Rosemary Adubiri-Gyimah & Ors v The Secretary of the State for the Home Department

For Tier 1 (Post-Study Work) applications, the requirement in Appendix A, Table 9, paragraph 2(a) of the Immigration Rules concerns the status of the institution when the applicant studied there. It does not require the institution to remain a listed body when the later application is made.

This construction accords with the purpose of ensuring that study was undertaken at a genuine educational institution. It also avoids the unfair and irrational result that a student’s entitlement depends on a subsequent change in the institution’s status beyond the student’s control.

The first appellant, a Ghanaian national, had studied through a college for an Open University degree. She applied, with her husband and children as dependants, for leave as a Tier 1 (Post-Study Work) Migrant.

An Immigration Judge dismissed the appeals because the college was no longer a listed body when the application was made. The judge’s findings on the other requirements were preserved, but the conclusions under the Immigration Rules and article 8 were set aside.

The central issue was whether Appendix A, Table 9, paragraph 2(a) required the college to have listed status at the time of study or at the time of the application.

1. The appeals were allowed. The Immigration Judge had erred in construing Appendix A, Table 9, paragraph 2(a) of the Immigration Rules as requiring the institution to be listed when the application was made.

2. The wording was ambiguous. Although it stated that an applicant “has studied” at an institution which “is” a listed body, post-study work necessarily concerns completed study. Read in context, the present-tense reference to institutional status relates back to the period of study.

3. That interpretation best served the policy of ensuring that study took place at a genuine institution. The Secretary of State’s construction would produce irrational consequences: study at an inadequate institution could qualify if it later became listed, while proper study could cease to qualify if the institution later closed or lost its status.

4. The transitional history reinforced that conclusion. The continuing references to listed and recognised bodies after the sponsor-licence regime was introduced were intended to accommodate applicants who had studied under the earlier regime. The appellant had studied at a listed institution and therefore obtained the required points.

5. The Tribunal also rejected the article 8 and legitimate-expectation grounds. There was no legitimate expectation of post-study leave outside the Rules, and refusal would not disproportionately interfere with the family’s private life. Those matters did not affect the result because the appellants succeeded under the Rules.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeals after setting aside the Immigration Judge’s conclusions on the Immigration Rules and article 8.
• Immigration Judge: Dismissed the appeals, principally because the college was not a listed body at the date of the first appellant’s application.