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Cite as: [2014] PTSR D4, [2013] EWCA Civ 1568, [2013] WLR(D) 471

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Neutral Citation Number: [2013] EWCA Civ 1568
Case No: C5/2012/3343
C5/2012/3374

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
IA095112012

C5/2012/3374
Royal Courts of Justice
Strand, London, WC2A 2LL
05/12/2013

B e f o r e :

LORD JUSTICE LONGMORE
LORD JUSTICE JACKSON
and
LORD JUSTICE VOS

____________________

Between:
HIMANSHU POKHRIYAL

Appellant
- and -


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

And between:

AMJAD HUSSAIN

- and -

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent




Appellant



Respondent

____________________

Mr Zane Malik and Mr Darryl Balroop (instructed by Messrs Mayfair) for the Appellants
Mr Robert Palmer (instructed by The Treasury Solicitor) for the Respondent
Hearing date: Thursday 14th November

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Jackson:

  1. This judgment is in six parts, namely:
  2. Part 1. Introduction,

    Part 2. The facts,

    Part 3. The appeals to the Court of Appeal,

    Part 4. The construction of paragraph 120B of Appendix A to the Immigration Rules,

    Part 5. HP's appeal,

    Part 6. AH's appeal.

    Part 1. Introduction

  3. These are appeals by two foreign students whose leave to remain in this country has expired. They challenge the Secretary of State's decisions, upheld by the First-tier Tribunal and the Upper Tribunal, that their proposed further courses do not constitute academic progress from their previous studies.
  4. The first appellant is Himanshu Pokhriyal ("HP"). The second appellant is Amjad Hussain ("AH"). Although there is no order for anonymity, it is easier to refer to both appellants by their initials.
  5. Both appellants came to the UK as Tier 4 (general) students under the Points Based System ("PBS"). The rules governing the PBS are set out in the Immigration Rules and the appendices to those rules. These provisions have now achieved a degree of complexity which even the Byzantine Emperors would have envied. I shall set out the rules as they were prior to 6th April 2012.
  6. Paragraph 245ZX of the Immigration Rules provided:
  7. "Requirements for leave to remain
    To qualify for leave to remain as a Tier 4 (General) Student under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the applicant will be refused.
    (c) The applicant must have a minimum of 30 points under paragraphs 113 to 120 of Appendix A."

  8. Appendix A to the Immigration Rules set out, amongst much else, the attributes which Tier 4 (general) students must possess. Paragraph 115 of Appendix A provided that such a student scores 30 points for obtaining a confirmation of acceptance for studies ("CAS"). Paragraph 115A of Appendix A required the student to provide a valid CAS reference number, but not the CAS, to UKBA. It is the college concerned which prepares the CAS and submits it electronically to UKBA.
  9. Paragraphs 116 and 117 of Appendix A set out the various requirements with which a CAS and its reference number must comply in order to be valid.
  10. Paragraph 120B of Appendix A provided:
  11. "Points will only be awarded for a valid Confirmation of Acceptance for Studies assigned on or after 4 July 2011 (even if all the requirements in paragraphs 116 to 120A above are met) if the Sponsor has confirmed that the course for which the Confirmation of Acceptance for Studies has been assigned represents academic progress from previous study undertaken during the last period of leave as a Tier 4 (General) Student or as a Student, except where:
    (i) the applicant is re-sitting examinations or repeating modules in accordance with paragraph 119 above, or
    (ii) the applicant is making a first application to move to a new institution to complete a course commenced elsewhere."

