Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21402/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 17th April 2013
On 3rd May 2013

Before

UPPER TRIBUNAL JUDGE D E TAYLOR

Between

Sumair Jahangir
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr C Yeo, Counsel, instructed by 786 Law Associates
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. This is the Appellant’s appeal against the decision of First-tier Judge Bennett made following a hearing at Taylor House on 14th December 2012.

Background
2. The Appellant is a citizen of Pakistan born on 19th April 1986. He arrived in the UK on 21st August 2009 with entry clearance entitling him to enter as a Tier 4 General Student valid until 30th June 2012.
3. On 2nd April 2012 the Appellant applied for further leave to remain as a Tier 1 (Post-Study Work) Migrant but was refused on the grounds that he did not meet the requirements of paragraph 245FD of the Immigration Rules because he did not qualify for the relevant points in respect of the date of obtaining the eligible award. The award in this case was a Master’s degree in Business Administration from the Liverpool John Moores University. The award date was 11th April 2012, some nine days after the application.
4. In a comprehensive determination the judge reviewed the relevant case law and said that he would follow the case of Ali (Section 120 – PBS) [2012] UKUT 00368. On that basis he concluded that the Appellant could not meet the requirements of the Rules since he had not obtained his award on 2nd April 2012, the date on which he made his application. He therefore did not make the application within twelve months of obtaining the relevant qualification and did not qualify for the relevant points.
5. The Appellant sought permission to appeal in equally full grounds and relied on the judgment in Khatel and Others (Section 85A effect of continuing application) Nepal [2013] UKUT 44 where it was held that an application for further leave to remain is to be treated as a continuing application, starting with the date when it was first submitted and ending on the date when it is decided. An Appellant is therefore not precluded by Section 85(5) of the Nationality, Immigration and Asylum Act 2002 as amended from relying in an appeal upon evidence that was notified to the Secretary of State before the date of her decision. Where, in an application for leave as a Post-Study Work Migrant, the obtaining of the academic award needed to gain the requisite points is notified to the Secretary of State after the date when the application was first submitted but before a decision is made on the application the requirement of Table 10, the qualification is obtained within twelve months of making the application is satisfied, because the application is a continuing one until a decision upon it has been made.
6. Permission to appeal was granted by Designated Judge Bowen on 12th March 2013 for the reasons stated in the grounds.
Submissions
7. Mr Yeo submitted that the decision in Khatel was determinative of this appeal. This is not an issue where there can be multiple correct interpretations of the statutory position. The Immigration Judge took a different position from the Tribunal in Khatel which ought to be followed as a more authoritative statement of what the interpretation of the statute should be.
8. Mr Bramble relied on his Reply which states that the Respondent has been granted permission to appeal to the Court of Appeal in Khatel . The case had been set down for a date in mid-June and there was therefore a realistic timeframe for the resolution of this matter which he accepted was absolutely on all fours with the decision in Khatel. He submitted that the decision is not declaratory law and it cannot be an error for the judge not to have considered the case when it was promulgated after his decision. The judge had considered the competing case law carefully and appropriately and reached a decision open to him to follow the case of Ali. The decision should stand, or alternatively, the case should be adjourned to wait behind the final resolution of Khatel.
9. By way of reply, Mr Yeo said that in effect Mr Bramble was submitting that Khatel was wrongly decided but it was a reported decision of the Tribunal which ought to carry considerable weight. He said that his client was paying privately for the appeal and certainly did not want his case to be adjourned.
Findings and Conclusions
10. Khatel is a reported decision of the President of the Upper Tribunal, a statement of the law as it should have been applied by the Judge and had it been before him there is no doubt that he would have followed it. I proceed on the assumption that Khatel is rightly decided unless the Court of Appeal finds otherwise, and on that basis, I treat the application as a continuing one until a decision has been made and therefore the Appellant can meet the relevant requirements of the Immigration Rules.
Decision
11. The judge erred in law and his decision is set aside. The following decision is substituted. The Appellant’s appeal against the Respondent’s decision to refuse his application for further leave to remain is allowed.

Signed Date

Upper Tribunal Judge Taylor