Kaur v The Secretary of State for the Home Department [2015] EWCA Civ 13

[2015] EWCA Civ 13Case No C5/2013/3594
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Upper Tribunal (Immigration and Asylum Chamber)
Upper Tribunal Judge Rintoul
IA/06503/2013
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 20 th January 2015
Before
LORD JUSTICE PITCHFORDLORD JUSTICE BURNETTSIR TIMOTHY LLOYD
Between
Sukhjeet KaurAppellantThe Secretary of State for the Home DepartmentRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Zane Malik (instructed by Mayfair Solicitors) for AppellantMathew Gullick (instructed by The Treasury Solicitor) for RespondentHearing Hearing date: 3 December 2014Written submissions 6 and 9 December 2014
Judgment
[1]In March 2013 the appellant was refused leave to remain in the United Kingdom as a Tier 4 (General) Student having previously studied here with such leave. The application was governed by the points based system contained in the Immigration Rules (“the Rules”) which requires applicants to score points under various heads. If they fail to do so their application is refused. She was required to have a minimum of 30 points under paragraphs 113 to 120 of Appendix A to the Rules. Acting for the Secretary of State, the United Kingdom Border Agency (“UKBA”) declined to take into account a Confirmation of Acceptance for Studies (“CAS”) assigned to the appellant on 8 February 2012 by her Tier 4 Sponsor. One of the matters which the CAS was expected to do was to confirm that her proposed course of study represented “academic progress” as defined by Paragraph 120A(b) of Appendix A to the Rules. As a result the appellant failed to secure the necessary points. UKBA’s refusal was on a technical ground, namely that the CAS had not been provided with the original application. The appellant failed in her appeal to the First Tier Tribunal (“FTT”) and again to the Upper Tribunal (Immigration and Asylum Chamber) (“UTIAC”). Both took the CAS and other evidence into account but concluded that it did not provide the confirmation required by the rules. Shortly after UTIAC had dismissed the appeal and refused permission to appeal further, this court gave judgment in Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568. The appellant relied upon that decision in her appellant’s notice. Permission to appeal was granted by Longmore LJ.[2]Mr Malik advances two submissions on behalf of the appellant reflecting the grounds on which permission to appeal was granted: i) The approach of UTIAC (and the FTT) to the meaning of Paragraph 120A was inconsistent with Pokhriyal, which should be understood to have decided(a) whether a course represents academic progress is a matter for the academic institution concerned and not the Secretary of State;(b) the Secretary of State is obliged to accept the assessment of the academic institution absent fraud;(c) there is no requirement for the CAS to justify the conclusion on academic progress; and(d) the mere issuing of a CAS raises a presumption that the proposed course does represent academic progress. The CAS provided the necessary confirmation. ii) Even if the Secretary of State did not have to accept the CAS as confirming academic progress, she was obliged to make further inquiries of the academic institution before refusing the application on the basis of Naved v Secretary of State for the Home Department [2012] UKUT 14 (IAC), which was applied by analogy in Pokhriyal.[3]As material the Rules provide:
“120A (a) Points will only be awarded for a valid Confirmation of Acceptance for Studies … if the sponsor has confirmed that the course for which the Confirmation of Acceptance of Studies has been assigned represents academic progress from previous study as defined in (b) below undertaken during the last period of leave as a Tier 4 (General) Student or as a Student, where the applicant has had such leave except where: (i) the applicant is re-sitting examinations or repeating modules in accordance with paragraph 119 above, or (ii) the applicant is making a first application to move to a new institution to complete a course commenced elsewhere. (b) For the course to represent academic progress from previous study, the course must: (i) be above the level of the previous course for which the applicant was granted leave as a Tier 4 (General) Student or as a Student, or (ii) involve further study at the same level, which the Tier 4 Sponsor confirms as complementing the previous course for which the applicant was granted leave as a Tier 4 (General) Student or as a Student.”
