Syed, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 984 (Admin)

Case No CO/10751/2011Case No CO/12502/2011[2013] EWHC 984 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/04/2013
Before
MR JUSTICE HOLMAN
Between
The Queen (on the application of RAZA SHAHID SYED)ClaimantThe Secretary of State for the Home DepartmentDefendantThe Queen (on the application of KAMRAN AHMED)ClaimantThe Secretary of State for the Home DepartmentDefendant
Mr ZANE MALIK and Mr DARRYL BALROOP (instructed by Allied Law Chambers) for claimant, SyedMr AL MUSTAKIM and Mr MASHOOD IQBAL (instructed by Capital Solicitors) for claimant, AhmedMr MATHEW GULLICK (instructed by Treasury Solicitor) for defendant SSHDHearing Hearing date: 17th April 2013
Judgment

The issue, the answer and the context

[1]These two claims for judicial review were listed to be heard together as they each raise a single and identical question. That question is: did the professional level qualification of the Association of Chartered Certified Accountants (ACCA) qualify or count as a qualification which entitled an applicant (if otherwise qualified) to leave to remain under the (now abolished) Tier 1 (Post – Study Work) Migrants route of the Points Based System in the Immigration Rules; or, if wider, under the relevant Home Office UKBA Policy Guidance document? The short answer is: no.[2]Each claimant had successfully passed examinations at the “professional level” of the ACCA. On 2 August 2011 Mr Ahmed applied for leave to remain as a Tier 1 (PSW) Migrant. His application was refused on 11 October 2011. On 14 September 2011 Mr Syed made a similar application. His was refused on 20 September 2011. In each case the sole expressed ground of refusal was, in effect, that the ACCA qualification did not qualify or count so as to satisfy the “Attributes” requirement of the rules and the scheme. Each claimant was granted permission to apply for judicial review of the respective decision. By her Detailed Grounds of Defence in the case of Mr Ahmed, the Secretary of State for the Home Department later identified a further reason (not related to the above point) why, she says, he also did not qualify. However that reason was not developed during the hearing, for at my encouragement and invitation the Secretary of State agreed during the hearing that:
“In the event that this court (or any higher court on appeal) concludes that the Secretary of State erred in not treating the award of the ACCA professional level qualification as entitling Mr Ahmed to the grant of leave to remain, the Secretary of State will reconsider the question of whether Mr Ahmed should be granted leave to remain notwithstanding the issues raised in paragraphs 14 and 43 of the Detailed Grounds of Defence but not raised in the original decision letter dated 11 October 2011 as a ground for refusing leave.”
[3]I have been told that this is the first occasion upon which this issue, which is not a new one, has been considered by the High Court and that there is a number of other cases awaiting the outcome of this case. It is, therefore, a test case notwithstanding that the Post-Study Work route in Tier 1 was closed to new applicants after 5 April 2012.

