Upper Tribunal
(Immigration and Asylum Chamber)
Adubiri-Gyimah and others (Post-study work – Listed institution) Ghana [2011] UKUT 00123 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House
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Determination Promulgated
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On 1 February 2011
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…………………………………
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Before
THE HON. MR JUSTICE LLOYD JONES
UPPER TRIBUNAL JUDGE BATISTE
Between
ROSEMARY
ADUBIRI-GYIMAH
DICKSON AMOAH
TRACEY SERWA-AKOTO
AMOAH
GRACE AMOAH
Appellants
and
THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr
A Ollennu, instructed by Messrs Shores Anchor
For the Respondent: Mr
J Gulvin, Presenting Officer
The
requirement imposed by the Immigration Rules, Appendix A, Table 9, paragraph
2(a) on an applicant as a Tier 1 (Post-Study Work) Migrant relates to the
status of the relevant institution at the time of study.
DETERMINATION AND REASONS
- The
appellants are all citizens of Ghana. The first appellant is the main
appellant; the second appellant is her husband; and the third and fourth
appellants are their children, both of whom are minors. They have obtained
permission to appeal against the determination of Immigration Judge
Coleman who dismissed their appeals against the decisions of the respondent
on 17 May 2010 to refuse the first appellant leave to remain as a Tier 1
(Post-Study Work) Migrant, and to refuse the other appellants leave to
remain as her dependents.
- The
material facts are not in dispute. The first appellant originally came to
the UK on 8 December 2001 with leave to enter until 31 January 2003. Her
husband also came to the UK as a student in January 2001 and he has
successfully obtained a diploma in management, banking and financial
services and an MBA in finance at Leicester University. Their two children
were born here. The first appellant’s leave as a student was extended on
three occasions to enable her to study at the Inter-Continental College for an honours degree in health and social care at the Open University. The last
extension was on 7 November 2008 when she was granted further leave to
remain as a student until 30 April 2010. On 31 December 2009 she was
awarded her B. Sc. degree from the Open University, the certificate for
which she received on 10 February 2010. On 15 April 2010, within the
period of her extant leave, she made the application which is the subject
of these appeals. She wants to stay in the UK for two years to obtain work
experience in international health and social care systems for which the UK is renowned before returning with her family to Ghana.
- The
Respondent refused her application on various grounds, all of which the
judge determined in the first appellant's favour save for one. There is a
requirement in paragraph 2 of Table 9 of Appendix A to the Immigration Rules,
which imposes the following requirement in applications such as this.
“(a) The applicant has
studied for his award at a UK institution that is UK recognised or is a listed
body, or which holds a sponsor licence under Tier 4 of the points-based
system."
- In
respect of this requirement and article 8, the judge concluded as follows.
“24…. I accept that both
the cases of Pankina [2010] EWCA Civ 719 and CDS (Brazil) [2010] UKUT 00035 (IAC) do indicate that there would be cases relating to education
and the points-based system where article 8 could be engaged.
25. Having said that
however I do not find that this is one of those cases. Both the appellant and
her husband have made it clear in their statements and evidence before me that
they do not consider themselves to be permanently settled in United Kingdom and were seeking extension of their stay simply to get work experience to further
their prospects on return to Ghana. It has therefore always been in the
contemplation of the parties that their stay in the United Kingdom was a
temporary not permanent one. Given that, they inherently accept that it is
reasonable for them to return to Ghana and to re-establish their private life
there. They both have good educational qualifications obtained in this country.
Their claim is that their career prospects would be harmed by lack of work
experience in this country is not backed up by any evidence whatsoever. They
appear to have skills that are needed worldwide. Although the children had been
here for some years it is not suggested that it was not in the contemplation of
all the parties that the children would also return with them to Ghana. They are in education but the younger one has only just started nursery level and
the older one is still only at primary school. It is not been suggested they
could not adapt to Ghana where they are nationals.
26. Although I do accept
that this decision is very inconvenient for the parties I do not find that the
inconvenience is so serious such as to engage article 8. I therefore find that
the appellants had failed to prove that any interference with their private
life by reason of this decision would be disproportionate to the lawful and
legitimate aim of the Secretary of State in maintaining immigration control…”
27. Although I have
dismissed the appeal under article 8 as I have stated above I have a great
sympathy for the appellants and I find that they are just caught in a dilemma
due to the change in the structure of the rules dealing with study and post-study
work. In light of the fact that the only reason the appellant has not succeeded
under the rules is that her college, which was accepted by the respondent as a
suitable place to study while she was there, failed to succeed in obtaining a
tier 4 registration after the appellant obtained her qualification, so as to
satisfy the rule in place at the date of application, I urge the Secretary of
State to consider exercising discretion in this matter and allowing the
appellant to remain for post-study work in the light of my other findings of
fact."
