Sayaniya, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Ors

The sole issue in this appeal concerns the applicability of the public law principle that the exercise of discretion in a particular case should not be fettered by over-rigid policies and mandatory rules in the Immigration Rules (“the Rules”) made under the Immigration Act 1971 (“the 1971 Act”). Paragraph 322(1A) of the Rules provides:

“Where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts have not been disclosed, in relation to the applicant or in order to obtain documents from the Secretary of State or a third party required in support of the application …

Leave to remain or variation of leave to enter or remain in the United Kingdom are to be refused” (emphasis added).

It is submitted by Mr Zane Malik on behalf of the appellant, Sandip Narpatsinh Sayaniya, that paragraph 322(1A) of the Rules is ultra vires because it is expressed in mandatory terms and thus unlawfully fetters the broad discretion conferred on the Secretary of State by section 3(1) of the 1971 Act to grant or refuse leave to enter or remain in the United Kingdom. Mr Malik maintained that in making the rule the Secretary of State in effect abdicated her statutory power under this provision because the nature of the rule excludes consideration of all other factors which may be relevant in a particular case but cannot trump its terms.

Mr Sharland, on behalf of the Secretary of State, submitted that the non-fettering principle does not apply to a statute which expressly permits rules to be made, as the 1971 Act does and, in any event, in the present context the necessary flexibility exists because the Secretary of State may grant a person discretionary leave to remain “outside the rules”.

For the reasons I give at [15] and [21] – [41] below, I consider that paragraph 322(1A) is not ultra vires and that this appeal should be dismissed.

The appellant is a citizen of India born on 16 August 1981 and therefore now 34 years of age. He entered the United Kingdom in December 2003. Since March 2008 he has had leave to remain as a Tier 4 Student pursuing various courses. The courses have been pursued at a number of colleges; the London Institute of Technology, the Cromwell College of IT, and the Royal College. His last grant of leave was to expire on 30 April 2013. It was, however, curtailed on 26 March 2012 to expire on 25 May 2012 because, on 6 September 2011, the college at which he was studying had its sponsor licence revoked. He was thus given 60 days to find another sponsor pursuant to the Secretary of State’s Tier 4 Policy Guidance.

On 13 April 2012, the appellant was convicted for driving with excess alcohol and also for driving without due care and attention. He was made subject to a community order with an unpaid work requirement and a requirement to attend a drink-drive rehabilitation course.

On 24 May 2012, a day before his leave expired, the appellant applied for leave to remain as a Tier 4 (General) Student Migrant to study an AIA professional qualification from 4 July 2012 to 4 July 2014. The application form specifically asked whether he had any criminal convictions in the United Kingdom or any other country, including traffic offences, and the appellant ticked “no” in the relevant box on the form. On 9 January 2013, the Secretary of State refused his application under the Rules, stating that the decision was made in line with the Rules and the Tier 4 Policy Guidance. At that stage, a decision was also made to remove him from the United Kingdom, but that decision was withdrawn.

Two reasons were given in the decision letter for refusing the application under the Rules. The first was the appellant’s failure to disclose the fact that he had a criminal conviction. The letter stated that the Secretary of State was satisfied that this was material to the application because it is an offence under section 26(1)(c) of the Immigration Act 1971 to make a statement or representation which is known to be false or not believed to be true. As material facts were not disclosed, the application was refused under paragraph 322(1A) of the Rules. Secondly, the application was refused under paragraph 245ZA(ha) because entry clearance for leave to remain for Tier 4 applicants to undertake studies at degree level or above is limited to a maximum period of five years save for those studying specified courses, and the Secretary of State considered that the appellant exceeded that period.

The appellant appealed against the Secretary of State’s decision on 23 January 2013. At the hearing before the First-tier Tribunal (“FtT”) on 9 July 2013 he gave oral evidence. He inter alia stated that he did not know that driving with excess alcohol was a criminal offence and that his solicitors had told him that it was not.