The Framework

(i) The Immigration Rules

[4]It is not necessary for the purposes of this judgment to make detailed reference to the points based system nor to the way in which it operates or operated. The material parts of the Immigration Rules (HC 395) in the period between changes made on 1 October 2009 and further changes made on 6 April 2012 (viz the period relevant to these claims) provided as follows. “Tier 1 (Post – Study Work) Migrants Purpose 245F. The purpose of this route is to encourage international graduates who have studied in the UK to stay on and do skilled or highly skilled work.” Purpose 245F. The purpose of this route is to encourage international graduates who have studied in the UK to stay on and do skilled or highly skilled work.”[5]Mr Mathew Gullick, on behalf of the Secretary of State, emphasises the word “graduates” in that statement of the purpose. Counsel for the claimants emphasise the words “skilled or highly skilled work” which accountancy unquestionably is.[6]Paragraph 245 FD listed the requirements for leave to remain as a Tier 1 (PSW) Migrant and provided that if an applicant met those requirements leave to remain would be granted. (Various conditions and provisions in paragraph 245 FE are not germane to the present issue). Paragraph 245 FD (c) required the applicant to have a minimum of 75 points under the provisions of Appendix A. Table 10 in Appendix A identified the “available points” and it is only necessary to refer to the first two boxes (known in the literature as “rows”) within Table 10. The first row provided:
“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.”
If the applicant has been awarded one of the above he scored 20 points.[7]Pausing there, the language of paragraphs (a), (b) and (c) is exhaustive. An applicant had to bring himself within one of them, and neither claimant suggests that he has qualifications which fell within paragraphs (b) or (c) of the first row.[8]The second row in Table 10 provided:
“(a) The applicant studied for his award at a UK institution that is a UK recognised or listed body … , or (b) [related to Scottish institutions and is not relevant to this case] ….”
[9]If the applicant studied as required in the second row he scored a further 20 points.[10]Pausing there, the facts of these two cases show an inconsistent approach by officials of the UKBA to the scoring or awarding of points under Table 10, although it is not germane to my decision. In both cases the applicants were awarded 0 points under the first row, since the Secretary of State contended and contends that the ACCA qualification is not a recognised degree. The ACCA is, however, a “listed body”. In the case of Mr Syed he was awarded 20 points under the second row as he had studied at a listed body. In the case of Mr Ahmed, however, he was awarded 0 points under the second row on the grounds that “…where an applicant … is not awarded points for an eligible qualification, we are also unable to award points in any of the other point scoring areas for Attributes.” (There were further inconsistencies in the approach to the remaining rows in Table 10 to which I need not refer.) It is clear, however, that this inconsistent approach has no practical bearing on outcome. Unless an applicant scores 75 points in total it makes no difference whether he is awarded some points under some of the rows or none; and it is clear that if Mr Ahmed had been awarded points under the first row he would also have been awarded points under the second.[11]It is next necessary to quote certain definitions from paragraph 6 of the Immigration Rules, being the interpretation provisions. “’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 …. ‘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 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 of Bachelors 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 degree level.” 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 of Bachelors 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 degree level.” (ii). The Home Office UK Border Agency Tier 1 (PSW) Policy Guidance[12]Counsel for the claimants place considerable reliance upon the published guidance of the Home Office both as an aid to construction of the relevant rules and, if necessary, to found an alternative argument that by her published Policy Guidance the Secretary of State relaxed or widened the ambit of the requirements of the rules. The Policy Guidance relevant to these cases is that dated 19/07/11 and “… to be used for applications made on or after 19 July 2011” which is when the application of each claimant was made. So far as is material the Guidance provided as follows. “TIER 1 (POST-STUDY WORK) OVERVIEW OF TERMS AND CONDITIONS 46. The following table explains some of the key features of Tier 1 (Post-Study Work). Full details of the requirements are in paragraphs 245F to 245FE of the Immigration Rules. Description of category: The Tier 1 (Post-Study Work) category aims to retain the most able international graduates who have studied in the United Kingdom. It will also enhance the United Kingdom’s overall offer to international students. Successful applicants will be free to seek employment without having a sponsor for the duration of their Tier 1 (Post-Study Work) leave. This category provides a bridge to highly skilled or skilled work. Individuals with Tier 1 (Post-Study Work) leave will be expected to switch into another part of the points based system as soon as they are able to do so. …. INITIAL APPLICATIONS Attributes Qualification 53. An applicant can claim 20 points if he/she has been awarded one 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:• Foundation degrees;• Honorary degrees;• Qualifications awarded in the United Kingdom by overseas awarding bodies;• Qualifications undertaken solely at an overseas campus of United Kingdom institutions;• Professional and vocational qualifications (unless they are of a type listed in paragraph 53); and• Postgraduate certificates and diplomas (except PGCE/PGDE).” Description of category: INITIAL APPLICATIONS Attributes Qualification• 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• Foundation degrees;• Honorary degrees;• Qualifications awarded in the United Kingdom by overseas awarding bodies;• Qualifications undertaken solely at an overseas campus of United Kingdom institutions;• Professional and vocational qualifications (unless they are of a type listed in paragraph 53); and• Postgraduate certificates and diplomas (except PGCE/PGDE).” (iii). The Education Reform Act 1988[13]At all times material to this case and prior to the evolution of the relevant Immigration Rules, there has been in force the Education Reform Act 1988. Part IV of that Act makes provision at sections 214 – 216 in relation to “Unrecognised degrees.” The effect of those provisions is to create a criminal offence of (simplified and in summary) granting or offering to grant “any award” which is described as a degree or which purports to confer the right to the title of bachelor, master or doctor and may reasonably be taken to be a degree.

