Muhammad Nasim v The Secretary of State for the Home Department

A Tier 1 (Post-Study Work) application had to satisfy the Immigration Rules in force at the relevant time. Following closure of that route on 6 April 2012, the Secretary of State was not required to continue the earlier pragmatic policy that accepted awards obtained after the application but before decision.

An applicant had no vested right or legitimate expectation that the former policy would continue. A clear points-based requirement could not be overcome by fairness, evidential flexibility or a de minimis argument. Later evidence of an award did not establish that the applicant had obtained the qualification when applying. The relevant award was conferred by the awarding institution, not merely the college at which the applicant studied.

Twenty-two appellants challenged refusals to vary leave under the former Tier 1 (Post-Study Work) route. Most had applied before its closure on 6 April 2012 but were notified of their qualifications only afterwards. Earlier tribunal decisions had allowed many appeals by following Khatel and others (s85A; effect of continuing application) [2013] UKUT 00044 (IAC).

After the Court of Appeal allowed the Secretary of State’s appeal in Secretary of State for the Home Department v Raju and Others [2013] EWCA Civ 754, the Upper Tribunal reviewed those decisions under rule 45 of the Tribunal Procedure (Upper Tribunal) Rules 2008. The central questions were whether the earlier July 2010 policy continued after closure, whether subsequent award evidence or variation could assist, and how the points-based Rules applied.

1. The Tribunal followed Raju [2013] EWCA Civ 754. It was bound by the Court of Appeal’s construction of Table 10. An applicant who had not obtained the relevant qualification when applying could not score the required 75 points. Evidence received before decision could establish facts, but could not prove compliance with a substantive requirement that had to be met on the application date.

2. The July 2010 pragmatic policy had a rational basis only while a refused applicant could make a fresh successful Post-Study Work application with the same evidence. That basis ended when the route closed on 6 April 2012. The appellants had no vested right, legitimate expectation, or public-law entitlement to continued application of the policy. The May 2012 Casework Instruction merely required strict application of the existing Rules; it neither retrospectively changed nor impermissibly glossed them.

3. Fairness, proportionality, evidential flexibility and de minimis could not cure a failure to satisfy the clear temporal requirement. The claimed deficiency was a prohibited near miss, not a trivial departure from the Rules.

4. Submission of a later award notification was not a variation of the original application. Even if it were, paragraph 34F required the variation to be decided under the Rules in force when made, after the route had closed. Section 85A did not bar consideration of evidence before the Secretary of State at decision, although the Tribunal treated that conclusion as obiter.

5. For Table 10, a qualification is obtained when the awarding institution confers it, whether in person or in absentia. Notification from a teaching college that is not the awarding institution is insufficient for the 15 points.

6. Save for Mr Gambo, the relevant earlier determinations were reviewed or set aside. Appeals against refusal of variation were dismissed, subject in many cases to outstanding Article 8 issues. Appeals against unlawful section 47 removal decisions were allowed. Mr Gambo’s successful determination was left undisturbed.

• Upper Tribunal: Earlier determinations allowing most appellants’ appeals by following Khatel and others (s85A; effect of continuing application) [2013] UKUT 00044 (IAC) were reviewed under rule 45 following Secretary of State for the Home Department v Raju and Others [2013] EWCA Civ 754.
• First-tier Tribunal: Most determinations were set aside for error of law. The determinations of Mr Aziz and Mr Mukundhakshan were preserved, save for any outstanding Article 8 issue. Mr Nasim’s determination was set aside. Mr Gambo’s successful Upper Tribunal determination was not reviewed.