform Act 1988, of a qualification designated by the awarding institution to be of Bachelors [sic] degree level.”
[10]The reference in the definition of “a UK Bachelors degree” to section 214 of the Education Reform Act 1988 requires some explanation. Section 214(1) makes it an offence to grant an award which is described as a degree or purports to confer on its holder the right to the title of bachelor, master or doctor; but section 214(2) disapplies that provision as respects anything done in relation to any “recognised award”, defined as(a) any award granted or to be granted by a university, college or other body which is authorised by Royal Charter or by or under Act of Parliament to grant degrees,(b) any award granted or to be granted by any body for the time being permitted by any body falling within (a) to act on its behalf in the granting of degrees, and(c) such other award as the Secretary of State may by order designate as a recognised award for the purposes of the section. In substance, therefore, paragraph (a) of the definition of “a UK Bachelors degree” covers recognised awards within section 214(2)(a) and (b) of the 1988 Act, whilst paragraph (b) of the definition covers recognised awards within section 214(2)(c).[11]As explained below, the arguments on both sides refer to various other provisions of the Immigration Rules. It is convenient to set out here what those provisions are.[12]First, the provisions relating to the Tier 4 (General) Student route, at paragraphs 113 to 120B of Appendix A, included at the material time a requirement for the applicant to have been issued with a Confirmation of Acceptance of Studies meeting certain conditions.

(c) (i) of Appendix A, was that:

“the course is degree level study … and (1) the applicant is a national of one of the following countries …; or (2) has obtained an academic qualification (not a professional or vocational qualification), which is deemed by UK NARIC to meet or exceed the recognised standard of a Bachelor’s or Master’s degree or a PhD in the UK ….”
The Secretary of State relies on the contrast between that language and the wording of Table 10.[13]Secondly, when the Tier 1 (Post-Work Study) Migrant route was closed it was replaced by the Tier 1 (Graduate Entrepreneur) Migrant route which was subject to materially different provisions. In particular, the replacement Table 10 in Annex A laid down different criteria for points. The first criterion was that the applicant had been endorsed by a UK Higher Education Institution which had certain attributes. The second criterion was that if the applicant’s previous grant of leave was not as a Tier 1 (Graduate Entrepreneur) Migrant, the endorsement should confirm that, within the 12 months immediately before the date of the endorsement, “the institution has awarded the applicant a UK recognised Bachelor degree, Masters degree or PhD (not a qualification of equivalent level which is not a degree)”. The expression “a UK recognised bachelor or postgraduate degree (not a qualification of equivalent level which is not a degree)” was also to be found in new paragraphs 245HD(d)(i) and 245ZQ(b)(vi). The appellants seek to contrast the wording of those new provisions with the wording of Table 10 as it existed at the material time.

The guidance

[14]Paragraph 46 of the Secretary of State’s Tier 1 (Post-Study Work) of the Points Based System – Policy Guidance, in the form in which it existed at the material time, stated that the category “aims to retain the most able international graduates who have studied in the United Kingdom” and “will also enhance the United Kingdom’s overall offer to international students”.[15]Paragraphs 53 et seq. of the guidance dealt with the relevant attributes and included the following: “Qualification 53. An applicant can claim 20 points if he/she has been awarded one or more of the following qualifications:• A United Kingdom recognised degree at Bachelor, Master or PhD level; or• A Postgraduate Certificate in Education (PGCE) / Professional Graduate Diploma of Education (PGDE); or• A Higher National Diploma (HND) from a Scottish Institution. United Kingdom recognised degree at Bachelor level or postgraduate level 54. For a qualification to be considered a United Kingdom recognised degree at Bachelors, Masters or PhD level, it must have been awarded by a United Kingdom recognised body. 55. A United Kingdom recognised body is an institution which has been granted degree awarding powers by a Royal Charter, an Act of Parliament or the Privy Council. All United Kingdom universities and some higher education colleges are United Kingdom recognised bodies. … Qualifications that are not acceptable 59. Qualifications that cannot be used for the award of points include:• …• Professional and vocational qualifications (unless they are of a type listed in paragraph 53) … … Institution 63. An applicant can claim 20 points if he/she has undertaken a period of study for the eligible qualification at an institution that:• Is a United Kingdom recognised or United Kingdom listed body; or• …• Holds a sponsor licence under Tier 4 of the points-based system … United Kingdom recognised or listed body 64. A United Kingdom recognised body is as described in paragraph 55 above. A United Kingdom listed body is an institution that is not a United Kingdom recognised body but which provides full courses that lead to the award of a degree by a United Kingdom recognised body.”• A United Kingdom recognised degree at Bachelor, Master or PhD level; or• A Postgraduate Certificate in Education (PGCE) / Professional Graduate Diploma of Education (PGDE); or• A Higher National Diploma (HND) from a Scottish Institution. Qualifications that are not acceptable• …• Professional and vocational qualifications (unless they are of a type listed in paragraph 53) … Institution• Is a United Kingdom recognised or United Kingdom listed body; or• …• Holds a sponsor licence under Tier 4 of the points-based system …

