Tribunal decisions

The decision

IAC-AH-DN-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28550/2015

THE IMMIGRATION ACTS

Heard at the Royal Courts of Justice
Decision & Reasons Promulgated
On 12 January 2017
On 3 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

md abdul kader
(ANONYMITY DIRECTION not made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr S Karim, Counsel
For the Respondent: Mr P Duffy, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal (Judge S J Walker) dismissing his appeal against the respondent's decision made on 3 August 2015 refusing to vary his leave to remain as a Tier 2 (General) Migrant and to remove him by way of directions.

Background

2. The appellant is a citizen of Bangladesh born on 5 August 1978. He first entered the UK on 25 January 2010 with leave to enter as a Tier 4 (General) Student. He was granted further extensions until 31 May 2014. On 29 May 2014 he applied for leave to remain as a Tier 2 (General) Migrant. His application was refused on 3 August 2015 and this is the decision under appeal.

The Respondent's Decision

3. The requirements for leave to remain as a Tier 2 (General) Migrant are set out in para 245HD of HC 395. It was accepted that the appellant met the first requirement as he had been previously granted one of the specified types of entry clearance, leave to remain as a Tier 4 Migrant (para 245HD(b)(ii)(1)). The appellant then had to meet the requirements in para 245HD(d). The respondent found that he could save for the requirements of (d)(v) ("sub para (v)") which reads as follows:

"(v) If the institution studied at is removed from the Tier 4 Register, the applicant's qualification must not have been obtained on or after the date of removal from the Sponsor Register."

4. It was the respondent's view that the appellant was studying at the London School of Marketing ("LSM") for a Master of Business Administration degree ("MBA") to be awarded by the Anglia Ruskin University ("ARU"). LSM was removed from the Tier 4 Sponsor Register on 5 September 2014. However, the appellant had completed his degree course and was awarded his MBA by ARU on 24 April 2015. The respondent found that the appellant could not therefore meet the requirements of sub-para (v) as the degree had been awarded after the date of the removal of LSM from the Sponsor Register. However, it was argued on behalf of the appellant before the First-tier Tribunal that LSM was an associate college of ARU, delivered its courses validated by ARU and the appellant was enrolled with and was provided with a student number by ARU. In these circumstances, the institution at which he studied, so it was argued, was not LSM but ARU and as ARU had not had its sponsorship removed, the appellant could therefore rely on his degree certificate.

The Findings of the First-tier Tribunal

5. The judge was satisfied that LSM's sponsorship had been revoked on 5 September 2014 and that the appellant was awarded an MBA on 24 April 2015 by ARU. The appellant's qualification was therefore obtained after LSM's sponsorship licence was revoked and so if he was studying at LSM, he failed to meet the requirement of sub para (v). The judge noted that the appellant's CAS was issued by LSM on 28 May 2014 and that it made no mention of ARU. He accepted that the appellant was involved with ARU in that he had a student identity number with them, access to their research facilities and LSM was an associate college of ARU. However, he was not satisfied that the appellant was in fact studying at ARU, finding that it was clear that the course itself was provided by LSM and it was that factor which was crucial. It was the judge's view that the institution studied at was the institution which provided the teaching and in the appellant's case this was LSM.

6. The judge summarised his findings as follows:

"27. This conclusion is, in my judgment, consistent with the wording of the Rules. It is significant that paragraph 245HD(d) does not refer to the awarding body of a qualifying degree. If it were intended to make the awarding body the key factor the Rules could have done so and could probably have been expressed much more simply. The relevant provision could simply have said the applicant must have a valid degree awarded by a UK recognised or listed body. As [the Presenting Officer] correctly observed, the Rules instead focus on the process of obtaining the relevant qualification. This suggests that the emphasis is on the study not the qualification.

28. This emphasis is made more obvious when other provisions in the Rules are considered. First there is the definition of a degree. As set out above, the definition in the Rules of a UK bachelor's degree includes the following "a programme of study or research which leads to the award, by or on behalf of the university, college or other body". Thus, a degree is a course of study not merely an award. Although there is no corresponding definition for a master's degree in my view the principles must be the same. Also, the Rules clearly contemplate a course of study at one institution resulting in an award made by another institution. I note from paragraph 120-SD of Appendix A as set out above that there is no requirement for the Tier 4 sponsor to provide the award which is being studied for but rather the award can be made by a long list of other bodies. Given this clear distinction elsewhere in the Rules between study and award, and given the choice to refer to the place at which the student studied in paragraph 245HD(d), in my judgment it is clear that it is the process of study with which this Rule is concerned."

7. For these reasons the appeal was dismissed.

The Grounds and Submissions

8. In the grounds it is argued firstly that the judge erred in his interpretation of para 245HD(d)(v) by concluding that the reference to the "institution studied" was to the physical college or place where the studies took place but in fact it could only be a reference to the institution awarding the degree otherwise sub-para (vii) became unworkable. The grounds further argue that there was evidence before the judge that the resident labour market test had been satisfied and that he erred in failing to recognise that in these circumstances there was no need for the appellant to have a degree.

