EK (Ivory Coast) v The Secretary of State for the Home Department

This appeal concerns the application of the general public law duty of fairness in the context of the points based system for applying for leave to enter or remain in the United Kingdom set out in Appendix A to the Immigration Rules HC 395 (“the PBS”).

The Appellant is a student from the Ivory Coast. On 8 September 2012 she made an application for leave to remain in the United Kingdom as a Tier 4 (General) Student Migrant, which was supported by a letter setting out a Confirmation of Acceptance for Studies (“CAS”) issued by St Stephen’s College (UK) Limited (“St Stephen’s”). At the time, St Stephen’s was authorised by the Secretary of State for the Home Department to issue such CAS letters.

However, between 8 September 2012 and the date of the Secretary of State’s decision on the application, by letter dated 5 January 2013, St Stephen’s withdrew the CAS letter. There is evidence that St Stephen’s withdrew the CAS letter as a result of an administrative error. This meant that, by the time of the Secretary of State’s decision, the Appellant did not have the requisite number of points to be granted leave to remain. Her application was therefore refused.

The issue which arises is whether, pursuant to the general public law duty of fairness, the Secretary of State should have given notice of the withdrawal of the CAS letter to the Appellant and postponed making any decision on her application in order to allow the Appellant an opportunity to correct any error which might have been made by St Stephen’s or to find another college which would issue her with a CAS letter.

The Appellant arrived in the United Kingdom on 5 November 2011, aged 20, with the intention of studying for a diploma in business management. However, she was unable to complete her course because in March 2012 the college at which she was enrolled, Bliss College, lost its status as a sponsor for students and its authorisation from the Secretary of State to issue CAS letters which would be recognised under the PBS.

The Secretary of State then granted the Appellant leave to remain for a period to give her an opportunity to find a new college. The Appellant enrolled with St Stephen’s, which issued her with a CAS letter in standard form and assigned her a unique CAS reference number. Her arrangement with St Stephen’s was that she would not attend the course until the Secretary of State had made her decision whether to grant her leave to remain.

By application form dated 8 September 2012, the Appellant made combined applications for leave to remain in the United Kingdom as a Tier 4 (General) Student Migrant and for a Biometric Residence Permit. In support of her application, along with other information, she appended her CAS letter from St Stephen’s and supplied her unique CAS reference number.

Under the PBS, the Appellant claimed a total of 40 points, of which 30 were claimed on the basis that she had a CAS letter from St Stephen’s. Under paragraph 245ZX(c) of the Immigration Rules, the Appellant needed to score 30 points under Appendix A to the Rules. The CAS letter was thus critical to her application.

There is no reason to doubt that the CAS letter as issued and appended to the Appellant’s application form was a valid CAS for the purposes of the PBS. However, between 8 September 2012 and the date on which an official of the Secretary of State made a decision on her application, the CAS letter was withdrawn by St Stephen’s.

On the evidence and findings of the First-tier Tribunal (“FTT”), the exact process by which the CAS letter was withdrawn and the Secretary of State given notice of that withdrawal was not clear. It seems likely that a college such as St Stephen’s registers a CAS by making an entry on a computerised database at the same time as a CAS letter is generated and given to a student, and that it is able subsequently to remove that entry; and that an official, when making a decision on an application for leave to remain, simply goes to the database to check that there is a valid and current CAS entry, and is able to see if a previously valid entry has been removed.

However that may be, the decision letter dated 5 January 2013 explained that the Appellant’s application had been rejected because “the Secretary of State is not satisfied that you have a valid CAS because the reference number submitted with your application has been withdrawn by the sponsor [i.e. St Stephen’s]”.

It is relevant to note that at this point the Secretary of State was functus officio. She had made her decision on the application, which was final subject only to any appeal by the Appellant. It was not open to the Secretary of State to review and change her decision in the light of any new information which came to light during the appeal process.

Although the FTT made no findings about this, the Appellant says that St Stephen’s did not contact her before the Secretary of State made her decision, to let the Appellant know that her CAS letter had been withdrawn. There is no reason to doubt this.