The decisions under challenge

[16]Each of the appellants holds an ACCA professional level qualification obtained by study at a UK institution which holds a relevant sponsor licence. There is no dispute that those professional qualifications are equivalent to a UK master’s degree: a letter dated 2 September 2011 from UK NARIC to Mr Syed confirms that his ACCA professional level award “is considered comparable to British Master’s degree standard”.[17]Mr Syed’s application for leave to remain as a Tier 1 (Post-Study Work) Migrant relied on his ACCA qualification as going towards the points required under Appendix A, but the Secretary of State’s decision letter dated 20 September 2011 declined to award points for it. Mr Ahmed’s application likewise relied on his ACCA qualification and met with the same ground of refusal, in the Secretary of State’s decision letter dated 11 October 2011.[18]In the subsequent judicial review claims heard by Holman J the single question was whether the ACCA qualifications counted as “a UK recognised bachelor or postgraduate degree” within the meaning of Table 10 or were to be so treated under the guidance. Holman J answered the question by an emphatic “no”.

The case for the appellants

[19]The case advanced by Mr Malik on behalf of Mr Syed and adopted by Mr Mustakim on behalf of Mr Ahmed is that(1) ACCA professional qualifications are eligible for points as “a UK recognised bachelor or postgraduate degree” on the proper construction of that expression in Table 10; alternatively(2) the appellants are entitled to rely on the qualifications as conferring eligibility for points on the basis of the policy guidance, which relaxes in this respect the requirement of the rules.[20]Mr Mustakim made a number of additional submissions based on the purpose of the Tier 1 (Post-Study Work) Migrant route and on the qualifications previously accepted for the grant of leave to remain under the International Graduates Scheme. He submitted that if “a UK recognised bachelor or postgraduate degree” in Table 10 has the meaning contended for by the Secretary of State, the rule is irrational and involves a disproportionate interference with rights under article 8 ECHR.[21]Unusually, the court has also received a document from non-parties, namely “Collective grounds of appeal” settled on behalf of, and signed by, a large number of applicants whose cases are similar or identical to those of Mr Syed and Mr Ahmed and have been stood out pending determination of the present appeals. That document has no formal status in the present appeals but it may be helpful to indicate that I can see nothing in it which adds materially to the submissions we have heard.

