Adewunmi, R (on the application of) v Secretary of State for the Home Department

This is the hearing of two appeals in respect of two distinct immigration decisions made by the Secretary of State in relation to the appellant, Mr Adewunmi.

The first appeal relates to a decision of the Secretary of State dated 17 December 2013 whereby she rejected an application of the appellant for leave to remain as a Tier 4 (General) Student to undertake a PhD course at Kingston University. The appellant sought judicial review, but permission to apply for judicial review was refused on the papers and then again at an oral hearing on 15 August 2014 in the Upper Tribunal before UT Judge Chalkley. Black LJ granted permission to appeal to this court.

The second appeal is in respect of a decision of the Secretary of State dated 23 October 2015 whereby she rejected a human rights application by the appellant for leave to remain on the basis of family life and his private life and certified it pursuant to section 94 of the Nationality, Immigration and Asylum Act 2002 as clearly unfounded. The effect of certification is that the appellant is not entitled to appeal against the decision to the First-tier Tribunal from within the UK (“FTT”). The appellant sought judicial review of the Secretary of State’s decision in relation to dismissing the application on the merits and in relation to certifying it as clearly unfounded under section 94. Permission to apply for judicial review was refused on the papers by Silber J and then again at an oral hearing on 8 March 2016 by Jeremy Baker J. Lindblom LJ granted permission to appeal to this court.

The appellant was born in 1978. He is a national of Nigeria. On 19 August 2008 he arrived in the UK on a student visa with leave to enter until 21 January 2010. This was later extended to September 2010. In September 2010 he was granted leave to remain as a Tier 1 (Post Study Work) migrant until 10 September 2012.

On 8 September 2012 the appellant made an application for an extension of leave under Tier 1. By a decision dated 8 January 2013, the Secretary of State refused that application. The appellant appealed to the FTT but his appeal was dismissed on 16 April 2013. On 20 May 2013, the FTT dismissed the appellant’s application for permission to appeal.

The appellant says that about a month later, on 24 June 2013, he commenced a relationship with Susan Ndagire. Ms Ndagire is a naturalised British citizen, who originally came to the UK from Uganda.

On 2 July 2013 the Upper Tribunal granted the appellant permission to appeal in relation to the Tier 1 decision. On 23 September 2013, however, the appeal in relation to that decision was dismissed by the Upper Tribunal (at the same time, it upheld an appeal in relation to a distinct matter, regarding the making of a removal decision in respect of the appellant under section 47 of the Immigration, Asylum and Nationality Act 2006). The appellant was not granted permission to appeal. The effect of all this was that the appellant’s leave to remain expired on 5 October 2013. Since that time he has been an overstayer.

The appellant issued a claim for judicial review of the Upper Tribunal’s decision to dismiss this appeal. This seems to have been a misconceived claim, since the process to challenge that decision was by way of an appeal to this court, permission for which was refused. On about 3 December 2013 the appellant abandoned this judicial review claim and sent notice of discontinuance to the Secretary of State: see below.

Despite the imminence of the expiry of his leave to remain, the appellant applied to the University of Kingston to be enrolled on a course to study for a PhD in civil engineering with a view to making an application for leave to remain as a Tier 4 (General) Student.

At the material time the provision in the Immigration Rules applicable to, among others, persons like the appellant who had a Tier 1 (Post Study Work) visa who wished to apply for leave to remain as a Tier 4 (General) Student was paragraph 245ZX. This provided in relevant part as follows:

It is common ground that the appellant did not fall within the doctorate extension scheme. He had to be able to satisfy the requirements in both sub-paragraph (l) and sub-paragraph (m).

In conjunction with paragraph 245ZX of the Immigration Rules, the Secretary of State had issued Policy Guidance dated April 2013 in relation to Tier 4 of the Points Based System (version 04/13) (“the Guidance”). Paragraph 101 of the Guidance stated that as from 1 October 2012:

Inability to provide necessary documents.

The 28 days grace period for overstayers under sub-paragraphs (l) and (m) of paragraph 245ZX came to an end on 2 November 2013 in the appellant’s case.

In the meantime, the appellant had received the offer of a PhD course from Kingston University on 1 October 2013, to start on 9 December 2013. In order to make his application for leave to remain as a Tier 4 student, he first needed to have a Confirmation of Acceptance for Studies (“CAS”) from Kingston University; and in order to issue a CAS, the University had first to receive an Academic Technology Approval Scheme (“ATAS”) Certificate from the Foreign & Commonwealth Office. The appellant accepted the offer of a place at the University and applied for an ATAS Certificate on 3 October 2013.