The words I have italicised are those that were introduced by the Statement of Changes in Immigration Rules laid before Parliament in July 2012 (Cmd 8423) and applicable with effect from 20 July. The two exceptions in Paragraph 120(A)(a) are not in play in this case. (i) the applicant is re-sitting examinations or repeating modules in accordance with paragraph 119 above, or (ii) the applicant is making a first application to move to a new institution to complete a course commenced elsewhere. (i) be above the level of the previous course for which the applicant was granted leave as a Tier 4 (General) Student or as a Student, or (ii) involve further study at the same level, which the Tier 4 Sponsor confirms as complementing the previous course for which the applicant was granted leave as a Tier 4 (General) Student or as a Student.”[4]Thus before 20 July 2012 there was no sub-paragraph (b). The paragraph contained no definition of academic progress. Instead, guidance issued to Tier 4 Sponsors in September 2011 had contained similar, but not identical, requirements. The guidance sought to impose obligations on Tier 4 Sponsors to issue a CAS to a student in the United Kingdom in respect of a second or subsequent course only if academic progress would be made in the sense described in the guidance. The guidance did not form part of the Immigration Rules. Paragraphs 373 to 377 of that guidance were in these terms:
“373. To show academic progression the student’s new course should normally be above the level of the previous course for which we gave them permission to stay in the UK as a student. For example, if a student’s previous course was at QCF or NQF6 (and equivalents) we expect their next course to be at least at level QCF or NQF7. 374. However, academic progression may involve further study at the same level. In these cases you must confirm that the new course complements the previous course. For example, a student may be moving from a taught masters degree to an MBA or research-based masters degree, or taking a course to develop a deeper specialisation in a particular field. 375. Sometimes the further study may be at a lower level but we expect these cases to be rare. We may not question your confirmation of progression, but we will closely monitor the situation. 376. If the student is taking a further course in the UK you must confirm that this is academic progression in the ‘evidence provided’ box on the CAS. When the course is at the same level or a lower level you must justify this as progression. When we visit you, we may also ask you to show why it is academic progression and how you assessed it. 377. If you do not confirm the student’s academic progression on the CAS we will refuse the student’s application. We will take action against you if: you cannot show how you assessed the progression, or we are concerned about how you assessed it; or we find, after you have assigned a CAS stating that there is academic progression, that there is no academic progression.” you cannot show how you assessed the progression, or we are concerned about how you assessed it; or we find, after you have assigned a CAS stating that there is academic progression, that there is no academic progression.”
[5]The Statement of Changes was a substantial document, the purpose of which was to amend the Rules to incorporate within them requirements hitherto found in guidance and other external documents. That is explained by the Explanatory Memorandum. It was a response to developing jurisprudence in this court and the Supreme Court that such external documents, not laid before Parliament, could not be treated as if they were part of the rules themselves.[6]In saying that the guidance was not in identical terms to the new Paragraph 120A, I have in mind particularly that it contemplated circumstances in which a second course at a level lower than the first course might nonetheless constitute academic progress. That part of the guidance was not incorporated in the amended rules. One of the appellants in Pokhriyal was moving to a course at a lower level. Oddly, the guidance issued to Tier 4 Sponsors to coincide with the July Statement of Changes to the Immigration Rules (Version 07/12) at paragraph 415 still contained the suggestion that academic progression could be made in those circumstances. In the light of the way in which the appellant’s intentions with regard to her second course developed, no issue arises on that apparent contradiction. What was paragraph 374 became paragraph 414 in the new guidance but was unchanged.[7]Neither the Rules nor the guidance presents any difficulty. The Tier 4 Sponsor need simply state that the course at the same level complements the previous course. Whilst the guidance calls (and called) for an explanation for that conclusion, the Rules do not.

