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First reported PBS appeal decision
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The determination concerns the award of a qualification for the purposes of Tier 1: Post Study Work rather than the bigger issue of the silly maintenance requirements. Senior Immigration Judge Spencer finds that a person has not been awarded a qualification until they have received the qualification certificate.
My own view, for what it is worth, is that this is a daft outcome. What neither the Home Office nor many immigration judges seem to understand is that the world does not revolve around their other worldly evidential requirements. Banks are not willing to issue the letters the Home Office requires for maintenance to be proved. Educational institutions do not understand the fine legal distinctions and technical wording that disqualified this appellant.
I have to add that I won a first instance appeal on exactly this point a few weeks ago, where the immigration judge accepted that a results letter and a letter confirming successful completion of the course was sufficient. However, it looks like the guidance might have changed yet again on this issue since then, and of course the old guidance is now unobtainable.
Paragraph 6 of the determination is interesting, in that the tribunal seems to have entertained the possibility that had the certificate been obtained by the date of the appeal hearing that might have changed things. Immigration judges are divided on the question of whether, if an appellant meets the requirements at the date of the appeal but not when the application was made to the Home Office, the appeal can be allowed. There is no consistency at all and outcomes are quite random, making it impossible properly to advise clients on the prospects of success. However, this was not a senior AIT panel, the point isn’t decided anyway and too much should not be read into this as a precedent.
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18 responses
The PBS is unbelievably restrictive and eradicates any room for the Home Office caseworker to excercise their common sense and discretion. No doubt this box ticking excercise will further reduce morale at the UKBA leading to a high turnover of staff and crappy decision making. Is anyone at UKBA listening?! Show your workers trust and give them responsibility! Let everyone benefit! Ho hum.
In the interim, whilst waiting for this miracle to happen in contending with the date of decision/ date of hearing debate I have always proceeded on the premise that the Tribunal may consider evidence to prove that documents the appellant had submitted to the respondent are genuine or valid. Circuitous, I know, but has worked so far…
<blockquote cite="My own view, for what it is worth, is that this is a daft outcome. What neither the Home Office nor many immigration judges seem to understand is that the world does not revolve around their other worldly evidential requirements."
Come on. Do you really think the immigration rules are actually there to facilitate students staying here after their studies?
The whole raft of PBS rules are no more than a knee-jerk reaction led by Daily Mail headlines combined with Phil Woolas’s desperate attempts to jump on the anti-immigration band-wagon to try and stave off the BNP in his home territory.
Cynique? Moi? :o)
FM and for anyone else interested.
Put in simple terms, if you went and sat for a Postgrad. Diploma and completed the course there are a number of hoops that usually take a number of months:
1) Your work gets marked by a tutor you get a ‘provisional’ mark with feedback.
2) The grade of your work/final outcome of award is not official until it is ratified by an examination board. You should note that most universities provide a ratification (paperwork) signed by the examination board for the work.
3) Certificates are issued by an exam/graduation office on the basis that: a student has completed an award and they have no outstanding debt. Certificates are not really revealing in terms of progress, whereas an examination board letter is a running commentary on your progress.
The decision leaves something to be desired…….
Oh FM, well you would say that wouldn’t you, I think (for what its worth) SIJ Spencer has come up with a very sensible decision, no doubt you will say its another example of the AIT conspiring with the Home Office in pursuing a big brother like non liberal agenda, and much wiser law emanates from the House of Lords and Court of Appeal, including “Immigration Lawyers” favourite, Sedley, LJ, etc etc etc.
The real story here is Pat Monro actually brining herself to dismiss ANY case, astounding !!
PO
P.S. point taken on this not being the final word on PBS from the courts.
PO,
Perhaps it would be more sensible for the HO and Universities to work out a way to transmit much quicker confirmed results. Like i’ve said below, the certificate doesn’t really tell you much.
Extend the logic of this case and you’ll have people needing to leave in between getting University results and waiting for certificates……or maybe, this is the whole idea, I guess someone could be away long enough to prevent them getting ILR on the basis of long residence.
DP,
Pah ! Oh come on, an un-realistic argument, to plagerise an FM submission.
Not to worry, with the new Home Secretary all decisions will be First Class (Sorry I’ve been dying to say that).
What about FM advertising his chambers on the web though ey ! See the deeply fascinating (NO COMMENTS) last post . . . . . . is he struggling to get work and put food on the table in Wandsworth ??
Post your sort code and account number FM, I’ve got some spare change on me somewhere . . . . .