The ATAS Certificate was only issued on 31 October 2013. The CAS was issued on 11 November 2013, i.e. after the 28 days grace period. It was only on 15 November 2013 that the appellant filed his Tier 4 application.

The on-line application form contained an entry item as follows:

The application form gave instructions for any supporting documents to be collated and posted to a particular address within 15 working days. It also gave instructions for contacting the UK Border Agency after the application using PO Box 179 at an address in Bootle, and stating “Please provide the following details in your letter: your full name, date of birth and nationality; the date on which your online application was submitted; the reference number of your online application; the recorded or special delivery number (if applicable) used when submitting your supporting documents.”

In the bundle of documents prepared for the appeal is an undated document which states as follows:

None of the information which the application form instructed should be included in any correspondence relating to an application sent after the application was included in this document, save that the appellant’s full name appeared as the typed signature.

Ms Nnamani, for the appellant, told us that this document was sent to the Secretary of State on 7 December 2013 in support of the appellant’s Tier 4 application, to show that there were exceptional circumstances in accordance with the Guidance why the appellant’s application should be considered even though it was made outside the 28 day grace period. There was no witness statement from the appellant to support this, nor was this set out in the statement of “Grounds in an Application for Judicial Review” which was the appellant’s pleaded case. The Secretary of State disputes that this document was sent by the appellant on 7 December 2013 and that it was submitted in support of his Tier 4 application. Mr Mitchell for the Secretary of State told us that a copy of this document was only found on the appellant’s file in relation to his later human rights application, made on 20 December 2014. Again, there is no witness statement from the Secretary of State to explain the position.

The appellant has put before the court a Post Office receipt dated 7 December 2013 for a document or documents sent to PO Box 179 at the Bootle address and a Post Office confirmation of delivery dated 13 December 2013 and Ms Nnamani invites us to find (without any witness statement in support) that these relate to the appellant’s “To whom it may concern” document. The Secretary of State disputes this (again, without any witness statement), pointing to a letter dated 3 December 2013 from the appellant to PO Box 179 in Bootle enclosing notice of discontinuance of his judicial review application, referred to above. Mr Mitchell says that the Post Office receipt and confirmation of delivery relate to these documents, not the “To whom it may concern” document.

In support of his submission that the “To whom it may concern” document was not sent to Secretary of State in December 2013 in relation to the appellant’s Tier 4 application, Mr Mitchell also points to the terms of the document itself. The UK Border Agency letter of 30 October 2013 to which it refers was a letter to the appellant’s solicitors from the Sheffield office of the Agency (PO Box 3468) in reply to the solicitors’ letter of 14 October 2013 sent to that Sheffield Office, which (without reference to the 28 day grace period and apparently in ignorance of it) had informed the Secretary of State about Kingston University’s offer of a PhD place and asked her to allow the appellant to make his application for a Tier 4 student visa “in country instead of travelling to Nigeria” to make it, and urging her “to treat this matter with utmost urgency” because the appellant had to finalise the process before 9 December 2013. The UK Border Agency letter of 30 October referred to the appellant’s failed appeal to the Upper Tribunal and also to the possibility of him making a Tier 4 (General) application, although it stated (in error) that he would have overstayed by more than 28 days on 22 October 2013 so that “an in-country application may not be the way forward.” Mr Mitchell submits that it is likely that the “To whom it may concern” document was sent, if anywhere, back to the Sheffield office as part of this run of correspondence, and not to PO Box 179 in Bootle. He also points out that if the document was sent to the Bootle address on 7 December 2013, it is very odd that it does not give a full account of the chronology in relation to the CAS, which had been received on 11 November 2013, which was information relevant to any attempt to rely on the exceptional circumstances concession in the Guidance.

Parts of this correspondence, including the “To whom it may concern” document, were not in evidence before UT Judge Chalkley: see [10]. He proceeded on the basis that the appellant had not shown that he had submitted exceptional circumstances evidence in support of his Tier 4 application: see [11]. However, when the appellant applied as a litigant in person on an oral application to Black LJ for permission to appeal he put that document before her and told her that it had been sent to the Secretary of State on 7 December 2013 in support of his Tier 4 application: see [18] in her ruling. It was on this basis that she granted permission to appeal, as founding an argument that the Secretary of State had failed properly to consider whether exceptional circumstances had been made out for the purposes of her Guidance.