- The
appellants appealed under the rules and in respect of article 8. The chief
presenting officer replied on 7 December 2010 to the grounds of appeal,
stating that:
“The respondent does not
oppose the appellants' appeal and invites the tribunal to determine the appeal
with a fresh oral (continuance) hearing to consider whether the appellants
succeed under Tier 1 (Post-Study Work) or article 8."
- Permission
to appeal was then granted on the following material terms.
“2. The only ground upon
which the immigration judge dismissed the appeal under the Immigration Rules
was that the college at which the first appellant had studied for a degree that
was awarded by the open University was not, at the date of her application, a
UK recognised or a listed body, or one which holds a sponsor licence under Tier
4 of the points-based system..
3. It is arguable that the
judge erred, as argued in the grounds, in so finding given that at the time the
first appellant was studying at that institution it was registered and further
the Open University is recognised.
4. It is also arguable that
given the immigration judge's findings as to the genuineness of the appellant,
the length of time the family has been in the UK and the fact that the two
children have been born in the UK, her conclusions on article 8 are perverse,
especially given the judge's recommendation to the Secretary of State that she
should let the appellants stay outside the rules…."
- Directions
were then made to the effect that paragraphs 13 to 15 inclusive of the
determination (which contained the findings of fact by the judge) should
stand, whilst the judge's conclusions with regard to the rules and article
8 should be set aside.
- It
was on this basis that the appeals came before us for hearing. Mr Gulvin
indicated at the outset of the proceedings that he was content that
paragraph 16 of the determination (which contained judge’s findings in
favour of the appellants on the other issues under the rules raised by
the respondent in the reasons for refusal) should stand in addition to the
findings of fact. Moreover, he accepted that there was nothing contentious
in the written statements by the first and second appellants and
accordingly he did not wish to cross-examine either of them. We proceeded
on that basis.
- Mr
Ollennu submitted that the college must have been listed at the time of
the last grant of leave by the respondent or leave would not have been
granted. It appeared that the college had applied for a sponsor licence
under the newly introduced points based system for Tier 4 (General)
Students. However it had been refused such a licence at some point after
the appellant had completed her course. This was what the judge had stated
as a fact in paragraph 27. Thus the appellant satisfied the requirements
of the rules as the college was listed at the time she studied there.
Alternatively as her degree in health care required, as an important
component, some post degree work experience, she had a legitimate
expectation that she would be allowed a limited period to acquire these
skills. In the further alternative, even if the appellant failed under the
Rules and in terms of legitimate expectation, she should succeed under
article 8.
- Mr
Gulvin submitted that the requirement under table 9 was clear. The college
was not recognised at the time of the appellant's application. This was
the relevant time as was indicated by the use of the words in table 9 “is
a listed body”. Thus the application could not succeed under the
rules. He conceded that the college was listed at the time the appellant
was last given leave to remain. He invited us to dismiss the appeal on all
grounds. We asked him if he could provide any further information about
the transitional period for applying for a sponsor licence, the actual
application of the college for a licence, and when the college was no
longer deemed to be listed. However he said he was unable to assist us
further.
- We
also asked Mr Gulvin whether given (as it appeared from the tracking version
of the Immigration Rules) that the categories of listed and recognised
bodies were deleted on 6 April 2010, then the reference to them in table 9
should be interpreted thereafter as historic and relating back to the
period of study, notwithstanding the use of the word "is". Mr
Gulvin said that he did not know without taking instructions and could not
immediately obtain instructions. In those circumstances and in view of the
time, we rose and reserved our decision on the basis that we invited
written submissions on this point and in relation to article 8. Any such
submissions were to be sent to the tribunal within 14 days and they would
then be taken into account.
- In
the event both representatives provided further written submissions. Mr
Gulvin indicated he was instructed to maintain the refusal under the rules
and to rely upon the plain meaning of the words in paragraph 2 of table 9
as he had argued at the hearing. With regard to article 8 he accepted that
the appellants had a private life that would be adversely affected by the
respondent's decision so as to potentially engage the operation of article
8. However he maintained that the decision was proportionate in that the
private life of the family as a whole whilst deserving of respect was
outweighed by the need to maintain effective immigration control. He
relied upon paragraph 17 of CDS (Brazil) as follows.