Discussion and conclusion

[22]The correct approach to the construction of the Immigration Rules was considered by the Supreme Court in Mahad v Entry Clearance Officer [2009] UKSC 16, [2010] 1 WLR 48 at para 10. They are not to be construed with all the strictness applicable to the construction of a statute or 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 Secretary of State’s intention “is to be discerned objectively from the language used, not divined by reference to supposed policy considerations”. Other passages in the same judgment show the use that can properly be made of other rules both for context and for the purpose of comparison and contrast with the language used.[23]In Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773, [2011] 1 WLR 564, at para 70, Rix LJ (with whom the other members of the court agreed) said that where there is a genuine ambiguity it is legitimate to consider what the executive has said publicly about the rules, including ministerial statements in Parliament and even, perhaps exceptionally, the executive’s formally published guidance; and he went on to apply that approach in paras 71-74. That is subject to a qualification entered by Jackson LJ (with whom the other members of the court agreed) in Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568 at para 43:
“I respectfully agree with paragraph 70 of Rix LJ’s judgment in Adedoyin. I would, however, add this comment. I do not think it is possible for the Secretary of State to rely upon extraneous material in order to persuade a court or tribunal to construe the rules more harshly or to resolve an ambiguity in the Government’s favour. The Secretary of State holds all the cards. The Secretary of State drafts the Immigration Rules; the Secretary of State issues IDIs and guidance statements; the Secretary of State authorises the public statements made by his/her officials. The Secretary of State cannot toughen up the rules otherwise than by making formal amendments and laying them before Parliament. That follows from the Supreme Court’s reasoning in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33; [2012] 1 WLR 2208.”
[24]The starting point is therefore the language of the relevant rule, in this case Table 10. In the event of a genuine ambiguity it may be possible to have recourse to the guidance to resolve the ambiguity in the appellants’ favour but not, it seems, in the Secretary of State’s favour.[25]The expression “a UK recognised bachelor or postgraduate degree” in Table 10 refers on its face to a degree, not to a qualification of equivalent level to a degree. The degree must be a UK bachelor’s degree or a UK postgraduate degree. “UK Bachelors degree” is defined in paragraph 6 of the Immigration Rules (see paras 9-10 above) in terms that are confined essentially to qualifications awarded by degree-awarding institutions and designated by them to be of bachelor’s degree level; the definition does not include professional qualifications awarded by a body such as ACCA. “UK postgraduate degree” is not separately defined but must in my view be read in a similar way.[26]Mr Malik submits that the inclusion of the word “recognised” in the expression “UK recognised bachelor or postgraduate degree” means that the definition of “UK Bachelors degree” in paragraph 6 of the Immigration Rules is inapplicable and that something different is intended. What his submission amounts to is that a “recognised” degree is a qualification recognised by UK NARIC as being equivalent to a degree. In my judgment that submission is plainly wrong. There is nothing in Table 10 to support it. If the intention had been to introduce the concept of equivalence or to give UK NARIC a role in the matter, language such as that found in paragraph 118(c)(i) of Appendix A would have been used, namely a qualification “which is deemed by UK NARIC to meet or exceed the recognised standard of a Bachelor’s or Master’s degree or a PhD” (see para 12 above). As it is, “recognised” in Table 10 fits well with the view that the required qualification is an actual degree awarded by a degree-awarding institution. “Recognised” appears in a number of places in the definitions in paragraph 6. The definition of “degree level study”, namely “a course which leads to a recognised United Kingdom degree at bachelor’s level or above, or an equivalent qualification at level 6 or above of the revised National Qualifications Framework”, draws a distinction between a recognised degree on the one hand and an equivalent qualification on the other hand: it is the recognised degree, not the equivalent qualification, that features in Table 10. The definition of “UK recognised body” refers to an institution with degree-awarding powers, not to institutions awarding equivalent qualifications. Similarly, the second limb of the definition of “a UK Bachelors degree” refers to a “recognised award” for the purposes of the Education Reform Act 1988 and by that route refers to awards by degree-awarding institutions, not to the award of equivalent qualifications. It is all of a piece.[27]All this is also in line with the reasoning in YS and SJ (‘Degree level’ study) Mauritius [2006] UKAIT 00094, in which the Asylum and Immigration Tribunal held that there could be no conceivable reason for supposing that the phrase “recognised United Kingdom degree” in the definition of “degree level study” in paragraph 6 carried any meaning other than that given to the phrase “recognised award” in section 214 of the Education Reform Act 1988. As I understand it, the present definition of “a UK Bachelors degree”, with its express reference to section 214 of the 1988 Act, has been introduced since the date of that decision. That might affect the detail of the reasoning but does nothing to undermine the tribunal’s general approach or the essential correctness of its conclusion.[28]Mr Malik also relies on the fact that the rules introduced at the time when the Tier 1 (Post-Study Work) route was ended contain provisions in which the reference to “a UK recognised … degree” is followed by the bracketed words “not a qualification of an equivalent level which is not a degree” (see para 13 above). The absence of similar additional words in Table 10 is relied on as showing that “a UK recognised … degree” in Table 10 includes qualifications of an equivalent level which are not degrees. In my view, however, the wording of the new provisions takes the appellants nowhere. Even if the later provisions are a legitimate aid to construction of the rules as they existed at the material time, their inclusion of the bracketed words is perfectly consistent with the Secretary of State spelling out, for the avoidance of arguments of the kind that have been pursued by these appellants, the meaning that “a UK recognised … degree” was intended to have in any event.