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

MISS GERALDINE ANDREWS Q.C.: This is a very unfortunate case. The claimant, Mr Basharat, was a student. He seeks judicial review of decisions of the defendant dated 17 September 2009 and 23 November 2009 refusing him leave to remain in the United Kingdom as a student under Tier 4 of the points-based scheme, the November decision being a decision to refuse to exercise a discretion to grant him leave to remain outside the provisions of the Immigration Rules.

I will not rehearse the history in any great detail, but it does seem to me that there would have been substantial grounds for challenge to both those decisions on the facts of this case. For reasons that I shall go on to explain, the only reason why I am refusing this application for permission is that it appears that, through a further unfortunate turn of events, even a successful claim for judicial review would provide the Claimant with no substantial remedy. Albeit that the application for judicial review was brought out of time in relation to the 17 September decision, it would have made very little sense to determine the discretion point without determining the other point. The slippage was not that great; it was only a matter of a couple of weeks. In all the circumstances, if there was otherwise merit in the case it would have been unfair to the claimant to have refused him permission to bring his claim for judicial review on that ground alone. That is where I diverge from the judge who refused leave on paper.

I also disagree with the judge who refused leave on paper that the argument that the claimant enjoyed an in-country right of appeal in relation to the September decision was wholly without merit. It does seem to me that as a result of matters for which he was not in the least responsible, there is a viable argument that, on the proper construction of the Rules and the Guidance, he should have been given 60 days in which to make an application for a visa to be granted in relation to a new sponsor and treated as though his existing student visa had been extended until that time expired.

The history was this. The Claimant made an application in time - before the end of April 2009 when his existing student visa was due to expire in May - for Tier 4 permission. That matter was not considered by the Secretary of State until after the May deadline had passed. By the time it came to be considered, in July 2009, the sponsor - who was on the list of registered sponsors at the time when the application was made - had ceased to be on that list. That meant that the application had to be refused regardless of anything else that was in it. I note that there were said to be other problems with that application. But even if the application had otherwise been completely in order, it would have been refused on that ground alone.

Not surprisingly, the claimant did not appeal against the decision to refuse his application, because an appeal would have been doomed to failure, given that the sponsor was no longer on the register. If a student who is lawfully in the jurisdiction finds himself in the invidious situation of his right to remain in the UK to study being revoked because his sponsor is removed from the list, the relevant Home Office Guidance states that he is to be given 60 days to find a substitute sponsor.

Should the Claimant have been given 60 days to find another sponsor? The Defendant argues that he should not. By the time the application for Tier 4 permission was rejected, his visa had expired. It was submitted that the Guidance does not cover that situation. However, the application had been made before his visa expired, but the Secretary of State had not actually looked at the matter until several weeks afterwards. The effect of this is that he was to be treated, at least for the purposes of appeal against the refusal of permission, as though he still had a valid visa until such time as his rights of appeal against that decision were exhausted. That was not until 7^th August. So at all times prior to that date he was at least arguably to be treated as though he were still validly within the jurisdiction for the purposes of finding a substitute sponsor who was on the register and given the 60 days. Otherwise he would have been put at an unfair disadvantage through no fault of his own, purely as a result of the time it took the Secretary of State to deal with his application. He did not have to go back to Pakistan to make a fresh application from outside the country. Even if I am wrong about that, there is a viable argument that there was not enough time for him to go back and make such an application from Pakistan in relation to his new sponsorship college.

In any event, he did make a further application in relation to a college that was on the list of sponsors. That application was initially made before the 7 August deadline expired (and of course well within 60 days from the rejection of his first application). It was returned to him on 6 August, on the sole basis that he had not ticked a relevant box in the mandatory section of the form. There is a serious argument that that should not have happened, because all the substantive information required in the mandatory section was provided, and therefore he should not have had his application rejected on that technical ground alone. Had this not happened, his fresh application would have been made and treated as being on time, or at least it is strongly arguable that it should have been. It would also probably have been accepted, because all the relevant criteria were met. In the event, despite the fact that he ticked the box and sent his amended application back so soon as was practicable – it arrived on 10^th August - it was rejected in September 2009 on grounds that I considered specious. He was told he had no in-country right of appeal, because the application was treated as having been made on 10^th August and therefore out of time.

Subsequently, notwithstanding that all of these very mitigating circumstances were put before the Secretary of State, in a somewhat cursory determination in December 2009 it was decided not to allow him leave exceptionally outside the Immigration Rules. It seems to me that both of those decisions were susceptible of public law challenge which stood good prospects of success.

Sadly, however, there was a further twist to the tale, in that even if the Claimant had been granted a visa either under the Tier 4 regime or as a matter of discretion, in relation to college number 2 - Albion College - that college itself had its sponsorship status revoked in February 2010, whilst this application for judicial review was on foot. Therefore any visa that he would have been granted at that earlier stage would have been automatically revoked. That would have had one of two consequences. Either his permission to remain under an existing Tier 4 visa would have been curtailed to 60 days under the Guidance, within which time he would have had to find another sponsor and apply for a new visa, or his discretionary leave would have been curtailed – but in that case the 60 days’ grace may or may not have been granted to him. The Secretary of State might well have required him to go back to Pakistan and make his application in relation to a new college from there. I am not sure whether, if it was discretionary leave, the Secretary of State would have been wrong to require him to do that. In any event, he would have been entitled to go back to Pakistan and make his application from there, because the Tier 4 scheme is only really giving a concession to existing students that would take them outside the normal line of people who have to go back and apply from outside the jurisdiction.

However much sympathy one has with the predicament in which the claimant found himself - and it is to his credit that he notified the UK Border Agency that he had been given a placement at the University of Bedfordshire on a course that was due to start in June 2010 - he did not in fact make a formal application in relation to that institution within the requisite time either within the jurisdiction or out of the jurisdiction.

I regret to say, despite the valiant efforts of Mr Nasim to persuade me otherwise, that means that even if the application for judicial review succeeded and the decision of the Secretary of State of September or November 2009 were quashed by this Court, it would get the claimant absolutely nowhere. What he wants to have is permission to be able to validate his immigration status in relation to his current studies at the University of Bedfordshire. This Court, by quashing those decisions, cannot create that situation. The only thing he could have done in order to put himself in that position is to have made an appropriate application to the Secretary of State in the normal way.

Therefore - and I say this with something of a heavy heart- notwithstanding that there would have been merit, I think quite considerable merit, in his application for judicial review in other circumstances, I do not think that this is a proper case for the exercise of the court's discretion to grant permission or to extend the time for doing so in relation to the September 2009 decision, because his claim has been rendered completely academic. I say this with a heavy heart because this is a young man who has - obviously through no fault of his own - found himself in a situation that was not of his making. He has done a great deal to try to redress the situation. It is most unfortunate that he has fallen at the last hurdle. Sadly, I do not feel that I am able to assist him.

MR NASIM: We have a request. What we intend to do is to make an application to the UK Border Agency. What we were hoping for was whether a direction could be given for the transcript to be expedited. We could attach that with the application. That would cover the time period.

DEPUTY JUDGE: I do not know whether I dealt with the points in enough detail to assist you, Mr Nasim, but I am happy to make that direction.

MR NASIM: It would serve our purpose.

DEPUTY JUDGE: I will direct that the transcript be expedited. If the transcript can be sent by e.mail to me, I will correct it; otherwise it will get delayed in the post. If it can go straight through to me on e.mail, I will correct it and get it back as soon as I can.