  12. In this judgment I shall refer to a foreign student who has previously been given leave to remain in the UK as a student as an "existing student". I shall use the phrase "academic progress" to mean academic progress from the previous study undertaken.
  13. The Secretary of State for the Home Department has overall responsibility for administering the immigration system. Section 3 (2) of the Immigration Act 1971 ("the 1971 Act") provides:
  14. "The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances;
    …"

  15. From time to time the Secretary of State issues instructions to immigration officials to guide them in their application of the rules. The Secretary of State issues such instructions pursuant to paragraph 1 (3) of Schedule 2 of the 1971 Act. They are known as Immigration Directorate's Instructions ("IDIs"). The Secretary of State also from time to time issues guidance statements for the assistance of those who are operating under the rules.
  16. Having set out the legislative background, I must now turn to the facts.
  17. Part 2. The facts

    HP

  18. HP is an Indian national, born in 1986 and now aged 27. HP came to the UK for the purpose of studying in September 2008. He was granted leave to enter as a Tier 4 (general) student under the PBS. He was subsequently given leave to remain in that capacity until 4th January 2012.
  19. Initially HP studied for a postgraduate diploma at the London School of Business Management. HP subsequently transferred to other colleges, where he studied business administration and business management. These courses were classified as NVQ level 7.
  20. In late 2011 HP decided that he needed to obtain a qualification in IT, in order to improve his career prospects. He applied for and secured a place at St Stephen's College to study for a diploma in IT. This was a two and a half year course, classified as NVQ level 5.
  21. HP applied to the Secretary of State for an extension of his leave to remain in the UK, so that he could undertake the IT course. In support of that application St Stephen's College issued a CAS, which it sent to UKBA.
  22. In the box on the CAS marked "evidence provided" the college described the previous courses which HP had undertaken. The college then added this:
  23. "ACADEMIC PROGRESSION: Student has studied a PGD for general academic purposes but as he wants to go into the IT industry, a qualification in IT combined with the PGD would offer him better opportunities. Student wishes to follow a career in IT in India and in particular with the Tata Group. He believes that his previous studies in the UK combined with an IT qualification would provide him with additional opportunities in following his chosen career path."

  24. By a letter dated 9th February 2012 the Secretary of State refused HP's application on the ground that HP's new course did not constitute "academic progress" within the meaning of paragraph 120B of Appendix A to the Immigration Rules. Accordingly HP failed to achieve the required 30 points under paragraph 245ZX (c) of the Immigration Rules.
  25. HP appealed unsuccessfully against that decision first to the First-tier Tribunal, then to the Upper Tribunal. He now appeals to the Court of Appeal.
  26. AH

  27. AH is a Pakistani national, born in 1984 and now aged 29. AH came to the UK for the purpose of studying in October 2010. He obtained leave to enter and remain until 4th February 2012 as a Tier 4 (general) student under the PBS.
  28. Initially AH studied at Charles Edward College for a postgraduate diploma in business management. This course was classified as NVQ level 7. Whilst at Charles Edward College he duly attended the classes and took the examinations which were set. He passed in three subjects and failed in three subjects.
  29. Unfortunately the licence of Charles Edward College was revoked by the Secretary of State. It appears that by then AH had completed his course, with the three passes and the three failures previously mentioned.
  30. AH then applied for and secured a place at Cranford College to study for a post-graduate diploma in strategic management and leadership. This was a course at NVQ level 7.
  31. AH applied to the Secretary of State for an extension of his leave to remain in the UK, so that he could undertake the course at Cranford College. In support of that application Cranford College issued a CAS, which it sent to UKBA. In that CAS the college summarised AH's past academic achievements, but did not address the question whether the new course represented academic progress.
  32. By a letter dated 4th April 2012 the Secretary of State refused AH's application on the ground that Cranford College had not confirmed that the new course constituted "academic progress" within the meaning of paragraph 120B of Appendix A to the Immigration Rules. Accordingly AH failed to achieve the required 30 points under paragraph 245ZX (c) of the Immigration Rules.
  33. On 8th June 2012 Cranford College sent a letter to UKBA as follows:
  34. "This is to confirm that Mr Amjad Hussain, DOB: 31/01/1984 applied for PGD in Strategic Management and Leadership at Cranford College. The College assessed the student previous qualification and it was found that he was unable to complete his previous course of studies in level 7 at Charles Edward College because his previous College licence had been revoked by the UKBA. However, Charles Edward College had confirmed his progression and attendance in their letter of November 2011.
    Cranford College assessed the progression of the student on the basis of the letter he presented from his previous College. Thus, the College assigned him a CAS in the same level on the basis of his previous study (PGD in Business Management) undertaken during the last period of his leave as Tier 4 (General) student at Charles Edward College."
  35. Armed with that letter AH pursued an appeal to the First-tier Tribunal against the Secretary of State's decision. Tribunal Judge Mayall sitting in the First-tier Tribunal dismissed AH's appeal. I would summarise his reasoning as follows:
  36. i) It is clear from the CAS that AH's new course is at the same level at his previous course. This did not constitute academic progress.

