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

MR JUSTICE BLAKE: This is a renewed application for permission to appeal a judgment of Mr Robin Purchas QC sitting as a Deputy High Court Judge given on 6 July 2014 dismissing the Claimant's application for a judicial review of a decision of the Defendant Secretary of State that refused an extension of stay as a Tier 4 migrant.

The brief background is that the Claimant is a citizen of Pakistan who was granted entry clearance on 7 September 2010 with a student visa. The application was made to study with the JFC College who at that stage held a sponsor licence.

It was all processed under the detailed scheme of the Immigration Rules relevant to points-based decision making and in particular that this was an application to which the provisions of Rule 245ZW applied with a host of conditions that under the Rules would be attached to leave granted in pursuant of the entry clearance. That detailed scheme indicated that if granted the application would restrict the ability to study, amongst other things, to the sponsoring institution. The notes of guidance accompanying the form for applicants indicated that permission would be needed to change the place of studies and students should not start at a new place of study in advance of permission being granted.

The entry clearance was, in due course, issued and endorsed with Tier 4 (General) student and included some letters and numbers indicating the code for the sponsoring institution. Under the scheme then in existence, the entry clearance operated as a leave to enter the United Kingdom until 10 May 2012.

Following his entry to the United Kingdom, the Claimant was not satisfied with the education provided by the JFC College. Further, it seemed that the Defendant Secretary of State had concerns with that college as it suspended its sponsor licence.

Following that act, the Claimant sought a new place of study and contacted the Walthamstow Business College, who in January 2011 accepted him for a full time course. He was permitted to continue his studies with them rather than start again. He states that he was informed by the college that he was able to do so within the terms of his existing leave and accordingly never contacted the Secretary of State to vary the terms of his leave to move from the JFC College that had sponsored his entry clearance to the new college.

In May 2012, he applied for an extension of his leave to remain. He completed the application form on the basis that he was an established student and thus qualified for a lower amount of money needed to meet his expenses, but in order to demonstrate that he was an established student he needed to show that he had leave to remain.

He made the application. That was received on 15 May 2012 and had been sent by first class post. There was no evidence of posting attached to the envelope and the Secretary of State calculated that in the absence of any evidence of disruption to the postal services that the application had been posted on 14 May, which would have been four days after leave had expired.

In due course, the application was refused for a number of reasons. (1) The Claimant's study at Walthamstow Business College was without permission and therefore a breach of the terms of his admission. (2) The application for an extension of stay was made out of time and therefore the reduced fees for established students (by fees I think the amount of money needed) did not apply.

As a consequence of the second ground, there was no right of appeal since those rights are confined to those who made applications at the time when they had existing leave to remain.

In both the pre-action correspondence and indeed the original grounds of challenge, the Claimant did not dispute that the application was made out of time. His grounds and the chronology prepared for those grounds say that the application was made on 14 May. Very late in the proceedings, it appears that counsel acting for him as today, Mr Nasim, became aware that there was some postal orders dated 10 May. He received instructions that that was also the date of the posting, but there was no evidence of posting. Indeed, as far as I can see there was no witness statement from the Claimant to that effect.

The original grounds for judicial review were that the application should have been treated more generously. The Secretary of State failed to exercise discretion and discretion should be exercised in his favour since he was unaware of any breaches of the Rules. There was a duty of fairness to alert the Claimant of breaches. In due course, it was contended that there was in fact no condition that he did not study with Walthamstow College without permission. The issue of whether the application was in fact in time was raised late in the proceedings.

The judge rejected each of those grounds for judicial review, dismissed the application and refused permission to appeal. Bean LJ refused the application on the papers and the matter has been renewed before me on the basis that it raises a point of principle and there are reasonable prospects of success.

In my judgment, the judge was entirely right to conclude on the facts of this case (1) that the application for an extension of stay was made out of time after the expiry of the Claimant's leave on 10 May. (2) There was no substance to the allegation that the Secretary of State acted unfairly in deciding the case on the basis of the information presented to her. (3) There was no factual basis for an exercise of discretion outside the Rules given what the Claimant ought to have known about the no switching policy of the Rules set out in the data when he applied for entry clearance.

Accordingly, on those three grounds this application for leave to remain and judicial review of the refusal of leave to remain was bound to fail. There are accordingly no prospects of success in any of those grounds being revisited by this court. The law is well-established and principles clear.

However, the application is principally made on the basis that the judge's conclusions about whether there was a condition attached to the leave preventing switching of the college without prior permission raises a point of general importance.

I accept that if that had been the sole or decisive issue in the case, this would have been a case for the grant of leave as it does raise an issue of importance. It is by no means clear that the judge's conclusion on that question is free from doubt.

It is plain from the relevant legislative scheme that section 3(1)(c)(ia) of the Immigration Act 1971 as amended permits a condition on leave to be imposed restricting the study and also permits conditions to be imposed by means of an order as opposed to a decision of an individual immigration officer pursuant to section 4 of the 1971 Act.

Under the Immigration (Leave to Enter and Remain) Order 2000, Article 3(2) states that entry clearance must be endorsed with the conditions to which it is subject. In the case of limited leave, Article 5 states:

As the hearing developed, that point became one of greater importance. The Defendant indeed put in evidence and made some late extensions of the way in which the case was put in the summary and detailed grounds to suggest that no endorsement was needed at all upon the entry clearance because the Immigration Rules operated as a condition on leave on themselves. The judge rightly rejected that submission.

The alternative submission was that the endorsement of the sponsor reference number on the entry clearance, as was the case here, operated to impose conditions restricting study because it informed the Home Office of the basis of the Claimant's entry and the relevant rules that applied to his entry.

As I have indicated, the judge was persuaded by the second submission, in particular, the Defendant's reliance upon the word endorsement guidance could be given was contended by reference to endorsement on driving licences where codes were used even though they referred to different sources of information.

As I have already indicated, that would have been arguable because it seems to me that a more extensive examination might be needed of whether communication of an endorsement was necessary to either the individual or those advising the individual and indeed he may be supporting the individual during the time of his residence here.

Clarity as to what the conditions of entry are is of supreme importance to those subject to immigration control. The judge does not seem to have been taken to the proposition that a knowing breach of conditions would be a criminal offence under section 24(1)(b)(ii) of the Immigration Act 1971 and now even an inadvertent breach of conditions can lead to summary removal from the United Kingdom without right of appeal cancelling any extant leave: see section 10 of the Immigration Appeals Act 1999 as amended by the Immigration Act 2014 section 1.

However, it seems to me that those arguments will need to be examined on another day when they arise in appeal where they are determinative of the issue or likely to be, whereas in this appeal that is simply one of a number of arguments on which the Claimant failed and on all the other arguments this application was doomed to failure.

Accordingly, having regard to CPR 52.36, there are no real prospects of success in this appeal and although there is one issue raised amongst the many of some general interest, this is not a case in which to grant permission to appeal in this case because of the surrounding other circumstances.

Accordingly, I refuse this renewed application for leave to appeal.