Pokhriyal v The Secretary of State for the Home Department

Paragraph 120B of Appendix A to the Immigration Rules leaves the evaluative question of academic progress to the sponsoring college. Academic progress may include a course at the same level, or exceptionally a lower level, where the college judges it appropriate. The Secretary of State should ordinarily accept that assessment and may not use sponsor guidance to impose an additional requirement absent from the Rules.

The issue of a CAS creates an expectation that the college has considered academic progress. That context informs whether the college’s accompanying words amount to confirmation. A student is not to be subjected to a fresh merits assessment of the college’s academic judgment.

Two Tier 4 students appealed against decisions refusing extensions of leave to remain because their proposed courses were said not to constitute academic progress under paragraph 120B of Appendix A to the Immigration Rules.

Pokhriyal had completed business-related study at NVQ level 7 and sought to undertake an IT diploma at level 5. His sponsoring college described why the new qualification would complement his earlier study. Hussain sought a further level 7 course after his former college lost its licence. His new college later wrote that it had assessed his progression before assigning a CAS.

The First-tier Tribunal and Upper Tribunal upheld the refusals. The appeals raised the proper construction of paragraph 120B, the role of a sponsoring college, and whether the respective CAS materials confirmed academic progress.

Appeals allowed. Jackson LJ gave the principal judgment. Vos LJ agreed with his reasons subject to stated caveats. Longmore LJ substantially agreed, but expressed a broader view of the effect of issuing a CAS.

1. The Immigration Rules are statements of administrative policy. Following Mahad v Entry Clearance Officer [2009] UKSC 16, they are to be construed sensibly and according to their natural and ordinary meaning. In a genuine ambiguity, a published assurance may assist an applicant where it adopts a more lenient reading. The Secretary of State cannot, however, use guidance to make the Rules more onerous or add a requirement that Parliament has not been asked to consider.

2. Academic progress under paragraph 120B is not a hard-edged question. It requires a comparison of the proposed course with prior study and an evaluative judgment. A higher-level course will generally qualify, but a same-level course, and rarely a lower-level course, may also do so. The sponsoring college, rather than the Secretary of State, makes that assessment. The Secretary of State should ordinarily accept it, subject to such matters as fraud or a challenge to the validity of the confirmation.

3. Jackson LJ held, with Vos LJ agreeing in the dispositive reasoning, that paragraph 120B required confirmation of academic progress but did not require it to appear in the CAS itself. The issue of a CAS nevertheless creates a presumption or expectation that the college has assessed the matter. Longmore LJ considered that issuing the CAS itself constituted the required confirmation. All rejected the purported requirement in sponsor guidance that the confirmation had to be stated in the CAS.

4. St Stephen’s College had confirmed Pokhriyal’s academic progress. Its explanation that the IT qualification would complement his business studies was an evaluative judgment which the Secretary of State and the tribunals should not have re-made. He therefore met paragraph 120B and obtained the required points.

5. Jackson LJ and Vos LJ regarded Cranford College’s letter, read with the CAS and the existing expectation, as confirming Hussain’s academic progress. The Upper Tribunal’s decision was reversed. Longmore LJ would allow the appeal because the refusal had wrongly imposed a CAS-only requirement and remit the matter to the Secretary of State.

• Court of Appeal (Civil Division): Allowed both appeals and overturned the relevant Upper Tribunal outcomes: [2013] EWCA Civ 1568.
• Upper Tribunal: Dismissed both appellants’ appeals. In Hussain’s case, the written determination was dated 18 October 2012 and approved the First-tier Tribunal’s reasoning.
• First-tier Tribunal: Dismissed each appeal against the Secretary of State’s refusal of further Tier 4 leave.