PO
The internet brings out the worst in some people. Your comment is intentionally unpleasant and personal. You appear bitter. As a public manifestation of the Home Office you do your colleagues a disservice by your association with them.
Here, here.
PO, it always helps to highlight the weakness in other’s argument by providing an alternative point of view.
I absolutely agree with all of you, with the unsurprising exception of PO. The problem with this and other aspects of the PBS is that it substitutes examination of the substance of the situation with a box ticking exercise based on false assumptions about the documents issued by institutions other than the Home Office. In substance, what is the difference between a person with a letter saying that the qualification will be awarded and a person with a letter that says the certificate will be awarded? They are clearly in exactly the same position in the real world, but in Home Office Land one succeeds and the other fails simply because the university or college words the letter slightly differently, something not readily in the control of the student.
Two phrases spring to mind.
1. The HO appear to be “contriving to frustrate” students.
2. FM, your comment on PO is “Firm, but fair”.
I am disappointed with PO’s approach and comments. Whilst I have been critical of FM in the past for appearing one sided, he has never intentionally or personally attacked POs and has on a number of occasions praised us as being about the best thing in the Agency. Whilst also providing this very useful and insightful blog. PO please stop, you are undoing all the good work some of your colleagues are putting into improving relations between POs, Applicants, barristers and other immigration professionals and only fuelling the poor reputation the agency has.
These requirements re actually obtaining the qualification are ridiculous, as is the lack of any review procedure. I have a little more sympathy with the maintenance rules as they are easy to satisfy (lodge £800 in account 3mths before applying and don’t touch it) whether they are there to serve a good purpose or not is another matter. But my final word on this is PO please STOP posting. If all you want to do is try to start a fight, this is not the blog for that!
The most amazing thing about this whole PBS debacle, is that even if you realize you have made a mistake, you are told not to send anything to back up your application unless the case Worker expresses that you do so….Guess what? They never do. It is apalling that even when you know you sent statements missing a page for example, there is nothing you can do. Even if one of the hare-brained operators of the UKBA helpline tell you to send information, there is no guarantee that it will be considered. So what is the point? In my minds eye, I see the UKBA as a cubicle-hell, with bonuses awarded for the number of refusals. The only area of efficiency – is processing application fees. Why, I sent an application and the money was swiped from my account the same day! But 6 weeks for the refusal, and a further unlimited number of weeks for the appeal process – what a shambles.
Homecoming, I understand your frustration and it is wrong that there is no review and that you have to go to the time and expense of an unecessary appeal. However ; try to take a little comfort int hte follwoing: 1) the appeal will usually in this type of case be quick and painless and 2) Bonuses??? that’s the funniest thing I’ve heard all day! This is the UKBA we are talking about, we get paid the same whether we refuse, grant, take 1 day or 1yr to process an application and most certainly aren’t causing you and fellow applicant’s distress for financial incentives I can assure you!
Thank you for your reply. It is good to know that some people within the UKBA can see the faults in the system. Regarding the bonuses “theory” let’s just say you have dispelled another urban legend about the UKBA! ;-)
FM,
I was wondering if you could give your opinion on this unreported determination. It goes into detail about the date of application versus date of hearing debate, and I must say – it is not a favourable outcome.
http://www.ait.gov.uk/Public/Unreported/IA203132008.doc
Well, it certainly isn’t helpful. It’s a fairly senior panel of the AIT and may well end up being reported and therefore become effectively binding until there is a successful appeal on the same point.
While I am no fan of many of the arbitrary requirements of PBS, I really can’t see the fuss about this determination. The Policy Guide is quite clear (and in my view, sensible) that a student cannot apply until they have been awarded a degree, and at the time of application the student in question had not been awarded a degree.
It seems that the student had managed to persuade an academic (who probably didn’t know any better) to write a letter stating that in all probability they fully expected the student to be awarded a degree, which is clearly not the same thing as being awarded a degree.
At the university where I work we have been rapping knuckles left right and centre where academics have (with good intentions) written such letters.
No university will officially confirm that a student has been awarded a qualification until an exam board has sat. There are all sorts of considerations that will be taken into account at an exam board (e.g. academic offenses) that the academic who wrote the letter may not be aware of.
Students will have been granted four months of additional time at the end of their studies in which to receive their results. The problem arrises where students take longer to complete their courses (e.g. take re-sits), but do not then apply for a further grant of leave as a student since they still have four months left. Students who choose to not extend their student leave will obviously run the risk of not being awarded a degree within whatever leave they have remaining.