9. Permission to appeal was granted on the basis that the grounds relating to the institution at which the appellant was studying needed to be explored and that it was possible that the judge may have erred in law.

10. Mr Karim submitted that the reference in sub-para (v) was not a reference to the physical place where classes were held but must be construed by reference to the institution awarding the degree. The appellant's degree had been awarded by ARU and LSM was an associate college of ARU. The judge had drawn an analogy in [26] with a pupil at school sitting an examination set by an awarding body in which the pupil registers with that body. The judge had said that any qualifications obtained were provided by the awarding body and that it was inconceivable that anybody would conclude that a school pupil sitting the exam set by an examination board was studying with that board. Mr Karim submitted that this was not a good analogy, a better one being students studying at the Open University, where even though they studied at home or at other places, the fact remained that they were studying with the Open University.

11. In respect of the second ground, Mr Karim submitted that the judge had not engaged with this aspect of the case and should have dealt with the issue of whether the resident labour market test had been satisfied. He argued that this issue should not have been linked with the argument about the college at which the appellant was studying and the judge had erred in law by failing to deal with it.

12. Mr Duffy submitted that the meaning of sub-para (v) was clear. As a matter of ordinary English interpretation, it clearly meant the institution at which an applicant studied. So far as the second ground was concerned, this issue had not been pursued before the First-tier Tribunal where it had been accepted at [19] that it was not necessary for the judge to consider whether the resident labour market test had been met.

Assessment of Whether the First-tier Tribunal Erred in Law

13. I shall deal firstly with whether the judge erred in his interpretation of sub-para (v). I am satisfied that the judge was correct to find that the institution the appellant studied at was LMS. The appellant's CAS was issued by LSM. The judge accepted from the evidence which he set out at [25] that LSM was an associate college of ARU but, as set out in the correspondence from both parties, it was clear that LSM offered a number of courses validated by ARU and was responsible for recruitment to and delivery of the course although the award was conferred by ARU. The letter from ARU of 24 June 2015 said that it was important to note that ARU did not sponsor students studying at LSM under the Tier 4 immigration route and their licences were entirely separate.

14. In the letter from LSM dated 23 June 2015 it was said that students of the academic qualifications delivered by LSM were recruited through LSM which handled the admissions, course delivery, and administrative support for the course. They were then enrolled directly with ARU by LSM and became students also of ARU subject to their regulations and procedures and given both a student ID number and card and access to ARU's VLE resource server and that whilst LSM carried out the first marking of assessments, they were moderated and in some cases second marked and closely scrutinised by ARU and the degree was awarded by ARU and not LSM. In the light of this evidence it was open to the judge to find that the course itself was provided by LSM and that the Rules focused on where the appellant was studying rather than which institution awarded the final qualification.

15. The analogy drawn by the judge in [26] with a pupil at school taking an exam with an awarding body is in my view a better analogy than that of a student at the Open University but, in any event, it is a question of fact at which institution a student is studying. I am also satisfied that the judge's finding that the appellant was studying at LSM is more consistent with a straightforward reading of the Rules than a finding that he was studying at ARU. The fact that the appellant was also registered with ARU, had a student number and access to facilities there does not detract from the fact that the course was taught at and delivered by LSM and his CAS was issued by LSM.

16. Mr Karim relied heavily on the provisions of sub para (vii) set out in full at [8] of the First-tier Tribunal decision referring to the institution awarding the degree but there is no reason why that should not be a different institution from the institution at which an applicant studies. The judge considered this issue at [30]. He accepted that evidence of the award of a degree must come from the awarding body but it did not follow that the awarding body had to be the place where the appellant studied as the requirement of sub para (vii) could be fulfilled by production of an original degree certificate as opposed to an academic transcript or academic reference, which would normally have to come from the institution teaching the course.

17. So far as the second ground is concerned I am not satisfied that it is open to the appellant to pursue this. It is clear from [19] of the judge's decision that both Mr Karim and the Presenting Officer accepted that the relevant issue was where the appellant was studying. The judge recorded both representatives accepted that the question of points under Appendix A was something of a red herring and it was not necessary for him to consider whether, in the absence of an exemption, the resident market test had been met. If the appellant met the requirements of para 245HD(d) his appeal would succeed as he would have met the non-point scoring requirement and would score 30 points under table 11A and the resident labour market exemption would apply but if he did not meet those requirements his appeal would fail, as he would not meet the non-point scoring requirements irrespective of whether he would in fact score 30 points under table 11A.

18. I also note that Mr Karim's submissions on this issue were limited to an argument that the judge had not engaged with this aspect of the case and he did not deal at all with the merits of the assertion. In any event, as I have already indicated as the issue was conceded before the First-tier Tribunal, it was not open for this point to be taken on appeal.

Decision

19. The First-tier Tribunal did not err in law and the decision stands. No anonymity direction was made by the First-tier Tribunal.

Signed H J E Latter Date: 30 January 2017

Deputy Upper Tribunal Judge Latter