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Post Study Work and s.85A: applications continue until decided


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points-mean-prizesThe 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.

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Picture of Sanaz Saifolahi

Sanaz Saifolahi

Sanaz Saifolahi is a barrister at Goldsmith Chambers. She is well regarded for her thorough case preparation, effective advocacy and personable nature. Sanaz is also an assessor for the Law Society ‘Immigration Law Advanced’ Accreditation Scheme.


14 Responses

  1. This is great news. I spotted it yesterday. I already have JR grounds in on a refusal to grant permission to appeal to the UT on precisely this point with a caveat that I might be amending grounds pending the outcome of this test case. We all knew Ali had to be wrong on the s.85A point – fortunately Nick Blake J agreed with us! :o)

  2. It looks as if this might be clarified just in time for the PBS to be kicked into touch.
    Today, the PBS appears to have been derailed, hit the buffers and had a coach and horses driven though it.
    From HC943 “….the applicant genuinely intends….” All that box ticking, specified documentation, calculating points is for nought if the ECO is not satisfied that the applicant genuinely intends….
    No doubt this will be the blog post of its own but with my sides splitting with laughter and my spleen venting through the freshly made holes, I felt a need to comment.

  3. does anyone know what happened to this case. has the applicatant been issued a psw visa. any progress?….

  4. wasimraza …. as you said that ukba lodged an appeal against kha tell and others so can you please let us know is that an official update or not any other update plz . thanks

    1. Yes it is official, HO appealed in the court of appeal on february 8,2013 and got the permission from mr.blake although the last date to lodge appeal was february 1,2013. But they got the permission that’s the main point.

      How they got the permission after the last date of appeal passed 7 days ago, i did not understand?

  5. heya everyone.
    I guess its getting too much for the last 12 months or so. I would suggest that all students who have been suffering from the same HO rejection on the date of award, should gather at one place and do a peaceful protest with banners. there are I guess more then 3000 students suffering from this thing. so if all can get together, the authorities will definately take notice of that.

  6. I totally agree with aamir lets hit the roads to tell them how much destruction they have caused i have been planning to go back but couldnt get my pasport back.they r making us pay hell of money to fight this case for no reason lets make a move

    1. Ali@ before hitting the road Join. Psw appeal cases on fb. Martin@ thankyou for that fb link.everyone should Join that. Thanks. a2yousaf(at)yahoo.com

    2. Yes you are right man they are doin it on purpose first they offer us concession and make us pay thousands of pounds as a fee money then they pass some stupid rules and make us pay even more lets gather together in front of Supreme Court and protest lets decide a date.

  7. if they dont challenge the ones who’ve already won in upper tribunal within 14 days that means they’ll get the visa?