Secretary of State for the Home Department v Raju & Ors

For Tier 1 (Post-Study Work) applications, the requirement that an application be made within 12 months of obtaining the relevant qualification means that the qualification must have been obtained before the application is made. The points-based system requires strict compliance: an applicant who cannot obtain all 75 points under the applicable rules cannot succeed as a near-miss.

Paragraph 34G fixes the date on which an immigration application is made and excludes a concept of a continuing application. Although evidence is assessed at the date of the Secretary of State’s decision, later evidence cannot cure a failure to meet a requirement that depended on the date of application.

The four respondents applied before 6 April 2012 for leave to remain as Tier 1 (Post-Study Work) Migrants. Each had completed a qualifying course but received written notification of the award only after lodging the application and before the Secretary of State decided it.

The Upper Tribunal (Immigration and Asylum Chamber) held that the respondents could obtain the required 75 points because the awards had been notified by the date of decision: [2013] UKUT 44 (IAC). The Secretary of State appealed.

The central issue was whether the fourth section of Table 10 in Appendix A to the Immigration Rules required the qualification to have been obtained before the application, or permitted notification before the Secretary of State’s decision.

1. Appeals allowed. The respondents could not obtain the 15 points available under the fourth section of Table 10. They had applied before they obtained their qualifications and consequently failed to reach the mandatory total of 75 points.
2. The fourth section requires an application to be made within 12 months of obtaining the qualification. Read with paragraph 70, a qualification is obtained when the applicant is first notified in writing by the awarding institution that it has been awarded. The provision fixes a 12-month period starting on that date. It therefore requires the award to precede the application. The rule was to be construed in the context of the table as a whole and the administration of immigration policy, consistently with Mahad v Entry Clearance Officer [2009] UKSC 16.
3. The purpose of the Tier 1 route did not justify a different construction. An applicant may obtain 60 points for the other attributes, but only 75 points creates entitlement to leave. The points-based scheme leaves no scope for a near-miss. Later evidence cannot cure a failure to meet a requirement fixed by the date of application.
4. Paragraph 34G of the Immigration Rules applies generally and identifies a specific date on which an application is made. It is not confined to variations under paragraphs 34E and 34F. It therefore precludes the Upper Tribunal’s concept of an application continuing from submission until decision.
5. AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA 1076 concerned new claims raised in response to a section 120 notice and did not determine when an application was made under the relevant rule. Nor did AQ (Pakistan) v SSHD [2011] EWCA Civ 833 assist: points were to be assessed at the Secretary of State’s decision, but the rules still determined how and when they could be scored.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeals and reversed the Upper Tribunal’s construction of the relevant Immigration Rules.
• Upper Tribunal (Immigration and Asylum Chamber): Held that notification of the qualifications by the Secretary of State’s decision was sufficient: [2013] UKUT 44 (IAC).