Hossain & Ors v Secretary of State for the Home Department [2015] EWCA Civ 207

Case No C5/2013/2837[2015] EWCA Civ 207
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 13 th March 2015
Before
LORD JUSTICE MOORE-BICK,VICE PRESIDENT OF THE COURT OF APPEAL (CIVIL DIVISION)LORD JUSTICE BEATSONLORD JUSTICE VOS
Between
(1) Talukder Mohammad Zakir HossainAppellants(2) Sonia Akter SylpiAppellant(3) Baniamin Talukder AungkonAppellant(4) Anika Taiyaba AchalAppellantSecretary 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)
Michael Biggs (instructed by Universal Solicitors) for AppellantsMathew Gullick (instructed by The Treasury Solicitor) for RespondentHearing Hearing date: 3 March 2015
JudgmentLord Justice Beatson :I. Introduction
[1]This is an appeal against a determination of the Upper Tribunal concerning a decision about the Tier 1 (Post-Study Work) Migrant category of the points-based system of immigration control introduced in 2008. That category was designed to enable those who had a United Kingdom recognised bachelor’s or postgraduate degree to remain in order to acquire post-study work experience. Following an announcement in March 2011, it was removed from the system as from 6 April 2012. Applications made before that date, such as the one before this court, remained eligible for consideration under it.[2]In this appeal, the single issue is whether the language of the form specified for making an application for leave to remain as a Tier 1 (Post-Study Work) Migrant gives rise to a legitimate expectation that, notwithstanding the requirement in the Immigration Rules that 15 points are given where the application is made “within 12 months of obtaining the relevant qualification”, i.e. after obtaining the qualification, in certain circumstances the points will be given where the application is made after the successful completion of the degree course but before the degree is in fact awarded.[3]The appellant, Mr Talukder Hossain, is a citizen of Bangladesh. He had been in this country lawfully as a student since June 2006. On 3 April 2012, two days before the category was removed from the system, he applied for Tier 1 (Post-Study Work) status. He had then completed a course at the Birmingham Graduate School for an MBA degree to be validated and awarded by the University of Wales, but the University had not notified him that he had been awarded the degree.[4]Mr Hossain filed a letter dated 28 March 2012 from the Birmingham Graduate School with his application. It stated that he had completed his “full-time MBA top-up programme” and “all his academic requirements” and “is expected to receive his certificate from the University of Wales shortly”. Almost two months after the application was made, on 28 May 2012, the University of Wales confirmed that Mr Hossain had been successful in obtaining the MBA degree. Seven months later, on 20 December 2012, his application was refused by the respondent, the Secretary of State for the Home Department. The reason for the refusal was that he had not obtained his MBA qualification prior to making his application as required by the Immigration Rules, was therefore not entitled to the 15 points for that attribute, and had consequently not achieved the points necessary under the Immigration Rules for leave to remain as a Tier 1 (Post-Study Work) migrant. The letter also stated that a decision had been made to remove him from the United Kingdom.[5]On 22 April 2013 the First-tier Tribunal (“FtT”) allowed Mr Hossain’s appeal against the decision. It did so on the basis of a decision of the Upper Tribunal, Khatel and others (s85A; effect of continuing application) [2013] UKUT 00044 (IAC), which held that an application was to be treated as “continuing” and still open until the date on which it was decided, so that a person who obtained the relevant qualification before the date of the Secretary of State’s decision was entitled to the points for that attribute. Two months after the FtT’s determination, this court overruled Khatel’s case in Raju, Khatel and others v Secretary of State for the Home Department [2013] EWCA Civ 754, reported at [2014] 1 WLR 1768. Moses LJ, with whom Kitchin and Floyd LJJ agreed, stated (at [24]) that, on a true construction of the Immigration Rules, an applicant for Tier 1 (Post-Study Work) status was required to have obtained the relevant qualification before making the application in order to obtain the necessary points, and that an application was not to be regarded as “continuing” until it was determined. Accordingly, subsequently obtained evidence could not cure a defect in the application at the date it was made. As a result, on 8 August 2013 the Upper Tribunal allowed an appeal by the Secretary of State in the present case.[6]Permission to appeal to this court was sought on two grounds, unfairness based on inconsistency with the Secretary of State’s decision in other cases, and the legitimate expectation that arose from the terms of the specified form. The inconsistency ground is no longer pursued. Sir Stanley Burnton described it as “hopeless” but adjourned the application for permission to allow the letter dated 28 March 2012 to be put before the court. After that was done, permission to appeal on the legitimate expectation ground was granted by Gloster LJ on 7 March 2014. I will refer to Mr Hossain as “the appellant” although there are three other appellants. They are his wife and his two children, who have at all material times been his dependents and whose appeals stand or fall with his.