    ii) If the Secretary of State should have made further inquiries of Cranford College, any further information obtained would have led to the same conclusion.

  37. AH appealed against that decision to the Upper Tribunal. The Upper Tribunal dismissed that appeal in a written determination dated 18th October 2012. The Upper Tribunal approved the reasoning of the First-tier Tribunal. In paragraph 14 of its decision the Upper Tribunal said this:
  38. "However, it is plain from his findings at paragraphs 26 and 27 that the judge simply did not accept that the appellant's change of course represented academic progress or that the college was able to demonstrate that it did and he did not accept that the letter of 8 June 2012 constituted confirmation of such. Indeed, a close reading of the letter, which is written in rather vague terms, would suggest that that was a view he was perfectly entitled to take."

  39. AH is aggrieved by the decision of the Upper Tribunal. Accordingly he appeals to the Court of Appeal.
  40. Part 3. The appeals to the Court of Appeal

  41. The appeals of HP and AH were heard together on 14th November 2013. They raise common issues concerning the correct interpretation of paragraph 120B of Appendix A to the Immigration Rules. They also raise a number of additional issues which are specific to the case of one or other appellant.
  42. Mr Zane Malik, leading Mr Darryl Balroop, appeared for both appellants. Mr Robert Palmer appeared for the Secretary of State in both appeals.
  43. Most helpfully, counsel dealt first with the construction of paragraph 120B of Appendix A. They then addressed the issues in the individual appeals. I shall adopt the same approach. I will therefore begin by dealing with the issues of construction.
  44. Part 4. The construction of paragraph 120B of Appendix A to the Immigration Rules