[29]Since I consider the meaning of the relevant expression in Table 10 to be clear, there is no scope for recourse to the guidance as an aid to construction. But even if the guidance is taken into account, it gives the appellants no assistance. The general statement of aim in paragraph 46 of the guidance, upon which Mr Malik relies, does not cast light on the specific issue of construction. Paragraphs 53 and 54 of the guidance refer to “a United Kingdom recognised degree at Bachelor, Master or PhD level”. Mr Malik submits that the word “level” introduces the concept of equivalence. To my mind, however, it is simply a way of describing the level of degree (bachelor’s, master’s or PhD), just as the definition of “a UK Bachelors degree” in paragraph 6 of the Immigration Rules refers to an award designated by a degree-awarding institution to be one of “Bachelor’s degree level”. It does not mean a qualification of an equivalent standard. That is confirmed by paragraphs 54-55, which make clear that for a qualification to be considered as a UK degree at the relevant level, it must have been awarded by a UK recognised body, namely an institution which has been granted degree-awarding powers; and by paragraph 59, which states in terms that professional and vocational qualifications (save for the PGCE, PGDE and HND qualifications listed in paragraph 53) cannot be used for the award of points.[30]Mr Malik’s alternative argument is that, if ACCA professional qualifications are not “a UK recognised bachelor or postgraduate degree” within the meaning of Table 10, the effect of the guidance is to relax the rules and to give the appellants a legitimate expectation that their ACCA qualifications will be accepted for this purpose: for the possibility of a legitimate expectation that the Secretary of State will adhere to the published guidance when considering an application, see HM and others (PBS – legitimate expectation – paragraph 245ZX(1)) Malawi [2010] 446 UKUT (IAC). But it follows from what I have said about the meaning of the guidance that this alternative argument does not get off the ground.[31]Mr Mustakim’s additional arguments take as their starting point the statement in paragraph 245F of the Immigration Rules that the purpose of the Tier 1 (Post-Study Work) Migrants route is to encourage international graduates who have studied in the UK to stay on and do skilled or highly skilled work (see para 6 above). As to the reference to “international graduates”, he refers to the fact that the former International Graduates Scheme was not limited to holders of an actual degree: it required applicants to have successfully obtained “a recognised UK Bachelor’s degree, Master’s degree, PhD or equivalent”. He says that the reference in paragraph 245F to “those who have studied in the UK” means that those concerned will have developed a private life in the United Kingdom and that article 8 is therefore in play; and he refers in this connection to CDS (PBS: ‘available’: Article 8) Brazil [2010] UKUT 00305 (IAC), in particular at para 19. He says that the equivalence of ACCA professional qualifications to a master’s degree means that the encouragement to stay on “to do skilled and highly skilled work” should apply equally to holders of ACCA professional qualifications. In these circumstances he contends that if “a UK recognised bachelor or postgraduate degree” in Table 10 means an actual degree and does not include an equivalent qualification, it involves unequal treatment between academic and professional qualifications and is irrational and ultra vires. He advances the further argument that if the rule is so construed it involves a disproportionate interference with article 8 rights.[32]The ultra vires argument was not raised below and is not strictly open to Mr Mustakim in this court but in any event it is plainly wrong. A brief account of the underlying policy is given in the witness statement of Leonie Souster, of the Points Based System Operational Policy Team:
“4. The Tier 1 (Post-Study Work) route offered nearly free access to the UK labour market for two years. This provision was aimed at graduates with degree qualifications, which are not necessarily leading to a single profession. This period was to enable them to obtain a post and switch into another route, such as Tier 2 of the PBS, in which they were sponsored by their employer to work in a particular role. A student who has obtained a professional qualification such as ACCA has clearly made a career choice and could pursue that career by applying for leave under Tier 2. At the material time this could be done in-country. 5. One aim of the Tier 1 (Post-Study Work) route was to encourage the brightest and best graduates, who had originally come to the UK to study a degree, to stay on and work in the UK. But it was thought to be more appropriate for a worker studying for a UK professional qualification through work to be treated the same as other non-EEA nationals coming to the UK with the primary intention of working. That is, they should apply to work under Tier 2.”
When that reasoning is taken into account, I think it plain that to base eligibility for the Tier 1 (Post-Study Work) route on the holding of an actual degree was a legitimate policy choice on the part of the Secretary of State.[33]The argument based on article 8 is equally untenable. CDS was a very different case, concerning a change in the sponsorship rules which had a serious effect on the appellant’s ability to complete the course of study for which she had been admitted. It provides no support for the contention that provisions of the Tier 1 (Post-Study Work) route governing entitlement to stay to work after completion of a degree involves any, let alone a disproportionate, interference with the article 8 rights of applicants. I could not identify anything in Mr Mustakim’s submissions that might conceivably get an article 8 case off the ground.[34]I would add that Mr Mustakim’s reference to the former International Graduates Scheme provides a further illustration of why the appellants’ suggested construction of Table 10 is wrong. The former Scheme drew an express distinction between, on the one hand, “a recognised UK Bachelor’s degree, Master’s degree, PhD” and, on the other hand, “equivalent” qualifications. Table 10 refers only to recognised degrees, not to equivalent qualifications.[35]For all those reasons, which are substantially the same as those given by Holman J below (to the extent that the arguments advanced before us were raised before him), I take the view that the judge was clearly correct to hold that ACCA professional qualifications are not eligible for points as “a UK recognised bachelor or postgraduate degree” under Table 10 or by virtue of the guidance.[36]I would therefore dismiss the appeals of Mr Syed and Mr Ahmed.