In a determination promulgated on 22 July 2013 the FtT stated that in the light of the evidence and all the circumstances, including the fact that the application form the appellant filled in specifically asked about traffic offences, at [24] and [29] of the decision it rejected the appellant’s account that he did not realise that a driving offence needed to be disclosed and dismissed the appeal. It concluded (at [30]) that the Secretary of State had shown “to a high balance of probabilities” that material facts were not disclosed in relation to the application and that paragraph 322(1A) applied to the case so that the appellant had not shown that he met the requirements of the Rules. It did not deal with the appeal against the paragraph 245ZA(ha) ground for refusing the application under the Rules.

The tribunal went on to consider Article 8. It concluded that as the appellant was a 31 year old man who had spent the majority of his life outside the United Kingdom, any interference with his private life as a result of not permitting him to continue his studies in this country was necessary and proportionate to the wider public interest of maintaining an effective immigration policy.

The appellant’s application for permission to appeal was refused by the Upper Tribunal on 23 September 2013. Judicial review proceedings were launched, but on 3 April 2014 Hamblen J refused permission on the papers. Permission to appeal against that decision was given by Christopher Clarke LJ on 8 January 2015.

There is no appeal against the FtT’s rejection of the appellant’s case that he did not know driving with excess alcohol was a criminal offence or its conclusions as to the applicability of rule 322(1A) to his case and on his claim based on Article 8.

The question before us, whether paragraph 322(1A) is ultra vires, could not have been raised in the FtT. Notwithstanding the attractive way Mr Malik put his submissions, I have concluded that the clear answer to that question is “no”.

My starting point is that the decisions on the “non-fettering” principle relied on by Mr Malik such as Attorney General ex rel Tilly v Wandsworth LBC [1981] 1 WLR 854 and R v Secretary of State for the Home Department, ex p Venables [1998] AC 407 at 469 did not concern a statute which expressly permits rules to be made, as the 1971 Act does. Neither does British Oxygen Co Ltd v Minister of Technology [1971] AC 610, which contains an earlier and classic review of the position. While, as will be seen, immigration rules are not law in the sense that a statute or a statutory instrument is, there are many decisions of the House of Lords and the Supreme Court involving the application of provisions of a mandatory nature in the Immigration Rules. They are susceptible to challenge on grounds of error of law, Wednesbury unreasonableness or irrationalityand proportionality but in none of the cases is it suggested that their mandatory nature in itself makes them ultra vires. The second reason is that given by the judge when refusing permission to apply for judicial review. It is that, although paragraph 322(1A) is in mandatory terms, the Secretary of State may depart from it by making a decision more beneficial to an applicant such as to grant discretionary leave to remain “outside the rules” when the Rules provide that leave should not be given.

Before turning to my reasons for concluding that that this appeal should be dismissed, it is appropriate to refer to the operation of rules and discretion in our system of administrative law and the trajectory of the development of administrative law and governmental policy since the 1970s. The general difference between rules as prescriptive and mandatory and discretion as open-textured and advisory with policy statements and guidance is well recognised: see for example the statements in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, [2012] 1 WLR 2208 at [114], [120] and see also [97].Lord Walker in Alvi’s case at [111] stated that there as a tension in public law decision-making between flexibility in the decision-making process and predictability of its outcome and that the more there is of one, the less room there is for the other, and getting the balance right is often difficult.

The benefits of a system that has rules in it and thus provides some certainty and facilitates efficiency of administration are now seen more widely than they were in the middle of the twentieth century. As a result of the influence of public law and social science scholars and policy makers in this country and elsewhere, many of the developments since the 1970s have been towards a more rule-based system. Professor Kenneth Culp Davis’s 1969 work, Discretionary Justice: A Preliminary Enquiry was particularly influential. While recognising that no legal system has ever been without significant discretionary power, which is indispensable for individualised justice, he considered that cutting back unnecessary discretionary power is important in order to provide certainty and predictability but with appropriate flexibility. In this country the influence was first seen in policy on social security. In recent years, much attention has been paid to the increasingly rule-based system of immigration control.