  45. Mr Malik, for the appellants, submits that the issue of a CAS to an existing student necessarily means that there has been compliance with paragraph 120B of Appendix A. In other words, by the mere issue of a CAS the college is confirming that the course to be pursued constitutes academic progress. Therefore the CAS does not need to say this expressly. In the alternative, if an express confirmation to that effect is needed, it does not have to be contained in the CAS. It can be included in a later letter. Furthermore any such confirmation is a confirmation of that which is presumed to be the case.
  46. Mr Malik's second submission is that the assessment of whether a course constitutes academic progress is a matter which has been delegated to the various colleges. The Secretary of State cannot go behind the decision of an authorised college on this issue.
  47. Mr Palmer, for the Secretary of State, submits that the issue of a CAS does not imply compliance with paragraph 120B of Appendix A. If the student is to secure the requisite 30 points, the college must also expressly state that the proposed course constitutes academic progress.
  48. Initially Mr Palmer contended that the express confirmation of academic progress must be contained in the CAS. When pressed by the court, however, he accepted that the college's confirmation could be contained in a separate document.
  49. Mr Palmer accepted that the question whether a particular course constitutes academic progress is a matter for the college, rather than the Secretary of State. Nevertheless the course as described by the college must be capable of constituting academic progress. If the course as described does not appear to amount to academic progress, the college must provide some justification for its assertion that it does.
  50. In addressing these various submissions, I must first consider the nature of the Immigration Rules. These are statements of the rules of practice which the Secretary of State and her officials follow in dealing with immigration issues. They are laid before Parliament pursuant to section 3 (2) of the 1971 Act. Thus they have Parliament's tacit approval, but they are not a statutory instrument.
  51. In relation to the correct approach to construing the Immigration Rules, both counsel took the court to the Supreme Court's decision in Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48. In that case the claimants were seeking to join family members settled in this country. An issue arose concerning the interpretation of rules setting out the means of support which such persons must possess.
  52. Lord Brown gave the leading judgment, with which all other members of the court agreed. At paragraph 10, after referring to earlier authorities, Lord Brown stated that the Immigration Rules should not be construed with the strictness appropriate for a statute or a statutory instrument. Instead they should be construed "sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy".
  53. Later in the same paragraph Lord Brown said that the court could not take IDIs into account as an aid to the construction of the rules. I of course accept that proposition. There is, however, a qualification which should be noted.
  54. If there is ambiguity in Immigration Rules and the Secretary of State publicly declares that he/she will adopt the more lenient interpretation, then tribunals and courts may hold the Secretary of State to that assurance. This is exemplified by the Court of Appeal's decision in Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773; [2011] 1 WLR 564. The relevant rule in that case provided that leave to enter would be refused where the applicant had made "false" representations. The relevant minister said in Parliament that "false" in this context meant not merely incorrect, but deliberately false. There were other public statements by Government officials to similar effect. The Court of Appeal construed the rule in accordance with those assurances. Rix LJ gave the leading judgment, with which Longmore and Jacob LJJ agreed. At paragraph 70 Rix LJ said that in a situation of genuine ambiguity, it was legitimate to derive assistance from the executive's formally published guidance, including IDI's.
  55. I respectfully agree with paragraph 70 of Rix LJ's judgment in Adedoyin. I would, however, add this comment. I do not think it is possible for the Secretary of State to rely upon extraneous material in order to persuade a court or tribunal to construe the rules more harshly or to resolve an ambiguity in the Government's favour. The Secretary of State holds all the cards. The Secretary of State drafts the Immigration Rules; the Secretary of State issues IDIs and guidance statements; the Secretary of State authorises the public statements made by his/her officials. The Secretary of State cannot toughen up the rules otherwise than by making formal amendments and laying them before Parliament. That follows from the Supreme Court's reasoning in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33; [2012] 1 WLR 2208.
  56. With the benefit of this guidance from the authorities, I now return to the construction of paragraph 120B of Appendix A to the Immigration Rules.
  57. The phrase "academic progress" is a vague one. If the new course is at a higher level than the previous course, then generally that constitutes academic progress. There can, however, be situations in which another course at the same level, or even rarely at a lower level, may constitute academic progress. This is recognised in paragraphs 374 and 375 of the guidance statement which UKBA issued to colleges in September 2011.
  58. Whether a particular course constitutes academic progress is not a hard edged question. It involves comparing the new course with the student's previous academic achievements and then making a value judgment. There is a degree of subjectivity which is inescapable. Paragraph 120B of Appendix A makes it clear that it is for the college, not the Secretary of State, to carry out the assessment. It is unsurprising that colleges are trusted to make this particular decision. The colleges have the requisite expertise. Also they have been approved by the Secretary of State to act as sponsors under the PBS. If any college steps out of line, its authorisation will be withdrawn. See R (New London College Ltd) v Secretary of State for the Home Department [2013] UKSC 51; [2013] 1 WLR 2358 and R (WGGS) v Secretary of State for the Home Department [2013] EWCA Civ 177.
  59. In the ordinary way the Secretary of State cannot go behind the college's assessment of academic progress. The Secretary of State must accept that assessment and then go on to decide the various matters which lie within her own domain. I say "in the ordinary way" because different considerations might arise if, for example, there were fraud, or if the college made an assessment which was plainly inappropriate on the face of the documents. It would be better to leave further consideration of such situations to a case in which they arise.
  60. I now come to the question whether the college is required expressly to state that the proposed course constitutes academic progress or whether the mere issue of a CAS constitutes an assertion to that effect. The language of paragraph 120B of Appendix A suggests that the CAS and the confirmation of academic progress are two separate matters. Paragraphs 116 and 117 of Appendix A set out the requirements which must be met to ensure that the CAS and its reference number are valid. The separate requirement set out in paragraph 120B presupposes that the CAS is valid. I therefore conclude that paragraph 120B requires a separate confirmation that the proposed course constitutes academic progress.
  61. At this point it is necessary to refer to the guidance statement which UKBA published in July 2011 for the assistance of foreign students coming to the UK. Paragraph 63 of that guidance provides:
  62. "If a Tier 4 (General) student has a CAS that was assigned on or after 4 July 2011, and he/she has previously had permission to stay as a Tier 4 (General) Student (or under the student rules that were in force before 31 March 2009), a Tier 4 Sponsor can only give the him/her a CAS for a new course if that new course represents academic progress from his/her previous study … "