By Notice of Appeal dated 23 January 2013, the Appellant appealed to the FTT. Her Grounds of Appeal were that the Secretary of State’s decision was “not in accordance with Immigration Rules and Law” and was not compatible with her Convention rights under the Human Rights Act 1998. She maintained that it was “extremely unfair” that she was refused leave to remain as a result of St Stephen’s decision to withdraw the CAS letter.

The Appellant’s case on this appeal is that fairness required that, upon discovering that the Appellant had been issued with a CAS letter which had later been withdrawn, the Secretary of State should have postponed taking a decision on the application in order to give the Appellant an opportunity to clarify the position with St Stephen’s and to rectify any mistake made by it or to find another approved course and obtain another, valid CAS letter. This was not a ground of appeal which the Appellant developed in her submissions before the FTT. But it was a matter covered by the Appellant’s submissions in the Upper Tribunal and in the reasons of Beatson LJ in granting permission to appeal to this Court. It is a pure point of law intimated to the Secretary of State in good time in advance of the hearings in the Upper Tribunal and in this Court, and addressed in submissions by her, so there is no difficulty about allowing the Appellant to take the point at this stage. It was an argument which could have been addressed to the FTT, as falling within its jurisdiction set out in section 84(1)(e) (“that the decision is otherwise not in accordance with the law”), and hence is an argument which this Court can entertain on an appeal stemming from a decision of the FTT: see Naved (Student – fairness – notice of points) [2012] UKUT 14 (IAC), [15]-[19].

Other arguments presented by the Appellant in the FTT and in the Upper Tribunal were not pursued before us. Mr Dipré for the Appellant (who did not appear below) accepted that there was no evidence that the Appellant had developed private life in the United Kingdom such that her removal would constitute an illegitimate interference with it within the scope of Article 8 of the European Convention on Human Rights. He also accepted that her case did not fall within the evidential flexibility policy of the Secretary of State (to deal with minor apparent defects in submitted documents) considered in Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2 and now contained in paragraph 245AA of the Immigration Rules.

The Appellant’s appeal from the Secretary of State was heard by the FTT (Immigration Judge Fletcher-Hill) on 2 July 2013. The Appellant adduced evidence, in the form of a letter dated 26 June 2013 from the Principal of St Stephen’s, Mr R.K. Gupta, confirming that St Stephen’s had issued a CAS letter for the Appellant and stating: “Due to an administrative error [the Appellant’s] CAS was accidentally withdrawn and I accept responsibility for the mistake. I can confirm that the student had no role in the process so it was not her fault”. Mr Gupta’s letter also stated that, to rectify the error, St Stephen’s was ready to issue a new CAS to the Appellant. The FTT admitted this evidence (albeit it had not been available to the Secretary of State when she took her decision), no point being taken by the Secretary of State to object to this course.

The FTT said that “there was simply no evidence” as to why St Stephen’s had decided to withdraw the CAS letter, nor that the Appellant had sought to discover the reason. Mr Bird, for the Secretary of State, accepts that there was in fact evidence before the FTT that the CAS letter had been withdrawn by St Stephen’s by reason of an administrative error. Although no findings were made as to whether the Appellant sought to discover the reason for this before the Secretary of State’s decision, the appeal before us proceeded on the footing (which appears correct) that the Appellant made no inquiries before then because she was unaware that St Stephen’s had withdrawn her CAS letter.

At the hearing in the FTT, there was some doubt whether St Stephen’s was on the list of colleges authorised by the Secretary of State to issue CAS letters which would be recognised under the PBS. However, from information provided to us by the Secretary of State it is in fact clear that at the times material for the purposes of this case St Stephen’s was approved to issue CAS letters (such approval was eventually terminated only in April 2014).

The FTT dismissed the Appellant’s appeal. This was principally on the basis that at the relevant time (i.e. when the Secretary of State’s decision was made) the Appellant had no valid CAS letter and therefore the Secretary of State’s decision to refuse her application could not be impugned under the Immigration Rules. The FTT’s decision was promulgated on 30 July 2013.

The FTT gave permission for an appeal to the Upper Tribunal pursuant to section 11(1) of the Tribunals, Courts and Enforcement Act 2007. The Upper Tribunal (Deputy Upper Tribunal Judge Froom) heard the appeal on 4 October 2013 and promulgated its decision on 8 October 2013. It dismissed the appeal. The Upper Tribunal held that the Secretary of State’s evidential flexibility policy did not assist the Appellant; that “If there has been any unfairness in this case, it is in [St Stephen’s] mishandling of the appellant’s enrolment. However, the circumstances do not engage the common law principle of fairness …”; and that the Appellant had no good claim under Article 8.

