Muhammad Nasim v The Secretary of State for the Home Department [2013] UKUT 610 (IAC)

[2013] UKUT 00610(IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
Date 8 October 2013
THE IMMIGRATION ACTS
Before
UPPER TRIBUNAL JUDGE ALLENUPPER TRIBUNAL JUDGE PETER LANE
Between
(1) Mr Muhammad NasimAppellant(2) Mr Tahir MahmoodAppellant(3) MR Muhammad Taimoor AhmadAppellant(4) Mr Ahsan KhalidAppellant(5) Mr Ahsan NaeemAppellant(6) Mr Rizwan BashirAppellant(7) Mr Muhammad Arif MughalAppellant(8) Mr Muhammad Zulgarnain ArifAppellant(9) Miss Noor Ul Huda Arif MughalAppellant(10) Miss Maham ArifAppellant(11) Mr Safia ArifAppellant(12) Mr Muhammad Afif ArifAppellant(13) Mr Danisha Ejaz QureshiAppellant(14) Mr Ja’afar Dori GamboAppellant(15) Mr Rehan AnwarAppellant(16) Mr Asif RasheedAppellant(17) Mr Kazi MOsharrof HOssainAppellant(18) Mr Androo Haji RafeekAppellant(19) Mr Qummer AzizAppellant(20) Mr Abhilash MukundhakshanAppellant(21) Miss Sandeep KaurAppellant(22) Mr Sajid AbdulAppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentAppellants (1), (3), (13), (15), (21), (22): Mr M Iqbal, Counsel, instructed by Law Wise Solicitor / Farani Javid Taylor Solicitors LLPAppellant (2): Mr A Baddar, Solicitor, Farani Javid Taylor Solicitors LLPAppellant (4): Mr A Mehta, Solicitor, Kingswood SolicitorsAppellant (5): Mr C Timson, Counsel, instructed by Primax SolicitorsAppellants (6) to (12): Ms J Heybroek, Solicitor, Morgan Mark SolicitorsAppellants (14) and (16): Mr Z Malik, Counsel, instructed by Coventry Law Centre / Malik Law Chambers SolicitorsAppellant (17): Mr M Jamali, Solicitor, Farani Javid Taylor Solicitors LLPAppellant (18): Ms D Qureshi, Counsel, instructed by Legend SolicitorsAppellant (19): Mr A Jafar, Counsel, instructed by Lee Valley SolicitorsAppellant (20): Appeared in person ( for part of the hearing)Mr M Gullick, Counsel, and Mr I Jarvis, Senior Home Office Presenting Officer for Respondent(1) It is not legally possible for First-tier Tribunal or the Upper Tribunal to decline to follow the judgment in Raju and others v Secretary of State for the Home Department[2013] EWCA Civ 754 on the basis that the Secretary of State’s Tier 1 (Post-Study Work) policy of July 2010 (concerning the approach to be taken to “late” submission of certain educational awards) continued to apply in respect of decisions taken by the Secretary of State on or after 6 April 2012, when the Immigration Rules were changed by abolishing the Tier 1 PSW route.(2) The Secretary of State was under no duty to determine Post Study Work applications made before that date by reference to that policy, the rationale for which disappeared on 6 April. In particular:(a) a person making such an application had no vested right or legitimate expectation to have his or her application so determined;(b) it was not legally unfair of the Secretary of State to proceed as she did;(c) the de minimis principle cannot be invoked to counter the failure of applications that were unaccompanied by requisite evidence regarding the award;(d) the Secretary of State’s May 2012 Casework Instruction did not gloss or modify the Immigration Rules but merely told caseworkers to apply those Rules;(e) evidential flexibility has no bearing on the matter;(f) an application was not varied by the submission of evidence of the conferring of an award on or after 6 April 2012; but even if it were, the application would fail on the basis that it would have to have been decided under the Rules in force at the date of the variation; and(g) an application under the Immigration Rules falls to be determined by reference to policies in force at the date of decision, not those in force at the date of application.
Between
The date of “obtaining the relevant qualification” for the purposes of Table 10 of Appendix A to the Immigration Rules as in force immediately before 6 April 2012 is the date on which the University or other institution responsible for conferring the award (not the institution where the applicant physically studied, if different) actually conferred that award, whether in person or in absentia.As held in Khatel and others (s85A; effect of continuing application) [2013] UKUT 00044 (IAC), section 85A of the Nationality, Immigration and Asylum Act 2002 precludes a tribunal, in a points-based appeal, from considering evidence as to compliance with points-based Rules, where that evidence was not before the Secretary of State when she took her decision; but the section does not prevent a tribunal from considering evidence that was before the Secretary of State when she took the decision, whether or not that evidence reached her only after the date of application for the purposes of paragraph 34F of the Immigration Rules.DECISION

