Kaur & Anor, R (On the Application Of) v The Secretary of State for the Home Department

On 28 April 2017, Master Meacher dismissed this appeal because of the long-standing and continuing default of the Applicants in filing documents required for the appeal, notably a skeleton argument and a transcript of the judgment of Upper Tribunal Judge Coker of 30 November 2016 from which the order appealed arises. This is the review of that decision, requested by the Applicants under CPR rule 52.24(5).

The Second Applicant, who was born on 13 November 1996, is the daughter of the First Applicant (“Mrs Kaur”).

On 22 March 2013, the Applicants and another daughter of Mrs Kaur applied for entry clearance as the wife and children of a person settled in the United Kingdom, namely Balkar Singh. On 12 June 2013, that was refused by an Entry Clearance Officer (“ECO”) in New Delhi, on the basis that he was not satisfied that Mrs Kaur and Mr Singh had demonstrated a real commitment to marriage, or that they had a genuine intention of living with each other permanently as husband and wife. Mrs Kaur therefore did not satisfy the criteria for entry clearance as a partner in paragraphs E-ECP.2.8 and E-ECP.2.10 of Appendix FM of the Immigration Rules (“Appendix FM”), which was fatal to her application (paragraph EC-P.1.1(d)). The Second Applicant’s application was refused, because, without a finding that Mrs Kaur was Mr Singh’s partner, she was unable to satisfy paragraph E-ECC.1.6 of Appendix FM, which was fatal to her application (see paragraph EC-C.1.1(d)). The Applicants appealed that decision, but without success. They became appeals rights exhausted on 3 September 2014.

On 12 November 2014, the Applicants issued a further application on the same basis. That application was submitted to the British High Commission in New Delhi on line, and the relevant fee was paid. The declaration by the Applicants, made as part of the application, included the following:

To further their applications, the Applicants were required to print out their application forms and take them, with specified core supporting information to a Registration Officer at an appointed Visa Application Centre (“VAC”). The VAC’s function is merely to collect information. The Registration Officer does not himself decide any application: that is the function of an ECO, on the basis of the information as submitted by the applicant and collected at a VAC.

So far as Mrs Kaur was concerned, the core supporting documents which she was required to provide at the VAC appointment included evidence of passing an English language test. By paragraph EC-P.1.1(d) of Appendix FM, an applicant is required to satisfy all of the requirements of Section E-ECP. Paragraph E-ECP.4.1 imposes a requirement that the applicant provide “specified evidence” to satisfy one of a number of English language criteria, the relevant criterion in Mrs Kaur’s case being that she has passed an English language test in speaking and listening to a particular standard. The required “specified evidence” is set out in paragraph 27 of Appendix FM-SE to the Immigration Rules, which includes evidence that the test taken was “an English language test in speaking and listening which is approved by the Secretary of State, as specified in Appendix O”.

Biometric data (fingerprints and a photograph) were also to be collected at the VAC appointment.

The Applicants attended the appointed VAC at Jalandahar on 28 November 2014. There has been some dispute as to what happened that day; but, in their grounds in the judicial review which gave rise to this application, at paragraph 5, the Applicants’ version of events is recorded thus:

On 1 December 2014, following an enquiry by 12 Bridge of the British High Commission, the UK Visas and Immigration International Enquiry Service emailed them with what appears to be a standard response to enquiries, stating that, upon attendance at a VAC following an application made via the web, if any documents are missing, then an applicant may be given the opportunity to return with those documents “on the same day”; or, alternatively, the applicant could return with his or her full documents on another day. However, if that latter course were chosen:

That response was in accordance with the Secretary of State’s policy that, where an application is made via the web, all required core documents must be produced before or at the visa appointment. Paragraph 8 of the VAC Procedure Manual thus states that, where an applicant fails to provide all of the required documentation at a visa appointment, the Registration Officer has three options, namely (i) the applicant can return the same day with the missing documents, (ii) the applicant can choose not to submit the application and issue a fresh application, or (iii) the applicant can choose to proceed with the application despite on the basis of the incomplete documents. On the website through which the Applicants made the applications in this case, in the section on “frequently asked questions” it is made clear that, if documents are incomplete, a fresh appointment can be made – but:

Dissatisfied with the Registration Officer’s failure to process the application on 28 November 2014 and his refusal to re-fix the visa appointment for the November 2014 applications, on 12 February 2015, 12 Bridge sent the Secretary of State a pre-action protocol letter; and, on 30 July 2015, they issued an application for judicial review.