The appeals of Mr Kamran and Mrs Gul

[37]Mr Kamran entered the United Kingdom in December 2003 as a student and obtained what I have referred as “the Diploma”, namely a Postgraduate Diploma in Management Studies from Birmingham International College. He was granted further leave to remain under the International Graduates Scheme and then as a Tier 1 (Post-Study Work) Migrant. He applied next for an extension of his leave to remain under the Tier 1 (General) Migrants route. That application was refused on the ground, so far as material, that the Diploma did not qualify for points. Mrs Gul is his wife and applied for leave to remain as his dependant, so that her application failed with his.

The rules

[38]The Tier 1 (General) Migrants route is governed by paragraphs 245A et seq. of the Immigration Rules. Paragraph 245C lays down the requirements that an applicant must meet in order to qualify for leave to remain under this route. At the material time, by requirement (c), an applicant needed a minimum of 75 points under paragraphs 1 to 31 of Appendix A. By paragraph 2 of Annex A, available points were shown in Tables 1 to 4. The relevant part of Table 1 provided that 30 points were available for a bachelor’s degree, 35 points for a master’s degree and 45 points for a PhD.[39]Paragraph 5 of Appendix A read:
“Points will only be awarded for an academic qualification if an applicant’s qualification is deemed by the National Recognition Information Centre for the United Kingdom (UK NARIC) to meet or exceed the recognised standard of a Bachelor’s or Master’s degree or a PhD in the UK.”