Introduction

[1]With one exception, all of the immigrants listed above, whom for convenience we will call the appellants, secured decisions in their favour in the Upper Tribunal in respect of their appeals against decisions of the Secretary of State (“the respondent”) to refuse to vary leave to remain in the United Kingdom, because that Tribunal followed the approach adopted by Blake J, President and Upper Tribunal Judge Coker in Khatel and Others (s85A; effect of continuing application)[2013] UKUT 00044 (IAC). In the case of Mr Nasim (appellant (1)) a Judge of the First-tier Tribunal allowed the appellant’s appeal, applying Khatel.[2]The respondent applied for permission to appeal to the Court of Appeal against the determinations of the Upper Tribunal. At the time she did so, permission to appeal to the Court of Appeal had been granted by the Upper Tribunal in respect of Khatel. The respondent’s grounds of application in the cases with which we are concerned in most cases reiterated the critique of Khatel contained in the grounds of application submitted in that case. The same is true of Mr Nasim, in whose case the respondent sought and obtained permission to appeal to the Upper Tribunal.[3]Around 200 applications for permission to appeal to the Court of Appeal were made by the respondent in respect of determinations of the Upper Tribunal, allowing appeals (or dismissing the respondent’s appeals) on the basis of Khatel. It appears that a significant number of applications for permission to appeal to the Upper Tribunal were made by the respondent against decisions of the First-tier Tribunal, applying Khatel.[4]Since it was known that permission to appeal in Khatel had been granted (with arrangements made for the Court of Appeal to expedite the hearing in that court), it was considered appropriate to consider the respondent’s permission applications once the judgments of the Court of Appeal became known. On 25 June 2013, the Court of Appeal allowed the respondent’s appeal against the Upper Tribunal’s determinations in Khatel and the cases of three other immigrants: Raju and Others v SSHD[2013] EWCA Civ 754.[5]As a result, the Tribunal gave directions in the cases before it where the respondent had applied for permission to appeal to the Court of Appeal. The Tribunal did so pursuant to rule 45(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008:- “45.—(1) On receiving an application for permission to appeal the Upper Tribunal may review the decision in accordance with rule 46 (review of a decision), but may only do so if— … (b) since the Upper Tribunal’s decision, a court has made a decision which is binding on the Upper Tribunal and which, had it been made before the Upper Tribunal’s decision, could have had a material effect on the decision.”[6]The Upper Tribunal’s directions indicated that it proposed, in the light of Raju, to review the determinations of the Upper Tribunal, set them aside and re-make the decisions in the appeals by dismissing them. The directions made plain that the appellants would be (or continue to be) successful in their appeals against removal decisions made in respect of them, in purported pursuance of section 47 of the Immigration, Asylum and Nationality Act 2006. This was because those decisions were unlawful (Secretary of State for the Home Department v Ahmadi[2013] EWCA Civ 512).[7]In a large number of cases, including those with which we are concerned, the appellants objected. Various different reasons for doing so were advanced; but the common theme was that the appellants contended they should, in whatever manner, still be entitled to succeed in their appeals against the decisions to refuse to vary leave, notwithstanding the judgment in Raju.[8]The present cases have been selected on the basis that they provide a suitable vehicle for considering the arguments advanced regarding the effect of the judgments in Raju. Further directions were issued to the appellants and the respondent on 15 August 2013 and a case management hearing was held on 30 August. The Tribunal would like to commend the parties, their solicitors/representatives and Counsel for their efforts in ensuring that the Tribunal was able on 8 October 2013 to receive comprehensive submissions on the relevant issues. Closing the Tier 1 (Post-Study Work) route “The old Tier One – supposedly the route for the best and brightest – has not attracted highly-skilled workers. At least 30% of Tier One migrants work in low-skilled occupations such as stacking shelves, driving taxis or working as security guards, and some don’t have a job at all. So we will close the Tier One general route. Instead, I want to use Tier One to attract more investors, entrepreneurs and people of exceptional talent.” “We want the best international graduates to stay and contribute to the UK economy. However, the arrangements that we have been left with for students who graduate in the UK are far too generous. They are able to stay for two years, whether or not they find a job and regardless of the skill level of that job. In 2010, when one in ten UK graduates were unemployed, 39,000 non-EU students with 8,000 dependents took advantage of that generosity. We will therefore close the current Post-Study Work route from April next year.” The relevant rules as in force immediately before 6 April 2012 The relevant rule was paragraph 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 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.” Paragraphs 66 to 72 of Appendix A were as follows:- “ATTRIBUTES FOR TIER 1 (POST-STUDY WORK) MIGRANTS

Paragraphs 66 to 72 of Appendix A were as follows:-

[66]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

QUALIFICATION: NOTES

[69]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.”