The submissions in this case need to be seen against this background. There are now many decisions of the courts on the topic. As Kenneth Parker QC (as he then was) stated in Nicholds and others v Security Industry Authority [2006] EWHC (Admin), [2007] 1 WLR 2027 at [57], “courts have tended to encourage, rather than discourage, public authorities from making transparent rules and developing published policies”.The consequences of the fact that the system is now a rule-based one are illustrated by the examples in the next two paragraphs.

In Alvi’s case. Lord Hope stated at [42] that the introduction of the points-based system created an entirely different means of immigration control. His Lordship stated that “the emphasis now is on certainty in place of discretion, on detail rather than broad guidance”. He also stated that there was much in this change of approach that is to be commended. Lord Walker (at [111]) stated that flexibility and predictability are both desirable objectives, and that in recent years there has been a marked tendency of government to favour predictability over flexibility and that the points-based system for controlling immigration is a paradigm example. Lord Walker recognised that the price for increased predictability is an increase in rigidity and complexity. This price has been accepted by other judges, although some consider that despite the strong public interest in the efficiency of a rule-based system, its operation should be tempered by the principle of fairness: see for example the contrasting approaches of Sales LJ (with whom Briggs LJ agreed) and Floyd LJ in EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517 at [29] – [30] and [44] and [49].

It should not be forgotten that a rule-based system does not in itself provide certainty, predictability or efficiency. The frequency of changes made to the rules and policy guidance in the current points-based system of immigration control has led to much litigation. It has been observed that the system is Byzantine and in some respects inaccessible: see Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568per Jackson LJ at [4] and Singh v Secretary of State for the Home Department [2015] EWCA Civ 74per Underhill LJ at [59]. In the light of these observations, inHossain v Secretary of State for the Home Department [2015] EWCA Civ 207 at [29] – [30] I stated that the detail, the number of documents that have to be consulted, the number of changes in rules and policy guidance, and the difficulty advisers face in ascertaining which previous version of the rule or guidance applies and obtaining it are real obstacles to achieving predictable consistency and trust in the system.

The Immigration Rules do not constitute “rules” in the sense that a statute or a statutory instrument do. But I reject the submission of Mr Malik, relying on statements in a number of decisions, that they are statements of policy, subject to all the public law constraints on policies and discretionary powers including the non-fettering principle. At this stage, I observe only that it was not suggested in any of the cases Mr Malik relied on that an Immigration Rule which is in mandatory terms is, for that reason, ultra vires. The statements in them must be seen in their contexts, which (see [25] below) involved very different issues to that in this case.

Any analysis of the nature of the Immigration Rules and whether, and if so how, the non-fettering principle applies to them has to reflect the statutory context in which those rules are made. In the case of the Immigration Rules, the statutory context, the Immigration Act 1971, expressly contemplates rules being made. Although not in express words, the power to make “rules … as to the practice to be followed in the administration of this Act” has to be construed as conferring the power on the Secretary of State. Section 1(4) of the 1971 Act provides that “the rules laid down by the Secretary of State” as to practice to be followed for regulating the entry into and stay in the United Kingdom of those do not have the right of abode “shall” include provision for admitting such persons coming for the purpose of taking employment, study, as visitors, or as dependents of persons lawfully in or entering the United Kingdom. By section 3(2) of the 1971 Act, it is the Secretary of State who is required to lay statements of the rules and of any changes in them before Parliament. Such rules are subjected to a negative resolution procedure that is a similar to the Parliamentary control over many statutory instruments.

In R (Munir) v Secretary of State for the Home Department [2012] UKSC 32, [2012] 1 WLR 2192, Lord Dyson JSC, with whom the other members of the Supreme Court agreed, stated that the power to make immigration rules was derived from the 1971 Act and its exercise is one of statutory power and not an exercise of the royal prerogative.

