Prakash Khatel v The Secretary of State for the Home Department

An application for further leave to remain is a continuing application. It begins when first submitted and remains capable of supplementation until the Secretary of State decides it. Accordingly, in a points-based appeal, Nationality, Immigration and Asylum Act 2002 section 85A does not exclude evidence supplied to the Secretary of State before her decision merely because it was not supplied with the initial application.

For the former Tier 1 (Post-Study Work) route, an applicant who notified the Secretary of State of an academic award before the decision could rely on it. The requirement in Table 10 that the application be made within 12 months of obtaining the qualification was satisfied because the application continued until decision.

Four linked appeals concerned applications made before the closure of the Tier 1 (Post-Study Work) route. Each claimant completed the academic element of a postgraduate course, applied for leave before the route ended, and was awarded the relevant qualification before the Secretary of State refused the application.

The First-tier Tribunal dismissed the appeals of Khatel, Adhikari and Al Islam on the basis that the qualification had not been awarded when the applications were first submitted. It allowed Raju’s appeal. The Secretary of State appealed in Raju, while the other claimants appealed to the Upper Tribunal.

The common issue was whether evidence of an award, notified before the Secretary of State’s decision but after the initial application, could be considered under section 85A and satisfy Table 10 of Appendix A to the Immigration Rules.

1. The Upper Tribunal allowed the appeals of Khatel, Adhikari and Al Islam, remaking the decisions so that their appeals under the Immigration Rules succeeded. It dismissed the Secretary of State’s appeal in Raju and upheld the First-tier Tribunal’s decision allowing his appeal.

2. Following AQ (Pakistan) v SSHD [2011] EWCA Civ 833, an application to vary leave is continuing from its initial submission until it is decided. That principle applies to a points-based application even where the Rules impose a fixed historic time-line. The relevant position is therefore assessed at the date of the Secretary of State’s decision, not simply at the date on which the application was first lodged.

3. Section 85A did not require a different result. Exception 2 applied to an appeal against a refusal to vary leave, notwithstanding that the same appeal also challenged a removal decision. By section 6 of the Interpretation Act 1978, the statutory reference to an immigration decision could include the plural.

4. Section 85A(4)(a) permitted reliance on evidence of the awards. The claimants supplied that information to the Secretary of State before she decided their continuing applications. The provision was directed to fresh material first produced on appeal, not material that had been provided to and considered by the decision-maker before her decision. The Tribunal declined to follow the contrary assumption in Ali (section 120-PBS) Pakistan [2012] UKUT 368 (IAC).

5. The awards accordingly satisfied Table 10 of Appendix A. Although the natural reading of the requirement that an applicant “has been awarded” a qualification ordinarily places the award before the application, that issue was not decisive: the awards preceded the end of the continuing applications and were notified within 12 months of being made.

6. In Khatel’s case, the Tribunal also allowed the appeal against the simultaneous section 47 removal decision, applying Adamally and Jaferi (Section 47 Removal Decision: Tribunal Procedures) [2012] UKUT 414 (IAC).

• Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s dismissals in Khatel, Adhikari and Al Islam and remade those decisions by allowing the appeals. Dismissed the Secretary of State’s appeal in Raju and preserved the First-tier Tribunal’s decision allowing his appeal.
• First-tier Tribunal: Dismissed the immigration appeals of Khatel, Adhikari and Al Islam, but allowed Raju’s appeal.