“17. It is apparent from
these principles that article 8 does not provide a general discretion in the
immigration judge to dispense with the requirements of the Immigration Rules
merely because the way that they impact in an individual case may appear to be
unduly harsh. The present context is not respect for family life that can in
certain circumstances require admission to or extension of stay within the United Kingdom of those who do not comply with the general Immigration Rules. It is
difficult to imagine how the private life of someone with no prior nexus to the
United Kingdom would require admission outside the rules for the purpose of
study. There is no human right to come to the UK for education or other
purposes of truly voluntary migration."
- Mr
Ollennu re-asserted in his written submissions the arguments which he had
raised at the hearing. He provided some additional information on dates and
maintained it would be unjust not to allow the appeal under the Immigration
Rules. Moreover, and in the alternative, it could be argued that even
though the appellant had obtained tuition from her college, her course was
with the Open University which was a UK recognised body. With regard to
article 8, he submitted that one of the children born in the UK is coming up to her eighth birthday and has only known the UK and is presently at school here.
The main point however is that further work experience would assist the
family in establishing a better quality of family life in Ghana and it would be disproportionate not to allow them some further time to obtain this
work experience.
- Having
considered these submissions we conclude that the outcome of these appeals
depends upon whether the first appellant can satisfy the requirements of
table 9 on their true interpretation. We say this because, with regard to
article 8, we have come, on our own assessment of all the material factors
in the balancing exercise relating to proportionality, to similar
conclusions to those described by the judge in paragraphs 25 and 26 of his
determination. It has always been and continues to be the position of the
appellants that they wish to return to Ghana and do not seek to remain
indefinitely in the United Kingdom. It is implicit in this that they
accept that their return to Ghana in the not too distant future would not
involve disproportionate interference with their family lives together. We
find it follows also that, unless they can bring themselves within the Immigration
Rules, it will not be a disproportionate interference with their private
lives for the Secretary of State to refuse their applications given the
weight to be attached to her policy of maintaining a fair and consistent
immigration system. Similar considerations apply to defeat the point about
legitimate expectation. There is no legitimate expectation that having
been given leave to study in the UK the first appellant will be given
further leave to remain to gain post-study work experience other than as
provided for under the Immigration Rules. Moreover we note and accept that
there is no corroborative evidence of the assertions of the first and
second appellants that good post-study work experience of the type sought
by the appellants required cannot be obtained in Ghana.
- Thus,
as we have said, the crucial issue is whether the appellants can satisfy
the relevant requirements of the Immigration Rules on their proper
interpretation. There is no dispute as to which version of the rules
applies. It is well established that in cases such as this it is the rules
in force at the time of the appellants’ applications on 15 April 2010. The
issue is the interpretation of paragraph 2(a) of table 9 of Appendix A.
- We
consider there is inherent ambiguity in the wording of that paragraph.
This arises out of the tension created by the different tenses of the two
verbs which are used in the one sentence, ie “the applicant has studied
for his award at a UK institution that is …. a listed body.” It is
common ground between the parties that the appellant’s college does not
hold a sponsor licence and was never UK recognised (as it was defined in
the rules). It is also implicit in the terms of any application for
post-study work that the applicant must have finished any material
studies. Thus, the words “has studied” in the past tense correctly reflect
this. The ambiguity arises from the use of the present tense in reference
to whether the institution at which the applicant studied “is” a listed
body. In Mr Ollennu’s submission it means it is a listed body at the time
of the undertaking of those studies. In Mr Gulvin’s submission it means
it is a listed body at the time of the application.
- The
paragraph concerns the 20 points to be claimed for the “institution of
study”. There are separate points and provisions relating to the actual
qualifications achieved. Given the ambiguity, we have tested each of these
two interpretations to ascertain how they would work out in practice. Mr
Ollennu’s interpretation would mean that an applicant qualifies for the
points only if the institution at which he studied was a listed body at
the time of those studies. In other words, “is” relates back and is
linked to the timeframe of “has studied”. This fits well with what
we understand the underlying policy to be, in that the respondent is
concerned to ensure that the place where the studies were undertaken was a
genuine educational institution. The wording of the paragraph could have
been expressed more clearly, but this interpretation appears to chime with
both policy and common sense.