It is well recognised that some of the provisions of the Immigration Rules are expressed in mandatory language and some are expressed in a more open-textured way and are closer to advisory guidance or a statement of policy. The issue in Alvi’s case, to which I have referred, was whether and when a policy statement was required, pursuant to section 3(2) of the 1971 Act, to be laid before Parliament. Although not in precisely the same language, the Supreme Court held that policies setting out criteria which are or may be determinative of an application for leave to enter or remain must be in immigration rules laid before Parliament: see, in particular, Lord Dyson at [97]. As I have stated, there is no suggestion in that or any of the other cases in the House of Lords or the Supreme Court that an Immigration Rule which is in mandatory terms is, for that reason, ultra vires.

There are, as Mr Malik observed, statements in many cases that the Immigration Rules are statements of administrative policy and not the law of the land. But those statements must be seen in their particular contexts. I do not consider that they assist him in the contention that the non-fettering rule applies to make mandatory rules or certain mandatory rules ultra vires. In Munir’s case, the passage on which Mr Malik relied is in the section of the judgment dealing with the source of the power to make immigration rules. In Odelola v Secretary of State [2009] UKHL 25, [2009] 1 WLR 1230, the statement was made to explain why an individual did not have a vested right to have an application determined in accordance with the rule in force at the time the application was made rather than the rule in force at the time of the Secretary of State’s decision. In Mahad v Entry Clearance Officer [2009] UKSC 16, [2010] 1 WLR 48, the comment was made in the context of the observations that the rules are not to be construed with all the strictness applicable to the construction of a statute or statutory instrument. In Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773, [2011] 1 WLR 564 it was made to explain why the words of a rule would be “read down” to reflect what a Minister had stated in Parliament about their meaning when the words of a statute or a statutory instrument would not.

Mr Malik’s submission, if correct, would also involve the no-fettering principle operating in an uneven manner. If, as a result of the principle, the Secretary of State’s discretion in relation to leave in the 1971 Act must be preserved in the case of a person who fails to meet the requirement of the Rules, in principle it should also be preserved in the case of a person who meets the requirements of the rules but who the Secretary of State considers should not be granted the relevant leave. There would be arguments against the use of discretion to deny an entitlement under the Rules in such a case based on fairness, legitimate expectation, and the undermining of the certainty and predictability that is obtained from rules. But Mr Malik was not able to explain why, in this context, the “no-fettering” principle itself should operate only in favour of the person seeking leave.

The implications for the non-fettering principle where a statutory context expressly contemplates rules that are not subordinate legislative instruments such as statutory instruments or Orders in Council were discussed in two decisions of the Administrative Court which provide valuable guidance. I first consider Nicholds and others v Security Industry Authority to which I have referred. The approach of Kenneth Parker QC was followed by Mostyn J in R (Thebo) v Entry Clearance Officer, Islamabad (Pakistan) [2013] EWHC 146 (Admin) in the context of provisions of the Immigration Rules that are substantially identical to paragraph 322(1A). I discuss Thebo’s case at [34] and [39] below.

Nichold’s case concerned licensing criteria published by the Security Industry Authority for those who wished to engage in the occupation of door supervisors pursuant to a requirement in the Private Security Act 2001. The criteria made the commission of certain serious criminal offences an absolute bar to obtaining a licence to work as a door supervisor and the claimants did not qualify. They challenged the criteria inter alia as violating the non-fettering principle because they prevented the Authority considering the individual circumstances of a particular applicant.

Kenneth Parker QC rejected this submission, and the argument that the “no fettering” principle applies invariably wherever a discretionary power is conferred, whatever the statutory context. He referred (at [61]) to the fact that Lord Reid in British Oxygen Co. Ltd v Minister of Technology [1971] AC 610at 625 described the principle as “the general rule”. He stated:

“In most instances where a discretionary power is conferred it would be wrong for the decision maker to frame a rule in absolute terms because to do so would defeat the statutory purpose. However, it seems to me that there are certain exceptional statutory contexts “where a policy may lawfully exclude exceptions to the rule because to allow exceptions would substantially undermine an important legislative aim which underpins the grant of discretionary power to the authority.” (emphasis in original)

