Kamran Mushtaq v The Secretary of State for the Home Department

In a points-based-system appeal, Exception 2 in section 85A(3)(a) of the Nationality, Immigration and Asylum Act 2002 applies where the appeal is against a specified decision to refuse leave. It continues to apply even if the appeal also challenges another immigration decision, whether expressly or by the operation of section 85(1).

The former academic-progress requirement in paragraph 120A of Appendix A to the Immigration Rules applies notwithstanding that the applicant’s immediately preceding leave was in a non-student category. Academic progress is assessed against the applicant’s last course of study.

The appellant, an Indian national, had previously held leave as a student and then as a Tier 1 (Post-Study Work) Migrant. Before that leave expired, he applied for leave as a Tier 4 (General) Student.

The Secretary of State refused the application because his confirmation of acceptance for studies did not confirm academic progress. The First-tier Tribunal dismissed the appeal against the refusal, holding that a later letter from the proposed sponsor could not be considered under section 85A. It also dismissed the appeal despite an invalid contemporaneous removal decision under section 47.

The appeal concerned the scope of the new-evidence restriction and whether paragraph 120A applied after intervening non-student leave.

1. The appeal was allowed in part. The appeal against the contemporaneous section 47 removal decision had to be allowed, because that decision could not lawfully be made at the same time as the refusal to vary leave. The dismissal of the appeal against refusal of further leave remained undisturbed.

2. Section 85A(3)(a) of the Nationality, Immigration and Asylum Act 2002 does not require an appeal to be only against a decision of the kind specified in section 82(2)(a) or (d). An appeal against such a decision remains within Exception 2 if it also includes a challenge to another immigration decision, including one treated as included by section 85(1). The contrary construction would create an irrational advantage for an applicant who happened also to have received a removal decision.

3. The appellant could not rely on the sponsor’s letter obtained after his application and the refusal decision. Its purpose was to establish satisfaction of the points-based academic-progress requirement. The contention that it fell outside the restriction on new evidence was misconceived.

4. Former paragraph 120A of Appendix A to the Immigration Rules required the sponsor to confirm that the proposed course represented academic progress from study undertaken during the applicant’s last period of student leave. That expression identifies the last relevant period of student leave; it does not require the applicant’s immediately preceding grant of leave to have been as a student. The relevant benchmark is therefore the last course of study, even where a period of worker leave intervened.

5. Following Ahmadi (s.47 decision: validity: Sapkota) [2012] UKUT 00147 (IAC), the invalid removal decision did not render the separate refusal of leave unlawful. No Article 8 ground was raised.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal against the invalid section 47 removal decision, but upheld the First-tier Tribunal’s dismissal of the appeal against refusal to vary leave.
• First-tier Tribunal: Dismissed the appeal against refusal of leave and did not allow the appeal against the contemporaneous removal decision.