The Facts

[8]The facts in the case are a little convoluted but of importance given the way in which Mr Malik developed his arguments on the appellant’s behalf.[9]The appellant is an Indian national born on 24 August 1982. On 29 November 2009 she was granted leave to enter the United Kingdom as a Tier 4 (General) Student until 22 March 2011. Her leave was extended until 2 November 2011. During that time she undertook two courses of study, the second of which was a Diploma in Business Management at West London Business College. That course finished in September 2011. It was a course at Level 6 of the National Qualifications Framework. Before the expiry of that leave she made a further application for leave to remain as a Tier 4 (General) Student. She was proposing to study a two year Advanced Diploma in Administration Management at Level 5 of the National Qualification Framework. She relied upon a CAS granted by the Citizen 2000 Education Institute assigned to her on 31 October 2011.[10]On 27 January 2012 that application was refused because UKBA considered that the CAS did not confirm that the course represented “academic progress” from the previous course for the purpose of the rules. She appealed. In a determination promulgated on 10 April 2012 the FTT allowed her appeal on the basis that UKBA should have alerted the appellant to her sponsor’s failure to provide the necessary confirmation. In doing so the FTT sought to apply the decision of the UTIAC in Naved and concluded:
“In effect, the appellant’s case will be remitted to the respondent for further consideration. It will now be up to the appellant to ensure as best she can that all the material she wishes to rely upon, in order to demonstrate that she meets the relevant requirements of the immigration rules, is provided to the respondent.”
[11]In short, the FTT decided that in fairness to the appellant UKBA should have gone back to Citizen 2000 or to the appellant to enable the college to confirm that the new course, albeit at a lower level, represented academic progress as contemplated by paragraph 375 of the extant guidance. However, that is not what happened. The appellant had started a new course on 8 February 2012 in respect of which a new CAS had been assigned by the Citizen 2000 Institute that day. That was before the appeal hearing in the FTT. The materials before us do not indicate whether that fact was mentioned at the appeal.[12]In many cases the student does not see the CAS, which is completed by the Tier 4 Sponsor electronically and accessed on line by UKBA. But that feature is not present here. The appellant provided the CAS to UKBA. She now proposed to study a two year Diploma in Business Management at Level 6 of the National Qualifications Framework. It follows that rather than pursue the course with which the original unsatisfactory CAS was concerned, she changed tack altogether. The course was due to run from 8 February 2012 to 28 February 2014. That is stated in a letter to the appellant from Citizen 2000 dated 20 May 2013, later produced by her, which also indicated that the appellant was on the course. We were informed that Citizen 2000 at some point thereafter lost its licence so that the appellant was unable to complete the course.[13]It is the CAS of 8 February 2012 which forms the underlying subject matter of these proceedings.[14]In March 2013 UKBA again refused the application. The refusal was on the technical basis that the new CAS had not been submitted with the original application in November 2011. That was hardly surprising as it did not then exist; and the expectation after the FTT appeal was that the appellant would secure confirmation evidence from Citizen 2000 that the proposed Level 5 course represented academic progress over the previous Level 6 course. UKBA considered that the appellant should have made a fresh application for leave in respect of the new course. The nature of the refusal carried with it the consequence that UKBA did not come to any conclusion on the question whether the CAS confirmed academic progress between the two Level 6 courses for the purpose of the Rules.