  63. This paragraph informs the student that if a college issues a CAS it has concluded that the proposed course constitutes academic progress. The college sends the CAS electronically direct to UKBA. The student is simply told the CAS reference number. From this the student is entitled to infer (a) that the college has sent the CAS to UKBA and (b) that the college is satisfied that the course constitutes academic progress.
  64. Against that background the mere issue of a CAS creates a presumption or expectation that the stated course constitutes academic progress. What paragraph 120B of Appendix A requires is confirmation of that which is presumed or expected to be the case. I reach this conclusion for three reasons:
  65. i) Paragraph 120B uses the word "confirmed", rather than "stated".

    ii) There is no point in issuing a CAS to an existing student, unless the college considers that the stated course represents academic progress.

    iii) Paragraph 63 of the Secretary of State's guidance statement issued to students states that a college can only issue a CAS for an existing student if the new course represents academic progress.

  66. It is no doubt convenient for the college to include the confirmation of academic progress in the CAS, but this is not obligatory. There is nothing in the language of paragraph 120B which requires all matters to be dealt with in a single document. The CAS is an electronic document which, at the material time, did not contain a separate box for dealing with the issue of academic progress.
  67. Mr Palmer points out that paragraph 377 of the guidance statement issued to colleges requires the question of academic progress to be dealt with in the CAS. That, however, does not assist. The Secretary of State cannot rely upon such a guidance document to insert additional requirements into the rules.
  68. From the analysis set out above, I draw the following conclusions:
  69. i) Paragraph 120B of Appendix A to the Immigration Rules requires a college issuing a CAS for an existing student to confirm that the stated course constitutes academic progress.

    ii) That confirmation may be included either in the CAS or in a separate document.

    iii) When determining whether the words used constitute such confirmation, it must be borne in mind that the mere issue of the CAS creates a presumption or expectation that the proposed course represents academic progress.

    iv) Whether a course constitutes academic progress is a matter for the college, not the Secretary of State. The Secretary of State must accept the college's decision unless it is vitiated by fraud or for some other reason (see paragraph 47 above).

  70. Having reached these conclusions, I must now address the two individual appeals which are before the court.
  71. Part 5. HP's appeal

  72. The issue in HP's case is a short one. It turns upon the words used by St Stephen's College in the CAS, which I have quoted in Part 2 above. The issue is whether those words constituted confirmation that the IT course for which HP had been accepted represented academic progress.
  73. In my view that passage did constitute such confirmation. It begins with the words in capitals "ACADEMIC PROGRESSION". In other words the college regarded the IT course as academic progress. The college uses the word "progression" as a synonym for "progress". There then follows an explanation as to why the IT course represented academic progress. The reason why the new course at NVQ level 5 was academic progress from the previous course at NVQ level 7 was, in effect, explained by the fact that the student needed skills in a different field in order to complement his original qualification and to obtain future employment.
  74. The Secretary of State in her refusal letter, the First-tier Tribunal and the Upper Tribunal all fell into the same error. They all considered the evidence and formed their own view as to whether the IT course constituted academic progress. The question whether the IT course was academic progress was a question for St Stephen's College, not the Secretary of State. On appeal the First-tier Tribunal and the Upper Tribunal should not have interfered with the college's decision, when the college had plainly addressed its mind to the question of academic progress and formed a reasonable view on the subject.
  75. In these circumstances, I see no basis to invalidate the college's confirmation of academic progress. As the Secretary of State acknowledges in paragraph 375 of her guidance statement to colleges, a course at a lower level can on occasions constitute academic progress. This, in the college's view, is such a case. The IT course would enhance the business skills which HP had gained in his earlier studies.
  76. In the result, therefore, HP satisfied the requirements of paragraph 120B of Appendix A. Accordingly he scored 30 points under paragraph 245ZX (c) of the Immigration Rules. If my Lords agree, HP's appeal will be allowed.
  77. Part 6. AH's appeal

