AQ (Pakistan) v Secretary of State for the Home Department

In an immigration appeal, the Tribunal determines whether the Secretary of State’s decision was lawful. A statement following a one-stop warning may raise additional matters, but only insofar as they amount to a statutory ground of appeal against that decision.

Where an Immigration Rule imposes a fixed historic requirement, compliance is assessed at the date of the Secretary of State’s decision. Later events cannot cure non-compliance. A section 120 procedure does not convert the Tribunal into the primary decision-maker of a fresh application based on post-decision circumstances.

The appellant applied for leave as a Tier 1 (Post-Study Work) Migrant under Rule 245Z of the Immigration Rules. The Secretary of State refused the application on 28 November 2008 because the appellant had not then been awarded the Masters degree needed to obtain sufficient points.

After receiving a one-stop warning under the Nationality & Asylum Act 2002, the appellant relied on the degree, awarded on 3 December 2008. An Immigration Judge dismissed his appeal. The Upper Tribunal upheld that dismissal by a determination promulgated on 21 May 2010.

The Court of Appeal considered whether the later award could count towards the points requirement before the Tribunal.

1. The appeal was dismissed. Pill LJ gave the leading judgment, with which Toulson LJ agreed. Sullivan LJ also agreed and added that the points-based system operates by reference to a fixed historic time-line.

2. The Tribunal’s appellate jurisdiction is triggered by, and remains focused on, the Secretary of State’s immigration decision. Sections 82, 84 and 85(2) of the Nationality & Asylum Act 2002 require the Tribunal to determine statutory grounds of appeal against that decision. A matter raised in response to a section 120 notice may therefore be considered only to the extent that it challenges the decision under appeal.

3. The Court explained the scope of AS (Afghanistan), [2009] EWCA Civ 1076. That decision concerned matters which pre-dated the Secretary of State’s decision. It did not authorise reliance on events occurring afterwards where the relevant rule requires conditions to exist at a fixed earlier date.

4. Rule 245Z was such a rule. The necessary points had to be accumulated by the date of the Secretary of State’s decision, including the requirement that the relevant degree had already been awarded. The appellant did not satisfy that requirement on 28 November 2008. The subsequent degree award could not render the refusal unlawful.

5. Section 120 was not intended to permit a fresh application to the Tribunal based on post-decision events. That construction would conflict with the statutory scheme, including section 3C(4) of the Immigration Act 1971, which prevents a further variation application while leave is extended pending determination of the appeal.

• Court of Appeal (Civil Division): dismissed AQ’s appeal: [2011] EWCA Civ 833 .
• Upper Tribunal (Immigration and Asylum Chamber): by a determination promulgated on 21 May 2010, dismissed the appeal against the Immigration Judge’s decision.
• Immigration Judge: on 31 March 2009, dismissed the appeal against the Secretary of State’s refusal to vary leave to remain.