The July 2010 policy

[13]Crucial to the appellants’ case is the policy, communicated to the respondent’s caseworkers by an email of 15 July 2010, but not published more widely. The email began by stating that “we have recently received queries about how to handle Post-Study Work applications submitted before the date of award; apparently a number of such applications have been submitted”. The email continued as follows:- “The following advice addresses this issue:[1]The Applicants should not be submitting applications before they have confirmation of their award. If they are not going to obtain this until after their extant leave expires, they should be making their applications from overseas. Neither should caseworkers be putting cases on hold where the application has been submitted prior to the date of award.[2]If, by the time we come to make a decision on a Post Study Work application, we have received confirmation, on the appropriate specified document, that the qualification has been awarded, but the date of award post-dates the date the application was originally made, we should follow policy’s advice (attached below) and, on the basis of common-sense decision making, should not refuse simply because the date of award is after the date of application. (So, if the date of award is after the date of application but before the date of decision, this will be acceptable provided we have the specified documents to confirm).[3]If however, by the time we come to make a decision on the application we do not have confirmation of the award, included on an appropriate specified document, caseworkers should do the following:• Indication that the date of award is pending. If the documentation provided makes it clear that the date of award (as defined in the Post Study Work policy guidance) will be some time in the future (i.e. The date of award will be after we are due to make the decision), then the application should be refused as normal. We should not be putting such cases on hold. The applicant cannot be considered in such cases to have an eligible award and no points can therefore be awarded for the Qualification. As specified in the published guidance, where an applicant under Tier 1 (Post-Study Work) is not awarded points for an eligible qualification, we are also unable to award points for any other point scoring area for Attributes;• No indication of the date of award or that it is pending. If all other required documentation and information has been provided, but there is no indication, in the specified documentation provided, of what the date of award is, then caseworkers may adopt the usual approach, accommodated by the Evidential Flexibility arrangements, towards seeking this additional information. Once we have confirmation of the date of award, caseworkers should continue as normal, and follow the advice above, depending on whether the date we are due to make the decision is before or after the date of award.”[14]In essence, it is the appellants’ case that their applications, made before 6 April 2012 but not decided until after that date, should not only have been decided in accordance with the Rules applicable immediately before 6 April (which the transitional provisions for the new Rules required) but also fell to be decided in line with the July 2010 policy. The result of such an approach would have been (the appellants contend) that because in their cases the qualifications in question had been awarded before the date of decision, their applications should have been successful, notwithstanding that the date of award was after the date of application. The appellants advanced various arguments for why the July 2010 policy governed their cases, including “vested rights” and “legitimate expectation”. We shall deal with these arguments in due course. Mr Iqbal categorised the July 2010 policy as the “pragmatic approach”, as opposed to the “strict approach” of the post 5 April Casework Instruction, to which we will shortly make reference (see [16] below).

The respondent’s Tier 1 (Post-Study Work) policy guidance (April 2012)

[15]In his submissions, Mr Jafar laid emphasis upon the following paragraphs of the respondent’s Tier 1 (Post-Study Work) published policy guidance, as in force immediately before 6 April 2012:- “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 …

Documents required

[61]Paragraph 245 AA (and 54 of Appendix A) of the Immigration Rules state that we will only award points when an applicant provides the specified evidence that he/she meets the requirements for this category.[62]In order to score 20 points for this attribute, the specified evidence the applicant must provide is: i) the original certificate of award. This must be the applicant’s original certificate (not a copy) and must clearly show the:• applicant’s name;• title of the qualification; and• name of awarding body We will not accept provisional certificates. If the certificate 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.The letter must be an original letter (not a copy), on the official letter-headed paper of the United Kingdom institution at which the applicant studied. It must have been issued by an authorised official and 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. … Date of eligible qualification/Completion date of United Kingdom Foundation Programme.[78]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) or if his/her application for entry clearance or leave to remain is being made within 12 months of completing a United Kingdom Foundation Programme Office affiliated Foundation Programme as a postgraduate doctor or dentist.[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 made 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.[80]We do not accept the date of award as the date of graduation.[81]Providing the date of award of the eligible qualification is no more than 12 months before the date of application, 15 points will be awarded for this attribute.[82]Applicants may submit an application for leave to remain before the completion of his/her Foundation Programme provided that he/she will complete the Foundation Programme, no more than 30 days after submitting this application