[7]The removal of the Tier 1 (Post-Study Work) category led to many premature applications by students before they had been formally awarded their degree. There are about 40 other cases in which permission to appeal to this court from the Upper Tribunal is sought on the question whether the terms of the application form for leave to remain as a Tier 1 (Post-Study Work) Migrant completed by a person gave rise to a legitimate expectation that the Secretary of State would waive the requirements in § 245FD of the Immigration Rules and Table 10 of Appendix A to the Rules. They all involve courses studied at an educational institution which is the Tier 4 sponsor (“the educational provider”) for degrees validated and awarded by another institution, normally a university (“the awarding institution”). In some, but not all, of the applications, the application was accompanied by a letter from the educational provider giving details of the awarding body. Those letters stated either that all the course requirements had been completed successfully but that the final decision by the awarding institution was awaited, or were in similar terms to the letter from the Birmingham Graduate School in this case.

II. The legal framework

[8]The relevant provisions of the Immigration Rules (HC 395 as amended) are those that were in force on 5 April 2012. By § 245FD: “To qualify for leave to remain as a Tier 1 (Post-Study Work) Migrant, an applicant must meet the requirements listed below. Subject to paragraph 245FE(a)(i), if the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused. Requirements:(a) The applicant must not fall for refusal under the general grounds of refusal, and must not be an illegal entrant.(b) The applicant must not previously have been granted entry clearance or leave to remain in as a Tier 1 (Post-Study Work) Migrant.(c) The applicant must have a minimum of 75 points under paragraph 66-72 of Appendix A." The appellant satisfied all the requirements save for (c). Had he satisfied all the requirements he would have been entitled to leave to remain for a maximum period of two years (see paragraph 245FE).

Requirements:

[9]Appendix A to the Rules sets out the “attributes” required to qualify under the points-based system. The attributes attract different points. The attributes for Tier 1 (Post-Study Work) Migrants are as follows:- "Attributes for Tier 1 (Post-Study Work) Migrants66. An applicant for entry clearance or leave to remain as a Tier 1 (Post-Study Work) Migrant must score 75 points for attributes.67. Available points are shown in Table 10.68. Notes to accompany the table appear below the table. Table 10 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, or(b) If the applicant is claiming points for having been awarded a Higher National diploma from a Scottish Institution, he studied for that diploma at a Scottish publicly funded institution of further or higher education, or a Scottish bona fide private education institution which maintains satisfactory records of enrolment and attendance.The Scottish institution must:(i) be on the list of Education and Training Providers list on the Department of Business, Innovation and Skills website, or(ii) hold a Sponsor licence under Tier 4 of the Points Based System. 20 The applicant's period of UK study and/or research towards his eligible award were undertaken whilst he had entry clearance, leave to enter or leave to remain in the UK that was not subject to a restriction preventing him from undertaking a course of study and/or research. 20 The applicant made the application for entry clearance or leave to remain as a Tier 1 (Post-Study Work) Migrant within 12 months of obtaining the relevant qualification or within 12 months of completing a United Kingdom Foundation Programme Office affiliated Foundation Programme as a postgraduate doctor or dentist. 15 The applicant is applying for leave to remain and has, or was last granted, leave as a Participant in the International Graduates Scheme (or its predecessor, the Science and engineering Graduates Scheme) or as a Participant in the Fresh Talent: Working in Scotland Scheme. 75 Qualification: notes69. Specified documents must be provided as evidence of the qualification and, where relevant, completion of the United Kingdom Foundation Programme Office affiliated Foundation Programme as a postgraduate doctor or dentist.70. A qualification will have been deemed to have been 'obtained' on the date on which the applicant was first notified in writing, by the awarding institution, that the qualification had been awarded.”[10]The material provisions of the relevant policy guidance, Tier 1 (Post-Study Work) of the points-based system – Policy Guidance (ver. 07-11), which is stated to be used for applications made on or after 13 February 2012 state, with respect to the 20 points for the qualification attribute, at §62, that:
“If the certificate [of award] has yet to be issued, the applicant will be unable to provide the original certificate of award. In these circumstances, the applicant must provide: … (ii) an original letter from the institution at which the applicant studied towards his/her eligible qualification. …It must confirm the: • Applicant’s name; • Title of the qualification; • Date of the award (as defined in paragraph 79 of these guidance notes); • The body awarding the qualification; • Explain the reason why the applicant is unable to provide their original certificate of award; and • Confirm that the certificate will be issued.” (ii) an original letter from the institution at which the applicant studied towards his/her eligible qualification. …It must confirm the: • Applicant’s name; • Title of the qualification; • Date of the award (as defined in paragraph 79 of these guidance notes); • The body awarding the qualification; • Explain the reason why the applicant is unable to provide their original certificate of award; and • Confirm that the certificate will be issued.”
