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Khatel overturned


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In the case of Secretary of State for the Home Department v Raju & Ors [2013] EWCA Civ 754 the Court of Appeal has overturned the Upper tribunal’s earlier judgment in Khatel and others (s85A; effect of continuing application) [2013] UKUT 44 (IAC). The outcome is a further setback to victims of the stone-hearted Points Based System. However, it arguably only applies in quite narrow circumstances, and the new Evidential Flexibility policy may offer some relief in some circumstances if properly applied by Home Office officials or, if necessary, on appeal.

Essentially the tribunal had held in Khatel that Post Study Work applicants who had not formally been issued with their relevant graduate qualification at the date they applied to the Home Office had until the time of the Home Office decision to submit the formal qualification certificate.

Before going further, let us take a moment to consider fairness rather than legality. Many institutions take many months to do this even after notification of the results and in the meantime a visa may well run out. Further, it is a rather rich for the Home Office to be so insistent on the timing of anything when it is routine for an applicant then to wait many months for a decision.

But fairness counts for little in love and law. The Court of Appeal held that the applicants did not meet the requirements of the rules at the time they applied and the relevant date for meeting the requirements was, because of the wording of the particular rules, the date of application. The applicants did not meet the requirements at the date of application because their qualifications had not been awarded.

However, this is not a ruling that states that applications are always closed at the date the application is submitted. The normal rule remains that an application is open and can be varied up until the date of decision: JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78. The Court of Appeal’s ruling does not mean that documents cannot be submitted late under the Points Based System. As long as they are submitted before the Home Office decide on the application and the documents go to show the situation at the date of application, they should be considered. Indeed, this is the whole premise of the evidential flexibility policy.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


0 Responses

  1. It is acknowledged by the world that UK Constitution, rules and laws are based on traditions and customs but this trend is dying rapidly. Nation’s representatives are following strict rules and patterns whilst in this practice, they often become so callous that they forget the basic soul or intention behind these laws.
    One principle is obvious, contrary to create the problems; laws are always made for the welfare of people. Recently, one reason or other, emphasis is on the body and ignoring the soul. The activity of changing the rules, especially in immigration, is as swift as difficult to digest them properly. I would like to express recent and burning matter of foreign students POST STUDY WORK visa. There was a scheme for foreign students that those who completed their graduation in UK, they would be entitle to attain two years visa, so that they can get practical experience according to their field of study. This scheme was announced to abolish in 2012 and the last date to apply was being fixed April 5, 2012. The notice was given a year before its abolishment while graduation period, in maximum fields of studies, consist upon 2-3years. Therefore, it seems unfair in favour of those students who came in this country after getting attraction that they would get good practice here after acquiring specific education.
    A large number of students applied for this category after getting the required degrees but their applications were refused on merely a technical ground that award date, which totally discretion of university, is later than application date. So is it the students’ fault that why award date is not earlier than application date?
    The rule is described as
    “The applicant made the application for entry clearance or leave to remain as a Tier 1 (Post-Study Work) migrant within 12 months of obtaining the eligible award”
    What is the purpose or stress on the phrase “within 12 month”? According to my understanding, the core objective is to bring the fresh students into practical field so that they can be beneficent to the UK economy and community. So those who applied for that category while university awarded degree few days later are fresher than those who got award date earlier.
    It is assumed that authorities are focusing merely on body and ignoring the soul inside. They are not sensing the intention behind this rule.
    Another teasing fact, a lot of students got the visa on the same ground while others are refused. It is unfair and unequal and against the natural justice. An example is before me, two class-fellow applied, one got visa after doing LLM and he is about to be a barrister while other got refusal and still suffering to get practical experience.
    Sufferings are immense, I have met two students whose parents died during this hang around and they could not go even for funerals. This suffering cannot be recovered Hundreds of students are still waiting the positive step taken by relevant authorities. They will be proven fruitful for the British Economy and Community. . I humbly request to the people and authorities to handle this issue in favour of students as they are the last batch in this category. UK is always considered the protector of law and welfare of humanity.
    Ali Irfan Malik
    M.A (English Literature, Political Science, History)
    LLM-International Business and Commercial Law