The Secretary of State’s decision letter of 17 December 2013 refusing the appellant’s Tier 4 application is a very short document. It gives two reasons: (i) the application did not satisfy the requirement in sub-paragraph (l) of paragraph 245ZX, in that the PhD course was due to start on 9 December 2013, more than 28 days after his period of overstaying had commenced on 5 October 2013; and (ii) the application did not satisfy the requirement in sub-paragraph (m) either, in that the application was submitted on 15 November 2013, more than 28 days after his leave to remain expired on 5 October 2013. The Secretary of State’s acknowledgement of service drew attention to the failure to satisfy both sub-paragraphs, as did Black LJ in her ruling on permission to appeal.

On 11 March 2014 the appellant commenced a claim in judicial review to challenge this decision. This is the claim in relation to which UT Judge Chalkley refused permission to apply for judicial review, which is the first decision under appeal before us.

On 29 November 2014, the appellant married Ms Ndagire.

The second appeal before us stems from a further application made by the appellant on 20 December 2014 for leave to remain, this time on human rights grounds. He relied on the Immigration Rules in relation to family life and private life and also relied on the Secretary of State’s general discretion to grant leave outside the Rules and Article 8 of the European Convention on Human Rights (right to respect for private and family life).

Section 14 of the application form listed the documents that had to be provided with the application and stated, “If you do not provide these documents, your application may be refused”. Section 14.3 stated the documentation to be provided “If you have a partner”, and included this:

It is clear from Note 11 and the requirements in the application form that where an applicant relying on human rights grounds sought to rely on their relationship with a partner, the Secretary of State wished to see objective supporting evidence of the genuineness and substance of any such relationship. Where evidence of the kind prescribed in the application form was not available, an applicant was asked to explain why and would clearly have to provide other relevant supporting evidence. No limitation was placed on the form and quantity of such evidence.

In support of his application, the appellant attached certain items of correspondence (less than six) addressed to Ms Ndagire at her address at 37 Ivy Lane, Oxford, a letter from her NHS employer confirming her employment and address and a tenancy agreement in her sole name in respect of that address. He did not attach any items of correspondence addressed to himself at that address.

Although it is agreed that the appellant submitted a marriage certificate in support of his application, there is again considerable uncertainty regarding which other documents were submitted by the appellant in support of it. There is no witness statement from him about this, and none on the Secretary of State’s side. However, purely for the purposes of the present appeal, Mr Mitchell is prepared to accept that we should proceed on the basis that the package of materials sent by the appellant to the Secretary of State on about 20 December 2014 in support of this application included:

a letter of 20 December 2014, “To whom it may concern”, signed by the appellant, explaining that the pack of supporting materials did not include six items of correspondence for the appellant and Ms Ndagire with the same address, that his previous address was in London but “my present address is [37 Ivy Lane, Oxford]”, and stating:

a letter of 20 December 2014, “To whom it may concern”, signed by Ms Ndagire, giving no details about her relationship with the appellant but stating how difficult it would be for her to relocate to either Nigeria or Uganda and accordingly asking that leave should be granted to the appellant to stay in the UK. She stated that all her immediate family were settled in the UK;

an undated document headed “Appendix FM (EX1 Insurmountable Obstacle)” in which the appellant gave no further details of his relationship with Ms Ndagire, but explained why it would be very difficult for her to relocate to Nigeria. This stated that her mother, father and siblings were all located in the UK; and

a document dated 18 October 2014, “To whom it may concern”, not signed in manuscript (unlike item (ii) above), but only bearing the typed signature of Ms Ndagire, stating:

The Secretary of State’s decision letter in relation to this application is dated 23 October 2015. The decision was in three sections. First, the Secretary of State rejected the application based on the family life section of the Immigration Rules, on the footing that she did not accept that the appellant and Ms Ndagire had a genuine and subsisting relationship:

Secondly, the Secretary of State rejected the application based on the private life section of the Immigration Rules, on the footing that the appellant had lived in the UK for less than 20 years and there were no “very significant obstacles to [the appellant’s] integration into [Nigeria]”, where he had spent the first 30 years of his life and where he still had close family. Ms Nnamani does not raise any point on this part of the Secretary of State’s reasoning on this appeal.

Thirdly, the Secretary of State considered whether she should exercise her discretion to grant leave to remain outside the Immigration Rules on the basis of Article 8, and concluded that she should not. Since she had concluded that there was not a genuine and subsisting relationship between the appellant and Ms Ndagire, the main focus of this part of the decision was on weighing the appellant’s private life argument against the public interest in enforcement of immigration controls, with her conclusion being that it was proportionate to require him to leave. However, part of her reasoning was also addressed to weighing the appellant’s family life interest against the public interest, if he was properly to be regarded as having a family life in the UK: see para. 30 (“… You have built your family and private life in the UK fully in the knowledge that you have no valid leave to remain. You and your partner were aware of your precarious immigration status and should have anticipated interference at some stage”) and paras. 36-39 (considering whether there were legal impediments or insurmountable obstacles to the appellant and Ms Ndagire continuing their life together overseas, concluding that there were none).