[11]With regard to the 15 points for the “date of eligible qualification” attribute, §78 of the guidance states that “an applicant can claim 15 points if the eligible qualification was obtained within the 12 months immediately before his/her application for entry clearance or leave to remain under Tier 1 (Post-Study Work)…”.[12]As to the date of the award and the documents required:
“79. The date of award is taken as the date on which the applicant was first notified, in writing, by the awarding institution, that the qualification has been awarded. This notification may have been in writing, directly to the applicant, or by the institution publishing details of the award, either in writing (for example, via an institution notice board) or electronically (for example, on the institution’s website). Where the notification was not in the form of direct correspondence to the applicant, we will require direct confirmation of the date of award from the institution in writing.” … “84 If the applicant has already provided an original letter in support of points claimed for other attributes, then the same letter is acceptable as evidence in support of this attribute provided it contains all the required information.”

III. The background

[13]On 30 August 2011, the appellant, then pursuing other educational endeavours in this country, applied for further leave to remain as a Tier 4 (General) Student in order to pursue the MBA in International Management awarded by the University of Wales to which I have referred, and for which the educational provider was to be the Birmingham Graduate School. The course began on 19 September 2011 and ended on 19 March 2012. Because his application for Tier 4 (General) Student status was still pending when the course ended, on 3 April 2012 he varied his application in order to seek leave to remain as a Tier 1 (Post-Study Work) Migrant. Provision for such a variation is made in sections 3C(4) and (5) of the Immigration Act 1971 (as amended). The appellant made his application using the form specified for Tier 1 (Post-Study Work) applications and paid the specified fee.[14]Section 3 of the specified form is headed “Tier 1 (Post-Study Work)”. Part G concerns the applicant’s qualification. Underneath the heading, in bold, it states that “before filling in this section of the form, the applicant should refer to the Immigration Rules and the Tier 1 (Post-Study Work) of the points-based system policy guidance”. The appellant stated in §G1 that he had a United Kingdom recognised degree at postgraduate level. In §G2 he stated that the qualification was an MBA in International Management and that the awarding body was the University of Wales. In §G3 he stated that the institution at which he studied for his eligible qualification was Birmingham Graduate School in Smallbrook.[15]Paragraph G5 of the form instructed applicants to tick a box to show that they had sent their “original certificate of award to prove his/her qualification”. Underneath the original certificate box, the form stated: “If the applicant has been unable to submit their (sic) original certificate of award because it has not been issued, tick the box to show that the applicant has sent an original letter from the institution giving details of the awarding body, and confirmation that the certificate of award will be issued”.[16]As, at the date of his application, the appellant had not been awarded his certificate of award of an MBA, he ticked the second box. He enclosed the letter from the Birmingham Graduate School to which I have referred. The letter stated:
“This is to confirm that the above named student has completed his full-time MBA top-up programme. He has completed all his academic requirements. His course began on 19/09/2011 and ended on 19/03/2012. The student is expected to receive his Certificate from The University of Wales shortly. Please note that this student has no further lessons and has no further requirements to attend classes. His average attendance percentage for the year is 86.21%. Talukder M.D. Zakir Hossain has been an excellent student and has fulfilled all of the requirements needed to complete the course.”
