Case No. UKUT-00489-(IAC)

106. To calculate the maximum amount of time that you have spent studying at a specified level, we will consider how much leave you have already received to study courses as a Tier 4 (General) migrant or a Student, and add the length of leave that you will receive if your current application is granted. … 109. We will also count any previous periods of leave you have held under Tier 4 (General) and /or the Student route, where you have subsequently left the UK. This period will be counted from the date the leave began until the date it expired. If you extend your Tier 4 / Student leave, or received an period of continuing leave in accordance with section 3c of the Immigration Act 1971, this will be included. If your leave was curtailed, we will take the date the curtailed leave expired. Applying this policy guidance, the position before the respondent was clear. The period of 3C leave was to count for the purposes of 245ZX(ha) which meant, as a matter of simple arithmetic, the application was one that could not succeed. The respondent considered representations made in the application for Administrative review founded upon R (Alvi) v SSHD [2012] UKSC 33, but said only that: “However, the policy guidance we use is published and approved by the Home Office, we do not believe this case law is relevant to your substantiate ( sic ) your claims nor do we believe that the policy guidance has been misapplied in your case.” 10. Mr Pennington-Benton, on behalf of the applicant, had set out in his skeleton argument two strands of challenge to the refusal to grant leave. The second of those was a submission founded upon “conspicuous unfairness in an individual case”. Realistically, and as had been anticipated by the judge who granted permission to bring this application for judicial review, he did not pursue that argument as a separate issue in his oral submissions, although it still informs the arguments he does pursue. He was plainly right not to do so. This applicant has suffered no unfairness, having been able to continue his studies notwithstanding the impugned decision. And, as we shall see, that was possible because the legal framework in play is designed precisely to accommodate such an outcome so that studies do not necessarily have to be put on hold while the applicant awaits a decision on an application to pursue them or to appeal against a decision to refuse his application. 11. Mr Pennington-Benton urges caution in reliance upon the facts of this particular case because, he submits, it is relatively unusual for an applicant for further leave as a student to embark upon his next course of study before his application for further leave is determined. Although he referred to judicial comment concerning difficulties encountered by students in such circumstances, no evidence was offered to support that submission and, as is pointed out by Mr Malik for the respondent, and as discussed below, that submission sits uncomfortably both with the framework in place designed specifically to accommodate that occurring and with the fact that this particular applicant was able to proceed to pursue and complete his course, even though his application for leave to do so had been refused and he remained present on leave extended by s3C while he pursued an appeal. 12. Distilled to its essence, Mr Pennington-Benton’s submission is that there is a distinction to be drawn between leave granted by the respondent to an applicant for leave to remain as a Tier 4 Migrant and leave extended by statutory effect because an applicant has made an in-time application that has not been determined or because he continues to pursue a right of appeal against an adverse decision. He argues that s3C leave arises by statutory effect and so is not leave “granted” by the respondent. 13. He submits that where a period of 3C leave is lengthy, this can have the result that a significant part of the 5-year maximum period for study at or above degree level will be taken up and this would give rise to a level of unfairness that cannot be taken to have been intended by the rule maker. He seeks also to draw a distinction between the original period of leave granted, which is that which, in his submission, para 245ZX(ha) refers to, which is the leave granted by the SSHD, and the period of leave extended by the statutory effect of s3C, which is not, he says, leave “granted by the SSHD”. He relies, in particular, upon the final statement to be found in para 245ZX(ha): “For the avoidance of doubt, the calculation of whether the applicant has exceeded the time limit will be based on what was previously granted by way of period of leave and level of course rather than (if different) periods and courses actually studied.” Although it seems clear that the purpose of this provision is simply to make clear that the focus is upon the leave granted and not whether the applicant used that period of leave to pursue studies, Mr Pennington Benton submits that the focus is upon the leave previously granted by the SSHD and not the length of any statutory extension of it. He submits that the rule-maker could have focussed on periods of actual study in the United Kingdom rather than the periods of leave granted for the purpose of study, but chose not to. He argues that the intention was a bright line rule, focussed upon periods of leave granted for study rather than periods of actual study which has the advantage of clarity and simplicity. 14. Mr Pennington-Benton submits also that the approach urged by the SSHD, that s3C leave must be included as leave granted as a Tier 4 student, leads to unfairness because, as he puts it in his skeleton argument, students may “… fall one side or the other of the 5-year rule, by dint of no more than chance occurrences resulting in them spending more or less periods of time on 3C leave (applications in some cases, but not others, being wrongly refused, differing waiting times for initial decisions…) It is difficult to understand why the rule maker would have intended for this differential and often arbitrary treatment. Much more likely that the rule-maker thought it best (most clear, coherent and outcome-consistent) to simply rely on periods of LTR actually granted…” Pointing to the observation in R (Syed) v SSHD [2011] EWCA Civ 1059 that the immigration rules “… are to be construed and applied according to their natural and ordinary meaning”, Mr Pennington-Benton submits that: “There can be little doubt that, in ordinary parlance, leave “granted” to an applicant connotes a defined period of leave specifically granted to an individual, for a defined purpose.” 