Finally, the Secretary of State certified pursuant to section 94 of the 2002 Act that the appellant’s human rights claim was clearly unfounded.

The appellant commenced a judicial review claim in relation to this decision letter. Permission to apply for judicial review was refused on the papers by Silber J, who ruled amongst other things that the Secretary of State was entitled to reject the appellant’s human rights claim because he had failed to provide objective evidence that his relationship with Ms Ndagire was current, genuine and subsisting, there was no objective evidence of cohabitation or shared financial commitments with Ms Ndagire, and in any event he and Ms Ndagire entered into their relationship in full knowledge that the appellant was an overstayer and liable to be removed. The Secretary of State had been entitled to certify the claim under section 94.

The appellant asked for an oral hearing of his application for permission to apply for judicial review, which came on before Jeremy Baker J on 8 March 2016. The appellant and his lawyers did not attend the hearing, although they were clearly on notice of it: on 2 March the appellant’s solicitors had lodged a bundle with the court for the hearing. The solicitors did not reply to emails on the day asking whether they planned to attend. In my view, in these circumstances the judge was entitled not to adjourn the application but to proceed to determine it in the absence of the appellant, which he duly did.

Jeremy Baker J considered the application for permission to apply for judicial review on its merits. The judge correctly held that the application should be considered on the basis of documentation which was before the Secretary of State at the time she made her decision. He agreed with the decision of Silber J that no good arguable claim had been put forward. He also referred to section 117B(5) of the 2002 Act, which states that little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious. The decision of Jeremy Baker J is the decision which is under appeal to this court in the second appeal.

In my judgment, the first appeal should be dismissed for two reasons. First, in my view the appellant has failed to show that he put any representations before the Secretary of State to the effect that his case fell within the “exceptional circumstances” rubric in the Guidance. Therefore, there was no reason for the Secretary of State to consider any such argument in her decision. She was entitled simply to apply sub-paragraph (m) of paragraph 245ZX in the way that she did and to find that the appellant failed to meet the requirement in that sub-paragraph. He had made his Tier 4 application well after the 28 day grace period had expired after he became an overstayer on 5 June 2013.

This part of the case has proceeded in a slightly curious way in this Court. As set out above, when UT Judge Chalkley made the decision under appeal there was no evidence from the appellant that he had made any exceptional circumstances representations to the Secretary of State which she ought to have considered. In his application form he had stated that there was no evidence of exceptional circumstances. The judge’s decision on the application of sub-paragraph (m) was therefore entirely straightforward and, on the evidence before him, clearly correct.

It was only at the hearing before Black LJ on his application for permission to appeal that the appellant introduced evidence to suggest that in fact exceptional circumstances representations may have been made to the Secretary of State in support of his application. On a strict approach, he should have made an application to adduce this as fresh evidence on the appeal and, if he had made such an application, it is very likely it would have been refused on application of the overriding objective in CPR Part 1 and the guidance in Ladd v Marshall[1954] 1 WLR 1489, since this was material which he could with reasonable diligence have presented as part of his claim before UT Judge Chalkley.

Be that as it may, Mr Mitchell for the Secretary of State did not object to the introduction of the new evidence on the appeal. Instead, both sides addressed us on the evidence itself with a view to us making a decision - as the first court to have considered the evidence about this and the arguments - whether on the balance of probabilities the exceptional circumstances representations had been sent to the Secretary of State in support of the appellant’s Tier 4 application.

Approaching the matter in that way, I find on the balance of probabilities on the material put before us that no exceptional circumstances representations were made by the appellant to the Secretary of State in support of his Tier 4 application. In the application itself he indicated that there were none. If the “To whom it may concern” document had really been sent in support of that application, it is likely that the appellant would have taken care that it contained all the information which the application form said it should contain, in particular the date of his online application and its reference number. The omission of those details indicates that it was not sent in support of that application. The points made by Mr Mitchell about the contents of the document also point strongly towards the same conclusion: see para. [22] above. There is a ready and sufficient explanation of the Post Office receipt and confirmation of delivery put before us, namely that they related to different documents sent to the Secretary of State in December 2013.

Since, as I find, no exceptional circumstances representations were made by the appellant in support of his Tier 4 application, there was no error by the Secretary of State in failing to deal with any such representations. The position was the straightforward one addressed by UT Judge Chalkley, and his conclusion that the appellant could not satisfy the requirement in sub-paragraph (m) of paragraph 245ZX is plainly correct.