(b) …; or (c) …”

[14]Although the provisions employ the phrase “recognised award” rather than “recognised degree”, that is because, as is clear from the provisions, an “award” is or may be wider in scope than a “degree”. Every degree or purported degree is an award, but not every award is necessarily a degree or purported degree. Although the provisions refer to a “recognised award”, the heading to the provisions is “Unrecognised degrees” and in my view the provisions clearly contemplate a “recognised degree”, being a category of “recognised award” which is, accordingly, not an “unrecognised degree.”

Analysis and the argument

[15]It is accepted and is common ground that the ACCA professional level qualification is not itself “a degree”. The qualification is not described as a degree, and it does not employ any words such as bachelor, master or doctor. The ACCA makes no claim to be a degree awarding institution; and, indeed, if it were to do so, it and/or its senior officers would be committing an offence under Part IV of the Education Reform Act 1988. Further, the ACCA has made deliberate arrangements with Oxford Brookes University whereby students who are “studying towards the ACCA Qualification” may concurrently complete a course with a view to obtaining a BSc in Applied Accounting from that university. The relevant page on the ACCA web site makes very plain that, by contrast, the ACCA Qualification itself is not a degree.[16]Paragraph (a) of the first box or row in Table 10 requires that the applicant has been awarded “a UK recognised bachelor or postgraduate degree”. These claimants cannot rely on the alternatives in paragraphs (b) or (c).[17]In the simple and straightforward submission of Mr Gullick on behalf of the Secretary of State, paragraph (a) fundamentally requires “a degree” and as the ACCA qualification is not a degree that is the end of the matter, and the award of any points and, accordingly, the grant of leave to remain were correctly refused.[18]Counsel for the claimants argue, however, that that is too narrow and simplistic an approach. Mr Zane Malik, supported by Mr Darryl Balroop, both on behalf of Mr Syed, submits, first, that there is an ambiguity within paragraph (a) and that for that reason, or by application of the more broad approach stated by Longmore LJ in his short judgment at paragraph 86 of Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ773, [2011] 1 WLR 564, I should have regard also to the content of the Secretary of State’s own Policy Guidance document as an aid to construction of the rule.[19]The ambiguity is said to turn on the use of the word “recognised” within paragraph (a). Nowhere in Table 10, nor in paragraph 6 (“Interpretation”) of the Immigration Rules is there any definition of the word “recognised” or the phrase “recognised degree”, although there is a definition of “a UK recognised body”. They submit, accordingly, that in order to discern what is meant and intended by a “recognised …. degree” rather than, without qualification, “a degree” it is necessary to look elsewhere in the rules and also in the Policy Guidance.[20]I am not at all persuaded that there is any ambiguity in paragraph (a). The paragraph requires to be read in the context of the general law in relation to degrees, which includes the provisions of Part IV of the 1988 Act as described in paragraphs 13 and 14 above. I appreciate that the Immigration Rules, dense and complex as they are, should be as self sufficient as possible, and that migrants cannot reasonably be expected to resort to another statute such as the 1988 Act. But the question in issue is the meaning of the word “recognised” or the phrase “recognised … degree” where they appear in Table 10 of the rules. The maker of the rules was clearly well aware of the 1988 Act and indeed there is reference to it in paragraph (b) of the definition of “a UK Bachelor’s degree” in paragraph 6 of the rules. The rules were made at a time when the framework of “recognised award” and “unrecognised degree” was already an established part of the general law in this field; and in my view the reference to “recognised” where it appears in paragraph (a) of Table 10 is simply and plainly a reference to a degree which is a “recognised award”, and so also a “recognised degree”, for the purposes of Part IV of the 1988 Act. In this regard I agree with the reasoning, so far as it is material, of the Asylum and Immigration Tribunal in YS and SJ (‘Degree level’ study) Mauritius [2006] UKAIT 00094 at paragraphs 22 – 24. I appreciate that in that case the claimed degree relied upon had been awarded by “Dublin Metropolitan University” which, as appears from paragraph 5 of the Determination and Reasons, was located in the Republic of Ireland or even in Cyprus but certainly not in the United Kingdom; but that does not impact on the central propositions in paragraphs 22 and 24 of the Determination and Reasons that:
“In order to know what is a “recognised United Kingdom degree” we do have to look at sections 214 – 216 of the 1988 Act …. “There can be no conceivable reason that the phrase “recognised United Kingdom degree” in paragraph 6 of HC 395 carries any meaning other than that given to the phrase “recognised award” in section 214. It is absurd to suggest that the Immigration Rules should entitle a person to remain in order to undertake studies for a degree, the offering or granting of which would amount to a criminal offence.”
[21]That reasoning applies no less to Table 10 than to rule 6. In my view, therefore, the purpose of the word “recognised” where it appears in paragraph (a) of the first row in Table 10 is to qualify the word “degree” so as to make clear that the degree must be one which is recognised for the purpose of the 1988 Act and not one which involves any criminal offence.[22]In case I am mistaken in my view as to ambiguity, and in any event following the approach of Longmore LJ in paragraph 86 of Adedoyin, I now consider the further arguments of Mr Malik and the other counsel for the claimants. The argument requires that the word “recognised” enlarges the ambit of the word “degree” so as to include a qualification which is “equivalent to a degree” or of the same “level” as a bachelor or postgraduate degree which, they submit, the ACCA qualification is.[23]They found their argument, first, on other provisions of the rules themselves. Paragraph (a) of the second row or box of Table 10 refers to the applicant having “studied for his award at a UK institution that is a UK recognised or listed body.” [My emphasis]. The ACCA is not recognised but is listed, within the definitions respectively of “a UK recognised body” and “a UK listed body” in paragraph 6. Mr Malik submits, therefore, that if it is sufficient that the applicant studied at a listed body for the purpose of scoring points under the second row or box, it is, or ought to be, sufficient that his award was granted by a listed body for the purpose of scoring points under the first row or box. That submission ignores that the definition of “a UK listed body” contemplates that the listed body cannot itself award recognised degrees but can provide courses “that lead to the award of a degree by a UK recognised body.” There is no tension between paragraph (a) in the first row and paragraph (a) in the second row of the Table. The Secretary of State is content that the study can have been at an institution which is itself a UK recognised body, or which is a UK listed body; and study at either may be capable of leading to the award of a degree by a UK recognised body. “External degrees” are an example of this. But the resulting award must be a “recognised degree” if it is to qualify under paragraph (a) of the first row.[24]Mr Malik relies, next, on the definition of “degree level study” in paragraph 6 of the rules. This refers to “a course which leads to a recognised United Kingdom degree … or an equivalent qualification at level 6 or above …” [My emphasis] They submit that even if it is not a “degree” as such, the ACCA qualification is “equivalent” to a degree. In my view this does not avail the claimants at all. Table 10 makes no reference at all to “degree level study”, which is relevant to other parts of the rules. Indeed, the very fact that in relation to “degree level study” the rules make express reference to “an equivalent qualification”, but in Table 10 they do not, tends to indicate that if the rules had intended to include “an equivalent qualification” within the first row of Table 10 (other than those specifically referred to in paragraphs (b) and (c)) they would have said so expressly.[25]Mr Malik and the other counsel next place reliance on the terms of the Policy Guidance. They stress, first, the “Description of Category” in paragraph 46 of the Guidance which effectively repeats and also expands upon the “Purpose” as stated in paragraph 245F of the rules. Although the first sentence uses the word “graduates”, the second sentence refers more generally to “students”, which is wide enough to encompass students who are not studying to become graduates but, for example, to achieve professional qualifications. They stress the “bridge to highly skilled or skilled work” which they submit, rightly, accountancy is. In my view, however, this part of paragraph 46 is no more than a general description of the category and its purpose; and, indeed, the most significant word within it is “graduates” which generally connotes the holders of a degree.