Rasheed v Secretary of State for the Home Department

An application under the former Tier 1 post-study work route made before the applicant’s qualification was awarded could not attract the points required by the Immigration Rules. The former pragmatic policy of accepting later confirmation ceased to have a rational foundation when the route closed, because a fresh application could no longer be made. Its withdrawal created no legitimate expectation or procedural unfairness.

Under Paragraph 34F of the Immigration Rules, a valid variation is governed by the rules in force when the variation is made. Paragraph 34F is not confined to variations within Paragraph 34E. Supplying confirmation of an award is not itself a variation; even if it were, Paragraph 34F would apply.

The applicants were foreign students who sought leave to remain under the former Tier 1 post-study work route. Each applied before the qualification relied upon had been formally awarded, although confirmation was available before the Secretary of State decided the application. Their applications were refused because they could not obtain the required points.

The Upper Tribunal dismissed the applicants’ appeals in [2013] UKUT 610 (IAC). On renewed applications for permission to appeal, the applicants relied principally on the Secretary of State’s former pragmatic policy, legitimate expectation, common law fairness and the alleged variation of their applications. One applicant additionally sought to rely on a different qualification obtained after the route had closed.

The central questions were whether the former policy remained applicable after the route closed and whether a later variation or confirmation of an award preserved the rules in force when the original application was made.

1. The renewed applications for permission to appeal were dismissed; Mr Mehmood’s application was withdrawn. None of the proposed appeals had a real prospect of success. Moore-Bick LJ delivered the judgment, with which Sir Stanley Burnton agreed.

2. The decision in Raju v Secretary of State for the Home Department [2013] EWCA Civ 754 established that the points available for applying within 12 months of obtaining a qualification could not be awarded where the application preceded the award. The applicants’ premature applications were therefore bound to fail unless another ground displaced that result.

3. The pragmatic policy had allowed later confirmation because, while the route remained open, an applicant could immediately make a fresh and probably successful application. That justification disappeared when the route closed. The closure had been announced well in advance. The applicants could not show that notice of the policy’s withdrawal would have enabled them to make valid applications before closure. There was consequently no arguable legitimate expectation or common law unfairness.

4. Paragraph 34F of the Immigration Rules was expressed in broad and general terms. Its scope was not limited to variations governed by Paragraph 34E. A valid variation therefore had to be decided under the rules in force when the variation was made.

5. The applicant who substituted a later master’s degree had validly varied his application under Section 3C(5) of the Immigration Act 1971. Since the variation occurred after the post-study work route closed and was in substance a fresh application, Paragraph 34F required application of the rules then in force. The transitional provisions did not preserve the earlier rules for that variation.

6. Merely providing later confirmation of an award could not reasonably be characterised as varying the application. Even if it could, Paragraph 34F would still govern it. Qureshi [2011] UKUT 00412 (IAC) did not support a contrary conclusion.

7. For future appellate practice, separate notices and fees are required where appellants were not parties to the same or formally consolidated proceedings. Grounds of appeal must identify alleged errors shortly and succinctly. Argument belongs in a separate skeleton argument.

• Court of Appeal (Civil Division): The renewed applications for permission to appeal were dismissed because the proposed appeals had no real prospect of success. Mr Mehmood’s application was withdrawn. The court authorised the judgment to be reported and cited.

• Upper Tribunal (Immigration and Asylum Chamber): The tribunal rejected the common grounds advanced in the grouped appeals and dismissed them: [2013] UKUT 610 (IAC). A few applicants had received determinations in separate Upper Tribunal proceedings.