[17]Part K of the form is headed “Date of Award of Qualification/Completion date of United Kingdom Foundation Programme”. It too instructs applicants to refer to the Immigration Rules and the policy guidance concerning Tier 1 (Post-Study Work). Paragraph K1 states:
“the applicant must have made the application for entry clearance or leave to remain as a Tier 1 (Post-Study Work) Migrant within 12 months of obtaining the relevant qualification or within 12 months of completing a United Kingdom Foundation Programme”
. Applicants were asked to tick one box to confirm that they had sent a letter confirming that they either “completed [their] eligible qualification in the 12 month period immediately before submitting this application” or two other boxes that are irrelevant in the present case. The appellant ticked the first box.[18]I have referred to the decision letter dated 20 December 2012. It stated:
“You have claimed 15 points for: Date of obtaining the eligible award under Appendix A of the Immigration Rules, but on the basis of the documents you have provided you do not qualify for the award of points in this area”
. The reason given was that the points were claimed on the basis that the first appellant was awarded his eligible qualification “no more than 12 months before the date of [his] application”, which was made on 4 April 2012, but “from the evidence provided, the date of award of [his] eligible qualification is 28 May 2012”. The letter stated that the Secretary of State was “therefore not satisfied” that the appellant met the requirement to be awarded a minimum of 75 points under Appendix A. Because the appellant had not obtained 75 points under Appendix A of the Immigration Rules, he was also not awarded points under Appendix B for English language.

IV. The decisions of the Tribunals

[19]The appellant and his family appealed the decision dated 20 December 2012 pursuant to section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002. The appeal came before the FtT on 22 April 2013. As I have stated, the appeal was allowed on the basis of the decision of the Upper Tribunal in Khatel’s case and, after that decision was overruled, the Secretary of State was granted permission to appeal to the Upper Tribunal. The Upper Tribunal judge giving permission made directions requiring the parties inter alia to file and serve a bundle containing all the material, including witness statements and authorities, on which they intended to rely. This appears to have been because it was anticipated that, if the FtT’s determination was set aside, a decision on the family’s Article 8 ground of appeal would need to be made as the FtT had reached no decision on that.[20]The appeal came before UT Judge Warr on 7 August 2013. He noted (at [7]) that neither side had complied with the directions given. He also stated (at [8] – [11]) that the solicitor representing the appellant submitted that, notwithstanding the decision of the Court of Appeal in Raju, Khatel and others, the appellant’s application did in fact comply with the Immigration Rules because the application form was sent together with the letter dated 28 March 2012 from the Birmingham Graduate School and referred to the option at § G5 to send “an original letter from the institution giving details of the awarding body, and confirmation that the certificate of award will be issued”. The solicitor argued that the letter from the educational provider complied with the requirements of the box that had been ticked. As that point had not been raised before, and no notice of it had been given, there was a short adjournment to enable the Home Office Presenting Officer to consider the position. After doing so, he submitted that the letter did not comply with §G5 of the application form because it did not confirm that the certificate of award would be issued. The Upper Tribunal reserved its decision overnight.[21]In his decision, the UT judge stated (at [19]) that the point should have been raised at the proper time. He also stated that he was “not satisfied that the tick-box at §G5 authorise[d] the submission and acceptance of post-application material to justify the award of points in circumstances such as this given the very clear decision of the Court of Appeal” in Raju, Khatel and others:
“Subsequently obtained evidence cannot cure the defect in the application: see [Raju, Khatel and others], paragraph 24. It may well be that the tick-box on the form is intended to cover a situation which is little more than a formality, such as a document being in the post. For example, attached to the letters from the solicitors dated 21 August, 2012, is the letter from the University of Wales, dated 28 May 2012, stating that the appellant’s degree certificate would be sent to Birmingham Graduate School. The appellant was asked to check if the spelling of his name was correct in this letter as this is how it would appear on any documents issued by the University. There is a document dated the 30 May 2012 from the Validation Unit of the University of Wales certifying that the appellant was registered as a student, and under additional information it states ‘the above named candidate is currently waiting to be admitted to their award and/or their certificate to be issued’. It may well be that what the tick-box in paragraph G5 has in mind is circumstances such as this rather than a document issued by the Birmingham Graduate School two months previously.”