[15]The appellant again appealed. The appeal was heard by Judge Sullivan in the FTT on 17 June 2013. The judge took account of the new CAS as did UTIAC. Mr Gullick for the Secretary of State noted that the correctness of that approach was not challenged in either Tribunal. Nor has it been challenged before us. It is not difficult to see how the convoluted procedural and factual history which led to the appeal on 17 June 2013 might have given rise to argument about whether the course adopted in the Tribunals was correct. Because it is not a live issue before us, it is unnecessary to travel into the relevant rules and statutory provisions that would determine the question. In deciding the appeal in the rather unusual procedural and factual history before us I would not wish to be understood to have endorsed the approach taken below.[16]Both the FTT and the UTIAC concluded that the CAS did not confirm that the new course represented academic progress as defined in Paragraph 120A(b)(ii) of Appendix A to the Rules. The CAS identified the course and its level. In the section headed “Evidence used to obtain offer”, it referred to the previous course as “ABE – Business Management – Advanced Diploma (Student Report)”. “ABE” is the acronym for the Association of Business Executives. There is no indication in the CAS of the level of the previous course although it would be surprising if Citizen 2000 were unaware of it. It was common ground before the FTT that the previous course was at level 6. It noted various other qualifications obtained by the appellant in India and continued:
“Miss Sukhjeet Kaur is making academic progress and is currently studying the Diploma in Business Management Level 6 course. Miss Sukhjeet Kaur current course is an accredited Ofqual qualification and will achieve a recognised qualification and will be able to APL (Accredit Prior Learning) to the next academic level in Diploma in Business Management Level 7”
I have noted that the CAS was assigned 8 February 2012 which was the date on which the course started. The CAS was assigned before the Rules were amended in July 2012, but the decision under appeal came after the rule change.[17]The backdrop to the question of academic progress is thus that the appellant obtained a Diploma in Business Management at Level 6 at the West London Business School and was then proposing to follow it with another Diploma in Business Management at Level 6 at Citizen 2000. Before the FTT she explained that the current sponsor wanted her to do its Level 6 course before allowing her to go on Level 7. The courses covered the same topics save for one subject contained in the earlier course but not repeated in the current one. The letter of 20 May 2013 to which I have referred was written by the Principal of Citizen 2000 to the appellant and was produced to the FTT. Although headed “confirmation letter” it did no more than confirm that the appellant was studying on the Level 6 course.[18]The FTT accepted that the evidence from Citizen 2000 confirmed that the appellant was making academic progress generally. However, it did not confirm that its Level 6 course complemented the earlier course. It was for that reason that the judge concluded that the application did not comply with Paragraph 120A of Appendix A to the Rules. Upper Tribunal Judge Rintoul agreed with that conclusion.[19]The manner in which the appeal proceeded in UTIAC was unusual. All of the pleaded grounds of appeal were abandoned. Mr Malik accepted before UTIAC that the appellant could not succeed if the amended Paragraph 120A was the relevant rule and sought to argue that the case should be determined by reference to the old version, thereby seeking to distinguish Odelola v Secretary of State for the Home Department [2009] UKHL 25; [2009] 1 WLR 1230. That decided that immigration decisions were usually to be determined by reference to the rules in effect at the date of decision, rather than at the date of application. Judge Rintoul rejected that submission. The result was that the appeal in UTIAC effectively went by default on a concession that the appellant could not succeed under the amended rules. The grounds of appeal relied upon when leave to appeal was sought from UTIAC advanced that same argument and took a point under article 8 of the European Convention on Human Rights. Neither was pursued before us. The grounds relied upon in this court were drafted five days after the judgments in Pokhriyal were handed down. Mr Gullick for the Secretary of State took no point on the withdrawal of the concession before UTIAC.