The effect of the Secretary of State’s decision and of the decisions on the Appellant’s appeals is that, if she wishes to enrol on a further educational course in the United Kingdom, she will have to make a new, out of country application for leave to enter.

With permission granted by Beatson LJ, the Appellant now appeals to this Court.

The position in which the Appellant has been placed can, in a general sense, be said to be unfair to her. She obtained a valid CAS letter and made her application for leave to remain to continue her studies on the basis of that letter. She had a limited period of time in which she could make such an application on an in-country basis, granted to her by the Secretary of State to give her an opportunity to rectify the position which had arisen as a result of her first chosen college, Bliss College, losing its authorisation from the Secretary of State to issue CAS letters. She made her application within time. Unbeknown to her, as a result of an administrative error for which she had no responsibility, St Stephen’s withdrew her CAS letter. As a result, after the period for making a fresh in-country application had elapsed, her application was dismissed by the Secretary of State. The Appellant will have to leave the United Kingdom and make a fresh out of country application if she wishes to continue her studies here.

However, in my judgment, there was no breach by the Secretary of State of her public law duty to act fairly in considering the Appellant’s application for leave to remain. The Secretary of State is not responsible for the general unfairness which the Appellant has suffered. That is the result of actions and omissions by St Stephen’s. There is no basis on which any of the decisions of the Secretary of State, the FTT and the Upper Tribunal can be impugned as unlawful.

The Secretary of State accepts, correctly, that the Immigration Rules do not exclude the general public law duty to act fairly which rests upon the Secretary of State in exercising her functions: see, e.g., Alam v Secretary of State for the Home Department [2012] EWCA Civ 960, [44]. The question, therefore, is whether that duty imposed an obligation on the Secretary of State, when she saw that the CAS letter on which the Appellant’s application for leave to remain was based had been withdrawn, to adjourn any decision on the application to give the Appellant notice of the problem and an opportunity to rectify it. In my view, it did not.

It is well established that the precise content of the duty to act fairly varies according to the particular decision-making context in which it falls to be applied. I refer to the classic statement by Lord Mustill in a case concerning the procedure to be followed by the Secretary of State in setting tariff periods of mandatory imprisonment for prisoners serving life sentences, R v Secretary of State for the Home Department, ex p. Doody [1994] 1 AC 531, at 560D-G (in particular, principles (2), (3) and (4)):

“What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

See also Lloyd v McMahon [1987] AC 625, 702-703 per Lord Bridge:

“… the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.”

The PBS is intended to simplify the procedure for applying for leave to enter or remain in the United Kingdom in certain classes of case, such as economic migrants and students. This is to enable the Secretary of State to process high volumes of applications in a fair and reasonably expeditious manner, according to clear objective criteria. This is in the interests of all applicants. It also assists applicants to know what evidence they have to submit in support of an application.

As Sullivan LJ observed in Alam, it is an inherent feature of the PBS that it “puts a premium on predictability and certainty at the expense of discretion” (para. [35]). Later, at para. [45], he said:

“… I endorse the view expressed by the Upper Tribunal in Shahzad [Shahzad (s 85A: commencement) [2012] UKUT 81 (IAC] (paragraph 49) that there is no unfairness in the requirement in the PBS that an applicant must submit with his application all of the evidence necessary to demonstrate compliance with the rule under which he seeks leave. The Immigration Rules, the Policy Guidance and the prescribed application form all make it clear that the prescribed documents must be submitted with the application, and if they are not the application will be rejected. The price of securing consistency and predictability is a lack of flexibility that may well result in "hard" decisions in individual cases, but that is not a justification for imposing an obligation on the Secretary of State to conduct a preliminary check of all applications to see whether they are accompanied by all of the specified documents, to contact applicants where this is not the case, and to give them an opportunity to supply the missing documents. Imposing such an obligation would not only have significant resource implications, it would also extend the time taken by the decision making process, contrary to the policy underlying the introduction of the PBS.”

These comments were echoed by Davis LJ in giving the lead judgment in Rodriguez, at para. [100].