For these reasons, he rejected the argument that the material supplied with the application complied with the relevant requirements of the points-based system, stating that “had the point been properly raised before me, I would have rejected it”.

V. The grounds of appeal

[22]I have referred to the UT judge’s comment that the legitimate expectation point based on §G5 was not raised by the appellant at the proper time and identified prior to the hearing notwithstanding the directions that all material which was to be relied on was to be filed and servedin advance of the hearing. At the hearing, Moore-Bick LJ raised the question arising from the fact that the Upper Tribunal stated only what it would have decided had the point been before it. The question was whether the point arose out of the decision of the Upper Tribunal and whether it is appropriate for this court to consider whether the Upper Tribunal erred in law in its treatment of it. As the Upper Tribunal judge did, in substance, deal with the point, and Gloster LJ gave permission, I consider that the matter is properly before us. Mr Gullick, on behalf of the Secretary of State, properly drew our attention to the decision of this court in GS (India) and others v Secretary of State for the Home Department [2015] EWCA Civ 40. In that case, a majority of the court (Laws LJ dissenting) held that, while this court ought not to entertain arguments which were not pursued before the Upper Tribunal, the obstacle was not one of jurisdiction but a matter of discretion.[23]Mr Biggs, on behalf of the appellant, submitted that the application form gave rise to a legitimate expectation that the strict requirements in § 245FD(c) of the Immigration Rules, together with the requirements in Appendix A, Table 10 and § 70, would be waived. In succinct oral submissions, building on a full and helpful skeleton argument, he submitted that the decision of the Upper Tribunal in Nasim and others (Raju: reasons not to follow?) [2013] UKUT 00610 (IAC), and that of this court in Rasheed and others v Secretary of State for the Home Department [2014] EWCA Civ 1493, which run counter to his legitimate expectation argument, do not dispose of the appellant’s case and are distinguishable.[24]His first submission was that Rasheed’s case is unlike the present case, because the appellant in this case is able to point to the letter dated 28 March 2012. In Rasheed’s case (see [16] of the judgment), there was no finding that any of the applicants had furnished a letter which would satisfy part G5. Mr Biggs submitted that, if § G5 is read in context (i.e. in the light of §s G2 and G3), it is clear from the form that the reference to “the institution” in the text near the second box in § G5 is a reference to what I have called the educational provider. The guidance states (at §84) that, if a letter has been provided in support of points claimed for other attributes, the same letter is acceptable as evidence in support of the “date of eligible qualification” attribute.[25]Secondly, Mr Biggs submitted that looking at § G5 in context and together with the text of part K of the form, the clear impression is given that an applicant is able to rely on a letter such as that dated 28 March 2012. There would, he argued, be no point in completing section G5 of the form by ticking the alternative box if, having done so, the application would inevitably fail for want of 15 points under Table 10 of Appendix A regarding the date of the qualification and the provisions of part K of the form. He invited the court not to compartmentalise part G in the way that had been done in Nasim and Rasheed. In effect, he invited us not to follow, or very narrowly to construe, the decisions in those cases.[26]Thirdly, he submitted that the text of part K of the form, if read in its entirety, supports the appellant’s case. It is necessary not only to look at the heading and introduction to part K, but also to the text accompanying the first box. The heading stated that an applicant “must have made the application…within 12 months of obtaining the relevant qualification…” (emphasis added). But the text before the first box required the applicant to confirm that “he/she completed his/her eligible qualification in the 12 month period immediately before submitting the application” (emphasis added). That, submitted Mr Biggs, is exactly the position of the appellant. It was for that reason that he ticked the first box. Moreover, the letter dated 28 March 2012 is as clear as it could be that the appellant had completed his full-time MBA programme. It stated he had completed all his academic requirements, had no further lessons and no further requirements to attend classes, and “is expected to receive his certificate from the University of Wales shortly”. It also stated that he “has fulfilled all the requirements needed to complete his course”. The letter amounts to an assurance because it is all a Tier 4 sponsor could possibly say. It thus satisfies the requirements indicated by parts G5 and K of the form. There is, Mr Biggs argued, no room for doubt that the appellant had completed his MBA course and would in due course receive the formal certificate.[27]Fourthly, Mr Biggs submitted that the reasons given by the UT Judge in [19] of the decision under appeal, which I have summarised, were wrong. The UT judge relied on Raju, Khatel and others, and in particular [24] of the judgment of Moses LJ (as to which see [5] above), but did not take account of the fact that Raju, Khatel and others did not address the public law arguments based on legitimate expectation made in the present case. Moreover, the provision of a degree certificate to this appellant was a mere formality because he had done all that he could to secure the formal conferral of the degree.[28]In his written submissions, Mr Biggs also relied on R v Secretary of State for the Home Department, ex p. Mangoo Khan [1980] 1 WLR 569, where this court held that an immigration official had waived immigration rules by allowing entry to the holder of a settlement visa which had been conferred on the basis that the holder was a dependent on his parents and was under 21 years of age when he was, in fact, at the time he sought entry, over 21. He argued that, as Lord Hoffmann explained in R v Secretary of State for the Home Department, ex p. Zeqiri [2002] UKHL 3, reported at [2002] Imm. A.R. 296, any representation in the application form should be construed in the context in which it is made, i.e. through the eyes of applicants to whom the form is directed. He argued that the form clearly gave rise to an implied assurance that a letter such as that submitted by the appellant would be sufficient to result in points being awarded, both as regards the nature of the qualification and the date of the qualification.

