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Khatel overturned

Khatel overturned

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.

Colin Yeo

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

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