The guidance

[40]The Secretary of State’s Tier 1 (General) of the Points Based System – Policy Guidance, in the form in which it existed at the material time, contained the following relevant guidance:
“How qualifications are assessed 84. We will always assess the qualifications an applicant uses by referring to the points based calculator on our website. The calculator contains information from UK NARIC on the equivalency of overseas qualifications. 85. UK NARIC is a private company that specialises in comparing overseas qualifications to United Kingdom academic levels. An applicant should claim points if the points based calculator confirms that the qualification used meets or exceeds the recognised standard of a Master’s degree or a PhD in the United Kingdom and for extension applications the recognised standard of a Bachelor’s degree. Checking qualifications 86. An applicant should check the level of his/her qualification by using the points based calculator which is on our website …. 87. For academic qualifications, if the applicant cannot find details of his/her qualification on the points based calculator, he/she may still wish to claim points for it. If so, he/she should contact UK NARIC directly for an assessment of the level of the qualification and, if UK NARIC confirms it is of the required level, obtain a letter and/or confirmation certificate from UK NARIC. Contact details for UK NARIC are on its website …. UK NARIC may charge a fee for confirming qualifications. … Additional documents required for qualifications that cannot be found on the points based calculator 96. Where an applicant cannot find details of his/her academic qualification on the point-based calculator, he/she must, in addition to the document or documents listed above, submit an original letter/certificate from UK NARIC confirming the equivalency of the level of his/her qualification.”
Checking qualifications Additional documents required for qualifications that cannot be found on the points based calculator