He concluded (at [62]) that in that case the statutory context empowered the Authority to make the commission of certain serious criminal offences an absolute bar to obtaining a licence to work as a door supervisor. Not to have such a rule in respect of offences of such great gravity would tend to undermine a fundamental aim of the Act, and such a failure would be truly vulnerable to challenge on grounds both of ultra vires and Wednesbury irrationality. I respectfully agree with this approach. It is also consistent with the approach in R (Elias) v Secretary of State for Defence to qualifying criteria formulated by the Secretary of State under a non-statutory ex gratia compensation scheme: see [2005] EWHC 1435 (Admin), [2005] IRLR 788 per Elias J at [35] – [36] and [2006] EWCA Civ 1293, [2006] 1 WLR 3213 per Mummery LJ at [191], with whom Arden and Longmore LJJ agreed.

Mr Malik in fact accepted that it is permissible to have an immigration rule containing mandatory requirements in some circumstances. He submitted that there is a distinction between a mandatory requirement in a policy or a rule that sets out the grounds for saying “yes” mandatorily which is permissible, and one which sets out mandatory grounds for saying “no”, which is not. In the first kind of rule the requirement is one a person has to meet in order to qualify under a particular category of leave, for example as a student, a visitor, a spouse or an entrepreneur. Paragraph 322(1A) is an example of the second kind of rule where the grounds for refusing leave are set out in a mandatory manner, irrespective of compliance with ordinary substantive requirements or the facts of the case.

The justification offered for this distinction was the difference in the effect of a refusal under the Rules. If a mandatory requirement for granting leave under the Rules is met, leave will be granted. If it is not leave will be refused under that rule but the individual is free to apply under another rule or when he or she qualifies under the former rule. This is not the case where a mandatory rule sets out the grounds where leave must be refused, irrespective of compliance with ordinary substantive requirements or the facts of the case as paragraph 322(1A) does. Mr Malik submitted that, once a decision is made that a person does not qualify under such a rule, that person is precluded from making any another application under the Rules for the periods specified by paragraph 320(7B) of the Rules, save in specified exceptional cases. Those periods vary from one year if the person leaves the country voluntarily without the government paying or contributing to the costs to ten years if the government removes or deports the person. Mr Malik submitted that it is not permissible to have a mandatory rule operating in that way because it is an unlawful fetter of the discretion to grant or vary leave to enter or remain that is contained in section 3 of the 1971 Act. Section 3(1), he argued, confers discretion in broad terms subject to the authorised conditions as to ability to work, study or maintain oneself without recourse to public funds, and the other conditions in section 3(1)(b) of the 1971 Act. Similarly, section 3(3) of the 1971 Act is in broad terms.

I reject the suggested distinction between positive requirements and negative ones in the sense that their presence will disqualify. Mr Malik accepted that it would be possible for the Secretary of State to re-state the conditions for granting leave under the various categories dealt with in the rules so as to make it a mandatory requirement for each one of them that the applicant has not made a false representation or submitted a false document. The requirement would then become a positive one. If the effect of such a requirement can be mandatory, it is difficult to see any principle which would explain why the present rule cannot be mandatory.

I also reject the suggestion that the distinction is justified because in the case of a positive requirement the failure to meet the requirements of one category of leave does not preclude a person from applying for another category, whereas the operation of a provision such as paragraph 322(1A) does. A positive requirement may also operate for all categories. It may, for example as in the provisions making it necessary for an application to be made within 28 days after the expiry of their leave in order for the application to be considered, be inserted into all the categories of leave in the Rules. The 28 day requirement is a requirement in all the various categories under the points-based system.

There is no support for a distinction between positive and negative requirements in the case law. Indeed the decision of the Administrative Court in in R (Thebo) v Entry Clearance Officer, Islamabad (Pakistan) [2013] EWHC 146 (Admin) at [31] refused to recognise it in relation to paragraphs 320(7A) and (7B) in relation to deception in applications for entry clearance. Those provisions are similar to paragraph 322(1A) because the grounds for refusing entry clearance are set out in a mandatory manner, Mostyn J stated that he was satisfied (see [31]) that the Immigration Rules fall outside the non-fettering of discretion principle. Mr Malik’s argument is also out of kilter with the way administrative structures and administrative law have developed since the 1970s, which I have discussed at [16] – [20] above.