  78. The central issue in AH's appeal is the correct construction of the letter sent by Cranford College on 8th June 2012 to UKBA. I have set out the text of that letter in Part 2 above. The Upper Tribunal's interpretation of that letter is set out in paragraph 14 of the Upper Tribunal's decision and in paragraph 28 of this judgment.
  79. I do not agree with the Upper Tribunal's interpretation of that letter. The letter in conjunction with the earlier CAS sets out AH's course of study at Charles Edward College. Then come the key words:
  80. "Cranford College assessed the progression of the student on the basis of the letter he presented from his previous college. Thus the college assigned him a CAS…"

  81. This passage is not a masterpiece of clarity. On the other hand it conveys that Cranford College has assessed AH's academic progress and decided that it is appropriate to issue a CAS. Bearing in mind the presumption or expectation which already exists, I regard this letter as amounting to confirmation that (in the college's view) the course in strategic management and leadership constitutes academic progress.
  82. The fact that the two courses are at the same level does not prevent the second course being regarded as academic progress: see paragraph 374 of the guidance statement issued by UKBA to colleges.
  83. In paragraph 14 of its decision the Upper Tribunal went on to say that if the Secretary of State had contacted the college, she would not have been told that the course in strategic management and leadership constituted academic progress. I do not agree. If the Secretary of State had made such inquiries, it is clear that she would have received the opposite answer.
  84. It therefore follows that the Upper Tribunal's decision cannot stand.
  85. Mr Palmer submits that this court should not allow AH's appeal, because his grounds of appeal are focused upon the construction of paragraph 120B of Appendix A.
  86. I do not accept this submission. The correct construction of paragraph 120B is the central issue in both appeals. The appellants have had substantial, though not total, success on those construction issues. Once the correct construction has been established (as set out in Part 4 above) what remains is to apply that construction to the facts of both appeals.
  87. In AH's case it follows from my analysis that there is an analogy with Naved v Secretary of State for the Home Department [2012] UKUT 14 (IAC) (a case which the Upper Tribunal distinguished). The CAS did not confirm that which was presumed or expected to be the case. Therefore the Secretary of State should have made further inquiry or at least notified AH of the omission. If the Secretary of State had done this, she would have received the confirmation which appears in Cranford College's letter dated 8th June 2012. Though paragraph 120B does not require the confirmation of academic progress, as I have said, to be contained in the CAS, Mr Palmer told us there is now an express question about academic progress in the online CAS form. This will presumably cut down the number of cases in which any further enquiry is required.
  88. In my view, therefore, the Upper Tribunal's decision should be reversed. If my Lords agree, AH's appeal will be allowed.
  89. Lord Justice Longmore:

  90. While I substantially agree with my Lord's judgment, I would like to express my conclusions in my own words with particular reference to the case of AH.
  91. My Lord has referred to paragraph 374, 375 and 377 of the guidance statement which the UKBA issued to colleges in September 2011, while making it clear on the authority of Mahad [2010] 1 WLR 48 and R (Alvi) [2012] 1 WLR 2208 that the Secretary of State cannot rely on her own guidance document to insert additional requirements into the rules (para 53). It is nevertheless useful to set out the relevant terms of that guidance (issued in September 2011) which is headed "Academic Progression":-
  92. "371. Since 4 July 2011, if you assign a CAS to a student to take another course in the UK after they finish one, it must be academic progression from the previous course. This applies whether the student is applying from overseas or in the UK.
    372. You do not need to show academic progression if this will be the student's first course of study in the UK or you are assigning a CAS for a student to complete an existing course. For example, the student may be completing a course with you that they started with another Tier 4 sponsor.
    373. To show academic progression the student's new course should normally be above the level of the previous course for which we gave them permission to stay in the UK as a student. For example, if a student's previous course was at QCF or NQF6 (and equivalents) we expect their next course to be at least at level QCF or NQF7.
    374. However, academic progression may involve further study at the same level. In these cases, you must confirm that the new course complements the previous course. For example, a student may be moving from a taught masters degree to an MBA or research-based masters degree, or taking a course to develop a deeper specialisation in a particular field.
    375. Sometime the further study may be at a lower level but we expect these cases to be rare. We may not question your confirmation of progression, but we will closely monitor the situation.
    376. If the student is taking a further course in the UK you must confirm that this is academic progression in the "evidence provided" box on the CAS. When the course is at the same level or a lower level you must justify this as progression. When we visit you, we may also ask you to show why it is academic progression and how you assessed it.
    377. If you do not confirm the student's academic progression on the CAS we will refuse the student's application. We will take action against you if:
  93. If one then reads the UKBA's refusal letter of 4th April 2012 addressed to AH, one sees the correct statement in Section A of the letter that Cranford College has failed to confirm that the course, for which the CAS had been assigned, "represents academic progress from your previous study". In Section B of the letter the UKBA set out the terms of paragraph 120B of the Immigration Rules and then says this:-
  94. "Paragraphs 282 and 283 of the July 2011 Tier 4 Sponsor Policy Guidance state:
    282. If the student is undertaking a second or subsequent course of study in the UK then you must vouch that this represents academic progression. You must include a statement confirming the student's academic progression in the "evidence provided" box on the CAS.
    Where academic progression involves study at either the same level or at a lower level then you must provide justification as to why the course move represents progression.
    283. If you do not confirm the student's academic progression of the CAS then the student's application for entry clearance or leave to remain will be refused. If you are unable to evidence how you have assessed the student's academic progression or we have concerns about how you have assessed this then we will suspend or revoke your licence. We may also ask for evidence of why you believe this represents academic progression and how you have assessed this during compliance visits.
    Your sponsor, Cranford College, has not confirmed on your Confirmation of Acceptance for Studies that the course for which the Confirmation of Acceptance for Studies has been assigned represents academic progress from previous study undertaken during the last period of leave as a Student, therefore no points can be awarded for attributes."
  95. What the UKBA is here doing is referring in terms to the guidance issued to sponsoring colleges, not to the guidance issued to students. (It is not clear why the UKBA in April 2012 is referring to guidance of July 2011 when they later issued the September guidance which is the document before us but paragraph 282 and 283 as quoted correspond broadly to paragraphs 376 and 377 of the later guidance set out above). The important point however, is that the UKBA should not have been referring to that guidance (addressed to the colleges) at all, let alone have been asserting that the confirmation of academic progress had to be stated in the CAS itself, since that is (as my Lord has said) to insert an additional requirement which is not in the Rules themselves.
  96. This error is a sufficient ground on its own for AH's appeal to be allowed and for the matter to be remitted to the Secretary of State for further consideration.
  97. The aspect of AH's case which I find troubling is this: if the UKBA had confined itself merely to the correct statement that Cranford College had not confirmed AH's academic progress, is there anything AH could have done about it? What, in fact, happened was that Cranford College wrote the letter of 8th June 2012 as set out in para 26 of my Lord's judgment. Mr Palmer for the Secretary of State submitted that AH could not rely on it directly as "new evidence" since section 85A(4) of the Nationality, Immigration and Asylum Act prohibits reliance on evidence not submitted in support of and at the time of making his application to remain as a Tier 4 (General) student. AH's advisers may well have recognised that because before the Tribunals they only relied on it in a roundabout way by saying that the Secretary of State had a policy, recorded in issue 7 of the UKBA News update of May 2011, of seeking clarification before outright refusal if a particular document or statement was missing from an application. Had the UKBA done this, it would then (they argued) have received the letter of 8th June 2012 which would (or should) have convinced them of AH's academic progress.
  98. In this excessively legalistic way, the question then became whether that letter is a statement or confirmation of academic progress. Neither the First Tier Tribunal nor the Upper Tribunal thought that it was; all it records is that AH is to undertake a further course of study at the same level as before. For my part, I might tend to agree with both Tribunals about that. There must be something to be said for the view that, if a student undertakes a course at the same level there has to be some explanation of how it constitutes academic progress. We know from paragraph 374 of the Guidance to the College that it can constitute such progress. To the extent that this is guidance in AH's favour he can no doubt rely on it but a bald statement without explanation might be thought to be insufficient.
  99. All this shows that there is considerable tension between the fact (of which we were informed by counsel and recorded in para 50 of my Lord's judgment) that the student does not see the CAS at all but is merely told the CAS number (which then enables the UKBA to access the CAS filled in electronically by the college) and the fact that the confirmation of academic progress might be inadequately or wrongly expressed. That tension is all the more acute if the student is to be told (as AH is now told on this appeal) that he cannot submit explanatory or correcting material from the college to confirm that the course he wishes to take constitutes academic progress. As my lord says the student is entitled to infer that the college has sent the CAS to the UKBA and that the college is satisfied that the course constitutes academic progress.
  100. This leads me to the conclusion that Mr Malik's submission, that the issuing of the CAS constitutes the confirmation of academic progress required by paragraph 120B of Appendix A of the Immigration Rules, is correct. Paragraph 375 of the Guidance to the Sponsoring Colleges supports this conclusion because it says in terms:-
  101. "We may not question your confirmation of progression."