In the claim, the Applicants asserted that, at the 28 November 2014 appointment, the Registration Officer refused to accept the application on the basis the language certificate was missing, but gave an assurance that the appointment would be rescheduled. However, they said, there were no missing documents; and, despite that assurance and various requests, a further appointment had not been rescheduled. The Applicants thus relied upon two grounds. First, the Secretary of State through the Registration Officer had unlawfully refused to accept a complete application and/or prevented the Applicants from completing their biometrics and/or refused to provide them with a further appointment. Second, she had unlawfully failed to determine the 12 November 2014 applications at all.

On 12 January 2016, Upper Tribunal Judge Kebede granted permission to proceed; and the substantive judicial review came before Judge Coker on 1 November 2016.

Before Judge Coker, there was no witness statement from either Applicant as to what happened, or what was said, at the 28 November 2014 appointment. I am told by Mr Alam (and it is clear from paragraph 10 of the determination) that, at the judicial review hearing, an English language test certificate for Mrs Kaur was produced, but it was restricted to certification of the listening part of the test. There was no certificate for the speaking part. No such certificate appears ever to have been produced. On the evidence before her, the judge’s finding, at paragraph 15, that an English language certificate sufficient to comply with the Immigration Rules was not produced at the 28 November 2014 visa appointment is unimpeachable.

Judge Coker dteremined the first ground which she had to consider at the hearing on 1 November 2016. However, before she gave her reasons for that decision (on 30 November 2016), the Applicants lodged a statement of Mrs Kaur dated 14 November 2016, in which she stated that, at the 28 November 2014 appointment at the VAC, she was informed (presumably by the Registration Officer) that “documents to show the relevant English language requirements was not present. All the documents were however present…” (paragraph 7). That was the prime ground of challenge: the Registration Officer acted unlawfully by failing to process a complete application. However, the only certificate produced at the hearing was, as I have described, incomplete and failed to comply with the requirements of the Rules.

Having already made her ruling, Judge Coker did not take this late evidence from Mrs Kaur into account. Given that this evidence could have been obtained earlier, it is debateable whether it would be admitted on an appeal; but, in any event, I am quite sure the assertion in Mrs Kaur’s statement that the fully compliant English language certificate was produced at the appointment on 28 November 2014 does nothing to undermine Judge Coker’s finding of fact that it was not. I emphasise that, even now, no certificate in relation to speaking has been produced.

Further, the judge said that there was “simply inadequate evidence to support the contention that the Applicants… were erroneously told that they would be provided with another appointment” (paragraph 15). Given the issues in the claim, that was clearly a conclusion that, on the evidence before her on 1 November 2014, she was unpersuaded that the Applicants were told on 28 November 2014 that they would be provided another visa appointment without making another application. She thus proceeded on the factual basis that they were not told that. That too was a conclusion to which, on the evidence, she was entitled to come. Mr Alam again relied Mrs Kaur’s statement of 14 November 2016. Once more, this evidence could have been obtained earlier; but, in any event, I am again unpersuaded that that evidence is material, in the sense that, had the judge considered it, it would have made any difference to her decision. Mrs Kaur’s evidence is merely to the effect that the Registration Officer told her that the application could not be progressed that day, because the language certificate as incomplete:

Otherwise, Mrs Kaur’s statement confirmed that, as a result of the failure to produce complete English language certification, no attempt was made to take the required biometric data from either her or her daughter.

Generally, Judge Coker found that the factual assertions relied upon by the Applicants were not supported by any evidence (see paragraph 10 of her determination of 30 November 2016). She found that there was simply inadequate evidence to support the contention that the Applicants attended the VAC and were either prevented from submitting documents or were erroneously told that there were missing documents and/or they would be given a new appointment under the existing application. The burden of proof being on the Applicants, she dismissed the judicial review on that first ground on 1 November 2016.

She adjourned the hearing of the second ground to 30 November 2016. As I have indicated, at this second hearing, the judge refused to reconsider her decision in relation to ground 1 on the basis of the new evidence from Mrs Kaur. She considered and refused the second ground, on the basis that the Applicants had failed to provide at least one of the language certificates; and had also failed to engage with the visa application process, in that they had failed to provide biometric data. The applications thus failed to satisfy the Immigration Rules (paragraphs 32-33).

That day (30 November 2016), Judge Coker gave an ex tempore judgment setting out her reasons for refusing the judicial review on both grounds. It also gave short shrift to the article 8 argument raised, which is no longer pursued. The judge refused permission to appeal.