- However
if one separates the two verbs and treats each as a freestanding
condition, as Mr Gulvin’s interpretation demands, there are some rather
bizarre consequences. For example a person may have studied at an unlisted
and wholly inadequate institution but if, after the studies were
completed, the institution was improved and became listed, then the
student would be entitled to the points even though he actually studied at
an inadequate institution. Equally bizarre is the converse scenario where
a person studies and qualifies at a properly listed institution but is
denied the points retrospectively if for example the college subsequently
closes down prior to the student’s application for leave being made. That
does not reflect what we understand the underlying policy to be; nor does
it make commonsense; nor is it fair.
- Thus,
for these reasons, we conclude that the correct interpretation of
paragraph 2(a) of the Immigration Rules is that in order to qualify for
the 20 points for the institution of study, the student must have studied
at a UK institution that was at the time of study either UK recognised or
was a listed body, or which held a sponsor licence under Tier 4 of the points
based system.
- Our
conclusion is reinforced by our understanding of the chronology of the
introduction of the points-based system, as revealed by the tracking
version of the Immigration Rules. The different tiers were introduced at
different times. Tier 1 was introduced on 30 June 2008. Table 9 was
introduced as part of this as it related to Tier 1. The provisions for
Tier 4 (General) Students were introduced by HC 314 on 31 March 2009 and
table 9 was adopted into them. As part of this process, sponsor licences
replaced the previous categories of listed and recognised bodies. There
was a period of time allowed for institutions to apply for these
new sponsor licences. Then, on 6 April 2010, the definitions of
listed and recognised bodies were deleted from the Rules. In this context,
the intentions of paragraph 2(a) become clearer. From 6 April 2010,
institutions required sponsor licences. The references in the rules (as
they were at the time of the appellant’s application) to listed and
recognised bodies was intended to cover transitional cases where students
had studied with leave last granted under the previous regime, but were
applying for further leave under the points-based system. The very fact
that listed and UK recognised bodies can still qualify for the institution
of study points without having a sponsor licence suggests that a
historic perspective was intended. This reinforces our conclusion that the
proper interpretation of paragraph 2(a) is that the institution had to be
recognised or listed at the time of the period of study by the student
rather than at the time of the application.
- We
have then examined how our conclusion impacts on the appellants by merging
the material facts as established, with the above chronology.
7 November 2008 – the appellant was granted
further leave to study at the college. The points based system was then in
place for Tier 1 applicants but not for Tier 4 students. Mr Gulvin has conceded
that the college must have been listed at that time.
31 March 2009 – the provisions relating to
Tier 4 students were introduced into the rules. The appellants, having extant
leave until 30 April 2010, were not affected
September 2009 – the appellant last studied
at the college prior to taking her exams. Her offer letter from the college
dated 18 August 2008 states however that the completion date for the course is
December 2009.
October 2009 – the appellant sat her last
exam paper for the Open University degree.
31 December 2009 – the appellant was awarded
her degree. She did not then have the certificate and so could not yet apply to
the respondent for further leave. So far as the appellant was aware, the
college was still listed at the end of 2009 and had applied for a sponsor
licence, which was under consideration. This is confirmed by the judge in
paragraph 27 of the determination.
10 February 2010 – the appellant received
her degree certificate. She only then had the necessary documentation to submit
her application to the respondent for post-study work.
January to April 2010 – at some unknown
point in this period, the first appellant’s college was refused its sponsor
licence under Tier 4 and closed down.
6 April 2010 – the definitions of listed and
recognised bodies were removed from the Immigration Rules.
15 April 2010 – the appellant submitted her
application in time and when it was refused made enquiries about the college
and discovered what had happened.
- What
we derive from this chronology is that the appellants have done correctly
everything that was in their power and have been refused leave in
circumstances of which they were unaware and over which they had no
control. This illustrates the illogicality of Mr Gulvin’s suggested
interpretation of the ambiguous paragraph 2(a). We conclude that the judge
erred in law in accepting that interpretation.
- We
are able now however to cure that error by reaching our own conclusions.
The judge sustainably found in the appellants’ favour on all disputed
issues under the rules, save for whether they qualified under paragraph
2(a). For the reasons described above we have concluded that the first
appellant did study for her award at a UK institution which at the time of
her studies was listed and thus meets the requirements of the rule. Thus
the appellants’ appeals must all be allowed.
Decision
The
appeals of the four appellants are allowed.
Signed
Upper Tribunal Judge Batiste
