Hossain, R (On the Application Of) v Secretary of State for the Home Department

LORD JUSTICE PITCHFORD: This is a renewed oral application for permission to appeal against the refusal of Upper Tribunal Judge Freeman on 1 May 2014 to give permission to apply for judicial review.

The application has been advanced on the Applicant's behalf by Mr Michael Biggs, who appeared before the judge below.

The Applicant is a citizen of Bangladesh. He is now aged 29 years. He arrived in the United Kingdom on or about 18 August 2009 to pursue a course in Travel, Tourism and Hospitality at Greenwich College. His leave expired on 27 September 2011. On that day, he applied for further leave to remain to study for a HND in Business Management at Guildhall College.

That application was refused on 1 May 2012 because a grant would have had the effect, contrary to paragraph 245ZX(h) of the Immigration Rules, of the Applicant's residence in the United Kingdom for educational purposes for a period in excess of 3 years while studying a below degree level course.

The Applicant's appeal against that decision was dismissed by the First-tier Tribunal on 11 September 2012.

On 9 October 2012, the Applicant again applied for further leave to remain, this time as a Tier 4 migrant student studying a degree course at Guildhall College. That application was refused on 5 April 2013 on the ground that the Applicant had submitted a forged letter from the Islami Bank Bangladesh Ltd.

In it, the bank had purported to certify that on 27 September 2012, the Applicant's father had in his Mudaraba savings account a balance of 2,899,934.5 Bangladeshi taka.

The Secretary of State relied on the statement of an entry clearance assistant who telephoned the Islami Bank on 4 March 2013. He or she was informed that the account existed, but the address of the account holder was different and the bank's details of transactions in the account did not coincide with the certificate purportedly issued on 27 September 2012.

The opening balance, according to the bank's records, was on 28 October 2009 25 million taka. The closing balance on 4 November 2012 was 31,650,000 taka. The entry clearance assistant verified the financial certificate and bank statement provided as false.

As I have said, notification of refusal was given by letter of 5 April 2013. Not until 7 June 2013 did the Applicant's solicitors write a letter before claim to the Secretary of State. The claim for judicial review was lodged on 15 July 2013, ten days after the outside limit of three months had expired. The application for an extension of time was further delayed until 23 July 2013.

The Applicant produced a further certificate dated 17 April 2013 from the Vice President of the Islami Bank confirming that on 27 September 2012 the account had held a balance of just under 29 million taka.

Upper Tribunal Judge Freeman found that had it not been for the delay in issuing the claim for judicial review, he would have given permission to proceed to judicial review. It was, he found, arguable that the document verified had been misunderstood by the entry clearance assistant.

The judge concluded, however, that there was no reasonable excuse for the delay in issuing the proceedings. The Applicant's previous leave had expired on 27 September 2011. The only reason given for the delay in issuing the claim was a difference of opinion between the Applicant and his father as to whether he should challenge the decision or return home to Bangladesh.

The judge refused permission to proceed. The Applicant now seeks to challenge the refusal on the following grounds.

(1) The judge was wrong to give weight to the Applicant's precarious immigration history. In particular, it is said that the judge was concerned about the delay which elapsed between the dismissal of his appeal and his application for his final leave to remain.

(2) The judge failed to give sufficient weight to the long term prejudice to the Applicant of the refusal of his application, including the fact that under paragraph 322(1A) of the Immigration Rules, any further application would be refused for a period of not less than one year and up to ten years, depending on the circumstances on which he returned to Bangladesh.

(3) The judge failed to give weight to the fact that the Respondent would suffer no prejudice should the application be granted.

I cannot avoid a measure of sympathy for the Applicant's predicament if, as the judge thought, the Secretary of State's refusal of leave on 5 April 2013 may have been the result of a simple misunderstanding. However, the merits of the Applicant's grounds for review are only one feature of the case to which the judge was required to have consideration, an observation with which Mr Biggs readily agrees.

The judge noted that the Applicant was at all material times legally represented. The outer time limit within which to bring proceedings for judicial review is, I would observe, generous. The purpose of the time limit is to bring a measure of administrative certainty to claims for judicial review.

I do not accept that there would be no prejudice to the Secretary of State should the claim for judicial review now proceed. The fact that the Secretary of State has to engage in litigation in order to resolve the dispute that arose fully two years ago is itself prejudicial to good administration.

I accept that the consequences to the Applicant will be disadvantageous at least, but he brought them entirely on himself, in my opinion, by reason of his inactivity immediately after the refusal of leave.

I agree with the judge that the immigration background was a consideration material to the exercise of discretion. On a full reading of his judgment, it does not seem to me that in any respect he fell into error. All he was observing in the course of his judgment was that given the immigration background, it was imperative that the Applicant should abide by the relevant time limit. It is not demonstrated to me that the judge erred in giving some weight to the immigration background.

I agree, therefore, with the opinion of Sir Stanley Burnton that the decision was well within the proper margins of the judge's discretion. Unless I could come to the contrary conclusion, I would be bound to refuse the application. I am unable to reach a contrary conclusion. For that reason, the application must be refused.