[26]Mr Malik and the other counsel then place great emphasis upon the first bullet point in paragraph 53. This substitutes for the words “a UK recognised bachelor or post graduate degree” which appear in paragraph (a) of the first row in Table 10 of the rules, the words “A United Kingdom recognised degree at Bachelor, Master or PhD level.” Why the language differs between the rule and the Guidance is not clear, and counsel fasten on the reference to “level”, and its echo of “degree level study” in paragraph 6 of the rules, to submit that the Guidance reveals that the focus is not necessarily upon a degree as such, but upon a qualification having the “level” of a bachelor or higher degree. Mr Gullick submits, in answer, that the first bullet point in paragraph 53 of the Guidance is no more than a paraphrase of paragraph (a) in the first row in the Table, slightly fleshed out to make plain that the word “postgraduate” in the rule means “Master or PhD” level.[27]In any event, submits Mr Gullick, paragraphs 54 and 55 of the Guidance immediately make crystal clear that for any qualification to count or qualify it must have been awarded by a United Kingdom recognised body. This is then defined in paragraph 55 in virtually identical terms to the definition in rule 6 and the definition excludes the ACCA, for although it has a Royal Charter it has not been granted degree awarding powers (nor does it claim to have been granted them), whether by that Charter, Act of Parliament, or the Privy Council. Mr Gullick submits that the fact that a “professional qualification”, such as the ACCA qualification, does not count or qualify is made crystal clear by the fifth bullet point in paragraph 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)…”
[28]I accept and completely agree with the submissions of Mr Gullick on this point. In my view there is nothing at all in the Guidance which resolves any alleged ambiguity in the rules in favour of the claimants; nor does the Guidance relax or widen in any way at all the requirements in the rules. Rather, the relevant parts of the Guidance serve merely to repeat and fortify that only a degree awarded by a recognised body with degree awarding powers will suffice; and that professional qualifications, unless a degree or falling within paragraphs (b) or (c) of the first row of the Table, simply will not suffice, no matter how high level and prestigious the qualification.[29]Counsel for the claimants, and in particular Mr Al Mustakim, supported by Mr Mashood Iqbal, both on behalf of the claimant Mr Ahmed, made a number of other points. Mr Al Mustakim traced the evolution of the Tier 1 (PSW) Migrants scheme from the earlier Science and Engineering Graduates Scheme (SEGS) and International Graduates Scheme (IGS). Those schemes were less restrictive in the character of qualification required, but the argument does not avail the claimants when the language of the new Tier 1 (PSW) Migrants scheme is clear and it is under the latter scheme that the claimants applied. Mr Al Mustakim and Mr Malik both stressed, too, that UK NARIC, the National Recognition Centre for the United Kingdom, has certified that the UK awarded Professional Level Qualification of the ACCA “is considered comparable to British Master’s degree standard”. That merely certifies (what is not in issue) that the qualification is comparable or equivalent to, or at the level of, a British Master’s degree. It does not certify that it is a degree, and indeed it is implicit that it is not one. Mr Al Mustakim began to develop a further point that the successive Statements of Changes in the Immigration Rules placed before Parliament had not correctly informed Parliament of all the changes made in the relevant parts of the rules; but the point did not withstand deeper delving into the Statements of Changes. Finally, and with the utmost eloquence, Mr Al Mustakim made submissions as to the “fairness” and “proportionality” of the rules in their relevant form. He submitted that it is unfair to migrants who obtain the ACCA Qualification, and/or not proportionate, that they cannot obtain points. That cannot, however, be used to support an alternative construction of rules, or rules and/or Policy Guidance, which are clear. It is not permissible to read into rules and/or Policy Guidance words which are not there, simply on a submission that it would have been more fair if they had been.

Conclusion

[30]In my view the relevant rule is quite clear, whether read alone or side by side with the Policy Guidance, and the Policy Guidance did not relax or widen the ambit of the rule. In a sentence, there had to be a degree and the ACCA qualification is not a degree. I have, accordingly, reached the same conclusion, and substantially for the same reasons, as did the Upper Tribunal (Immigration and Asylum Chamber) in Mirza v SSHD (ACCA Fundamental level qualification – not a recognised degree) [2013] UKUT 00041 (IAC).

Outcome

[31]Both claims for judicial review must accordingly be dismissed.