VI. Analysis

[29]The introduction of the points-based system for entry, whether as a migrant or a student, was a legislative move to a rule-based system in which there is much less flexibility and less scope for the operation of discretion. The purpose was said to be to restore public trust in the immigration system and predictable consistency in it, which a rule-based system is more likely to promote than one containing more discretion. This has led to increased strictness and to acceptance by the courts that, for example, there is no concept of a “near miss”. It has, however, to be recognised that the result is a very complicated system. The complexity is in part due to the considerable detail in the rules, and in part the frequency of the changes in them to meet what the Secretary of State considers to be evasion or undesirable avoidance of previous rules.[30]A degree of complexity, and indeed some formalism, is very often a necessary price for increased certainty, but in Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568 at [4], Jackson LJ stated that the “provisions have now achieved a degree of complexity which even the Byzantine emperors would have envied”. As well as the rules, it is necessary for those affected by the system to have regard to published policy guidance on aspects of the points-based system, such as the guidance on Tier 1 (Post-Study Work) status that is relevant in this case. That guidance changes frequently and only the most recent version is readily available online. In the present case, two versions of the guidance were placed in the bundle of documents before us. Underhill LJ referred to the consequent difficulties in Singh v Secretary of State for the Home Department [2015] EWCA Civ 74 at [59]. The detail, the number of documents that have to be consulted, the number of changes in rules and policy guidance, and the difficulty advisers face in ascertaining which previous version of the rule or guidance applies and obtaining it are real obstacles to achieving predictable consistency and restoring public trust in the system, particularly in an area of law that lay people and people whose first language is not English need to understand.[31]In this case, we are not concerned with lack of clarity resulting from the complexity of the Immigration Rules. The rules are clear on the point at issue. To get the points for the “date of award of qualification” attribute, the applicant must have obtained the qualification in the twelve months before the application. We are concerned with the effect of the language used in the application form and whether it gives rise to a public law legitimate expectation that strict compliance with the Immigration Rules will not be necessary. During the hearing, questions were raised about the clarity of aspects of the policy guidance and the application form. Was the use of the term “institution” in the policy guidance and the form consistent? Did § 79 of the policy guidance use the term to mean both what I have referred to as the “awarding institution” and the “educational provider”? Is the reference to both “obtaining the relevant qualification” and “completed his/her eligible qualification” in § K1 confusing in the light of the time lag between completing the course and obtaining the degree from the awarding institution? It is important that documents such as the policy guidance and the specified and thus mandatory application form use clear and consistent language.[32]I turn to the substance. Although neither decision is binding on this court, the starting-points are the decisions of the Upper Tribunal in Nasim and others (Raju: reasons not to follow?) [2013] UKUT 00610 (IAC) and this court’s decision in Rasheed and others v Secretary of State for the Home Department [2014] EWCA Civ 1493 refusing permission to appeal. Moore-Bick LJ stated the decision in the Rasheed cases could be reported and cited because the judgment was intended to clarify the law in relation to a number of aspects of the situation in which an application for leave to remain or enter as a Tier 1 (Post-Study Work) Migrant was made before the individual had formally been awarded the qualification on which the application was based.[33]In the Nasim cases, the Upper Tribunal held that an individual could not rely on part G5 of the form in order to advance arguments based on a legitimate expectation: see [31ff] of that case, and in particular [34] – [36]. It did so because part G of the application form relates to the 20 points available for having a relevant qualification, which the appellants in Nasim (like the appellant in this case) were in fact awarded. It was the 15 points in the fourth section of the box in Table 10 which they did not obtain, and which led to the refusal of their applications. That was dealt with in part K of the application form, which states in its general heading that “the applicant must have made the application for entry clearance or leave…within 12 months of obtaining the relevant qualification…”.