Pokhriyal

[20]There were two appellants, who although not accorded anonymity, were referred to as HP and AH throughout the judgments. Their cases were unconnected. The un-amended rule applied to both. The seemingly endless changes made to the Rules mean that the relevant paragraph in Appendix A was numbered 120B at the times material in Pokhriyal, rather than 120A as it is now.[21]In HP’s case the CAS contained a section headed “academic progression”. UKBA did not agree that the explanation found in the CAS confirmed that the new course, which was at Level 5, represented academic progress from the previous course, which was at Level 7. The FTT and UTIAC agreed with UKBA. They each took a different view from the Tier 4 Sponsor.[22]AH had studied for a course at Level 7 and his new course at Cranford College was also at Level 7. The CAS in his case was accepted all round as providing no confirmation relating to academic progress. His application was refused on 4 April 2012. On 8 June 2012 Cranford College wrote to UKBA with further information. FTT and UTIAC took account of that letter. However, they concluded at both levels that its contents did not provide the required confirmation – see paragraph [28] of the judgment of Jackson LJ.[23]Jackson LJ reviewed the CAS system together with Paragraph 120B in the context of the Immigration Rules and relevant guidance. He stated his conclusions in paragraph [54]:
“i) Paragraph 120B of Appendix A to the Immigration Rules requires a college issuing a CAS for an existing student to confirm that the stated course constitutes academic progress. ii) That confirmation must be included either in the CAS or in a separate document. iii) When determining whether the words used constitute such a confirmation, it must be borne in mind that the mere issue of the CAS creates a presumption or expectation that the proposed course represents academic progress. iv) Whether a course constitutes academic progress is a matter for the college, not the Secretary of State. The Secretary of State must accept the college’s decision unless it is vitiated by fraud or for some other reason (see paragraph 47 above).”
He had earlier considered the question whether the issue of the CAS was itself confirmation of academic progress and concluded at paragraph [46] that “The language of paragraph 120B of Appendix A suggests that the CAS and the confirmation of academic progress are two separate matters. Paragraphs 116 and 117 of Appendix A set out the requirements which must be met to ensure that the CAS and its reference number are valid. The separate requirement set out in Paragraph 120B presupposes that the CAS is valid. I therefore conclude that paragraph 120B requires a separate confirmation that the proposed course constitutes academic progress.” Longmore LJ went further than Jackson LJ in that he accepted the submission on behalf of the appellants that the issue of the CAS itself confirms academic progress (paragraph [79]). Vos LJ agreed with both Jackson LJ and Longmore LJ but entered two caveats relating to the judgment of Longmore LJ (paragraph [82]). The first related to this aspect. He accepted that the “issue of a CAS creates a presumption that the academic institution has addressed its mind to the question of academic progression and has concluded that the proposed course represents the necessary academic progress.” He agreed that the letter of 8 June 2012 confirmed academic progress in AH’s case.[24]The second caveat related to an issue which does not arise in this appeal, namely the circumstances in which the Secretary of State, in dealings with the student, may disregard the assessment by an academic institution concerning academic progress. Jackson LJ dealt with that issue in [54(iv)]. He had instanced fraud as an example and also cases in which the assessment was plainly contradicted by other documents. Longmore LJ did not agree that the Secretary of State could ever go behind the institution’s assessment. That flowed from his preferred view that the CAS itself constituted the necessary confirmation. Vos LJ agreed with Jackson LJ that such circumstances may arise but thought it better to consider their scope in a case where the issue was live. He continued by saying that “the student is entitled to assume that the issue of the CAS has the effect that the college has considered academic progress, and has or will confirm academic progress.”[25]In the result the appeals were allowed, in HP’s case on the basis that, contrary to the view of both the FTT and UTIAC, the terms of the CAS did confirm academic progress; and in AH’s case that the letter of 4 June 2012 did so, even though the CAS was deficient. Thus both were determined by this court considering the material produced by the academic institutions and taking the view that the necessary confirmation was to be found within it.[26]The reference to Naved upon which Mr Malik relies is found in paragraph [69] of Jackson LJ’s judgment dealing with AH’s appeal. He noted that the CAS did not, as expected, confirm academic progress. He observed that in those circumstances by “analogy with Naved” the Secretary of State should have made further inquiry of Cranford College or notified AH of the omission. Had that happened she would have received the information which was contained in the letter of 4 June 2012 which, as he had already noted and contrary to the conclusion of UTIAC, provided the necessary confirmation.

Discussion

[27]There are two questions which fall to be answered which reflect the two grounds advanced on behalf of the appellant. First, does the CAS and other evidence in this case establish that Citizen 2000 provided the confirmation of academic progress required by Paragraph 120A of Appendix A? Secondly, if not, was the Secretary of State obliged as a matter of fairness to revert to the academic institution, or inform the appellant of her concerns, to enable the deficiency to be made good if it could be?

