Shailesh Rajbhandari v The Secretary of State for the Home Department

Introduction 1. “Do you have a copy of Hamlet that I could borrow?” “I don’t have Hamlet , but I can easily get one for you” “You don’t have it?” “No.” “Then do you have a copy of Macbeth I could borrow?” “I have Macbeth , but I’m afraid you can’t borrow it.” “Oh. Why not?” “Because I have lent it to Mary.” This conversation, between two users of ordinary English, contains no contradictions. It draws attention to the difference between having something and something being available. The second speaker does not have Hamlet , but it is available; she has Macbeth , but it is not available. The two concepts are not mutually exclusive: if she had been able to meet the first speaker’s requests, it would have been because it was true to say both that she had the work and that it was available. Conversely, it may be that not only does she not have The Comedy of Errors : it is not available to her either. In ordinary English there is a world of difference between having something, with its implications of present ownership, and something’s being available, that is to say there for the asking. The question said to be raised by this appeal is whether the same distinction is present in the English used by the draftsman of the Immigration Rules, specifically Appendix C of the Statement of Changes in Immigration Rules , HC 395 as amended, in its application to Tier 1 of the Points-Based Scheme. The Facts 2. The appellant is a national of Nepal. He entered the United Kingdom in September 2003 as a student. On application, his leave as a student was extended, and was due to expire on 31 October 2010. On 26 October 2010 he applied for further leave, not this time as a student, but under the Tier 1 (Post-Study Work) Migrant category. His application was refused on 17 December 2010. The reason for the refusal was that the appellant had failed to obtain sufficient points in the Maintenance category. He appealed to the First-tier Tribunal, and his appeal was dismissed by Immigration Judge Y J Jones. He now has permission to appeal to this Tribunal. 3. In order to meet the requirements of the Immigration Rules, the appellant would need to show that, on the date of his application, he was entitled to the points he claimed. It is convenient to begin with the relevant section of his application form. As completed by the appellant, that section is as follows: “