Documents required

[83]In order to score 15 points for this attribute, the specified evidence the applicant must provide is: a) original document from the institution at which the applicant studied towards his/ her eligible qualification or Foundation Programme as a postgraduate doctor of dentist (where the applicant is applying within 12 months of this period). The letter must be an original letter (not a copy), on the official letter- headed paper of the United Kingdom institution at which the applicant studied. It must have been issued by an authorised official and must confirm the:• applicant’s name;• title of the qualification;• start and end dates of the applicant’s period/s of study and/or research for this qualification at the United Kingdom institution; and date of award (as defined in paragraph 79 of these guidance notes).[84]If the applicant has already provided an original letter in support of points claimed for the other attributes, then the same letter is acceptable as evidence in support of this attribute, providing it contains all the required information.”[16]On 23 May 2012 the respondent produced a casework instruction which, unlike the July 2010 email, was published. The relevant provisions for our purposes are as follows:- “1. This instruction outlines how caseworkers should handle applications where the applicant has submitted a Tier 1 (Post-study Work) application prior to 6 April 2012 without final confirmation that they have been awarded an eligible qualification. More specific refusal wording is provided along with a document for caseworker to add to bundles on any full right of appeal case.

Background

[2]Tier 1 (Post-Study Work) closed to new applicants on 6 April 2012. An announcement detailing the intention to close the scheme was published in March 2011 and the exact date of closure was formally announced in the Statement of Change published on 15 March 2012.[3]No formal transitional arrangements have been included in the Immigration Rules, as Tier 4 students have alternative methods of taking up employment within the UK, i.e. under Tier 2, Tier 5 (Government Authorised Exchange) for those undertaking professional qualifications, or the new Tier 1 (Graduate Entrepreneur) scheme for those who have developed a world class business idea.[4]You were previously advised that if applicants were awarded their eligible qualification after submitting their application, but before you had made a decision on the case, you were able to accept the evidence allowing the case to be approved. This was a pragmatic interpretation of the Immigration Rules, as any migrant refused on this basis was able to reapply immediately using identical evidence and the case could be approved.[5]However, as the route is now closed and the Immigration rules are now being applied strictly (sic).

Case Consideration

[6]Applicants may still apply for Tier 1 (Post-Study Work) before completing or being given final notification of their eligible award. The date of award is defined as the date the migrant was first given notification in writing that they had passed their qualification.[7]You should consider any application where the date of award is on or after 6 April 2012 strictly in line with the published Immigration Rules. In practice this means you should refuse applications as the migrant has not been awarded their qualification within the 12 months directly prior to date of application.[8]The relevant refusal paragraph appeared in Table 10 of Appendix A but is now archived in Appendix F of the Immigration Rules.[9]The following scenarios explain the action you should take on Tier 1 (Post-Study Work) applications:

No evidence of qualification provided

[10]Where an applicant has not provided evidence to show that they have been awarded a qualification, you should only request evidence of this award under the Evidential Flexibility policy in the following circumstances:a. the applicant has given an indication in their application that they should have received confirmation of their award on or before 5 April 2012;b. the applicant has not given any indication of when they are likely to obtain their qualification.[11]If you are requesting information under Evidential Flexibility, you would also be able to request other missing information at that time (e.g. maintenance).[12]When requesting further information, you should make it clear to the applicant that the qualification must have been awarded prior to the closure of the scheme otherwise it cannot be accepted.[13]You should not request further evidence of a qualification if the migrant has indicated that it would be awarded on or after 6 April 2012, even if that date has passed when you are assess the case (sic).

