Mohammad Foyzul Islam v The Secretary of State for the Home Department

For paragraph 245ZX(ha) of the Immigration Rules, the five-year limit on degree-level study includes periods of leave as a student before the Tier 4 scheme began. The calculation depends on the period of student leave for degree-level study, rather than the time actually spent studying during that leave.

Paragraph 87 of the Tier 4 Policy Guidance accords with, and does not alter, that requirement. A student has no legitimate expectation of being permitted to undertake degree-level study for an undefined period; entitlement is governed by the Immigration Rules in force when the application is decided.

The appellant, a Bangladeshi national, had held student leave from 2005 and later Tier 4 (General) Student leave. He had initially been granted four years' leave to undertake a degree course, although he left that course after two years. He later completed a foundation degree, which was below degree level for the relevant rule.

He applied for further Tier 4 leave to undertake a CIMA course at NQF level 7. The Secretary of State refused the application because the proposed grant would take him beyond the five-year limit in paragraph 245ZX(ha) of the Immigration Rules. The First-tier Tribunal dismissed his appeal in a determination dated 24 January 2013.

The Upper Tribunal considered whether pre-Tier 4 student leave at degree level counted towards that five-year limit, and whether paragraph 87 of the Tier 4 Policy Guidance required a different result.

1. Appeal dismissed. The First-tier Tribunal made no error of law in dismissing the appeal.

2. Paragraph 245ZX(ha) of the Immigration Rules requires all time spent in the United Kingdom with leave as a Tier 4 (General) Migrant or as a Student studying at degree level or above to be included in the five-year calculation. This includes qualifying student leave granted before the Tier 4 scheme was introduced.

3. The relevant measure is the period of leave granted for degree-level study, not the period of actual attendance or study. The appellant's decision to leave his BSc course did not prevent the four-year period of leave granted for that course from counting, save for pre- and post-course leave excluded by paragraph 245ZY(b).

4. Paragraph 87 of the Tier 4 Policy Guidance did not exclude pre-Tier 4 study. Its reference to the time a Tier 4 Student may spend studying at or above degree level captured a person who was then a Tier 4 Student and who had accumulated the relevant student leave under either the former or Tier 4 rules. The Guidance was an accessible explanation of the Rules, not a change to them.

5. The six-year exception for certain Master's courses in paragraph 245ZX(ha)(i) reinforced that construction. It would serve no purpose if pre-Tier 4 degree-level study did not count. Nor did fairness or legitimate expectation assist the appellant. An applicant can expect to be considered under the Immigration Rules in force when the decision is made, as reflected in Odelola v SSHD [2009] UKHL 25.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the First-tier Tribunal's dismissal.
• First-tier Tribunal: Judge Knowles dismissed the appeal in a determination dated 24 January 2013. Permission to appeal was granted by Judge Bailey on 19 February 2013.