The factual background

[41]In his application for an extension of his leave to remain, Mr Kamran claimed 30 points under Table 1 on the basis of the Diploma. He needed those points in order to bring him up to the required minimum of 75 points under paragraphs 1 to 31 of Appendix A.[42]The decision letter, dated 24 August 2010, declined to award any points for the Diploma, stating:
“The qualification you have provided … is not recognised by the National Academic Recognition Information Centre (UK NARIC) as it is not recognised on the Points Based Calculator as found on our website. We cannot therefore assess it to be of an equivalent level to a UK Bachelor’s or Master’s degree, or a UK PhD.”
Although that reason was not well expressed, the plain meaning was that the Diploma was not accepted to be equivalent to a UK degree because it did not appear on the points based calculator (which was based in turn on information supplied by UK NARIC).[43]The guidance I have quoted made clear that if an applicant could not find details of his qualification on the points based calculator he could contact UK NARIC for an assessment of the level of the qualification and, if UK NARIC confirmed it was of the required level, obtain a letter and/or confirmation certificate from UK NARIC, and that he should submit that document with his application for leave to remain. It seems that the appellant made no attempt to contact UK NARIC about his qualification before submitting his application for an extension of leave (or indeed after receiving the decision letter). His application form referred simply to a covering letter from his representatives which acknowledged that the qualification did not appear on the points based calculator but asserted that it was authenticated and was the same qualification as that on the basis of which he had previously obtained leave as a Tier 1 (Post-Study Work) Migrant. There was some suggestion by Mr Mustakim at the hearing before us that Mr Kamran did not contact UK NARIC about his qualification because he did not want to pay the fee, currently £46 plus VAT, charged by UK NARIC for an assessment.[44]On appeal to the First-tier Tribunal it was argued on the appellants’ behalf that the Diploma should have been accepted because it had been acceptable for the purposes of Mr Kamran’s previous applications. The tribunal rejected that argument and dismissed the appeals, holding that Mr Kamran needed to meet the requirements of the Tier 1 (General) Migrant route which he was unable to do.[45]On further appeal to the Upper Tribunal, the main argument advanced on behalf of the appellants was that UK NARIC’s role under paragraph 5 of Appendix A was limited to assessing the equivalence of overseas qualifications to UK qualifications and that UK NARIC therefore had no role in judging whether the Diploma met or exceeded the standard of a UK degree. The tribunal said that it would have had no hesitation in rejecting the argument but that in any event the point had already been decided in the Court of Appeal in AH (Pakistan) v Secretary of State for the Home Department [2010] EWCA Civ 1564, a case in which I refused permission to appeal to the Court of Appeal. The grounds of appeal in respect of which permission was refused in that case included the contention that UK NARIC’s role was limited to vetting overseas qualifications. I am surprised to see a decision by a single Lord Justice on a permission application being treated as an authoritative decision of the Court of Appeal: the decision could not be cited in a court (see Practice Direction (Citation of Authorities) [2001] 1 WLR 1001, paragraphs 6.1-6.2). But nothing turns on this since the tribunal made clear that it agreed with my reasoning and would have reached the same decision independently.[46]It appeared from the appellants’ grounds of appeal and skeleton argument that the argument advanced in the Upper Tribunal would be pursued on the appeal to this court and that it would be contended that my decision in AH (Pakistan) was wrong. Indeed, an application was made for me to recuse myself from hearing the appeal on the ground that in AH (Pakistan) I had “already determined the issue”. That application was refused. The principles relevant to that matter are discussed in Dŵr Cymru Cyfyngedig v Albion Water [2008] EWCA Civ 97, a case in which I myself had refused permission to appeal on the papers, limited permission had subsequently been granted on an oral renewal and I was then invited by the Master of the Rolls to sit as a member of the constitution hearing the substantive appeal. The court held that the circumstances would not lead a fair-minded and informed observer to conclude that there was a real possibility of bias, that is to say of my approaching the issues in the appeal with a closed mind. It is true that the refusal of permission to appeal in AH (Pakistan) was on an oral renewal rather than on consideration of the papers alone; but it is absurd to suggest that a decision of that kind, reached on a permission application in a different case some three years previously, might cause me to approach the arguments in the present appeal with a closed mind.[47]What makes the recusal application all the more surprising, however, is that when it came to the hearing of the appeal Mr Mustakim did not rely on the argument advanced in the Upper Tribunal or contend that the decision in AH (Pakistan) was wrong. On the contrary, he accepted that paragraph 5 of Appendix A applies to United Kingdom qualifications as much as to international qualifications. The arguments he advanced were unconnected with the matters on the basis of which my recusal had been sought.

The case for the appellants

[48]Mr Mustakim summarised his case on the appeal as follows:(1) The delegation of the recognition role to UK NARIC under paragraph 5 of Annex A was unlawful because UK NARIC was not suitable for the performance of that role. It lacked a comprehensive system covering all UK qualifications. Its unsuitability was demonstrated by the fact that it did not recognise the Diploma as meeting or exceeding the standard of a relevant UK degree.(2) What is said in the guidance about obtaining confirmation directly from NARIC and paying a fee does not reflect a requirement in the rules. Such an important condition should be contained in the rules themselves and cannot lawfully be contained in guidance alone.[49]Mr Gullick, for the Secretary of State, submitted that it was not open to the appellants to advance those points, since they were not contained in the grounds of appeal which were the basis of the grant of permission to appeal and no application to amend had been made. He also objected to the appellants’ reliance on fresh evidence inserted into the appeal bundle the week before the hearing of the appeal. I do not think it necessary, however, to rule on those objections since I am satisfied that there is in any event no merit in the case advanced by Mr Mustakim.