    Paragraphs 376 and 377 then warn the college that the UKBA will visit it, ask relevant questions and take action if they find that the college has falsely stated that there is academic progression when there is not.

  102. It follows that I agree with my Lord's conclusions, save to the limited extent that he says in paragraphs 47 and 54(iv) (by reference) that there could be argument "if the college made an assessment which was plainly inappropriate on the face of the documents". That might open a considerable door. As I have said both Tribunals in the case of AH thought it was plain that the letter of 8th June 2012 did not constitute academic progress. It certainly does not explain how a post graduate degree in Strategic Management and Leadership at level 7 constituted academic progress from a similar degree at the same level in Business Management in circumstances where it might be thought an explanation was called for. But these arguments are, on the proper construction of Appendix A of the Rules and of the separate guidance issued to students and sponsoring colleges, intended to take place as between the UKBA and the colleges not between the UKBA and the student.
  103. For these reasons I would also allow these appeals.
  104. Lord Justice Vos:

  105. I agree that both these appeals should be allowed for the reasons given by Jackson LJ. Subject to two caveats, I also agree with the judgment of Longmore LJ, which I have had the opportunity to consider in draft.
  106. The first caveat relates to the effect of the letter from Cranford College to UKBA dated 8th June 2012. In my judgment, the issue of the CAS creates a presumption that the college has addressed its mind to the question of academic progression and has concluded that the proposed course represents the necessary academic progress. In these circumstances, I regard the letter dated 8th June 2012 as simply confirming what was to be expected, namely that "Cranford College [had] assessed the progression of the student" and that "the college [had] assigned him a CAS…". As Longmore and Jackson LJJ have both made clear, the college cannot issue a CAS unless it has concluded that the new course represents academic progress from the student's previous study.
  107. The second caveat relates to the question of the circumstances in which it might be possible for the Secretary of State, in her dealings with the student, to go behind the college's assessment of academic progress. In common with Jackson LJ, I think there may be circumstances in which the Secretary of State might challenge the validity of the confirmation of academic progress under Rule 120B, but that it would be better to leave a consideration of what those circumstances might be to a case in which such a challenge is made. Suffice it to say for the purposes of these cases that I entirely agree that any argument as to whether or not a particular course does or does not represent academic progress is intended, under the Appendix A of the Rules and the guidance documents, to take place only between the college and the Secretary of State. The student is not intended to be involved, and is entitled to assume that the issue of the CAS has the effect that the college has considered academic progress, and has or will confirm academic progress.


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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/1568.html