15. Thus, the question of law that is to be addressed in these proceedings is that neatly summarised by Mr Malik at para 11 of his skeleton argument as being whether: “a) the Secretary of State misconstrued Paragraph 245ZX(ha) of the Immigration Rules in holding that the time spent on leave extended under section 3C of the Immigration Act 1971 (“the 1971 Act”) counts towards that the specified five years’ period; and b) the Secretary of State acted unfairly in refusing the Applicant’s application.” 16. It is accepted by the respondent that if the period of 3C leave enjoyed by the applicant is disregarded then the period of leave sought by the applicant would not infringe the 5 year rule and, as that was the only reason for refusal, his application was one that fell to be granted. 17. In submitting that the construction urged by Mr Pennington-Benton is simply not sustainable, Mr Malik has identified a formidable range of arguments to the contrary. He submits that the construction of paragraph 245ZX(ha) proposed by the applicant is not consistent with the natural and ordinary meaning of the vocabulary of that provision, second that it is inconsistent with authority and third that it is inconsistent with the immigration rules read as a whole and the Tier 4 Points Based System framework. 18. The focus of the rule in question, 245ZX(ha), is the period the applicant has been granted leave “as a Tier 4 (General) Migrant, or as a Student”. The question is, therefore, whether during the period leave was extended by s3C he had leave as a Tier 4 Student. In Mr Malik’s submission there can be no doubt that he did, and if the intention had been to exclude s3C leave, the rule would have said so. For the construction sought by the applicant, one would have to read into the rule a phrase that was absent from it, that being “excluding a period of s3C leave”. 19. QI (Pakistan) v SSHD [2011] EWCA Civ 614 was concerned with para 245ZX(l) of the Rules, which sets out part of the qualifying criteria for leave as a student: “The applicant must not be applying for leave to remain for the purpose of studies which would commence more than one month after the applicant’s current entry clearance or leave to remain granted under these rules expires.” The Upper Tribunal had dismissed QI’s appeal against refusal to grant further leave as a Tier 4 Student, holding that leave extended under s3C does not count for these purposes so that if the applicant’s initial grant of leave had ended more than a month before the new course was to commence, then even though his leave had been extended by s3C he could not meet the requirements of paragraph 245ZX(l). The Court of Appeal held that construction to be incorrect and wrong in law. At paragraph 14 per Pill LJ: “… The natural meaning of the words in the rule is that it will not operate while leave is extended. The leave as extended is not a new or different species of leave; the existing leave is extended.” And at paragraph 15, speaking of the effect of s3C: “…The section expressly provides that leave is extended while consideration of the application for variation is pending.” 20. Mr Pennington-Benton argued that QI was distinguishable on the basis of context. The Court of Appeal was there concerned with expiry of leave and not its extension. Therefore, it does not follow, “linguistically or conceptually” that the view expressed in QI properly informs the construction of paragraph 245ZX(ha). I am unable to accept that submission. The decision of the Court of Appeal in QI establishes clearly and unambiguously that, correctly understood, leave extended by operation of s3C is simply that: an extension of the same leave that was originally granted. It is not something different and simply extends the period during which the applicant has leave to remain as a Tier 4 Student. As an extension of leave, it remains leave granted to the applicant by the respondent. 21. Further support for this construction is provided by R (Mehmood & Ali) v SSHD [2015] EWCA Civ 744. The issue before the Court of Appeal was whether the phrase “any leave to enter or remain in the United Kingdom previously given to him” in s10(9) Immigration and Asylum Act 1999 includes leave extended by s3C. The submission of the applicant in that case was similar to that advanced here by Mr Pennington-Benton, that as this provision referred specifically to leave “given to him” that was referring only to the leave granted by the SSHD and not the leave extended by statutory effect of s3C. Beatson LJ explained, at paragraph 34, that 3C leave is a continuation of the same leave that existed before the application that had been made which generated the extension of leave: “… a statutory extension of the same leave that existed before it was made.” 22. In Mahad v ECO [2009] UKSC 16 Lord Brown, at paragraph 10, approved an earlier observation by Lord Hoffmann that construction: “… depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy”. In this context, it is of particular relevance to have regard to the provisions of paragraph 245ZY of the rules, the purpose of which is plainly and specifically to accommodate the position where a student seeks to undertake studies before the outcome of his application for further leave has been determined or his appeal against refusal has been determined. So far as is relevant, paragraph 245ZY provides, with emphasis added: 245ZY. Period and conditions of grant … (iv) no study except: (1) study at the institution that the Confirmation of Acceptance for studies Checking Service records as the migrant’s Sponsor… (2)