Immigration and Asylum Chamber Appeal Number: IA/21517/2012
THE IMMIGRATION ACTS
Heard at Field House
On 22 April and 6 June 2013
On 7 June 2013
Upper Tribunal Judge Kekić
Mr Waleed Ahsan
Secretary of State for the Home Department
Determination and Reasons
For the Appellant: Mr A R Babar and Mr A A Gondal, Legal Representatives
For the Respondent: Mr T Wilding and Mrs M Tanner, Senior Home Office Presenting Officers
Details of appellant and basis of claim
1. This appeal comes before me following the grant of permission on 20 February 2013 by Upper Tribunal Judge Chalkley in respect of the determination of First-tier Tribunal Judge G Jones who dismissed the appeal following a hearing at Hatton Cross on 23 November 2012 by way of a determination promulgated on 9 January 2013.
2. The appellant is a Pakistani national born on 31 December 1985. He seeks to remain as a post study work visa holder having arrived here as a student on 26 December 2010 with leave to enter until 24 May 2012. The application was refused on 24 September 2012 (not 13 July 2012 as stated in the determination) because the appellant had not shown that he had been awarded a degree within the 12 month period preceding the application. Alternatively, the judge found that if he were to look at the facts as at the date of the application, the appeal would still fail as although the degree had been awarded by then, the category for which the appellant had sought leave has ceased to exist.
3. The appeal was dismissed by the judge who found that the degree was awarded on 6 July 2012 and so had not been awarded in the 12 month period preceding the application. Article 8 was also relied on but the judge found there was no evidence before him as to the nature of any family or private life the appellant had here. He found that even if the appellant had made friends and had established a private life in the two years he had been in the UK, removal was a proportionate interference given that the appellant had completed the course he had entered the UK to undertake.
4. Permission was granted on the basis that “if the respondent was aware, before taking her decision on 13 July 2012 that the appellant had been awarded his masters degree, then the respondent’s decision may disclose an error of law – Khatel (s.85A: effect of continuing application)  UKUT 00044 (IAC)”. The decision from the Upper Tribunal made it plain that the court would require clear, unequivocal evidence to show that the Secretary of State was put on notice that the degree had been awarded before she made her decision.
5. On 17 April 2013 the Tribunal received a small bundle of further documents from the appellant’s representatives. This included evidence that notification of the award had been sent to the Secretary of State before the date of the decision.
6. At the commencement of the hearing, Mr Wilding sought an adjournment on the basis that the Secretary of State’s challenge to Khatel in the Court of Appeal was going to be heard in June and that this appeal should be stayed until that time when the law would be settled. He submitted there was a dispute between the Secretary of State and the Upper Tribunal on the issue and that costs would be saved by staying appeals on this point rather than the proceedings when the law was unsettled. He also argued that paragraph 34G of the Immigration Rules had not been considered in Khatel and that rule clearly established that the date a postal application, as in this case, was made was the date it was posted. He further submitted that AQ  EWCA Civ 833 had dealt with a case where there was no fixed time line whereas this case had a fixed time line.
7. Mr Babar objected to the adjournment.
8. Having considered the application for an adjournment and the submissions eloquently made by Mr Wilding I considered that an adjournment was not justified. Although I have some sympathy with the arguments made on behalf of the respondent, I am required to apply the law as it stands and currently Khatel is good law until, and if, it is set aside. I appreciate the arguments on costs but the appellant has also incurred costs in pursuing his appeal which he may not have had to do had the adjournment application been made prior to the hearing itself. The Tribunal’s time would also have been wasted had an adjournment been granted. The issue of staying appeal hearings pending resolution by a higher court raises many difficulties. For example, acquiescence to such requests would no doubt encourage parties to frequently seek adjournments when various issues were awaiting resolution. It would also mean that whenever a decision was under challenge nobody would be entitled to rely on it until a higher court had made its decision but of course that decision might itself be subject to further challenge. For these reasons, therefore, I refused the adjournment application.
9. I then proceeded to hear legal arguments on whether the judge made an error of law. For the appellant Mr Babar referred me to the directions contained within Upper Tribunal Judge Chalkley’s decision and submitted that documentary evidence had been adduced to establish that the appellant had been awarded a qualification and that the Secretary of State had been notified of same prior to the date of the decision.
