This month, Hossain & Ors v Secretary of State for the Home Department  EWCA Civ 207 took place in the Court of Appeal. The immigration case concerns an appeal against the Upper Tribunal regarding a decision about the Tier 1 (Post-Study Work) Migrant visa category of the Points Based System (PBS). The Court of Appeal were highly critical of the complex Immigration Rules in this case.
Facts of the Immigration Case
Mr Talukder Hossain (“the Appellant”), a Bangladeshi national, had been in the UK lawfully as a student since June 2006. Before the abolishment of the Tier 1 (Post-Study Work) visa the Appellant applied for the visa on 3 April 2012. He then went onto complete a course at the Birmingham Graduate School for an MBA degree to be validated and awarded by the University of Wales. On 28 March 2012 Mr Hossain sent a letter provided by Birmingham Graduate School with his application. The letter stated that he had completed the course and and “all his academic requirements” and “is expected to receive his certificate from the University of Wales shortly”.
Mr Hossain’s visa application was refused on 20 December 2012 due to the fact that Mr Hossain had not obtained his MBA qualification prior to making his application as required by the Immigration Rules. Mr Hossain appealed the Home Office’s decision which was allowed by the First-tier Tribunal (FtT)on the basis of the decision of the Upper Tribunal in Khatel‘s case. On 8 August 2013 the decision was overruled and the Upper Tribunal allowed an appeal by the Secretary of State.
The case finally ended in the Court of Appeal. Where Lord Justice Beatson acknowledged the complexity of the Points Based System:
“The detail, the number of documents that have to be consulted, the number of changes in rules and policy guidance, and the difficulty advisers face in ascertaining which previous version of the rule or guidance applies and obtaining it are real obstacles to achieving predictable consistency and restoring public trust in the system, particularly in an area of law that lay people and people whose first language is not English need to understand.”
Despite recognising the complexity and misunderstanding that many applicants have when making a Points Based application the appeal was dismissed.
The Court of Appeal have on previous occasions been highly critical of the structure and complexity surrounding the Immigration Rules. In Pokhriyal v Secretary of State for the Home Department  EWCA Civ 1568, Jackson LJ stated that the:
“provisions have now achieved a degree of complexity which even the Byzantine emperors would have envied”
Premature Visa Applications Submitted Due to Confusing Immigration Requirements
The removal of the Tier 1 (Post-Study Work) category led to many premature applications by students before they had been formally awarded their degree. There are currently 40 other immigration cases awaiting decisions on their appeals.
If you have made an application which has been refused as a result of the complex immigration rules then our expert Immigration Solicitors will be able to advise you. Once instructed our team of lawyers will prepare, file and provide you with a representative at your appeal hearing.
Legal Advice on UK Visa Application Appeals
Our team of experienced and professionally qualified immigration solicitors and barristers will be able to guide you through the process of making a visa application to the UK step by step and limit the possibility of failure by complying with the strict letter of law.
Contact us so that we can review your case and provide you with an assessment.