This context informs the way in which the general public law duty of fairness operates in relation to the PBS. The duty supplements the PBS regime, but ought not to be applied in such a manner as to undermine its intended mode of operation in a substantial way. Application of the duty of fairness should not result in the public benefits associated with having such a clear and predictable scheme operating according to objective criteria being placed in serious jeopardy.

In my judgment, acceptance of the Appellant’s submission that the general duty of fairness required the Secretary of State to postpone making a decision on her application in order to raise with her the cancellation of her CAS letter would undermine the benefits associated with PBS in a significant and inappropriate way. It may often be the case that a CAS letter is withdrawn between the filing of an application with the Secretary of State and the making of a decision on that application for reasons to do with the student (such as failing to attend the course or failing to pay the tuition fees), and in relation to which it would not be appropriate to grant leave to enter or remain. There is no way in which the Secretary of State can tell whether withdrawal of a CAS letter reflects that type of underlying situation or a situation in which some administrative error has occurred on the part of the sponsoring college in which the applicant is in no way implicated. It would be a serious intrusion upon the intended straightforward and relatively automatic operation of decision-making by the Secretary of State under the PBS if in every case of withdrawal of a CAS letter she had to make inquiries and delay making a decision.

I do not consider that an approach by the Secretary of State which involves a simple check whether an applicant has in place a valid CAS letter at the time the decision is made on their application, rather than seeking to inquire further into the background if it appears that a CAS letter has been withdrawn, involves any unfairness to an applicant for which the Secretary of State bears responsibility. The PBS places the onus of ensuring that an application is supported by evidence to meet the relevant test for grant of leave to enter or remain upon the applicant, and the Immigration Rules give applicants fair notice of this. The essence of the CAS element within the PBS is that the Secretary of State relies on a check on certification by approved colleges, and does not have to investigate further. It is inherent in the scheme that an applicant takes the risk of administrative error on the part of a college.

Standing back to make a general observation about the context, it can be said that an applicant deals directly with their college in relation to sorting out acceptance onto a course and the certification of that fact, and so has an opportunity to check the contract made with the college so far as concerns the risk of withdrawal of a CAS letter. If a college withdraws a CAS letter, the applicant may have a contractual right of recourse against the college. The fact that there is scope for applicants to seek protection against administrative errors by choosing a college with a good reputation and checking the contractual position before enrolling is of some relevance to the fair balance to be struck between the public interest in the due operation of the PBS regime and the interest of an individual who is detrimentally affected by it.

In my view, the circumstances in which the PBS applies are not such that it would be fair, as between the Secretary of State (representing, for these purposes, the general public interest) and the applicant, to expect the Secretary of State to have to distort the ordinary operation of the PBS regime to protect an applicant against the speculative possibility that a college has made an administrative error in withdrawing a CAS letter, rather than withdrawing it for reasons which do indeed indicate that no leave to enter or remain ought to be granted. The interests of applicants such as the Appellant are not so pressing and of such weight that a duty of delay and inquiry as contended for by the Appellant can be spelled out of the obligation to act fairly.

In that regard, the present context is to be contrasted with that in Doody. In that case, what was at stake was the liberty of the subject, since the decision of the Secretary of State regarding the tariff to be set for life prisoners would determine the time within which no application for release on parole could be made. It was by reason of that major significance for a prisoner of the decision to be made affecting him that the House of Lords found that the duty of fairness required the prisoner to be given notice of relevant information and an opportunity to deal with it by way of representations before a decision was made. In the present context, however, the PBS regime is intended to minimise the need for making sensitive and difficult evaluative judgments of the kind that fell to be made by the Secretary of State in Doody and the interests of applicants which are at stake are of far less weight.

Similarly, I do not consider that it is appropriate to draw any analogy with the operation of the duty of fairness in cases in which the imposition of a penalty is in issue, such as in a criminal or professional disciplinary context. In that sort of case, the importance of what is at stake (liberty, livelihood, good name etc.) and the evaluative nature of the decision to be made are such that fairness usually requires notice to be given of matters of concern and an opportunity for the individual in question to address those matters before an adverse decision is made in his case. In the present context, however, what is in issue is whether an applicant for leave to enter or remain can persuade the Secretary of State to grant them something in relation to which they have no prior right or expectation, in accordance with a simple and mechanistic points system.

