Ahmed, R (on the application of) v Secretary of State for the Home Department

Under the immigration rules, a substantive or material eligibility requirement must be introduced through amended rules laid before Parliament under the negative resolution procedure. Administrative changes concerning the means of proving eligibility may be made through policy guidance where the rules validly refer to that guidance. The requirement that a Tier 4 applicant provide information in the form of a Confirmation of Acceptance for Studies (CAS), including its electronic or virtual form, was evidential rather than substantive. It was therefore lawfully specified through guidance under Appendix A, paragraph 116(f), read with paragraph 245AA. A paper document did not satisfy that mandatory requirement.

The claimant sought judicial review of the Secretary of State’s refusal of his application for further leave to remain as a Tier 4 (General) student migrant. The refusal treated the absence of a virtual Confirmation of Acceptance for Studies (CAS) reference as failure to obtain the required 30 points under Appendix A of the immigration rules.

Permission was granted on two grounds. The first concerned whether the virtual CAS requirement had unlawfully been introduced through policy guidance rather than the immigration rules. The second concerned whether the rules permitted compliance by supplying a paper document. The court considered the constitutional status of the immigration rules and the distinction between substantive eligibility criteria and evidential requirements.

1. The claim was dismissed. The Secretary of State had lawfully refused the application because the claimant had not provided the required virtual CAS.
2. The governing principle from Pankina v Secretary of State for the Home Department [2011] QB 376, as understood in subsequent authorities, is that a substantive or material change to the content of the immigration rules must be made by amended rules laid before Parliament. Policy guidance cannot introduce further substantive rules which remain outside Parliamentary scrutiny.
3. The principle does not require every administrative change to the operation of the immigration system to be made by amended rules. The relevant distinction is between the substantive requirements for obtaining leave and the means of proving eligibility. The former require amended rules; the latter may properly be specified in guidance.
4. Appendix A, paragraph 116(f), required a valid CAS to contain information specified as mandatory in UK Border Agency guidance. Paragraph 245AA likewise treated documents specified in the policy guidance as the specified documents required by Appendix A. Those provisions concerned evidence and did not alter the substantive eligibility criteria.
5. The requirement that the CAS operate in virtual form was therefore on the permissible side of the line. The later insertion of a similar definition into the rules did not alter that conclusion and was not required by the principle in Pankina.
6. The claimant’s alternative construction argument also failed. Even adopting the non-technical and generous approach to the rules described in Mahad v Entry Clearance Officer [2010] 1 WLR 48, the mandatory guidance requirement meant that a paper document was not sufficient.