Decision makers have difficulty keeping up with changes in the Points Based System Immigration Rules
9 October 2011
The Upper Tribunal’s Asylum and Immigration Chamber’s determination in Bhanushali (re-using same CAS: new rules) India [2011] UKUT 00411(IAC), issued on 5 October 2011 is a salutary indication of quite how easy it is for an application under the points-based system to be wrongly refused, and for that error not be noticed at the applicant’s appeal.
Under Tier 4 of the points-based system, colleges at which migrants wish to study in the UK must have been granted a Tier 4 Sponsor licence by the UKBA. Such licences entitle the college concerned to issue a certain number of Certificates of Acceptance for Studies (CASs), which any applicant needs in order to succeed in his or her application for entry clearance or leave to remain in the UK.
The Appellant, a student with leave to enter the United Kingdom until 19 February 2011 made his application for further leave to remain as a Tier 4 (General) student before his leave ran out. He was still studying at the same college at which he had enrolled when he first came to the UK. The college couldn’t however issue him with a new CAS to support his application, because its allocation of CASs had run out. However the college informed the student that he didn’t need a new CAS.
The application was refused by the United Kingdom Border Agency on 4 April 2011. The officer refusing the application said that the CAS reference number … has already been used with your previous application” and accordingly, the Secretary of State "is not satisfied that you have a valid CAS”. The Appellant was told that he "must have a new CAS for each application that is submitted”.
At the Appellant’s appeal before the First Tier Tribunal the Immigration Judge apparently accepted that this decision correctly applied the requirements of the Immigration Rules, having been told by the Home Office Presenting Officer at the hearing that "the guidance is clear that the CAS may only be used once”. However the Judge said that she was satisfied that the Appellant was indeed studying at the college. She allowed the Appellant’s appeal saying:
"Having regard to the principles of Pankina I find that it would be unfair in the circumstances to deny the [Appellant] the right to continue his studies on the basis of a CAS issued with the permission of the college, which could not be replaced administratively.”
The UKBA appealed against this decision to the Upper Tribunal.
The Tribunal said that there was nothing in the Court of Appeal’s judgment in Pankina v Secretary of State for the Home Department which enabled the Immigration Judge to allow the Appellant’s appeal for this reason, and that she had been wrong to have taken that approach.
What became clear at the Upper Tribunal however was that the original decision by the UKBA had been wrong. Contrary to what had been said in the refusal letter at the time of that decision (4 April 2011) there had been nothing in the Immigration Rules which required the Appellant to have a new CAS when he made his new application.
So why had the Home Office said that he did need a new CAS? And why had the Home Office Presenting Officer told the Immigration Judge that the decision was correct?
The Tribunal decided that the answer must lie in Statement of changes in the Immigration Rules HC 908. By this statement of changes Appendix A of the Immigration Rules was altered to include a new paragraph 116 (e) (ea) as follows:
"(ea) the migrant must not previously have applied for entry clearance, leave to enter or leave to remain using the same Confirmation of Acceptance for Studies reference number where that application was either approved or refused (not rejected as an invalid application or withdrawn).”
So this was where the basis for the refusal of the Appellant’s application had come from.
But this change didn’t come into force until 21 April 2011 – nearly three weeks after the UKBA’s decision to refuse the Appellant’s application. Furthermore the statement of changes had made clear that:
"if an applicant has made an application for leave before 6 April 2011 and the application has not been decided before that date, it will be decided in accordance with the rules in force on 5 April 2011.”
It seems therefore that even the UKBA’s own case workers have difficulties in keeping up with the pace of changes to the points-based system. The Appellant had been refused on the basis of a change in the rule which had not yet taken place at the time of the UKBA’s decision. Before the Immigration Judge this mistake had been reiterated by the UKBA’s representative.
The Tribunal noted:
"what this case shows is that it is important in the fast-changing world of the points-based system (a) to ascertain the precise basis on which an application has been refused; (b) to identify the relevant provisions of the Immigration Rules; and (c) to check the relevant commencement provisions.”
There have been 4 statements of changes to the Immigration Rules affecting each Tier of the points-based system since the beginning of 2011. More changes are expected soon, following the UKBA’s consultations on family immigration and the routes to settlement in the UK.
This case demonstrates that it is essential that anybody making an application for entry clearance or for leave to remain in the UK is assisted by professional legal advice.