The authorities in which the general public law duty of fairness has been found to impose additional obligations on the Secretary of State in the context of the PBS have been materially different from the present case. It has been held that where the Secretary of State has withdrawn authorisation from a college to issue CAS letters, fairness requires that she should give foreign students enrolled at the college a reasonable opportunity to find a substitute college before removing them: Patel (revocation of sponsor licence – fairness) India [2011] UKUT 00211 (IAC); Thakur (PBS Decision – Common Law Fairness) Bangladesh [2011] UKUT 00151 (IAC); and see Alam at para. [44]. But that requirement was found to arise where there had been a change of position of which the Secretary of State was aware, and indeed which she had brought about, in circumstances in which the students were not themselves at fault in any way, but had been caught out by action taken by the Secretary of State in relation to which they had had no opportunity to protect themselves. In the present case, by contrast, the Secretary had no means of knowing why the Appellant’s CAS letter had been withdrawn and was not responsible for its withdrawal, and the fair balance between the public interest in the due operation of the PBS regime and the individual interest of the Appellant was in favour of simple operation of the regime without further ado.

In Naved (Student – fairness – notice of points), the headnote summary of the decision, drafted by the Upper Tribunal (Blake J and Upper Tribunal Judge Freeman), states “Fairness requires the Secretary of State to give an applicant an opportunity to address grounds for refusal, of which he did not know and could not have known, failing which the resulting decision may be set aside on appeal as contrary to law …”. It might be said that on the principle as formulated in that summary, the Appellant in the present case should have been given notice of the problem with her CAS letter and an opportunity to deal with it.

If the Upper Tribunal intended to lay down a principle formulated in that bald way, I disagree with it. As a formulation, it leaves out of account the highly modulated and fact-sensitive way in which the general public law duty of fairness operates. It also pays insufficient attention to the issue which lies at the heart of the cases in this area, which concerns the fair balance to be struck between the public interest in having the PBS regime operated in a simple way and the interest of a particular individual who may be detrimentally affected by such operation. The public interest here, of course, includes the interests of the Secretary of State as administrator, of the taxpaying public (who fund the immigration system and would like it to run efficiently) and of the general body of applicants for leave to enter or remain (who have an interest in the PBS regime operating in a fair and efficient way, with a minimum of delay).

In fact, however, the situation which had arisen in Naved was again materially different from that in the present case. Naved concerned a decision by the Secretary of State to refuse leave to remain for a Tier 4 (general) student to commence a second course of study with a new college after his first course of study with another college (LCR) had come to an end. The Secretary of State refused leave on the grounds that the applicant had no “established presence” as a student in the United Kingdom. The applicant had duly produced a CAS letter from the new college, but had not been asked to produce documentary evidence that he completed his course at LCR. Despite this, the Home Office sought to verify his claim to an “established presence” by sending an email to LCR referring to the applicant, Mohammed Naved; a person, whose position with LCR was not stated, replied on behalf of LCR to confirm that someone called Naveed Ahmed had been enrolled with LCR but had not completed his course and had moved to another college. The Home Office assumed that this reply related to Mohammed Naved, notwithstanding the difference of name. It did not notify the applicant of the reply or ask for his comments. The reply had been sent in error. The applicant had in fact finished his course with LCR, and if the Home Office had asked the applicant about the LCR reply, he would have been able to send in satisfactory documentary evidence to show that he had indeed completed the course at LCR. If that had happened, he would have been granted leave to remain.

The Upper Tribunal held, on these facts, that the applicant’s treatment in Naved had been “conspicuously unfair”: para. [14]. The Home Office bore substantial responsibility for the error which occurred. Without warning to the applicant, it went behind the information given by him about his course with LCR, received a confusing response to its inquiry which it failed to read properly or check, and then failed to give the applicant an opportunity to adduce documentary evidence of a standard type (certificate of completion of the course etc) to resolve the dispute which appeared to have emerged about the history of his relations with LCR. In my opinion, nothing said in the judgment itself in Naved (as distinct from the headnote summary of it) is inconsistent with the conclusion which I have arrived at in the circumstances of the present case.

For the reasons set out above, I consider that the appeal should be dismissed.

