Khan v Secretary of State for the Home Department

Where the Immigration Rules require formal evidence of a degree award, a university letter confirming successful completion is insufficient. A challenge based on alleged departure from policy or frustration of legitimate expectation is unarguable where the issue is covered by established authority.

Permission to amend appeal grounds to introduce a new Article 8 claim is a matter for the tribunal’s discretion. The Court of Appeal will intervene only where the decision was plainly wrong. A tribunal need not determine an Article 8 claim that was not before it.

Mr Khan, a Pakistani national, applied under the Tier 1 (Post-Study Work) provisions after submitting a university letter confirming completion of his Master’s course. Formal confirmation of the degree award was issued later. The Secretary of State refused the application and gave removal directions under section 47 of the Immigration, Asylum and Nationality Act 2006.

The First-tier Tribunal allowed the appeal, relying on Khatel v Secretary of State for the Home Department [2013] UKUT 44. After Raju v Secretary of State for the Home Department [2013] EWCA Civ 754 overturned that approach, the Upper Tribunal refused permission to amend the grounds to raise Article 8 and accepted that the original ground could not succeed. Mr Khan renewed his application for permission to appeal on policy, amendment and private-life grounds.

Permission to appeal was refused.

1. The challenge to refusal of the Tier 1 application had no real prospect of success. In Hossain v Secretary of State for the Home Department [2015] EWCA Civ 207, the Court of Appeal held that a letter confirming successful completion was insufficient where the Rules required a formal certificate of the degree award. The policy and legitimate-expectation argument had also been held unarguable in Rasheed v Secretary of State for the Home Department [2014] EWCA Civ 1493, a decision approved in Hossain.
2. Whether to permit amendment of appeal grounds to introduce a new Article 8 claim was a discretionary case-management decision. The Upper Tribunal was entitled to take account of the fact that Article 8 had not been raised before the First-tier Tribunal despite ample opportunity, and that the proposed claim was not particularly strong.
3. The Court of Appeal would interfere with that exercise of discretion only if it was plainly wrong. No such error was established. Since the Article 8 claim was not before the Upper Tribunal, its failure to determine that claim was not an error of law.
4. The accepted unlawfulness of the removal direction did not affect the outcome of the renewed application.

• Court of Appeal (Civil Division) refused the renewed application for permission to appeal.
• Upper Tribunal (Immigration and Asylum Chamber) accepted that the original qualification ground could not succeed, accepted that the removal direction was unlawful, and refused permission to amend the grounds to raise Article 8.
• First-tier Tribunal had allowed the appeal, relying on Khatel v Secretary of State for the Home Department [2013] UKUT 44, and held that the removal directions were unlawful.