On 5 January 2017, 12 Bridge on behalf of the Applicants lodged an appellants’ notice together with a bundle of documents. By CPR rule 52.2 and paragraph 3(3)(h) of CPR PD 52C, an approved transcript of the judgment from the court or tribunal below from which the challenged order derives must be filed with the appellant’s notice. Usually, this court will not be able to consider the merits of an appeal without such a transcript. By CPR rule 52.2 and paragraphs 14 and 27 CPR PD 52C PD, within 14 days of filing an appellant’s notice, an appellant must file a core bundle containing documents as listed in the relevant core bundle index (paragraph 27(1) of CPR PD52D). The core index for appeals from judicial reviews by the Upper Tribunal (Immigration and Asylum Chamber) includes (i) “skeleton argument” (item 2) and (ii) “where the order was made at or following a hearing, Upper Tribunal judgment (either as a transcript or as sent out to the parties)” (item 5).

In this case, the Applicants did not file a transcript of Judge Coker’s judgment with the appellant’s notice; nor did their core bundle contain either transcript or skeleton.

The Civil Appeals Office wrote to the Applicants’ solicitors notifying them of the defects in the core bundle, and requiring the missing documents to be filed by 10 February 2017. Neither document was filed by that date, nor, prior to that date, did 12 Bridge contact the court with an explanation as to any difficulties. However, on 14 February 2017, 12 Bridge emailed the Civil Appeals Office saying that they still awaited a transcript, and requesting an extension of time for filing a compliant bundle. That email was apparently received by the office, but, it seems, not referred to a court officer for consideration of an extension.

The matter was placed in the dismissal list, and 12 Bridge were sent notification that the claim would be dismissed with costs if the defects in the bundle were not rectified, or good reason given for the continuing failure was given, by 7 April 2017. 12 Bridge have recently indicated that that notification was not received; but, in any event, neither was forthcoming and no further request for an extension was sent. On 28 April 2017, Master Meacher dismissed the claim with costs. She appears to have had all relevant documents before her, except the 14 February 2017 email.

On 8 May 2017, 12 Bridge sought a review of that decision. On 23 May, 12 Bridge sent the Civil Appeals Office an electronic transcript of Judge Coker’s judgment of 30 November 2016, with a covering email indicating that they had been in difficulties in obtaining the transcript, which was not received until 17 May 2017; but with no indication as to what those difficulties might have been, or any steps they took to overcome them. They said that the transcript had now been received and filed, and the only outstanding document was the skeleton argument. They had instructed Council to prepare this. They asked for a further two weeks to put their house in order.

In support of their review application, on 30 May 2017, 12 Bridge filed a letter in substance repeating their letter of 23 May; but still giving no indication as to what their difficulties in obtaining the transcript had been, or any steps they took to overcome them. The letter did not refer to their email of 14 February 2017; nor to the fact that they had not received the 7 April 2017 notification of the dismissal hearing from the court. 12 Bridge repeated their request for further time to file the skeleton argument.

On 12 June 2017, I directed that the review application be adjourned into court, to give the Applicants and their legal representatives an opportunity to explain their defaults, none of which had been explained to that date. I made the hearing “rolled-up”, to the extent that I directed that, if I were minded to restore the appeal, I would be minded to deal with the application for permission to appeal. The application was set down for hearing on Monday 19 June 2017.

On the afternoon of Friday 16 June, the Civil Appeals Office received a letter from 12 Bridge, setting out a chronology of their request for a transcript, and their attempts to chase the transcribers. This shows that a transcription request was made on 6 January 2017 (i.e. the day after the appellant’s notice was lodged), and 12 Bridge responded to each request from the transcribers for further information promptly, often within 24 hours. The longest delay was between receiving the transcript from the transcribers (17 May 2017), and forwarding it to the court (23 May 2017); but, looked at in the round, the chronology suggests that neither the Applicants nor their legal representatives were responsible for any substantial delay in respect of lodging the transcript.

In respect of the skeleton argument, despite 12 Bridge’s letter of 23 May 2017, Mr Alam said that he had been instructed to prepare the document in the week commencing 12 June 2017 – there is no explanation for the three-week delay in instructing him, after the transcript had been received – and he sent in the skeleton electronically, somewhat optimistically, on Sunday 18 June 2017. It was therefore deemed lodged on Monday 19 June, the day of the hearing before me. I saw it for the first time at the hearing. It was formally lodged on the afternoon of 19 June 2017, after the hearing.

That is the background to the application to review Master Meacher’s dismissal of the claim.

