Hossain & Ors v Secretary of State for the Home Department

A public law legitimate expectation capable of excusing compliance with immigration rules requires a representation that is clear, unambiguous and devoid of relevant qualification. An application form must be read in its full context.

For Tier 1 (Post-Study Work) applications, completing a degree course and expecting a certificate are not equivalent to obtaining the qualification. The qualification is obtained only when the awarding institution first notifies the applicant in writing that it has been awarded. Wording in a form about alternative evidence of the nature of a qualification does not clearly represent that the separate requirement concerning the date of award under the Immigration Rules will be waived.

The first appellant applied for leave to remain as a Tier 1 (Post-Study Work) Migrant shortly before that route closed. He had completed an MBA course taught by Birmingham Graduate School, but the University of Wales had not yet awarded the degree. His application included a letter from the college stating that he had completed the academic requirements and was expected to receive his certificate shortly.

The Secretary of State refused the application because the degree was awarded after the application date. The First-tier Tribunal allowed the family’s appeal by applying Khatel, but the Upper Tribunal subsequently allowed the Secretary of State’s appeal after Raju, Khatel and others had displaced that approach. The Court of Appeal considered whether the specified application form created a legitimate expectation that the Rules’ date-of-award requirement would be waived.

1. Appeal dismissed. The legitimate-expectation issue was properly before the court. Although an argument not pursued before the Upper Tribunal will ordinarily not be entertained, the limitation is discretionary rather than jurisdictional. Here the Upper Tribunal had dealt with the point in substance and permission to appeal had been granted.
2. The relevant Immigration Rules were clear. An applicant had to obtain the relevant qualification before making the application in order to receive the 15 points for the date-of-award attribute. Completion of the course was insufficient. The qualification was obtained only when the awarding institution first notified the applicant in writing that it had been awarded, as this court had held in Raju, Khatel and others, [2013] EWCA Civ 754.
3. The court approved the reasoning in Nasim, [2013] UKUT 00610 (IAC), and Rasheed, [2014] EWCA Civ 1493. Part G of the form concerned the nature of the qualification and the evidence for the associated 20 points. Part K concerned the separate 15-point requirement as to when the qualification had been obtained. Part G5 therefore did not represent that the date-of-award requirement would be waived.
4. In any event, the college letter did not meet the terms of G5 or the policy guidance. It did not confirm that the degree had been awarded, that a certificate would be issued following an award, or the date of award. It said only that the appellant had completed the course and was expected to receive a certificate shortly.
5. Applying the requirement stated in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2), [2008] UKHL 61, no clear, unambiguous and unqualified representation arose from the form, whether G5 and K1 were read separately or together. The appellant had not obtained the degree when he applied and could not obtain the necessary points. The refusal was therefore lawful.

• Court of Appeal (Civil Division): dismissed the appellants’ appeal and upheld the Upper Tribunal’s conclusion that no legitimate expectation displaced the date-of-award requirement.
• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal on 8 August 2013, after this court had overruled the continuing-application approach in Raju, Khatel and others, [2013] EWCA Civ 754.
• First-tier Tribunal: allowed the appellants’ appeal on 22 April 2013 by applying Khatel and others, [2013] UKUT 00044 (IAC).