Kaur v The Secretary of State for the Home Department

Where successive courses are at the same level, the Tier 4 sponsor must confirm that the later course complements the earlier course. An explanation is not required by the Immigration Rules, but the necessary confirmation must appear from the sponsor’s material.

The assignment of a Confirmation of Acceptance for Studies creates an expectation, rather than a formal legal presumption, that academic progress has been assessed. The sponsor’s language must therefore be construed benignly. That expectation cannot supply a confirmation which the evidence cannot reasonably bear.

Under the points-based system, fairness does not ordinarily require the Secretary of State to notify a student or sponsor of a deficient confirmation before refusing leave.

The appellant sought further leave to remain as a Tier 4 (General) Student. Her proposed Level 6 Diploma in Business Management followed an earlier Level 6 diploma in the same subject. The Secretary of State initially declined to consider the relevant Confirmation of Acceptance for Studies because it had not accompanied the original application.

The First-tier Tribunal considered the confirmation and further evidence but held that the sponsor had not confirmed that the proposed course complemented the earlier course, as required by Paragraph 120A(b)(ii) of Appendix A to the Immigration Rules. The Upper Tribunal agreed.

The appeal raised two issues: whether the sponsor’s material provided the required confirmation when construed in accordance with Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568; and whether fairness required the Secretary of State to seek clarification or permit the deficiency to be remedied before refusing leave.

1. Appeal dismissed. The sponsor had not confirmed that its Level 6 course complemented the appellant’s previous Level 6 course. The evidence merely asserted general academic progress and confirmed enrolment. It did not address the relationship between the two substantially similar courses: paras [33]–[37].

2. For successive courses at the same level, whether the later course complements the earlier one involves a value judgment for the Tier 4 sponsor. Paragraph 120A(b)(ii) of Appendix A to the Immigration Rules requires the sponsor to give the confirmation, but does not require an explanation of its conclusion: paras [7], [29]–[30].

3. Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568 remained applicable despite the incorporation into the Rules of requirements previously contained in guidance. Assigning a Confirmation of Acceptance for Studies creates an expectation that the sponsor has assessed the course as representing academic progress. It creates no formal or rebuttable legal presumption. The decision-maker must construe the sponsor’s language benignly in the light of that expectation: paras [30]–[32].

4. The expectation does not permit a court to invent a confirmation which the evidence cannot reasonably convey. Although the tribunals had not expressly referred to the expectation, the Court of Appeal applied it and reached the same conclusion. The courses covered substantially the same subjects, and neither the confirmation, the sponsor’s later letter nor the appellant’s evidence suggested that the second course complemented the first: paras [34]–[37].

5. Fairness did not oblige the Secretary of State to approach the sponsor or notify the appellant before an adverse decision based on a deficient confirmation. Rahman v Secretary of State for the Home Department [2014] EWCA Civ 11 and EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517 were binding on that question. The contrary analogy with Naved in Pokhriyal was obiter: paras [38]–[42].

6. In any event, the appellant knew the contents of the confirmation, had obtained further evidence and had been given an opportunity to marshal her case. The Secretary of State had not assessed the confirmation as deficient; the tribunal had done so on appeal. There was no conceivable unfairness: para [43].

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the Upper Tribunal’s conclusion that the sponsor had not provided the confirmation required by the Immigration Rules.

2. Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Rintoul dismissed the appeal from the First-tier Tribunal and refused permission for a further appeal.

3. First-tier Tribunal: Judge Sullivan dismissed the appellant’s second appeal, holding that the sponsor’s material did not confirm that the proposed course complemented the earlier course.