Mr Alam accepted that this application is in substance an application for relief from sanction; and, in my view, he was right to do so. Given the background – the failure of the Applicants to lodge required documents timeously, compounded by their failure to keep the court properly informed of their difficulties in obtaining a transcript – in my judgment, the Master’s decision to dismiss the claim was justified. On this review, I must consider whether, as matters now stand, that dismissal should be maintained.

It is now well-established that the guidance of this court on relief from sanction cases in Mitchell v News Group Newspapers Limited[2013] EWCA Civ 1537; [2014] 1 WLR 795 and Denton v TH White Limited[2014] EWCA Civ 906; [2014] 1 WLR 3926 informs the court’s approach to compliance of parties generally, including its approach to application to set aside default judgments (see Regione Piedmonte v Dexia Crediop SpA[2014] EWCA Civ 1298 and Singh v Thoree [2015] EWHC 1305) and to out-of-time applications for extensions of time (R (Hysaj) v Secretary of State for the Home Department[2014] EWCA Civ 1633; [2015] 1 WLR 2472). The court must therefore first identify and assess the seriousness and significance of the relevant failure to comply with any rule, practice direction or court order. If the breach is neither serious or significant, then the court will likely grant relief. If it is serious or significant, then the court will consider why the default occurred. Finally, the court will evaluate all the circumstances of the case, so as to enable it to deal justly with the application. Although it may be insufficient for the applicant to show that he has an arguable substantive case, it is unlikely that an applicant will succeed is he fails to show that he has real prospects of succeeding with his claim or defence, as the case may be, or that there is some other good reason why the judgment should be set aside. These principles equally inform the exercise of the court’s jurisdiction of its own motion to dismiss a claim or appeal for a party’s procedural default.

Of course, there may be good reason why a party cannot comply with a rule, practice direction or specific order of the court. This court, including the Civil Appeals Office, is sensitive to the problems that parties may have obtaining transcripts of judgments for the purposes of an appeal. Even where they apply for a transcript promptly, it is unfortunately the case that an approved transcript is often not provided in time to file with the appellant’s notice, or even until well after the 14-day period for filing it as part of the appeal core bundle has passed. Unhappily, several months can elapse from request to provision of the transcript. To avoid unnecessary duplication of work, preparation of the skeleton argument sensibly may have to await the transcript.

Even where delay results from matters outside the control of the parties, it may result in a breach of the rules which require lodging of documents within a particular time scale. Breach can, of course, be avoided by an in-time application or request for an extension of time (Hallam Estates v Baker[2014] EWCA Civ 661). Paragraph 2.7 of CPR PD 23A, which applies to formal applications made under CPR Part 23, provides that:

Therefore, when delays in obtaining a transcript or other document occur, the party with the obligation to file it is under an obligation to keep the Civil Appeals Office informed, and make a request for an extension of time as and when required. Such requests should be made prior to time expiring. Where a transcript is long-delayed, that may require a series of requests. A request for an extension can be made without a formal application, or payment of a fee; but each request should be accompanied by information as to the date on which the transcript was ordered and paid for, and an update from the transcriber as to its progress. It may be difficult to indicate with precision when the transcript will be available, but an estimate should be provided, reflected in the length of the extension sought. The request should also seek an extension for the filing of any consequential documents, such as a skeleton argument.

With that information, a judge or appropriate court officer will be able to take an informed decision as to an appropriate extension of time. Where a party has taken reasonable steps to obtain a transcript, any request for further time is likely to be granted as a matter of course; but, where such steps are not taken and/or the court is not kept informed of the position, a party in default should expect the appeal to be dismissed, in accordance with the principles set out in Denton. Where an appeal is dismissed by a court officer, a party who decides, belatedly, to comply with his obligations and give further information and/or apology to the court should expect little sympathy on any review.

In this case, 12 Bridge frankly accept that, even with the email of 14 February 2017, they failed to keep the court properly informed of their difficulties in obtaining the transcript and skeleton. As I have already indicated, on the material before her, Master Meacher was justified in dismissing this claim on the basis of the Applicant’s failure to comply with the requirements of the CPR so far as lodging papers was concerned. Mr Alam accepted that, even taking into account the 14 February 2017 email, dismissal would have been justified. I agree.

In considering whether the dismissal should be upheld, on a relief from sanction basis, Mr Alam accepts that the breach of the CPR was “serious” as that term is used in the Denton line of cases. Again, I agree. The combination of the length of time by which the relevant rule for lodging the relevant documents was exceeded, and the failure of the Applicants to make an appropriate request for an extension of time, make it such.