The result is, as Sedley LJ stated in Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719, [2011] QB 376 at [15] – [17], that the Rules are different from and more than policy and “have acquired a status akin to that of law” for particular purposes. That is not to say that the Secretary of State’s power to formulate immigration rules is not a power to formulate policy. Because her exercise of the power is essentially an executive, not a legislative, act it is subject to the public law constraints appropriate to such acts. But that does mean that the non-fettering rule does not apply to such rules in the same way as it does to policies made in very different statutory contexts.

The second limb of the Secretary of State’s case, and the one which the judge below emphasised in his short reasons, is that, to the extent that the non-fettering principle applies to immigration rules, the context in which they operate means that a rule expressed in mandatory terms does not fall foul of it because the Secretary of State has discretion outside the rules and frequently exercises it in favour of those who do not qualify under them.

Mr Malik relied on the decision of this court in Attorney General ex rel Tilly v Wandsworth LBC [1981] 1 WLR 854, in which Templeman LJ considered that even a policy that was subject to exceptions might be susceptible of challenge because the policy points towards fettering the decision-maker’s discretion in such a way that the outcome would not depend on the particular circumstances of that individual concerned. That case, in my judgment, is distinguishable. First, the statutory context was very different: there was no statutory mandate for “rules”. Secondly, Lawton and Brandon LJJ reserved their position about this scenario.

It should also not be forgotten that where legislation confers power to make rules, whether by statutory instrument, by-law, or other instrument, and there is also a discretionary power there is no compulsion to enforce any rules so made rather than to exercise the discretionary power provided that no rule restricts the particular exercise of discretionary power: see for example Ex p. Forster, Re University of Sydney (1963) 63 SR (NSW) 723 at 731 – 732 and Wade and Forsyth, Administrative Law pp 274-275.

I have referred to the decision of the Administrative Court in R (Thebo) v Entry Clearance Officer, Islamabad (Pakistan) [2013] EWHC 146 (Admin). The court is grateful to Mr Malik for drawing its attention to that case. In that case, Mr Malik made substantially identical submissions to those he made in these proceedings. Although Mostyn J expressed some concern about the uncompromising language of the rules before him which he described as “tendentious”, he rejected this argument. He stated (at [30]):

“[A] policy which has the safety net of a residual discretion cannot be described as a policy which binds the decision-maker to refuse to listen provided that the residual discretion is meaningful and not just an empty gesture.”

He also stated that he was satisfied that the residual discretion:

“is not just false air and lives on in a meaningful and active way, and therefore while the paragraphs can properly be described as tendentious they do not amount to an illegitimate and impermissible fetter on the discretion of the Secretary of State”.

Mr Malik submitted that the residual discretion is not meaningful. He argued that once a decision is made that a person does not qualify under the rules, because of the application of Rule 322(1A) that person is in reality precluded from making any other application under the Rules for the periods specified under paragraph 320(7B) which I have mentioned at [31] above. In this case, the terms of the letter of refusal do not expressly refer to the Secretary of State’s discretionary power to consider a case outside the rules in that language. However, section E of the letter, headed “Option to Make New Application”, states that it is open to a person to submit a fresh application with full supporting evidence and the fee or to apply for leave to remain in another capacity again with the evidence and the fee.

The operation of this discretion to grant leave outside the rules in a context in which applications must be made before the expiry of leave or within 28 days of its expiry if they are to be treated as valid applications is unclear. The Secretary of State can take a considerable period to determine an application that was made before the expiry of a person’s leave. She took almost eight months to make a decision on this appellant’s application, so that by the time the decision was made he was well outside the 28 day period. The appellant has not, however, applied for such reconsideration and, notwithstanding my concern, it would not be appropriate for the court to assume that the Secretary of State would regard herself as precluded by her decision on the application under the rules from considering an application outside the rules appropriately and lawfully. If, when an application is made, she does so regard herself, that decision can be challenged.

For these reasons, I would dismiss this appeal.

I agree.

I also agree.