The First Question

[28]A good deal of time in oral argument was devoted to the question whether the amendment to what became Paragraph 120A was critical to the outcome of this appeal. Mr Gullick’s core submission is that the fact that the content of the guidance is now in the rules, so that the rules themselves define what is meant by academic progress, means that the reference in Pokhriyal to there being an expectation that the CAS confirms academic progress is no longer good law. He submits that the lack of definition in the Rules led Jackson LJ to consider that the question of academic progress was not hard-edged but involved some subjectivity (paragraph [46]). By contrast, the amended rule is prescriptive so there is no room for any presumption. Mr Malik points to the fact that the guidance contained the material definition now found in Paragraph 120A(b). Nothing of substance has changed.[29]The guidance, the material parts of which I have set out, covered three distinct situations. First, that academic progress would be shown if the course was at a higher level. That is now found in Paragraph 120(A)(b)(i). That is, and was, a straightforward question of fact with no blurred edges which calls for no quasi-academic value judgement. Secondly, that exceptionally a second course at a lower level in some circumstances could represent academic progress. For the purposes of the rules, that no longer qualifies. The question clearly engaged a quasi-academic value judgement. Thirdly, the situation where the two courses were at the same level, now covered by Paragraph 120A(b)(ii). In my view, whether a second course at the same level complements the earlier course necessarily calls for a value judgement, as the examples given in the guidance demonstrate. It is not a hard edged question. The Tier 4 Sponsor was required to make the same value judgement by reference to the guidance in AH’s case as Citizen 2000 was required to make when it granted the CAS in February 2012 and as the amended rule explicitly required after 20 July 2012.[30]In those circumstances I do not consider that the fact that between February 2012 when the CAS was assigned and the date of the decision the material guidance was incorporated into the rules, makes any difference to the underlying expectation in this case. There was no material change in what was required of Citizen 2000. The position would have been different had there been a material change in what was required of the Tier 4 Sponsor when assigning a CAS for a new course at the same level as the old. .[31]Jackson LJ’s conclusion that a decision maker must bear in mind that the assignment of the CAS creates a presumption or expectation that the proposed course represents academic progress flowed from the structure of the CAS system. It is premised on the basis that no CAS should be assigned in these circumstances unless the “academic progress” test is satisfied. Guidance issued to students also makes that clear. Whilst the assessment is for the academic institution, it is also uncontroversial that the licence to act as a Tier 4 Sponsor would be vulnerable to revocation if confirmation were to be given erroneously, as the guidance threatened. In my judgment the word “expectation” rather than “presumption” better conveys the sense of what this court determined should be ‘borne in mind’. There are many contexts in which formal legal presumptions arise, both at common law and under statute. But Jackson LJ was not suggesting a formal presumption of that nature. In the course of argument in this appeal, perhaps understandably, counsel slipped into the language of “rebuttable presumptions”, which illustrates the point.[32]By bearing in mind that assigning a CAS creates an expectation that the new course constitutes academic progress (as defined) when considered with the old, it is incumbent on a decision maker to construe the language used in any material from the Tier 4 Sponsor benignly in the light of the expectation. In Pokhriyal the CAS in HP’s case provided a detailed explanation of the purpose of studying the second course at a lower level. UKBA and both Tribunals had formed their own view as to whether the second course constituted academic progress. In other words, they had disagreed with the assessment of the Tier 4 Sponsor (Pokhriyal at paragraph [58]). The Court of Appeal held that they were wrong to do so. It was for the Sponsor to make the assessment. There was no need to consider the expectation point in HP’s appeal. In AH’s case the letter of 4 June 2012 was not “a masterpiece of clarity” and so Jackson LJ expressly bore in mind the expectation (paragraph [63]) to which he had referred before concluding that it contained the required confirmation.