In relation to the second stage, I accept that there was a good reason for the delay, or most it, namely the time which it took for the transcriber to produce the transcript of the judgment below. That is an important factor to take forward into the third stage, namely the evaluation of all the circumstances of the case, so as to enable the court to deal justly with the application. Of these factors, the failure of the Applicants to seek extensions and keep the court appraised of the problems they encountered is clearly important.

In this case, the merits of the Applicants’ claim are also vital.

In respect of the merits of his first ground, in Mr Alam’s skeleton argument, he did not seek to pursue the ground that Judge Coker erred in finding that the documents produced at the 28 November 2014 visa appointment were incomplete. This was faintly revived in his oral submissions before me; but the argument has no force. For the reasons I have given (paragraphs 14-15 above), on the evidence, the judge was certainly entitled, if not bound, to make that factual finding. Nor was the judge satisfied on the evidence that the Applicants were erroneously told that they would be provided another visa appointment without making another application. Again for the reasons I have given (paragraph 16 above), that too was a conclusion to which, on the evidence, she was entitled to come. For those reasons, I do not find any strand of the first ground arguable.

As his second ground, Mr Alam submits that, even if the information provided on 28 November 2014 was incomplete, the November 2014 applications were never invalidated, so they are still alive; and the Applicants have the right to have them determined. They have never been determined; and it is inadequate for the Secretary of State to say that they “lapsed” after three months and seven days from issue. It was faintly argued under this head that procedural fairness demanded that the Secretary of State give the Applicants a further opportunity to provide the missing documents; but the main argument under this ground was simply that the Applicants “legitimately expected” their applications to be considered on the documents presented, such as they were. If it had been determined on those documents, and rejected, then the Applicants would have had a route of appeal. Because no decision was made – and the applications were just allowed to “lapse”, undetermined – they have been robbed of the opportunity to appeal. Mr Alam prays in aid paragraph S-EC.1.1 of Appendix FM, which provides that an applicant will be refused entry clearance on grounds of suitability if paragraph S-EC.1.6 applies, namely that the applicant has failed without reasonable excuse to provide information.

By paragraph S-EC.1.1, an application will be refused entry clearance on grounds of suitability if any subparagraph of paragraph S-EC.1.6 applies. Paragraph S-EC.1.6(b) is where the applicant has failed without reasonable excuse to comply with a requirement to provide information, including providing such information by a particular time. In this case, Mrs Kaur was aware that she had to provide an English language certificate compliant with the Immigration Rules at the 28 November 2014 meeting. On the judge’s findings of fact, she failed to do so. The policy of not allowing a further opportunity to provide supporting documents, without recommencing the application, is not arguably unlawful. The Secretary of State was not arguably obliged to grant Mrs Kaur such a further opportunity.

With regard to the main subground, as I understand it, although there is a requirement that required information be provided on or before the date of the visa appointment, where an applicant does not provide it in time, the ECO does not simply proceed to refuse the application on the basis that the information cannot be supplemented further, and that provided does not satisfy the Immigration Rules. By keeping the application alive, it gives the applicant an opportunity formally to withdraw the claim and reclaim the fee (see paragraph 4 above). This seems to be one reason why the Registration Officer does not proceed to obtain biometric data or otherwise process the claim – because, once those data are obtained, or the application otherwise processed, the right to recover the fee goes (ibid).

In her determination, in refusing the claim on this second ground, Judge Coker gave a lengthy analysis, finding that the Secretary of State had no obligation to determine the application, because the Applicants never completed it. For example, Mrs Kaur never produced sufficient evidence to satisfy the English language requirement.

However, I can deal with the ground of appeal shortly. Even if the Secretary of State was obliged formally to determine the application, the Applicants did not suffer any possible prejudice by her not doing so. Because Mrs Kaur’s application was not supported by the mandated English language test evidence as required by Appendix FM-SE, any formal determination could only have been by way of refusal: her application failed to comply with the mandatory requirement of paragraph E-ECP.4.1 (see paragraph 6 above). Any decision on the Second Applicant’s application would likewise have been refused: it was dependent upon the claim of her mother. Although formal determinations might, theoretically, have given rise to a right to appeal, any appeal would have been unarguable, for the same reasons.

The second ground is thus, at best, entirely empty.

For those reasons, I do not consider that any part of the grounds advanced is arguable, nor do I consider there is any other reason why the full court should consider them. In all the circumstances, there would be no purpose in reversing the Master’s decision to dismiss the appeal, because the appeal would not survive the application for permission in any event. Therefore, to interfere with her decision would be inappropriate, even if I were otherwise minded to do so.

This application is consequently refused.