Secretary of State for the Home Department v Khan

A variation which replaces the educational institution, course or related study arrangements may vary the purpose of a student’s application, even though the applicant remains within the same immigration category. “Purpose” in paragraph 34E of the Immigration Rules bears its natural and ordinary meaning rather than a narrow or technical meaning.

Where paragraph 34E applies, the variation must satisfy the Rules in force when it is made, as if it were a new application. A student permitted to replace an invalid confirmation of acceptance for studies must therefore also meet the applicable maintenance requirements at that time. The fairness underlying that opportunity does not justify reliance on financial evidence relating to the original course and application.

The respondent applied for further leave as a Tier 4 student. While his application was pending, his sponsoring college lost its licence. Under guidance introduced following Patel (revocation of sponsor licence – fairness) India [2011] UKUT 00211 (IAC), the Secretary of State allowed him 60 days to obtain a new confirmation of acceptance for studies and vary his application.

The respondent supplied a new confirmation and fresh financial evidence, but the evidence did not establish the required maintenance funds for the relevant period. The First-tier Tribunal allowed his appeal. The Upper Tribunal dismissed the Secretary of State’s appeal, holding that replacing the sponsor did not vary the purpose of the application under paragraph 34E of the Immigration Rules.

The central issue was whether a replacement sponsor and course fell within paragraph 34E, requiring all mandatory requirements to be satisfied when the variation was made.

1. Appeal allowed. Replacing the original confirmation of acceptance for studies with one issued by a new educational provider, potentially for a course of different length and starting at a different time, varied the purpose of the application within paragraph 34E of the Immigration Rules. Beatson LJ gave the judgment of the court; Sharp and Lewison LJJ agreed.

2. Immigration Rules are construed sensibly according to the natural and ordinary meaning of their words, recognising their character as statements of administrative policy. “Purpose” in paragraph 34E therefore did not have the narrow or technical meaning of an immigration route or tier. An application may retain the general object of study while changing its particular purpose through a change of subject, institution, course dates, duration or cost.

3. The concept of variation in paragraph 34E may be narrower than variation under section 3C of the Immigration Act 1971, because paragraph 34E refers to variation of purpose. Nevertheless, the word “purpose” itself bears a broad, ordinary meaning. This approach was consistent with JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78, which treated changes of both purpose and detail as variations for section 3C.

4. Where paragraph 34E applies, its express terms require compliance with the Rules as they stand when the variation is made, as if the variation were a new application. Accordingly, “the date of the application” in paragraph 1A(a) of Appendix C meant the date of the variation. The respondent had to establish the prescribed maintenance funds by reference to his October variation, not his original application.

5. The policy allowing a replacement confirmation addressed the unfairness caused when a sponsor’s licence was revoked without the student’s fault. It was a limited carve-out for the invalid confirmation, rather than a continuation of the original application permitting later evidence to cure other deficiencies. Requiring current financial evidence was rational because the replacement course could differ in cost, duration and dates.

6. The court did not decide which date would govern a variation falling outside paragraph 34E. Any gap in the Rules on that question was for the Secretary of State, rather than the court, to address.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed. The court held that the replacement sponsor and course varied the purpose of the application under paragraph 34E of the Immigration Rules.
2. Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed on 3 July 2014. The tribunal held that replacing the educational provider did not vary the purpose of the Tier 4 application and did not require renewed compliance with the maintenance requirements.
3. First-tier Tribunal: The respondent’s appeal was allowed in a determination dated 26 February 2014. The tribunal considered it unfair to permit flexibility over the sponsor document without extending similar flexibility to other information.