[33]There is no question in this case of decision makers having substituted their own view for that of Citizen 2000. UKBA did not consider the content of the CAS at all and both Tribunals decided that the evidence before them did not support the contention that academic progress had been confirmed by Citizen 2000. The FTT concluded that the CAS when viewed in the light of the surrounding evidence did not provide the required confirmation. In the unusual circumstances in which the appellant’s application for leave to remain evolved, both Tribunals had before them three pieces of evidence which the parties were content for them to take into account. They were the CAS itself, the letter of 20 May 2013 and the appellant’s own evidence. The context in which that evidence came to be evaluated cannot be ignored. It was that the appellant was not only intending to follow one course at Level 6 with another, but that the second course, although provided by a different institution, was to all intents and purposes the same. At first blush the second does not appear to complement the first but rather to repeat it.[34]Neither Tribunal expressly approached the issue by bearing in mind the expectation that the CAS should not be assigned unless the new course did indeed represent academic progress, that is to say that it complemented the earlier course. This court must determine the question bearing in mind the necessary expectation.[35]The letter of 20 May 2013, although produced by the appellant in support of her appeal, does no more than confirm that she was on the course. There is no explanation of why the letter was in those terms, rather than directed to the point that the FTT was concerned with as one would have expected it to be. The only reference to academic progress in the written material in the CAS is the sentence “[the appellant] is making academic progress and is currently studying the Diploma In Business Management Level 6 course.” That sentence is not directed towards the possible complementary nature of the second course to the first. As both the FTT and UTIAC observed, its first part confirms a different (and irrelevant) question, namely whether the appellant was generally making academic progress. It is extremely difficult to see, even with the appropriate expectation in mind, how that can possibly be referring to the question of the relationship between the two courses. The fact that the appellant was studying for the Diploma was a separate point, unrelated to academic progress. She had commenced the course that same day. It is impossible to credit that a judgement was being made by Citizen 2000 of her academic progress on the strength of a few hours’ exposure on their course.[36]Two aspects of the appellant’s evidence in the FTT further illuminate the question. She indicated that the courses covered the same subjects except one, which was covered at the first but not the second. Had her evidence been that the Citizen 2000 course covered different ground it might have provided some support for a particularly benign interpretation of the CAS, bearing in mind the expectation. The appellant also conveyed to the FTT the explanation given to her by Citizen 2000 of why she was required to undertake the Level 6 course. She had wanted to enrol in their Level 7 course but was not allowed to do so. They wanted her to do their Level 6 course. But there is no need for a student to study successive stages at the same college. There is no hint of a statement from Citizen 2000 that the course they were offering complemented the first. Had there been, it might have provided some similar support for an especially benign interpretation of the CAS.[37]Like UTIAC and the FTT, I am satisfied that Citizen 2000 did not confirm that their course of further study at Level 6 complemented the appellant’s previous course at the same level.