[34]The material facts in Rasheed’s case are contained in Moore-Bick LJ’s judgment at [19] and [23] and in the Nasim cases at [105]. Mr Rasheed applied for Tier 1 (Post-Study Work) status before 6 April 2012 and before the award of the qualification on which his application was based had been confirmed. He originally relied on a qualification awarded by the Association of Chartered Certified Accountants (“ACCA”) but after submitting his application, and after 6 April 2012, he varied it so as to rely on an MSc in International Accounting from Anglia Ruskin University and a BSc in applied accounting from Oxford Brookes University. A letter from Anglia Ruskin University dated 1 June 2012 congratulated him “on completing your pathway”. It stated that, at a meeting on Friday 25 May 2012, “the Anglia Ruskin awards board confirmed your final award as: Master of Science, International Accounting (Pass)”. A letter dated 26 September 2012 from Oxford Brookes University records that “following the decision of the Oxford Brookes BSc (Hons) in Applied Accounting examinations board held on 24 September 2012, I am pleased to inform you that your research project has achieved a Grade C and you have subsequently been awarded the BSc (Hons) in Applied Accounting degree…Oxford Brookes will send your BSc degree certificate to you by post within the next 3 months”. The Secretary of State refused Mr Rasheed’s application on 27 September 2012.[35]Moore-Bick LJ stated (at [17]) that there was no substance to the points made based on § G5 of section 3 of the application form, however they were put. This was because § G5 required “confirmation that the certificate of award will be issued” (emphasis added). Moreover, part G as a whole is concerned with the nature of the qualification, and not with the date on which it was awarded, which is dealt with in part K. Thirdly, the words of the form upon which reliance is placed reflected a policy instruction made in July 2010, which became known as “the pragmatic policy” but which, since the closure of Tier 1 (Post-Study Work), ceased to have any relevance and was withdrawn. Under that policy, where an application was made before a qualification had been formally confirmed but the qualification was formally confirmed before the Secretary of State came to make a decision, caseworkers were not to refuse the application. The policy was “pragmatic” because, in effect, the Secretary of State was saying “I will treat the confirmation as pre-dating the application because you can now make another valid application which is likely to succeed”, and it had no relevance after the closure of the route because no further application could be made. It would not have applied in this appellant’s case because the confirmation from the University of Wales came after the closure of the route.[36]I have concluded that Mr Biggs’s submissions must be rejected. I agree with the reasoning of UT judges Allen and Peter Lane in the Nasim cases and my Lord in the Rasheed cases. Those cases did not involve a letter submitted with the application form such as that from the Birmingham Graduate School in the present case. The judgments did, however, consider whether the language of the application form could have given rise to a legitimate expectation. It is, in particular, clear from Moore-Bick LJ’s judgment in Rasheed’s case (see [35] above) that,if a letter such as that submitted by the appellant had been submitted with the form by the applicants in those cases, it would not have sufficed.[37]Secondly, I reject the submission that the terms of the letter in this case fell within the requirements of any expectation created by the words next to the second box in § G5 of section 3 of the form, and do so clearly. What the form there states is that “the applicant has sent an original letter from the institution [here the teaching college] giving details of the awarding body [here the University of Wales]” and “confirmation that the certificate of award will be issued” (emphasis added). What the wording on the form required was not, as Mr Biggs maintained, that the institution that was the educational provider had said all that a Tier 4 sponsor could possibly say. The wording presupposes not that the confirmation from the awarding institution is outstanding, but that the certificate “will be issued”. §79 of the policy guidance (see [12] above) states that where the notification by the awarding institution is not in the form of direct correspondence to the applicant, direct confirmation of the date of award in writing is required. It is clear from §§62 and 78 – 79 of the policy guidance that what is contemplated is a post-award application. The letter dated 28 March does not state that the award has been made or the date of the award. What it states is that “the student is expected to receive his certificate…shortly” and “has fulfilled all the requirements needed to complete the course” (emphasis added). That simply does not comply with what is required.