Pokhriyal v The Secretary of State for the Home Department

Factual and Procedural Background

This judgment concerns appeals by two foreign students, referred to as HP and AH, whose leave to remain in the UK as Tier 4 (General) students under the Points Based System ("PBS") expired. Both appellants challenged the Secretary of State's decisions, upheld by the First-tier Tribunal and the Upper Tribunal, that their proposed further courses did not constitute "academic progress" from their previous studies as required by paragraph 120B of Appendix A to the Immigration Rules.

HP, an Indian national, initially studied postgraduate diploma courses at various colleges before applying to undertake a diploma in IT at St Stephen's College. His application for an extension of leave was refused on the basis that the IT course did not represent academic progress.

AH, a Pakistani national, initially studied a postgraduate diploma in business management at Charles Edward College, which later lost its license. He then sought to study a postgraduate diploma in strategic management and leadership at Cranford College. The Secretary of State refused AH's extension application on the ground that Cranford College had not confirmed that the new course represented academic progress.

Both appellants appealed unsuccessfully to the First-tier and Upper Tribunals and subsequently appealed to the Court of Appeal. The appeals were heard together, focusing on the correct interpretation of paragraph 120B of Appendix A to the Immigration Rules and related issues.

Legal Issues Presented

1. What is the correct construction of paragraph 120B of Appendix A to the Immigration Rules concerning the requirement for "academic progress" for Tier 4 (General) students seeking extensions?
2. Whether the issue of a Confirmation of Acceptance for Studies (CAS) by a college to an existing student constitutes confirmation that the proposed course represents academic progress, or whether a separate explicit confirmation is required.
3. Whether the Secretary of State can go behind a college's assessment of academic progress.
4. Whether the specific CAS and supporting documents submitted by HP and AH constituted the required confirmation of academic progress under the rules.

Arguments of the Parties

Appellants' Arguments

• The mere issue of a CAS to an existing student necessarily implies compliance with paragraph 120B, meaning the college confirms the course represents academic progress, even if not expressly stated in the CAS.
• If express confirmation is needed, it need not be contained within the CAS but may be provided in a later document, which confirms what is presumed.
• The assessment of academic progress is delegated to the colleges, and the Secretary of State should not challenge a college's decision.

Secretary of State's Arguments

• The issue of a CAS does not imply compliance with paragraph 120B; the college must expressly state that the course constitutes academic progress.
• The express confirmation of academic progress must be contained in the CAS or at least in a separate document.
• While the college decides whether a course constitutes academic progress, the Secretary of State may require justification if the course does not appear to amount to academic progress.
• The Secretary of State relied on guidance documents to assert that confirmation must be stated in the CAS itself.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by considering the nature of the Immigration Rules as administrative policy statements laid before Parliament, to be construed sensibly and according to their natural meaning, rather than with the strictness applicable to statutes. It rejected reliance on Immigration Directorate's Instructions (IDIs) or guidance documents as aids to construction unless there is ambiguity and a public assurance favoring a lenient interpretation.

Paragraph 120B of Appendix A requires that for an existing student to obtain points for a CAS assigned on or after 4 July 2011, the sponsor (college) must confirm that the proposed course represents academic progress from previous study. The court interpreted "confirmation" as a separate requirement from the validity of the CAS itself, thus requiring an explicit or implicit confirmation of academic progress.

The court noted that the assessment of academic progress is a subjective value judgment entrusted to the approved colleges, which have the expertise and are authorized sponsors. The Secretary of State must accept the colleges' decisions unless there is fraud or a plainly inappropriate assessment.

The mere issue of a CAS creates a presumption or expectation that the course represents academic progress. Confirmation may be included in the CAS or in a separate document, but the Rules do not require all matters to be contained in a single document.

Applying this to HP's case, the court found that the wording in St Stephen's College's CAS amounted to confirmation that the IT course constituted academic progress, even though it was at a lower NVQ level. The Secretary of State and tribunals erred by substituting their own judgment for that of the college.

Regarding AH's case, the court disagreed with the Upper Tribunal's interpretation that Cranford College's letter did not constitute confirmation. The letter, together with the CAS, conveyed that the college had assessed and confirmed academic progress, despite the courses being at the same level. The court held that the Secretary of State should have made further inquiries or notified AH of the absence of confirmation before refusing the application.

The court emphasized that the Secretary of State cannot insert additional requirements beyond those in the Immigration Rules by relying on guidance documents. The tension arising from students not seeing the CAS and the potential inadequacy of confirmation is a matter to be addressed between UKBA and colleges, not by penalizing students.

The court thus allowed both appeals, finding that the Secretary of State's decisions were flawed due to misinterpretation of paragraph 120B and failure to properly apply the presumption created by the issue of the CAS.

Holding and Implications

The Court of Appeal allowed both appeals.

The court held that paragraph 120B of Appendix A to the Immigration Rules requires a college issuing a CAS to confirm that the proposed course constitutes academic progress. This confirmation may be included in the CAS or in a separate document. The mere issue of a CAS creates a presumption that the course represents academic progress, and the Secretary of State must accept the college's assessment unless there is evidence of fraud or manifest error.

In HP's case, the college's CAS wording constituted valid confirmation of academic progress, and the Secretary of State erred by substituting her own judgment.

In AH's case, the Secretary of State erred by refusing the application without making further inquiry or notification regarding the absence of confirmation, and the letter from Cranford College was sufficient confirmation.

The decision clarifies the respective roles of colleges and the Secretary of State in assessing academic progress under the Immigration Rules and limits the Secretary of State's ability to impose additional requirements beyond those formally laid before Parliament. No new precedent beyond the interpretation of paragraph 120B was set, but the ruling directly affects the appellants by allowing their appeals and remitting AH's case for further consideration.