The Second Question

[38]The very brief reference to Naved in the course of Jackson LJ’s judgment founds Mr Malik’s submission that there was, in this case, an obligation upon UKBA to go back to Citizen 2000 to seek clarification of the CAS. The reach of Naved has been considered twice in this court since Pokhriyal in cases concerning Tier 4 students and deficiencies in the CAS: see Rahman v Secretary of State for the Home Department [2014] EWCA Civ 11 [2014] 1 WLR 3574 and EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517. In neither case was Pokhriyal cited nor, as it happens, was Rahman cited in EK (Ivory Coast). Be that as it may, in both cases this court distinguished Naved and concluded that when a Tier 4 Sponsor fails to provide the evidence via a CAS which is required to enable the student to secure the necessary points, there is no obligation founded in fairness which obliges the Secretary of State further to investigate with the Sponsor or to inform the student.[39]The headnote in Naved, drafted by UTIAC itself, states that “fairness requires the Secretary of State to give an applicant an opportunity to address grounds for refusal, of which he did not know and could not have known failing which the resulting decision may be set aside on appeal as contrary to law …” In EK Sales LJ, with whom Briggs LJ agreed, decided that the headnote set out a bald proposition which was not of universal application in the field of immigration decision making. They did not question the decision in Naved itself. The facts of Naved were such that UKBA bore substantial responsibility for an error which had occurred and resulted in leave being refused. The applicant had provided information about his course. Without telling him, UKBA approached his college for confirmation of his having studied on and completed the course. The college replied identifying a different person and said he had not completed the course. Neither the college nor UKBA noticed the mistake. The two students shared the same surname. The applicant had in fact completed the course successfully.[40]In Rahman the application for leave to remain was refused on the basis that the Sponsor had failed to confirm academic progress. Richards LJ, who gave the only reasoned judgment, considered expressly the question whether, in those circumstances, the Secretary of State was obliged as a matter of fairness to give the applicant an opportunity to address the deficiency in the CAS before the decision was made. There was some uncertainty whether the applicant was aware of the deficiency but either way, the answer was no. EK (Ivory Coast) reached the same conclusion on different facts. The applicant in that case relied upon a CAS which she supplied with her application. Between the date of her application and the date upon which UKBA made its decision the Sponsor withdrew the CAS, it appears by mistake. The applicant was unaware of that. Her application was refused. Sales LJ (with whom Briggs LJ agreed in a separate judgment) distinguished Naved and concluded that in the context of the points based system there was no obligation to inform the applicant to enable her to make good the deficiency.[41]The points based system for determining whether to grant leave to enter or remain in the United Kingdom, which applies to students as well as a number of other categories of applicant, is designed to achieve predictability, administrative simplicity and certainty. It does so at the expense of discretion, that is to say it is prescriptive. The consequence is that failure to comply with all its detailed requirements will usually lead to a failure to earn the points in question and thus refusal: see e.g. Sullivan LJ in Alam v Secretary of State for the Home Department [2012] EWCA Civ 960 at [44], Davis LJ in Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2 at [100]; Sales LJ in EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517 at [28] and Briggs LJ at [59]. It was that important background which informed the decision in EK (Ivory Coast).[42]By contrast, the issue was not elaborated or reasoned in Pokhriyal. In any event, the reference to an analogy with Naved was an obiter dictum. It appears to have been mentioned by Jackson LJ because UTIAC had referred to Naved. UTIAC observed that if UKBA had asked the Tier 4 Sponsor for clarification of the CAS before refusing AH’s application, no confirmation of academic progress would have been forthcoming. That was because in UTIAC’s view the subsequent letter of 4 June failed to do so. It follows, in my judgment, that both Rahman and EK (Ivory Coast) are binding authorityon the question whether the Secretary of State should, as a matter of fairness, give notice to an applicant for leave to remain or the Tier 4 Sponsor that she considers there to be a deficiency in the CAS before making an adverse decision on that basis. There is no such obligation.[43]Whilst that conclusion is fatal to the appellant’s second ground, there are more prosaic and factual reasons why the point could not help her, even if Pokhriyal were understood to decide the contrary and was preferred. First, Naved was concerned with grounds of refusal of which the applicant did not know and could not have known. Similarly, AH did not provide the defective CAS to UKBA and appears to have been unaware of its contents. By contrast, the appellant was fully aware of the contents of the CAS because she provided it in support of her modified application following her initial success before the FTT.What is more, she procured the letter of 20 May 2013 to provide further support for her second appeal. She had every opportunity to ensure that the necessary confirmation was provided before the appeal hearing. There is no conceivable unfairness on anyone’s part. Secondly, the whole process which led to the February 2012 CAS being under consideration flowed from the appellant’s earlier success before the FTT. She was given fair notice that she should marshal her evidence – see paragraph [10] above. Thirdly, this is not a case in which UKBA concluded that the contents of the CAS were deficient. They declined to consider it at all. It was the FTT which considered it defective in the context of the rather unusual sequence of events which led to its being considered in the appellant’s second appeal. It has never been part of the appellant’s case that there was an obligation upon the FTT to allow her a further opportunity to obtain yet more evidence; nor realistically could it have been. There could be no arguable basis for suggesting that the FTT should have indicated its provisional view on the CAS and adjourned to allow the appellant to have another go at obtaining satisfactory evidence.

Conclusion

[44]Neither of the grounds advanced on behalf of the appellant succeeds. I would dismiss the appeal.

Sir Timothy Lloyd

[45]I agree.[46]I also agree.

Cited in 15 later judgments

and 6 more of the most senior