Evidence of qualification provided after application submitted

[14]Where an applicant has submitted an application without evidence of an eligible award, but subsequently sent this evidence into the UK Border Agency, you must check the date of award to determine whether it can be accepted.[15]Where the date of award is on or before 5 April 2012, you can use this evidence to award points for ‘date of award’ (assuming other Tier 1 (Post-Study Work) requirements are met).[16]Where the date of award is on or after 6 April 2012, points will not be awarded for date of award, as we will apply the Immigration Rules as written; therefore the applicant did not obtain their qualification in the 12 months directly prior to date of application.”[17]As we have said, Mr Iqbal characterised the 2012 CI as the “strict approach”. The appellants contend that this approach, adopted by the respondent in their cases, was unlawful. Again, we will deal with the detailed arguments in due course.

Khatel and others (s85A; effect of continuing the application)[2013] UKUT 00044 (IAC)

[18]In Khatel the Upper Tribunal, considering the position of appellants, whose applications for Tier 1 Post-Study Work leave had been made shortly before 6 April 2012, but whose notifications of award had been made only after that date, relied upon the judgments in AQ (Pakistan) v SSHD[2011] EWCA Civ 833 for the proposition (based on a concession by Counsel for the Secretary of State in AQ) that an application “is treated as continuing until the date of decision” [22]. Before the Upper Tribunal, the respondent’s stance was that that position had changed on the coming into force of section 85A of the Nationality, Immigration and Asylum Act 2002, the relevant provisions of which are as follows:- “… (3) Exception 2 applies to an appeal under section 82(1) if –(a) the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d),(b) the immigration decision concerned an application of a kind identified in Immigration Rules as requiring to be considered under a “Points Based System”, and(c) the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f). (4) Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it – (a) was submitted in support of, and at the time of making, the application to which the immigration decision related …”[19]On the basis of AQ (Pakistan), the Upper Tribunal held that, since the application must be treated as continuing until the date of decision, the appellants before them were entitled to succeed, since notification of their awards, as required by the respondent, had been submitted to her before she decided their applications.

Secretary of State for the Home Department v Raju and Others[2013] EWCA Civ 754

[20]Before the Court of Appeal, the Secretary of State (represented by Mr Gullick, who appears for her in the present cases) adopted a markedly different stance. Instead of relying on section 85A, which she conceded did not preclude consideration by the Tribunal of evidence adduced after the date of application (but before the date of decision), the Secretary of State rested her case on the submission that the Immigration Rules required the applicant to have made the application for leave to remain “within twelve months of obtaining the relevant qualification” (Appendix A, Table 10, fourth section); and that paragraph 34G of the Rules provided:- “For the purposes of these rules, the date on which an application or claim (or a variation in accordance with paragraph 34E) is made is as follows:(i) when the application form is sent by post, the date of posting,(ii) when the application form is submitted in person, the date on which it is accepted by a public enquiry office of the United Kingdom Border Agency of the Home Office,(iii) where the application form is sent by courier, the date on which it is delivered to the United Kingdom Border Agency of the Home Officer, or(iv) where the application is made via the online application process, on the date on which the online application is submitted.”[21]Thus, the fourth section of Table 10 (see [12] above), read with paragraph 34G, created a substantive requirement, with which the appellants in Khatel could not comply. Accordingly, the fact that they had adduced evidence, prior to the date of decision, that they had by then been notified of their awards, was of no avail.

General

[22]As we have already seen, it is a central theme of the appellants’ submissions that the respondent had a legal duty to determine their applications for variation of leave to remain, by applying the “pragmatic” approach of the July 2010 policy, as set out in the email to caseworkers. We believe it is helpful to state at this stage the basic reason why we consider those submissions to be misconceived. As the Parliamentary history set out above makes plain, by March 2011 the respondent had publicly declared her conclusion, that the Tier 1 (Post-Study Work) route had, in policy terms, been a failure. It had not, in the government’s view, led to the best international graduates staying and contributing to the United Kingdom economy. The Tier 1 (Post-Study Work) arrangements were, according to the Secretary of State, far too generous: “[Students] are able to stay for two years, whether or not they find a job and regardless of the skill level of that job. In 2010, when 1 in 10 UK graduates were unemployed, 39,000 non-EU students with 8,000 dependents took advantage of that generosity” (Hansard, 22 March 2012, column 857).[23]The appellants have not begun to show why the Secretary of State was not entitled, as a matter of government policy, to so conclude and, as a result, to close the Tier 1 (Post-Study Work) route with effect from April 2012. As Mr Gullick states:
“No students who were already in their final year at the time of the announcement would have been affected, and those who had not yet started or were in an earlier stage of their courses would have time in which to make alternative plans.”
[24]So long as the Tier 1 (Post-Study Work) route continued, the July 2010 policy was justified by the fact that, as explained in the May 2012 CI, “any migrant refused on this basis [i.e., that he or she was awarded the relevant qualification after submitting the application] was able to reapply immediately using identical evidence and the case could be approved”. But that rationale disappeared on 6 April 2012, with the closure of the Tier 1 (Post-Study Work) route. There was, accordingly, an entirely legitimate policy reason for the respondent’s decision, as expressed in the 2012 CI, to enforce the pre-6 April relevant Immigration Rules.[25]We therefore accept Mr Gullick’s submission that what the respondent was doing in the May 2012 CI was to avoid speculative applications for leave to remain by students who did not have the relevant awards and so ensure the closure of the route in an orderly manner.

