Sukhjeet Kaur v The Secretary of State for the Home Department [2015] EWCA Civ 13
In this case a student who had been refused further leave to remain under Tier 4 of the Points Based System as the Secretary of State had declined to take into account her Confirmation of Acceptance for Studies. Although the First-tier Tribunal and Upper Tribunal took the CAS and other evidence into account, they decided that it did not confirm that her proposed course represented “academic progress” as required by Paragraph 120A(b) of Appendix of the Immigration Rules.
In the Court of Appeal the appellant argued that: (i) The approach of the FTT and UT to academic progress was inconsistent with Pokhriyal v SSHD [2013] EWCA Civ 1568, which had held that the mere issue of a CAS created a presumption or expectation that the new course represented progress, and that such an assessment was the College to make and should be accepted by the SSHD absent fraud. (ii) even if the SSHD did not have to accept the CAS as confirmation of progress, she was obliged to make further enquiries of the College, relying on Naved v SSHD [2012] UKUT 14 (IAC).
HELD:
(i) An “expectation” rather than a “presumption” better conveyed what was decided in Pokhriyal, and by bearing in mind that assigning a CAS created an expectation that the new course constituted academic progress when considered with the old, the decision maker should construe the language used in any material from the College “benignly”.
(ii) However, though neither the FTT nor the UT had expressly approached the appellant’s case with that expectation in mind, the CAS and other evidence from the College did not confirm that the new course represented academic progress, and in particular did not state that a further course of study at Level 6 complemented the previous course at the same level.
(iii) In Naved the UT had held that fairness required the SSHD to give an applicant an opportunity to address grounds for refusal which he did not and could not know about. However, the Court had now held in Rahman v SSHD [2014] EWCA Civ 11 and EK (Ivory Coast) v SSHD [2014] EWCA Civ 1517 that there was no obligation on the SSHD to give notice to an applicant that there was a deficiency in the CAS. In any event, this point did not assist the appellant, as she was fully aware of the contents of her CAS and had had every opportunity to ensure that the necessary confirmation was provided before the appeal hearing.
The Court therefore dismissed the appeal.