10. In response Mr Wilding argued that there had been no error of law and the appellant’s representative had not pointed to any in his submissions. He questioned the necessity of the directions in the grant of permission given that the respondent’s appeals bundle had contained a copy of the award from the University (at D1). He submitted that as far as the Secretary of State was concerned, the award had come too late. He submitted that the letter from the London School of Marketing trading as LS Business School of 2 April 2012 which had been submitted with the application was insufficient evidence of the award as the School was not the awarding body and so had no entitlement to issue such a letter. The judge had taken the award into account but found it did not assist the appellant as it should have been awarded within 12 months of the making of the application. Mr Wilding submitted that the Tribunal had failed to consider paragraph 34G of the rules when reaching its conclusions in Khatel; that clarified the argument about when the application was made. The time line was further clarified by Table 10. AQ did not apply to this type of application. Moreover, if the Secretary of State was required to consider the appellant’s fresh evidence then that amounted to a variation application which could not succeed because by that stage the Post Study Work route had been abolished. Additionally, if the date for consideration was the date of the decision, then maintenance would have to be assessed as at that date. No evidence of funds at that time had been adduced and so the application would have to fail. The judge had considered the variation point in his determination (at paragraph 22); the Tribunal had not considered it in Khatel. The appellant’s representative had to identify an error in the determination and he had failed to do so.
11. Mr Babar replied. He said that the appellant’s college was a highly trusted sponsor and so was entitled to issue the letter it did. Khatel set out the law as it stands and should be applied. As long as the Secretary of State was notified of the award before the date of the decision, the application had to succeed. Although Mr Babar sought to argue that the First-tier Tribunal Judge had failed to consider the guidance, he conceded that this had not been placed before the judge. He also argued that the judge had erred in that he had not followed a consistent approach in decision making by the Tribunal but then conceded that no evidence of other similar cases had been adduced. With regard to Mr Wilding’s submissions on maintenance, he argued that if the Secretary of State had considered the funds to be insufficient, a request for additional information should have been made to the appellant or the appellant should have been put on notice of this deficiency in the refusal notice.
12. At the conclusion of the hearing I reserved my determination. However in the process of writing up my reasons, it came to my attention that the Secretary of State had maintained that the appellant made his application on 9 April 2012. There being no evidence on file as to the date the application had been posted, I issued directions on 22 April requiring evidence of postage. This was subsequently received on 10 May along with notification that the appellant had changed representatives.
13. At the resumed hearing on 6 June the appellant was represented by Mr Gondal. He relied upon the evidence submitted and neither he nor Ms Tanner had anything further to add. I reserved my determination which I now give.
Findings and Conclusions
14. I have carefully considered all the submissions and the evidence before arriving at my conclusions.
15. The judge was not helped by the fact that the only documentary evidence before him, other than the respondent’s appeals bundle, consisted of a witness statement (paragraph 6). He was not provided with a copy of the guidance or with evidence of decision making in identical cases and Mr Babar’s criticism of him for not taking that evidence into account is baseless given that it was never placed before him. I note from the Record of Proceedings that submissions were brief and the thrust of the appellant’s case was that the date of the decision was the relevant date for consideration of the facts.
16. I have considered the argument made by Mr Wilding that if the date of the decision is to be taken as the decisive date, then the application would fail as the PSW category no longer existed at that time. However there is a difference between considering the facts and considering the law. According to the transitional provisions, applications made and undecided by 5 April 2012 would be considered in accordance with the rules in force as at that date. This does not mean, however, that if documentary evidence submitted thereafter or facts in existence after that time are taken into account, the position regarding the rules changes.
17. It has been clarified, by evidence served in compliance with my directions, that the appellant posted his application to the Secretary of State on 5 April 2012. It follows that the date of making the application (as per paragraph 34G of the Immigration Rules) was 5 April and that it was subject to the rules on PSW which only subsequently ceased to exist (on 6 April 2012).
18. Following Khatel, I find that the First-tier Tribunal Judge erred in finding that he could not consider the award from Anglia Ruskin University even though it was submitted to the Secretary of State before she decided the application. As an application is to be treated as on going until the date of the decision, the appellant had established that he met the requirements of the rules and had adduced evidence of his degree certificate before the period for consideration of the application came to an end.
19. The First-tier Tribunal made an error of law. The appeal is allowed on immigration grounds.
Dr R Kekić
Judge of the Upper Tribunal
6 June 2013.