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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kaur v The Secretary of State for the Home Department  EWCA Civ 13 (20 January 2015)
Cite as:  Imm AR 526,  EWCA Civ 13
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ON APPEAL FROM
The Upper Tribunal (Immigration and Asylum Chamber)
Upper Tribunal Judge Rintoul
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BURNETT
SIR TIMOTHY LLOYD
| Sukhjeet Kaur
|- and -
|The Secretary of State for the Home Department
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Mathew Gullick (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 3 December 2014
Written submissions 6 and 9 December 2014
Crown Copyright ©
Lord Justice Burnett:
i) The approach of UTIAC (and the FTT) to the meaning of Paragraph 120A was inconsistent with Pokhriyal, which should be understood to have decided (a) whether a course represents academic progress is a matter for the academic institution concerned and not the Secretary of State; (b) the Secretary of State is obliged to accept the assessment of the academic institution absent fraud; (c) there is no requirement for the CAS to justify the conclusion on academic progress; and (d) the mere issuing of a CAS raises a presumption that the proposed course does represent academic progress. The CAS provided the necessary confirmation.
ii) Even if the Secretary of State did not have to accept the CAS as confirming academic progress, she was obliged to make further inquiries of the academic institution before refusing the application on the basis of Naved v Secretary of State for the Home Department  UKUT 14 (IAC), which was applied by analogy in Pokhriyal.
(a) Points will only be awarded for a valid Confirmation of Acceptance for Studies … if the sponsor has confirmed that the course for which the Confirmation of Acceptance of Studies has been assigned represents academic progress from previous study as defined in (b) below undertaken during the last period of leave as a Tier 4 (General) Student or as a Student, where the applicant has had such leave 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.
(b) For the course to represent academic progress from previous study, the course must:
(i) be above the level of the previous course for which the applicant was granted leave as a Tier 4 (General) Student or as a Student, or
(ii) involve further study at the same level, which the Tier 4 Sponsor confirms as complementing the previous course for which the applicant was granted leave as a Tier 4 (General) Student or as a Student."
The words I have italicised are those that were introduced by the Statement of Changes in Immigration Rules laid before Parliament in July 2012 (Cmd 8423) and applicable with effect from 20 July. The two exceptions in Paragraph 120(A)(a) are not in play in this case.
"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. Sometimes 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:
you cannot show how you assessed the progression, or we are concerned about how you assessed it; or
we find, after you have assigned a CAS stating that there is academic progression, that there is no academic progression."
"In effect, the appellant's case will be remitted to the respondent for further consideration. It will now be up to the appellant to ensure as best she can that all the material she wishes to rely upon, in order to demonstrate that she meets the relevant requirements of the immigration rules, is provided to the respondent."
"Miss Sukhjeet Kaur is making academic progress and is currently studying the Diploma in Business Management Level 6 course. Miss Sukhjeet Kaur current course is an accredited Ofqual qualification and will achieve a recognised qualification and will be able to APL (Accredit Prior Learning) to the next academic level in Diploma in Business Management Level 7"
I have noted that the CAS was assigned 8 February 2012 which was the date on which the course started. The CAS was assigned before the Rules were amended in July 2012, but the decision under appeal came after the rule change.
"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 must be included either in the CAS or in a separate document.
iii) When determining whether the words used constitute such a 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)."
He had earlier considered the question whether the issue of the CAS was itself confirmation of academic progress and concluded at paragraph  that
"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."
Longmore LJ went further than Jackson LJ in that he accepted the submission on behalf of the appellants that the issue of the CAS itself confirms academic progress (paragraph ). Vos LJ agreed with both Jackson LJ and Longmore LJ but entered two caveats relating to the judgment of Longmore LJ (paragraph ). The first related to this aspect. He accepted that the "issue of a CAS creates a presumption that the academic institution has addressed its mind to the question of academic progression and has concluded that the proposed course represents the necessary academic progress." He agreed that the letter of 8 June 2012 confirmed academic progress in AH's case.
The First Question
The Second Question
Sir Timothy Lloyd
Lord Justice Pitchford