The very recent reported case of Khatel and others (s85A; effect of continuing application) Nepal [2013] UKUT 44 (IAC) consolidates the on going issues in relation to Points Based System Tier 1 Post Study Work applications: the date of the award and whether or not the Tribunal can consider evidence submitted after the application was submitted but before a decision was made by the UK Border Agency by virtue of section 85A of the Nationality, Immigration and Asylum Act 2002 (as amended).

Following the case of AQ (Pakistan) v SSHD [2011] EWCA Civ 833, where the SSHD accepted that the relevant date for the assessment of evidence adduced in an application is the date of decision and not the date of application, many of us have been arguing that:

1. The date of the award is the date when the applicant is notified in writing that the qualification has been awarded and not the date of the qualification itself;
2. If an applicant provides evidence of (i) to the SSHD, either at the time of the application or prior to the date of decision, then this evidence should indeed be considered by the SSHD and  can be considered by the Tribunal on appeal;
3. Further or alternatively, the evidential flexibility policy may apply, shifting the burden onto the SSHD to contact an applicant depending on what evidence was adduced/missing with /from the application.

Those who have been involved in cases of this kind will be familiar with the sheer frustration of the “interplay” between AQ and also the Upper Tribunal case of Ali (section 120-PBS) Pakistan [2012] UKUT 368 (IAC).

The official headnote of Khatel and others states:

(1)  An application for further leave to remain is to be treated as a continuing application, starting with the date when it was first submitted and ending on the date when it is decided: AQ (Pakistan) v SSHD [2011] EWCA Civ 833.

(2)  It follows that an appellant is not precluded by section 85(5) of the Nationality, Immigration and Asylum Act 2002 (as amended) from relying in an appeal upon evidence that was notified to the Secretary of State before the date of her decision.

(3)  Where, in an application for leave as a Post-Study Work Migrant, the obtaining of the academic award needed to gain the requisite points is notified to the Secretary of State after the date when the application was first submitted but before a decision is made on the application, the requirement of Table 10, that the qualification is obtained within 12 months of making the application, is satisfied because the application is a continuing one until a decision upon it has been made.”

Khatel and others also confirms that the date of the award is the date when an applicant is notified in writing that the qualification has been awarded (see paragraph 40). Furthermore, at paragraph 56 it is stated that:

In our judgment, there is no public policy in favour of a more restrictive approach.  After all the Secretary of State did evaluate the material subsequently provided in the application and did award points to each of these claimants on the basis that they “had been awarded” the qualification. It would be inconsistent to then dispute that the qualification that had been awarded had not been awarded within the period of 12 months of the application.

This case is good news. However, I can think of at least one case that I have been involved in where the FTT and UT have refused permission to appeal on this issue alone.  This may mean good grounds for a late, out of time application for judicial review or at the very least further representations.