Discussion and conclusion

[50]The contention that there has been unlawful delegation because UK NARIC is not suitable for the performance of the recognition role lacks any factual basis. The fact that Mr Kamran’s qualification does not appear in the points based calculator does not evidence a failure to assess relevant qualifications. The points based calculator does not purport to be a complete list. There exists a clear procedure for requesting an assessment to be made of any qualification that does not appear in the list. There is no evidence that UK NARIC would be unable to respond properly to a request. Mr Kamran made no such request and is no position to assert that UK NARIC would have been unable to respond properly had he done so. The fresh evidence to which Mr Gullick objected includes a witness statement by the appellants’ solicitor in which he describes a telephone conversation he had with an employee of UK NARIC on the subject of recognition of UK qualifications. Suffice it to say that the reported conversation does not constitute serious evidence that UK NARIC is unable to carry out a relevant assessment in respect of the Diploma or other UK qualifications.[51]Nor do the appellants gain any assistance from the fact that Mr Kamran’s previous applications under the International Graduates Scheme and the Tier 1 (Post-Study Work) Migrants route had been successful. The criteria for the International Graduates Scheme included completion of “postgraduate certificate or postgraduate diploma”, so that it was not necessary to have a UK recognised degree or equivalent; and participation in the International Graduates Scheme was sufficient of itself to earn the applicant the requisite number of points under the “qualifications” criteria of the Tier 1 (Post-Study Work) Migrants route. The success of those two applications did not therefore entail any acceptance by the Secretary of State that the Diploma was equivalent to a UK degree.[52]Mr Mustakim’s contention that there has been unlawful delegation to UK NARIC is also inconsistent with the case advanced by him and by Mr Malik in the appeals of Mr Syed and Mr Ahmed, a case which is founded on UK NARIC’s assessment that the relevant ACCA professional qualifications are comparable to a UK master’s degree. Mr Mustakim himself did not appear to recognise that inconsistency. Mr Malik did recognise it and for that reason, although having no formal standing in the appeals of Mr Kamran and Mrs Gul, made a short submission with the permission of the court to the effect that the role ascribed to UK NARIC under the rules was lawful. He relied in particular on R (New London College Ltd) v Secretary of State for the Home Department [2013] UKSC 51, [2013] 1 WLR 2358, at para 19. I do not think it necessary, however, to get into a discussion of that decision. I have given sufficient reasons already for rejecting Mr Mustakim’s argument as lacking any factual basis.[53]I also reject the contention that any provision for confirmation to be obtained directly from UK NARIC should be contained in the rules rather than the guidance. The relevant criterion or requirement affecting entitlement to leave to remain is contained in the rules, namely the provision in paragraph 5 of Appendix A that points will be awarded for an academic qualification only if it is deemed by UK NARIC to meet or exceed the recognised standard of a relevant degree in the United Kingdom. The machinery for establishing whether a particular qualification is deemed by UK NARIC to meet or exceed the requisite standard does not need to be contained in the rules. In practice, for the convenience of all concerned, the points based calculator contains a detailed list of qualifications but, as already explained, a request can be made to UK NARIC for an assessment of any qualification that does not appear in the list. The fact that a fee may be payable to UK NARIC for that purpose is also immaterial. Various provisions of the rules require an applicant to provide supporting third party documents, for example a medical certificate from a doctor. It cannot sensibly be said that such a requirement is invalid unless the rule itself refers to the possibility that the third party might charge a fee for the provision of the documents. All of this is in my view entirely consistent with what was said in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, [2012] 1 WLR 2208 as to the matters that need to be contained in the rules themselves rather than in policy documents outside the rules.[54]It is also difficult to see where this line of argument could take the appellants. If the relevant parts of the guidance were unlawful, on the basis that they lay down requirements that should be in the rules rather than the guidance, that would not affect the requirement already contained in paragraph 5 of Appendix A. That requirement would remain in place and Mr Kamran would still fail to satisfy it. He would be no closer to establishing that points should have been awarded for the Diploma, and without those points his application under the Tier 1 (General) Migrant route could not succeed.[55]Accordingly, I would also dismiss the appeals of Mr Kamran and Mrs Gul.

Lord Justice Patten :

[56]I agree.

Lady Justice Gloster :

[57]I also agree.