Muhammad Omar Naeem v Secretary of State for the Home Department

Points required for a Tier 4 student application under Appendix A are unavailable where paragraph 120A prevents their award. A cross-reference to paragraphs 113–120 does not exclude paragraph 120A. The Immigration Rules must be read as a whole.

Academic progress is assessed against the level of the previous course for which leave was granted, rather than the level actually completed. A proposed course at a lower level than that earlier course does not satisfy the academic-progress requirement merely because it is above the level of study the applicant completed.

The appellant, a Pakistani national who had held student leave since 2008, applied for further leave as a Tier 4 (General) Student Migrant. The Secretary of State refused the application because the proposed course did not represent academic progress from his previous study.

The First-tier Tribunal dismissed his appeal against that refusal, but allowed his appeal against the simultaneous removal decision under section 47 of the Immigration, Asylum and Nationality Act 2006. The appellant appealed to the Upper Tribunal, contending that paragraph 120A of Appendix A did not apply and, alternatively, that his proposed Level 5 course represented academic progress.

1. Appeal dismissed. The First-tier Tribunal made no error of law in upholding the refusal of further leave.

2. Paragraph 245ZX(c) required the appellant to obtain 30 points under paragraphs 113–120 of Appendix A. Paragraph 120A nevertheless applied as a generally applicable part of the Immigration Rules. It was not necessary to treat paragraph 120A as text included within the cross-reference in paragraph 245ZX(c). Where paragraph 120A applied, it prevented the applicant from obtaining points otherwise available for a Confirmation of Acceptance for Studies.

3. The relevant version of paragraph 120A was that in force after 20 July 2012. The application had been made after the earlier April amendment and was decided after the July amendment, which contained no transitional protection for pending applications.

4. The proposed course had to be above the level of the course for which the appellant had previously been granted student leave, or be same-level complementary study confirmed by the sponsor. His prior leave had been granted for a three-year course comprising Levels 4, 5 and 6. Although he had completed only Level 4, a new Level 5 course was not higher than the course for which that leave had been granted. He therefore failed paragraph 120A and obtained no points for his Confirmation of Acceptance for Studies.

5. The separate section 47 removal decision could not stand in light of Ahmadi v SSHD [2012] UKUT 00147 (IAC) and Adamally and Jaferi v SSHD [2012] UKUT 00414 (IAC). The First-tier Tribunal had already allowed the appeal on that issue, and no further issue arose.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant's appeal, holding that the First-tier Tribunal made no error of law concerning the refusal of further leave.
• First-tier Tribunal: dismissed the appeal against the refusal of further leave, but allowed the appeal against the simultaneous removal decision under section 47 of the Immigration, Asylum and Nationality Act 2006.