I am grateful to Sales LJ for setting out the facts and procedural history with such clarity. I agree that the issue raised by this appeal is whether the public law duty to act fairly gives rise on these facts to a requirement that the Secretary of State should notify the applicant of the fact that that her CAS had been withdrawn, and to defer her decision until the applicant had an opportunity of attempting to meet the objection. I agree also that the content of the public law duty is sensitive to the particular type of decision which is under scrutiny. In decisions of the type with which we are concerned here, namely under the PBS, there is a strong public interest in the efficient running of the scheme. However it has been recognised that that public interest is not of such overwhelming importance as to squeeze out altogether the public law duty of fairness. I have not found this an easy case, but have in the end reached a different conclusion to that of Sales LJ.

In Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2, the applicant had simply failed to do that which the PBS requires, by failing to supply with their application the necessary documents or certificate. The Secretary of State has no reason to believe that the applicant would be able to supply the missing material, and was clearly not required to provide a further opportunity for an applicant to get things right. The applicant must be taken to be aware of the rules and is the only party at fault if he or she fails to comply with them. Sullivan LJ’s observations in Alam v Secretary of State for the Home Department [2012] EWCA Civ 960, cited by Sales LJ at [29] above, were also in relation to students who had failed to provide the necessary documentation with their application. He did not suggest that the duty of fairness went beyond this and allowed the Secretary of State lawfully to decide a case where there has been a change of position since the application was filed of which the Secretary of State is aware, and where the applicant is not at fault in any way, and is ignorant of the change of circumstances. In fact, at [44], he distinguished the Upper Tribunal’s decision in Patel (revocation of sponsor licence – fairness) India [2011] UKUT 00211 (IAC) on that basis.

On the other hand in Thakur (PBS Decision – Common Law Fairness) Bangladesh [2011] UKUT 00151 (IAC) the Upper Tribunal (Simon J, Immigration Judge Latter) considered that the applicant should be offered an opportunity to enrol at another college when the college at which he was studying lost its sponsor’s licence in the course of his application. The Upper Tribunal recognised that the duty of fairness is dependent on the context and the applicant’s particular circumstances, but nevertheless held that where an applicant neither knew nor “should be treated as having known” of the loss of the licence, the duty was engaged and he should have been given the opportunity of making representations before his application was rejected on that ground.

In Naved (Student – fairness – notice of points) [2012] UKUT 14 (IAC), the applicant was required to show an established presence in order to have the necessary points under the PBS. Having made his application, the Home Office investigated his claim to an established presence, and relied on information from the college at which he had completed his course which in fact related to a different student. His application was refused without further reference to him. On his appeal he was able to demonstrate that he would have been able to supply the necessary documents to support his established presence if ever he had been asked. That further evidence was inadmissible on his appeal. Nevertheless, the Upper Tribunal considered that the original decision was unlawful:

“… because the Home Office never put the appellant on notice that such evidence would be required or give him any opportunity to answer the result of their enquiries with his college. There was nothing at all in the application form to show that the appellant needed to include documentary evidence of his right to ‘established presence’; and no chance of his producing any evidence to contradict the result of the inquiries, only revealed in the decision itself.”

Thakur was, as Sales LJ has pointed out, a case where the Secretary of State had initiated the action which led to the withdrawal of the licence. However the unfairness which the Tribunal found was based on the fact that the applicant had not had an opportunity to make representations about something known to the Secretary of State but not the applicant, and not, as I read its decision, on the fact that the Secretary of State had initiated the action which led to the withdrawal of the licence. Naved is a stronger case than the present, because the Secretary of State relied on information which she should have appreciated did not relate to the applicant. It also concerned a requirement for information which is not apparent on the face of the application form. Nevertheless the underlying unfairness was that the applicant was not afforded an opportunity to deal with the changed circumstances.

Where is the line to be drawn in these classes of case? To my mind the principle must be that where the Secretary of State becomes aware of a material change of circumstances since the application was filed which would have the effect that the application must be refused, then (unless it is clear that the applicant has been made aware of the change of circumstance, or that the change of circumstances was the fault of the applicant, or that the defect is obviously irremediable) she must give the applicant an opportunity of dealing with the changed circumstance. Such a principle, in my judgment, strikes the right balance between the need for the PBS system to work efficiently, and for it to work fairly.