[38]Thirdly, assuming that the letter met the requirements of the words near the second box in § G5, it has to be remembered that any representation in the words relied on is in the section of the form concerned with nature of the qualification. The qualification on which the appellant relied was one which in principle met the requirements, and he was in fact given the 20 points relating to this attribute because by 20 December 2012, when the respondent made her decision, he had provided evidence of the award of the degree. There was thus a representation about a way of meeting the requirements of the rules as to the “nature of the qualification” attribute that would satisfy the requirement for the 20 points. That expectation was fulfilled. But it does not follow from this that the words also amounted to a representation that the requirements of the Immigration Rules as to the “date of award of qualification” attribute would be waived.[39]Fourthly, reading part K1 in its entirety, although the words “he/she completed his/her eligible qualification in the 12 month period…” near the first box are not clear, I do not consider that they broaden what will qualify so as to include “completing the course” as well as “obtaining the relevant qualification”. Nor do I consider that the wording by the second box in § G5 can be invoked to achieve this. They are concerned with another attribute and, for the reasons I have given at [37] above, they were in any event not satisfied by a letter such as that from the Birmingham Graduate School. I observe that §84 of the Guidance (see [12] above) stated that a letter in support of points claimed for another attribute would be acceptable as evidence in support of this attribute provided it contains all the required information. The letter in this case did not do so because it did not contain the date of the relevant qualification.[40]What is required to found a legitimate expectation is a clear representation. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2008] UKHL 61, reported at [2009] AC 453 at [60], Lord Hoffmann stated that “a legitimate expectation can be based only upon a promise which is ‘clear, unambiguous and devoid of relevant qualification’”. See also the authorities collected in Fordham’s Judicial Review Handbook (6th ed) at 41.2.7. Reading the language of the form in the context in which it is used, it cannot be said that there is a clear representation in K1 either read alone or with the words near the second box in §G5 that the requirement in the Rules will be waived where a letter is provided stating that an applicant for Tier 1 (Post-Study Work) status has fulfilled the requirements needed to complete the course and is expected to receive his certificate from the awarding institution shortly. This is particularly so because the opening words of K1 reflect the requirement in the Immigration Rules which was considered in Raju, Khatel and others to preclude an applicant scoring the points where he or she made his application before obtaining the qualification.[41]A public law waiver/estoppel argument based on legitimate expectation faces particular difficulties where it seeks to contend that, although the requirements of the Immigration Rules for granting leave to remain have not been met, it is unlawful to refuse to grant such leave. There is no ambiguity in the rules in this case. The position is explained reasonably satisfactorily in the guidance and the form, although, for the reasons I have given, greater clarity was possible. The argument depends entirely on the terms of the words in § G5 near the second box as generating a legitimate expectation that a letter such as that provided in this case will suffice. For the reasons I have given, I do not consider they do. As to the argument based on ex p Zeqiri, that the language of the form should be construed through the eyes of the applicants to whom the form is directed, I observe that those filling in an application for Tier 1 (Post-Study Work) status are by definition holders of degrees awarded by United Kingdom universities, in this case a graduate degree.[42]The letter dated 28 March 2012 did not state that the first appellant had been awarded his degree by the University of Wales or what the date of such award was. It is possible to criticise aspects of the wording of the policy guidance and the form. But it is clear that, where an original certificate of award is not provided, what was required is a letter from the institution, the educational provider, which gives all the required information including the date of the award as defined in §79 of the policy guidance, which reflected §70 of Appendix A to the Immigration Rules. Since the qualification was not received until the letter dated 28 May 2012, the Tribunal was entitled to conclude that, at the time of making the application, the appellant had completed his course but not yet received his qualification. In Raju, this court held that state of affairs is insufficient to merit the award of the necessary points.[43]For these reasons, I have concluded that this appeal should be dismissed. Lord Justice Vos[44]I agree. Lord Justice Moore-Bick[45]I also agree.

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