Vested rights

[26]The appellants’ argument under this heading is founded on remarks by Lord Neuberger at [52] and [53] of Odelola v Secretary of State for the Home Department[2009] UKHL 25, giving the example of a hypothetical applicant in circumstances where, at the time they made their application, the Rules said that “where an application was not heard within a period of six months of its being made, it could only be refused on grounds of national security; and the rules were then amended so that the period was extended to one year” [52]. Lord Neuberger considered that in such a case, where an application was made more than six months before the period was extended by amendment, the applicant would have a vested right at the time of the amendment.[27]For the present appellants, it is argued that the changes in the Immigration Rules “laid before Parliament on the 15th March 2012 created for these appellants a presumption that the change - not in the Immigration Rules but in Casework Instructions - was not meant to apply” to them. The respondent argues that this submission demonstrates a failure to understand the terms of the Casework Instructions, and makes the point that the Immigration Rules as they were at 5 April 2012 were applied in these cases, and the appellants were unable to meet the terms of those Rules. Mr Gullick also made the point that Lord Neuberger’s opinion in Odelola was agreed with by only one of his colleagues (Lord Hope) and therefore did not form part of the ratio of the judgment in any event.[28]We agree with the respondent on this issue. It is difficult to extract a meaningful proposition from the submission, just quoted. Nothing in the rule changes that came into force on 5 April 2012 says anything about the July 2010 policy, which might rationally be construed as preserving that policy. On the contrary, as we have already noted, the April 2012 rule changes destroyed the rationale for that policy, since there would no longer be any point in waiting for confirmation of an award: once in possession of the award, an applicant could no longer make an application that could succeed under the Immigration Rules.[29]As was said by Lord Brown (with whom Lord Hope and Lord Scott agreed) in Odelola, at [38]:
“The … analogy is with planning law and practice which requires that all applications are determined in accordance with whatever policies are in force at the time the decisions are taken.”
[30]The instant appeals are, in any event, not cases where, in the words of Lord Neuberger at [54] of Odelola:
“… a right given under the rules had actually come into existence by the time of the amendment”
. As we have seen, the change in the Immigration Rules was heralded well in advance and the appellants were unable to satisfy the requirements of the Rules by the date on which they changed. Legitimate expectation/proportionality “… conflict to which this case gives rise requires the Court to establish a balance between the importance of preserving the defendant’s right to exercise her discretionary powers in the field of immigration control and the desirability of requiring her to adhere to the statements or practice announced in connection with the original HSMP.” “regarded it as particularly important that the Secretary of State had publicly stated that the requirements or conditions to be met by an HSMP in order to achieve settlement in the United Kingdom, would not be changed to that person’s disadvantage, once he or she had arrived here pursuant to the scheme.” Thus, although “it would not have been inconsistent with nor inimical to the scheme for it to be expressly stated that admission to it gave no guarantee that the criteria at the extension stages would not change during the migrant’s participation in the scheme”, Sir George Newman held that the Secretary of State could not “escape from the consequences of having failed to make that clear” [47]. “It is important to note that once you have entered under the Programme you are in a category that has an avenue to settlement” (HSMP Forum Ltd at [13]). The other matter to notice is, of course, that many Tier 1 (Post Study Work) migrants were not, in fact, staying on to do highly skilled or even skilled work. “If the applicant has been unable to submit their original certificate of award because it has not yet 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.” “K1. The applicant must have made the application for entry clearance or leave to remain as a Tier 1 (Post-Study Work) Migrant within twelve months of obtaining the relevant qualification or within twelve months of completing a United Kingdom Foundation Programme.” The appellants cannot, therefore, rely on the box in Part G of the application form, in order to advance their arguments based on legitimate expectation.

Cited in 3 later judgments