In any event, this appeal should be dismissed for a second reason. The Secretary of State was entitled to dismiss the appellant’s Tier 4 application for the distinct and sufficient reason that he could not satisfy the condition in sub-paragraph (l) of paragraph 245ZX, in that the appellant’s proposed course of study was due to start on 9 December 2013, considerably more than 28 days after he became an overstayer on 5 October 2013. This point was clearly flagged up in the decision letter, the Secretary of State’s acknowledgement of service and the ruling of Black LJ. The appellant has provided no answer to it. His judicial review claim was doomed to fail for this reason as well.

In my judgment, the second appeal should also be dismissed, both in relation to the proposed judicial review of the substantive decision made by the Secretary of State and in respect of her decision to certify the appellant’s human rights application as clearly unfounded.

As regards the substantive decision, it is notable that the appellant provided no witness statement or account giving any details about his relationship with Ms Ndagire (how and when it was formed, how it was carried on, what mutual financial arrangements they had made etc); nor did Ms Ndagire; nor did any member of Ms Ndagire’s close family provide a corroborative statement, even though they were on hand in the UK and able to do so. And this despite the fact that the appellant knew the terms of the relevant Immigration Rule which he had to satisfy in respect of his claimed family life (with its requirement to show that his relationship with Ms Ndagire was genuine and subsisting), the terms of Note 11 in the application form and the obvious need to provide evidence about the relationship to the Secretary of State.

The most that Ms Ndagire had felt able to say about their relationship was that the appellant was a co-occupier of the address at 37 Ivy Lane on 18 October 2014. The inference is that this was all that could be said in support of the contention that they had a genuine and subsisting relationship, since if she had been able to say anything more to support that contention she would obviously have done so.

In my view, in agreement with Silber J and Jeremy Baker J, on the material submitted with the appellant’s application the Secretary of State was plainly entitled to form the view that the relationship was not genuine and subsisting. Although a marriage certificate had been produced, it had every appearance of being a mere marriage of convenience, given the timing of the marriage (after the attempts by the appellant to secure an extension of his leave to remain as a Tier 1 migrant and then as a Tier 4 migrant had foundered) and given that practically nothing had been said to substantiate the contention that the relationship was genuine and subsisting.

Ms Nnamani submitted that para. 14 of the decision letter, set out above, showed that the Secretary of State had not assessed the case correctly, since she said that the appellant had failed to provide evidence that the appellant and Ms Ndagire had been co-habiting, whereas the appellant had stated that his address now was 37 Ivy Lane and Ms Ndagire’s unsigned note of 18 October 2014 stated that he was a co-occupier of that address. I do not agree. The decision letter is not to be construed like a statute. In context, and read against the background of Note 11 in the application form, the simple point which the Secretary of State was making in para. 14 was that the appellant had failed to provide persuasive or satisfactory evidence that he was in a current, long-term relationship and that he had been or was co-habiting with Ms Ndagire. This was a view which the Secretary of State was fully entitled to take.

As regards the decision to certify the appellant’s human rights application, the same points apply in relation to the family life aspect of Article 8. The appellant had failed to show that he enjoyed any real family life with Ms Ndagire. There was a hopeless dearth of supporting evidence in respect of the genuineness and substance of his relationship with Ms Ndagire, in circumstances where (if the relationship had been genuine) there should have been no difficulty in supplying full details and corroborative witness statements. In these circumstances the Secretary of State was entitled to conclude that there was no arguable case that there was any real family life between the appellant and Ms Ndagire and no real prospect that a judge in the FTT would find that there was any genuine family life with any substance on this material. Therefore, following the approach authoritatively set out in ZT (Kosovo) v Secretary of State for the Home Department[2009] UKHL 6 and numerous authorities which have applied that approach - Ms Nnamani referred us in particular to R (Meaza Asefa) v Secretary of State for the Home Department[2012] EWHC 56 (Admin) – the Secretary of State was entitled to certify the application under section 94. Silber J and Jeremy Baker J were right so to hold.

The same conclusion applies in relation to the private life aspect of the appellant’s application. He provided no evidence that he enjoyed any private life in the UK of any substance, apart from his alleged relationship with Ms Ndagire. His relationship with her had been formed at a time when his right to be in the UK was known to be precarious, so section 117B(5) applied, as Jeremy Baker J held, and little weight could be attached to it. In any event, on the evidence provided (and, tellingly, the evidence which could have been provided but was not) it was not a relationship with any genuine substance. The Secretary of State was therefore entitled to find that it was clear that it would be proportionate to remove the appellant, and to certify his application under section 94.

I would dismiss both appeals.

I agree.