In the present case the Secretary of State was not aware of the reason for the withdrawal of the CAS. However the “withdrawal” of the CAS was clearly a change of circumstance since the application was filed. The Secretary of State did not know whether the applicant had been made aware of the withdrawal (in fact she had not, but no matter). The Secretary of State also did not know what had caused the CAS to be withdrawn, and could not therefore be sure that it was the fault of the applicant. The defect was one which was, in principle, capable of being remedied, as Mr Bird accepted in the course of argument.

In those circumstances I consider that the duty of fairness was engaged and the Secretary of State’s decision taken without affording the applicant an opportunity to investigate the new fact herself or to make representations was unlawful. The unfairness resides not in the fact that, as we now know, the CAS was withdrawn by mistake, but in the fact that the decision was taken on the basis of a new fact which the Secretary of State could not be sure that the applicant had notice of, and could not therefore be sure that the applicant had had an opportunity to investigate or explain.

For my part, therefore, I would allow the appeal.

I agree with Sales LJ that this appeal should be dismissed, substantially for the reasons which he gives.

In my judgment the necessary starting point is that a clear distinction must be made between the unfairness in outcome, viewed from the standpoint of the applicant, to which a particular set of circumstances may give rise, and the separate question whether the Secretary of State’s participation in those circumstances involved a breach of her common law duty to act fairly. In many cases, the two conceptually different types of fairness analysis may lead to the same conclusion, for example where the only aspect of the unfairness in outcome from the perspective of the applicant arises from the breach of the duty to act fairly by the Secretary of State. In my view the Thakur and Naved cases are both examples of that situation.

But there are other cases, and the present case is in my view one of them, where those conceptually different analyses do not lead to the same conclusion. No-one would doubt that the outcome for the Appellant was, viewed from her perspective, thoroughly unfair. She had made a perfectly good application under the PBS system, which had failed because of an administrative mistake by St. Stephen’s College, of which she was wholly unaware until after the adverse decision had been made. Through no fault of her own therefore, her application failed in circumstances where, had she been warned in good time of the College’s withdrawal of her CAS letter, she probably could have done something effective about it. But on any view the primary perpetrator of that unfair outcome was the College, not only because it withdrew her CAS letter in error, but also because it failed to take the natural step of informing her about the withdrawal.

But the question whether the Secretary of State breached her common law duty to act fairly depends critically upon what her officials might be supposed to have known or considered likely, at the time when, probably shortly before making the decision, the withdrawal of the CAS letter became apparent. At that stage neither they nor, probably, anyone at the College itself was aware that a mistake had been made. As Sales LJ points out, the ordinary expectation of the Secretary of State on becoming aware of the withdrawal of a CAS letter would be that the sponsoring college had done so for good reason and, I would add, duly informed the applicant student of its decision to do so. A cancellation by mistake, coupled with a failure to inform the applicant student would, I would have thought, reasonably be regarded by those charged with the operation of the PBS scheme as a rare occurrence.

I recognise that the principle by reference to which Floyd LJ would decide this appeal is one which, if applicable, would give reasonable protection to applicants against mistakes by others of which they were in fact unaware at the time of the decision, and would lead to a successful outcome for the Appellant on this appeal. In my judgment however the proposed principle is not one which should be recognised in the present context, for two reasons.

First, the courts should in my view be slow to rigidify the essential fact-sensitive flexibility of the duty to act fairly, as summarised in the Doody case, in the passage quoted by Sales LJ above. The unpredictable variety of factual situations in which the duty may arise is such as to make it dangerous to seek to identify any more rigid principle as applicable to any particular class of situation.

Secondly, like Sales LJ, I consider that a fairness principle which would lead to success for the applicant in the present case would make too great an inroad into the simplicity, predictability and relative speed of the PBS process, contrary to the thrust of the PBS regime as laid down by the Immigration Rules, particularly in a situation such as the present, where the Secretary of State bears no responsibility at all for the mistake, or the lack of communication of it, which led to the unfair outcome for the applicant.

Therefore, while recognising that the applicant may or may not have an alternative remedy against the College, and notwithstanding my considerable sympathy for her predicament, I would dismiss this appeal.