Kan (Post-Study Work – degree award required) India [2009] UKAIT 00022, recently issued by the Asylum and Immigration Tribunal, is the first "reported" determination by the Tribunal regarding the correct approach to be taken in Points Based System Appeals.
The appellant is a young Indian woman who was initially given leave to enter the UK as a student in February 2006. She then had three successive grants of leave to remain as a student, the last of which was until December of 2008. In October of 2008 she applied for further leave to remain as a Tier 1 (Post-Study Work) Migrant.
Applications of this kind are made under Rule 245Z of the Immigration Rules. As with all applications under the Points Based System the appellant needed to get the number of points required by the Rule for "Attributes."
Table 9 at paragraph 53 of Appendix A of the Rules sets out how these points are awarded for applicants for leave to enter or remain as a Tier 1 (Post-Study Work) Migrant. 20 of the 75 points needed are awarded for the applicant's academic qualification, whether it is a degree (bachelor or postgraduate), UK Postgraduate Certificate in Education, Higher National Diploma etc.
In Table 9 the words "The applicant has been awarded" feature above the list of qualifications in the left hand column and the corresponding points to be awarded for each qualification in the right hand column.
The appellant in this case completed her studies in July of 2008. In October of 2008 she was told in Writinng by by her College London South Bank University, that her certificate (for her qualification) would be awarded in March 2009.
The appellant's application was refused by the Secretary of State because she did not award the appellant points under Appendix A for her qualification. At her appeal the appellant relied on two letters dated issued by the University. The first, dated 27-10-2008 stated that the appellant:
"has completed the requirements for award of the Postgraduate Diploma in Corporate Governance which will be awarded at the next Examination Board scheduled to be held in March 2009".
The second letter dated 21-01-2009 stated:
[the appellant] is registered as a student on the MSc/PgDip in Corporate Governance Course at this university, which commenced on 26th September 2005. Under our corroboration arrangements with Loyola College Chennai she completed semester one at that institution and came to the UK in February 2006 for completion of the rest of the course. attendance record has been excellent (over 95%) and she is a student in good financial standing with no arrears of fee payments. In the academic year 2007/8 (i.e. the academic year ending July 2008) she successfully completed the Postgraduate Diploma in Corporate Governance which will be awarded after the next Examination Board scheduled to be held in March 2009."
The Immigration Judge who dismissed her appeal said that there was no doubt from these two letters that the award would be made to the appellant - but that Appendix A required that the award had been made. Since it had not yet been made the Secretary of State's decision was in accordance with the law and the appellant's appeal had to be dismissed.
The appellant applied for reconsideration - pointing out (among other things) that the Secretary of State's Tier 1 of the Points Based System - Policy Guidance expressly stated that if an applicant was unable to provide a certificate of award he or she could rely upon a letter from the body awarding the qualification stating that the certificate of award would be issued.
In granting the appellant an order for reconsideration the Senior Immigration Judge stated, perhaps unsurprisingly, that the Immigration Judge had been constrained to dismiss the Appellant's appeal on a technical issue but that guidance issued by the Secretary of State suggested that her appeal could have succeeded.
The Tribunal's decision dismissing the appeal is based upon the wording of Table 9 of Appendix A. In the Tribunal's view these words required that to succeed in their
applications applicants for leave to remain as a Tier 1 (Post-Study Work) Migrant had to have been awarded the award - and it was not sufficient for them to provide a letter stating that they were going to be awarded the award.
The Tribunal quoted from the guidance relied on by the appellant and said:
"It can be seen from the Guidance that where an applicant is unable to submit the original certificate of award he is able to rely upon a letter confirming that the certificate of the award will be issued. That is not the same as saying that an applicant can rely upon a letter confirming that the award itself will be issued. The reference to an applicant being unable to submit the original certificate of award because it has not yet been issued is not a reference to an applicant being unable to submit evidence of the award because the award has not yet been issued."
The Tribunal relied on the Court of Appeal's judgme nt in MB (Somalia) v Entry Clearance Officer [2008] EWCA Civ 102 as to the need to give the Immigration Rules their ordinary meaning. It also points out that Appendix A required specified documents to be submitted in support of the appellant's application and that such documents are listed in the guidance.
That this is the first of the Tribunal's pronouncements on the Points Based System is alarming. It demonstrates that pedantry rather than an approach characterised
instead by fairness and an attempt to ascertain the purpose of the Rules is its preference. This is clear from the fact that the appellant plainly has completed the necessary exams and passed them. She has been refused and has lost her appeal because she doesn't have a certificate proving what the Immigration Judge accepted as being true. The Appellant now has no leave to remain and faces the only alternative of leaving the UK and making her application from India.
We are now no the edge of what seems likely to be a landslide of determinations from the Asylum and Immigration Tribunal on appeals against decisions under the Points Based System. From those decisions there will be further appeals to the senior courts.
There are complicated arguments being run before the Tribunal as to whether the Points Based System really has succeeded in eradicating all discretion from decisions made under iit - and to the effect that if this is not the case, then decisions taken which fail to apply that discretion are not in accordance with the law.
As things stand in this unresolved legal landscape the importance of skilled legal representation cannot be over stressed.