Friday, December 06, 2013

"Academic progress" a matter for the academy not the Home Secretary?

The Court of Appeal published an important decision on universities' border control obligations yesterday, Pokhriyal v The Secretary of State for the Home Department [2013] EWCA Civ 1568 (05 December 2013)

Academics and university administrators really should read Lord Justice Jackson's conclusions on the appeals of two foreign students whose leave to remain in the UK has expired.

The bottom line is that the Court decided that despite the Byzantine immigration rules universities are now obliged to incorporate into our operational processes, "academic progress" is a matter for the academic institution not the Home Secretary or her officials acting in her stead (see paragraph 58). The good judge firstly outlines the facts of the case.
  1. These are appeals by two foreign students whose leave to remain in this country has expired. They challenge the Secretary of State's decisions, upheld by the First-tier Tribunal and the Upper Tribunal, that their proposed further courses do not constitute academic progress from their previous studies.

  2. The first appellant is Himanshu  Pokhriyal  ("HP"). The second appellant is Amjad Hussain ("AH"). Although there is no order for anonymity, it is easier to refer to both appellants by their initials.

  3. Both appellants came to the UK as Tier 4 (general) students under the Points Based System ("PBS"). The rules governing the PBS are set out in the Immigration Rules and the appendices to those rules. These provisions have now achieved a degree of complexity which even the Byzantine Emperors would have envied."
Jackson LJ then goes on to outline some of the immigration rules before considering each student in turn. Let's focus on HP's case ("CAS", incidentally is the Confirmation of Acceptance for Studies form a college or university fills out on behalf of the student and submits electronically to the UK Border Agency):
  1. HP is an Indian national, born in 1986 and now aged 27. HP came to the UK for the purpose of studying in September 2008. He was granted leave to enter as a Tier 4 (general) student under the PBS. He was subsequently given leave to remain in that capacity until 4th January 2012.

  2. Initially HP studied for a postgraduate diploma at the London School of Business Management. HP subsequently transferred to other colleges, where he studied business administration and business management. These courses were classified as NVQ level 7.

  3. In late 2011 HP decided that he needed to obtain a qualification in IT, in order to improve his career prospects. He applied for and secured a place at St Stephen's College to study for a diploma in IT. This was a two and a half year course, classified as NVQ level 5.

  4. HP applied to the Secretary of State for an extension of his leave to remain in the UK, so that he could undertake the IT course. In support of that application St Stephen's College issued a CAS, which it sent to UKBA.

  5. In the box on the CAS marked "evidence provided" the college described the previous courses which HP had undertaken. The college then added this:
  6. "ACADEMIC PROGRESSION: Student has studied a PGD for general academic purposes but as he wants to go into the IT industry, a qualification in IT combined with the PGD would offer him better opportunities. Student wishes to follow a career in IT in India and in particular with the Tata Group. He believes that his previous studies in the UK combined with an IT qualification would provide him with additional opportunities in following his chosen career path."
  7. By a letter dated 9th February 2012 the Secretary of State refused HP's application on the ground that HP's new course did not constitute "academic progress" within the meaning of paragraph 120B of Appendix A to the Immigration Rules. Accordingly HP failed to achieve the required 30 points under paragraph 245ZX (c) of the Immigration Rules.

  8. HP appealed unsuccessfully against that decision first to the First-tier Tribunal, then to the Upper Tribunal. He now appeals to the Court of Appeal."
In paragraphs 33 to 55 Lord Justice Jackson outlines the Court's interpretation of the pertinent immigration rules and then concludes on HP:
  1. The issue in HP's case is a short one. It turns upon the words used by St Stephen's College in the CAS, which I have quoted in Part 2 above. The issue is whether those words constituted confirmation that the IT course for which HP had been accepted represented academic progress.

  2. In my view that passage did constitute such confirmation. It begins with the words in capitals "ACADEMIC PROGRESSION". In other words the college regarded the IT course as academic progress. The college uses the word "progression" as a synonym for "progress". There then follows an explanation as to why the IT course represented academic progress. The reason why the new course at NVQ level 5 was academic progress from the previous course at NVQ level 7 was, in effect, explained by the fact that the student needed skills in a different field in order to complement his original qualification and to obtain future employment.

  3. The Secretary of State in her refusal letter, the First-tier Tribunal and the Upper Tribunal all fell into the same error. They all considered the evidence and formed their own view as to whether the IT course constituted academic progress. The question whether the IT course was academic progress was a question for St Stephen's College, not the Secretary of State. On appeal the First-tier Tribunal and the Upper Tribunal should not have interfered with the college's decision, when the college had plainly addressed its mind to the question of academic progress and formed a reasonable view on the subject.

  4. In these circumstances, I see no basis to invalidate the college's confirmation of academic progress. As the Secretary of State acknowledges in paragraph 375 of her guidance statement to colleges, a course at a lower level can on occasions constitute academic progress. This, in the college's view, is such a case. The IT course would enhance the business skills which HP had gained in his earlier studies.

  5. In the result, therefore, HP satisfied the requirements of paragraph 120B of Appendix A. Accordingly he scored 30 points under paragraph 245ZX (c) of the Immigration Rules. If my Lords agree, HP's appeal will be allowed."
Shorthand - the college not the Home Office gets to decide what constitutes "academic progress". That's important for the higher education sector to be aware of in times of widespread fear mongering around immigration.

Longmore LJ and Vos LJ agreed with Lord Justice Jackson's opinion but for different reasons.

Lord Justice Vos says in the cases of the two students considered the conclusions could be clear. However he felt it is allowable for the Secretary of State to -
"challenge the validity of the confirmation of academic progress... but that it would be better to leave a consideration of what those circumstances might be to a case in which such a challenge is made...
Suffice it to say for the purposes of these cases that I entirely agree that any argument as to whether or not a particular course does or does not represent academic progress is intended, under the Appendix A of the Rules and the guidance documents, to take place only between the college and the Secretary of State. The student is not intended to be involved"
Lord Justice Longmore's concurrence focuses on procedural errors on the part of the UK Border Agency in turning down the other student (AH's) application to stay. He also raises an interesting concern that since the student has no part in the CAS process how can they appeal if there are errors on the part of the college or the UKBA?

Expect more of these cases given the government's obsession with being seen to crack down on immigration and Vos LJ's concurrence which may be interpreted as an invitation to the Home Secretary.

Just one final general point in relation universities getting dragged into the immigration vetting business - when I signed up to the Open University nearly two decades ago it was for education duty not border control duty. 

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