Ali v Secretary of State for the Home Department

Under the Immigration Rules (HC 395 as amended), a qualification relied on for Tier 1 (Post-Study Work) leave must have been obtained by the date of the application. A ground stated in response to a section 120 notice is an additional ground of appeal. It remains distinct from a fresh application or variation, even though the tribunal must consider it. The strict points-based system does not allow an applicant to cure an application-date failure by obtaining a qualification later and relying on it through the appeal process. A statutory extension of leave under section 3C does not alter that conclusion.

The appellant, a Pakistani national, held student leave until 30 January 2011. He applied before expiry for further leave as a Tier 1 (General) Migrant but did not meet the requirements. He obtained an MBA on 11 March 2011, before the refusal decision, and relied in response to a section 120 notice on eligibility as a Tier 1 (Post-Study Work) Migrant. The First-tier Tribunal rejected that ground. The Upper Tribunal, in [2012] UKUT 368 (IAC), dismissed the appeal, including on the evidential restriction in section 85A(4)(a). The central issue was whether the section 120 response had the effect of an application for post-study work leave.

1. Appeal dismissed. Moses LJ delivered the judgment, and Thorpe LJ and Sullivan LJ agreed.
2. Section 120 permits an appellant to raise grounds differing from those in the original application. The tribunal must consider an additional ground as the Secretary of State would have done if it had been advanced with the original application. The court applied AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076.
3. A statement made in response to a section 120 notice remains distinct from an application or variation. Paragraphs 34E and 34G of the Immigration Rules (HC 395 as amended) distinguish the date and formal requirements of an application or variation. Section 96(2)(b) of the Nationality, Immigration and Asylum Act 2002 likewise distinguishes a fresh application or claim from a statement made in response to a section 120 notice. The response therefore could not constitute an application for the purposes of Table 9.
4. The court applied Raju v Secretary of State for the Home Department [2013] EWCA Civ 754. The relevant qualification had to have been obtained by the date of the application, rather than being acquired later and introduced through the appeal process. The points-based system was strict in that respect.
5. The appellant’s original application preceded the MBA award. His section 3C extension and the resulting avoidance of the usual overstayer consequences under Rule 322(3) did not permit him to obtain the benefit of a later qualification through a fresh ground of appeal. He could have sought a variation before the Secretary of State decided the original application, but the response to the section 120 notice was not equivalent to that course.
6. The court did not find it necessary to consider AQ (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 833 or Alam & Anwar v Secretary of State for the Home Department [2012] EWCA Civ 960. The application for an adjournment was refused.

• Court of Appeal (Civil Division): dismissed the appeal from the Upper Tribunal.
• Upper Tribunal (Immigration and Asylum Chamber): in [2012] UKUT 368 (IAC), dismissed the appeal, including because the MBA evidence could not be adduced under section 85A(4)(a).
• First-tier Tribunal: dismissed the post-study work ground because the required points had not been accumulated at the application date.